Chairman, Suri Municipality vs Hiran Kumar Sen Gupta

Debabrata Mookerjee, J.—This Rule was issued at the instance of the Chairman, Suri Municipality, upon the opposite parties Hiran Kumar Sen Gupta and Dinesh Chandra Das calling upon them to show cause why the order of Shri S.D. Sett, Magistrate, 1st Class, Suri, dated October 12, 1953, whereby they were acquitted should not be set aside and why such other or further orders should not be made as to this Court might seem fit and proper.

Mr. Lala appearing on behalf of the Municipality intimates that it has not been possible, despite the best of efforts, to serve the opposite party No. 1 with notice of the Rule. In the absence of such notice the order of acquittal made by the learned Magistrate in his favour cannot possibly be interfered with. Mr. Lala says that he has instructions, in the circumstances, not to press the Rule so far as opposite party No. 1 is concerned. The result is that this order affects only opposite party No. 2 who has appeared to answer the Rule.

The Sanitary Inspector of Suri Municipality visited the Jubilee market maintained by the Municipality of Suri on June 19, 1953, at about 9 a.m. During the visit the Inspector found that about 25 seers of unwholesome fish, totally unfit for human consumption, were exposed for sale by opposite parties Nos. 1 and 2. The Sanitary Inspector required the opposite parties to destroy the fish but the latter having refused to do so, the fish were seized in three baskets and taken to the Sub-divisional Officer of Suri for examination. On inspection, the fish appeared to be unwholesome to the Subdivisional Officer who, accordingly, ordered their destruction. Thereafter, the Sanitary Inspector made a report to the Chairman setting out the circumstances in which the fish in question were seized and asking for appropriate action to be taken against the opposite parties. The report was made on the very same day, i.e., June 19, 1952.

This report has been produced and proved in the trial and marked Ex. 1 in the case.

The report having been addressed to the Chairman of the Municipality, it came to be dealt with by the Vice-Chairman who made the following order upon it, "Forwarded to the "S.D.O. for kindly taking action u/s 421 of the "Bengal Municipal Act, 1932". This order was made on June 25, 1953, whereafter a complaint was made which resulted in the issue of process against the opposite parties who were ultimately put on trial u/s 421/533 of the Bengal Municipal Act.

It appears that the learned Magistrate went into evidence which was recorded at some length. Several witnesses were examined on behalf of the Municipality and at the close of the proceedings the learned Magistrate made an order whereby he acquitted the opposite parties on October 12, 1953, without reference to the merits of the case, upon the preliminary ground that there was no proper sanction in the case. In this view of the matter, the order of acquittal was passed which is now being challenged before me.

Mr. Lala appearing on behalf of the Municipality has contended that the learned Magistrate completely misdirected himself in regard to the legal position by holding that there was no sanction in the case. Section 533 provides that no prosecution for an offence under the Bengal Municipal Act can be instituted without the order or consent of the Commissioners. It is, therefore, necessary to see whether the order or consent of the Commissioners could he said to have been obtained in the present cast before proceedings against the opposite parties were instituted. Section 51 of the Act provides that the Chairman shall, for the transaction of business connected with the Act, exercise all the powers vested by the Act in the Commissioners and that the Chairman may transact any business or make any order authorised by law in the exercise of that power, unless it is otherwise expressly provided in that law. The section proceeds to make it clear that the Chairman shall not of course act in opposition to, or in contravention of, any order of the Commissioners at a meeting or exercise any power which is directed to be exercised by the Commissioners at a meeting. Section 52 of the Act deals with the question of delegation of powers to the Vice-Chairman and other Officers of the Municipality. That section provides that the Commissioners at a meeting or the Chairman may delegate to the Vice-Chairman or to the holder of any office all or any of the duties or powers of the Chairman as defined in the Act. There is a proviso attached to the section which says that nothing done by the Vice-Chairman, which might have been done under delegated authority, shall be invalid for want of or defect in such delegation, if it is done with the implied or express consent of the Chairman and subsequently approved by the Commissioners at a meeting.

Mr. Lala contends that there is nothing on the record to suggest that the Vice-Chairman had not had the necessary powers delegated to him in the exercise of which he sanctioned the prosecution. Section 51, which has already been referred to, gives power to the Chairman to transact all business connected with the Act and Section 52 provides for delegation of authority by the Chairman in favour of the Vice-Chairman under certain conditions. Mr. Lala argues that there is not only nothing on the record to suggest that the Vice-Chairman had no proper authority to sanction the prosecution but there is, on the other hand, a presumption which could, in law, be availed of, viz., that it being an official act, it is to be presumed that it was done properly in the due discharge of the Vice-Chairman''s delegated duties. In this view, Mr. Lala contends, the order of the learned Magistrate whereby he directed the acquittal of the opposite parties upon the sole ground that there was no proper sanction cannot possibly be sustained.

