Queen-Empress vs Yusuf Khan

Straight, J.—Assuming the rule, in advertence to which the conviction of the petitioner was had, to have been legally made u/s 12 of Act VI of 1868, which is far from clear, and that it was saved by Act XV of 1873; it would, as declared in Section 71 of Act XV of 1883, continue in force until repealed by new rules made under such last-mentioned Act, and be deemed to have been made under that Act. Its operation was therefore, in my opinion, subject to the provisions of Act XV of 1883; and among them, to that contained in Section 69, which made it a condition precedent to the institution of a prosecution against the petitioner, that there should be a complaint of the Municipal Board or of some person authorized by the Board in that behalf. It is not pretended or suggested that the Magistrate of the District acted other than entirely of his own motion and authority in causing proceedings to be taken against the petitioner, which he had no right to do; and, for aught that appears to the contrary, every other member of the Board never so much as heard that a prosecution was to be instituted. The words of Section 69 are mandatory, and as the petitioner from the outset urged this objection to the legality of the proceedings, I think he is entitled to the benefit of it now. The, position of the Magistrate of the District in connection with the terms of Section 69 was neither better nor worse than that of any other member of the Board, and unless he had been duly authorized by the Board as a Board, he had no more "locus standi" to cause a prosecution to be instituted personally than any other individual member. The Judge''s remarks on this point are quite erroneous and very misleading. It is as well that Municipal Boards and the Magistrates should see that before prosecutions are instituted under the Municipal rules, care is taken that the requirements of Section 69 are satisfied. Those rules encroach on the ordinary rights of the public, and where their enforcement is directed by the statute to be attended by a certain safe-guard, that safe-guard must be respected and observed.

The conviction of the petitioner is quashed, and the fine will be refunded.