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Judgment
Kuppuswami Ayyar, J.—The petitioner has been convicted of an offence punishable u/s 207 read with Schedule 8 and Section 171, Local
Boards Act, and sentenced to pay a fine of Rs. 51 by the Joint Magistrate of Madanapalle. On appeal the learned Sessions Judge of Chittoor
confirmed the conviction and sentence. The prosecution case was that the petitioner was having a private market within the limits of the Panchayat
Board of Punganur without having a license as required by Section 171, Local Boards Act. That petitioner did not take out a license is admitted.
But what is stated for him is that he has been having this private market for a number of years without taking out a license and that he has been
having it from 1880 and consequently he was not bound to take out a license. It is further stated that he was in possession of this market only as
receiver appointed in the suit by the civil Court and consequently the prosecution is invalid without the sanction of the Court which has appointed
him receiver. Section 171 of the Act runs thus:
No person shall open a slew private market or continue to keep open a private market unless he obtains from the panchayat a licence to do so.
Under Section 174 of the Act when a licence granted u/s 171 does not permit the levy of any fees, it shall be granted free of charge but when such
permission is given, a fee not exceeding 15 per centum of the gross income of the owner from the market in the preceding year shall be charged by
the panchayat for such license. What is stated for the petitioner is that if he is to take out a license he will have to pay a fee not exceeding 15 per
cent. of the gross income, that he has not been paying that fee all along, that the Local Board authorities permitted him to take the, entire income
from the market from as early as 1880, and, therefore, he was not bound to pay any fees. The Local Boards Act was passed long subsequent to
the opening of this market. It was therefore a market which was being continued after the new Act came into operation and u/s 171 of the Act,
even old private markets which are continued after the Act came into force could be had only after taking out a license. I am not able to see
anything in Exs. 2, 3 or 4 the letters written by the President of the Local Boards to the petitioner''s predecessor to indicate that the petitioner was
to be exempt from fees leviable under later legislation. He requested the Local Board not to open any other private market in the same place and
they agreed to do so on condition that he charged only the fees mentioned in the letter of the President of the Local Board. Inasmuch as admittedly
the petitioner had not taken out a license and as the market is a private one and it is one continued after the Act came into force, the conviction has
to be upheld. The sentence is not excessive.
With regard to the argument that the sanction of the Court which appointed the petitioner as receiver has not been taken it is not a universal rule
of law that in respect of all prosecutions against receivers the permission of the Courts which appointed them as receivers should be taken. This
was pointed out in Nagendranath v. Jogendranath 15 Ind.Cas. 491. It is not the petitioner''s case that he wrote to the Court and he was asked by
the Court not to take out a license. Nor did the Court tell him at any time that he can keep the market without a license. If in respect of the act
done by him under the orders of the Court he is prosecuted there will be some justification for considering the question whether it would be proper
to prosecute him without first intimating to the Court under whose orders he was acting. If the law required any person having a private market to
take out a license, and if the receiver in respect of the property which formed part of the estate vesting in him had to take out a license it was his
duty as receiver appointed by the Court to take out a license; and his proper course would be to take a license or take the orders of the Court.
When he had not taken any such orders I am not able to see how it could be said that the prosecution is improper by reason of the fact that the
sanction of the Court which appointed him receiver had not been obtained. The case reported in Santokchand v. Emperor AIR 1919 Cal. 647
relied on for the petitioner has no application to the facts of this case. In that case the receiver appointed by the High Court took possession of
certain bales and he was prosecuted for criminal breach of trust. He took these bales into his custody under the orders of the Court. The question
for consideration was whether the Court under whose instruction he took the property in dispute should be asked to consider the question whether
he should be prosecuted or not before a prosecution is launched. As a matter of fact this case was referred to by the Calcutta High Court in
Jnanendra Nath Pramanik Vs. Nilmony Dey, and it was pointed out that the learned Judges who decided Santokchand v. Emperor AIR 1919 Cal.
647 did not go so far as to deny jurisdiction to criminal Courts and that all that was pointed out was about the impropriety of the complainant
rather than about the lack of jurisdiction of the Court. In In Re: Khimchand Narottam Bhavsar, it was held that sanction of the Court is not
necessary to prosecute a receiver appointed by the High Court for an offence committed by him. In this case if under law a license has to be taken
for the continuance of the market like the one in question the failure on the part of the receiver to take out a license is an act that was in excess of
the powers of the receiver. Hence no sanction is necessary and the petition is accordingly dismissed.