Mr. Sarkar appearing on behalf of the opposite party No. 2 has contended that the Magistrate''s order is substantially correct and there is nothing on the record to show that the Chairman had delegated necessary powers to the Vice-Chairman in the exercise of which the latter could have sanctioned the prosecution. I am afraid this contention cannot be allowed to prevail. It is not that the case was dealt with and disposed of without any evidence being recorded; on the contrary, the case appears to have been fought out and evidence was adduced by the Municipality in support of the case which they made. The Sanitary Inspector and others were examined as witnesses in the proceedings and there is nothing on the record to indicate that the question of the Vice-Chairman''s want of authority was even remotely raised or suggested. If that is the position, then certainly the presumption of official acts being duly done does arise and it cannot but be held that when the Vice-Chairman exercised his authority in sending the matter to the S.D.O. for taking appropriate action against the opposite parties, he did so in the exercise of his powers duly delegated to him.

Mr. Sarkar has next argued that the complaint Ex. 1 does not show that the sanctioning authority had applied its mind to the facts of the case and certain decisions relevant to the point were placed before me. I have not the slightest hesitation in endorsing Mr. Sarkar''s proposition that, before a sanctioning authority could recommend prosecution or consent to it, the facts constituting the alleged offence must be present to the mind of that authority. That is a well-established proposition and needs no further canvassing. Turning to Ex. 1 for a moment, it is quite clear that all the necessary facts were embodied in it and the Sanitary Inspector asked the Chairman on the basis of those facts to prosecute the opposite parties. As I have already indicated this report of the Sanitary Inspector came to be dealt with by the Vice-Chairman who must have applied his mind to the facts appearing in the report itself and who made an endorsement upon it to the effect that the S.D.O., Sadar, might be pleased to take action u/s 421 of the Bengal Municipal Act. It is quite clear that all the relevant facts were mentioned in the report and the Vice-Chairman had all these facts present to his mind when he sent the matter on to the S.D.O. for appropriate action.

Mr. Sarkar argued in passing that the endorsement of the Vice-Chairman did not amount to sanction. I am afraid this contention cannot prevail either. It is true that the word "sanction" does not appear in the endorsement; but the endorsement taken as a whole cannot possibly lead to an inference other than that the Vice-Chairman agreed or consented to the prosecution and sanctioned it by virtue of delegated authority. The omission to use the word "sanction" might have been a technical informality of which the Vice-Chairman was guilty but then in substance it fully secures the completest compliance with the requirements of the law. I, therefore, do not think that there is any merit in this contention either.

Mr. Sarkar faintly suggested that in Ex. 1 the seal of the Municipality does not appear. I am not aware of any section of the Bengal Municipal Act which compels a local authority to put its seal upon every conceivable occasion on all papers of the Municipality. Any way, this point was not adhered to in view of the fact that Mr. Sarkar himself stated that there was no express provision in the Act itself which required fixing by the Municipality of seals upon official papers or documents like Ex. 1.

In these circumstances, the learned Magistrate appears to me to be clearly wrong in thinking that there was no substantial compliance with the law in the present case by reason of the Vice-Chairman having merely made the endorsement in question. There has been, I think, substantial compliance with the requirements of law, although it might have been better if the word "consent" had been used. Nevertheless the endorsement along with the document upon which it appears cannot possibly leave any body in doubt what was being intended to be done and what in fact was done.

Mr. Sarkar reminded me that, this being an order of acquittal, this Court should not interfere with that order unless there were certain special reasons for such interference. I have no quarrel with Mr. Sarkar''s proposition that this Court should not, in the absence of such reasons, interfere with orders of acquittal. In this case, I think a special reason is present. It is a matter which affects gravely public health and the usual argument that an order of acquittal must not be lightly interfered with cannot possibly be availed of in a case of this kind, which raises a matter of public importance. Prosecutions such as these instituted by public bodies require to be looked into with care even where orders of acquittal have been passed. It cannot be a part of private vendetta when an application by a local authority is made challenging an order of acquittal. If the order of acquittal had been passed upon merits of the case, surely I for one would not have been thought of interfering with that order. But here, although evidence was gone into, the learned Magistrate thought it right to dispose of the case upon a preliminary ground without even adverting to what that evidence was. It is of course true, that if what the learned Magistrate thought about the legality of the institution of the proceedings was correct, then he was bound to make the order he did. But then, as I have indicated, the learned Magistrate does not appear to be right in having held that the initiation of the proceedings did not conform to the procedure prescribed by law in that behalf under the Bengal Municipal Act.

The result, therefore, is that this Rule is made absolute as respects opposite party No. 2 Dinesh Chandra Das. The order of the learned Magistrate in so far as it affects him is set aside and he will be retried before another learned Magistrate to be selected by the Subdivisional Magistrate of Suri.

Let the records be returned as early as possible.