State by Public Prosecutor vs Jagadesh Chandran

Somasundaram, J.—This is an appeal by the State and it is against the acquittal of the Respondent for certain offences under the Public

Health Act. P.W. 1, the Sanitary Inspector attached to the Madurai Municipality, inspected door No. 13 situate in Srinivasa Perumal Street,

Madurai on 30th July 1968. There are about hundred houses in that place with about 500 persons occupying these houses as tenants. There were

only eight seats of flush out latrines for the use of those persons. This was not adequate and sufficient. The accused is the owner of these buildings.

Ex. P. 1 notice was served on his agent, on 14th August 1968, calling upon him to provide for more flush out seats and six bath rooms, with an

overhead tank for storing water by pumping through motor. He was given 30 days time for carrying out these items. By Ex. P. 7 23rd August,

1968, the Respondent applied for extension of time by one month for doing such things as may be necessary in consultation with his buildings

Engineers. Time was extended till 12th October, 1968 as per Ex.P.2. P. W. 1 again inspected the premises on 30th October 1968 and found that

the directions given were not complied with. He reported the matter to the Health Officer and the latter ordered prosecution. The Sanitary

Inspector as P.W. 1 deposed to the above facts. When questioned in court, the Respondent stated that the building in question did not belong to

him. He stated that it belonged to the Rasayana Salai. He denied all knowledge about the sanitary arrangements, the notice, etc, adverted to

above. He did not examine any witness on his side. The learned Magistrate acquitted him on the ground that there was no proper complaint before

him inasmuch as the authorisation, Ex. P. 5 in favour of P. W. 2 is not by his name as it should be. The correctness of this acquittal is now

canvassed in this appeal.

Section 138 of the Public Health Act states that no person shall be tried for any offence against the provisions of the Act or of any rule or by law

made under it, unless a complaint is given within three months of the commission of the offence by the police or the executive authority or the

Health Officer or by a person expressly authorised in this behalf by the local authority, the executive authority or the health officer. The Health

Officer of the Madurai Municipality has, as per Ex. P. 5 proceedings and in exercise of the powers conferred u/s 138, delegated his functions and

duties to the Prosecuting Sanitary Inspector and expressly authorised him to file complaints for offences against the provisions of the Act in the

criminal courts and to conduct prosecutions thereof. Thus, by Ex. P. 3, the Prosecuting Sanitary Inspector of the Municipality is authorised by the

Health Officer to file and prosecute the complaints in court. The contention of the Respondent is that this authorisation should be by name. The

learned Magistrate has upheld this contention relying on the decision of the Lahore High Court in Sharfu Bhulla v. Emperor A. I. R. 1933 Lah. 597

(1), where it was held that the authorisation for filing a complaint should be in writing and by name and not by office. The statute, viz, Section 138

does not in terms prescribe that the complainant shall be named in the ''written consent'', i.e., in the authorisation. Therefore the only question is as

to whether such a limitation or condition could be gathered as a necessary intendment of the provision. Undoubtedly, the object of this section is to

a void indiscriminate prosecution without scrutiny, in each case, of particular facts and circumstances justifying penal action under the Act.

Therefore, the section requires certain conditions to be complied with before the court can take cognisance of a delegation under the Act. The

intention appears to be to provide for a delegation by the local authority of its power to institute prosecutions under the Act. Thus if the authority

that institutes a prosecution is either the police or the executive authority or the Health Officer, no written consent or authorisation is required. But,

such a consent is necessary where any other person is expressly authorised in this behalf by any of the aforesaid authorities. From the use of the

words ''in this behalf in the section, it is argued that if the person instituting the prosecution is one authorised by the State Government or a local

authority, the authorisation should be specific in relation to a particular case and not in general terms applicable to all prosecutions as and when

they may arise. The words ''in this behalf means no more than the authority vested in the State Government or a local authority for the purpose of

enabling the person to institute a prosecution. The intention appears to be to provide for a delegation by the State Government or a local authority,

of its power to institute prosecution under the Act.

S. 20 of the Prevention of Food Adulteration Act (Act XXXVII of 1954) is as below;

(1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of the State Government or a local

authority or a person authorised in this behalf by the State Government or a local authority;

Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in S. 12 if he produces in court a copy of the

report of the public analyst along with(? sic) the complaint.

(2) No court inferior to that of a Presidency

Magistrate or a Magistrate of the first class shall try any offence under this Act.

Their Lordships of the Supreme Court in State of Bombay v. Puurshotham Kaniah Lal (1960) M.W.N. Cri. 264 pointed out�

Where prosecutions are filed on the basis of written consents granted by the competent person or authority, the specification of the name of the

complainant is not a statutory requirement�the concept being to a specified prosecution.

There is nothing in S. 138 to indicate that the authorisation contemplated therein cannot be in the shape of a general delegation. There can be a

general authorisation to institute prosecutions for offences under the Act. What the section enables is a general delegation for launching

prosecutions for offences under this Act. The words ''authorised in this behalf� appearing in the section would mean ''authorised to institute or

give consent to any prosecution for an offence under the Act''. In other words ''to exercise the power conferred on the police, the executive

authority or the Health Officer. This cannot be restricted in its scope, by relating the same to the words ''an offence'' appearing in the beginning of

the section and saying that the authorisation must be in respect of each offence, for if that were what the clause meant, then it might as well not have

been indicated at all, and the special provision for authorisation contained in the section would become quite meaningless. It is obvious that the very

object of this provision is to enable the executive authority or the Health Officer to appoint some other person to exercise on their behalf the

discretion vested in them for launching prosecutions. This was also the construction placed by a Full Bench of the Allahabad High Court in Powell

v. Municipal Board, Mussorie 22 All. 123. on a similar language contained in S. 69 of the North Western Province and Oudh Municipalities Act,

which provided that ""A court should not take cognisance of an offence punishable under this Act or the rules made under this Act, except on the

complaint of the Municipal Board or some person authorised by the Board in this behalf."" It was held that the section conferred upon the Municipal

Board the power to delegate generally the authority to make a complaint in respect of municipal offences and that this general delegation included

the exercise of discretion as to whether in any given case the complaint should or should not be made. See also the Municipal Health Officer,

Kozhikode v. The Arthala Tea Estate, Co., (1).Therefore, the authorisation in this case is valid and the acquittal on that ground is not sustainable.

P. W. 1 has sworn that the Respondent is the owner of the building. Ex. P. 1 is the notice issued. This has been served on his agent. The

accused in his statement does not say as to who the owner of the building is. Ex. P, 7 dated 23rd August 1968 is the letter written by the

Respondent to the Health Officer, Madurai Municipality in reply to the notice received by him for the construction of the flush out latrines (extra

seats) etc. He has not stated therein that he is not the owner of this building ,nor he said anything about its ownership. On the contrary, he said that

they would consult their Building Engineers and then decide about the suggested construction. Finally he has prayed for a month''s time for taking

further action. P.W.1''s evidence that he is the owner remains uncontroverted.

The appeal is allowed and the Respondent is convicted under Sections 28 and 39(1) read with S. 134(1) of the Madras Public Health Act and

sentenced to pay a fine of Rs. 10 under each head, in default to suffer simple imprisonment for ten days each. Time for payment of fine two weeks.