Satrughana Behera and Another vs Emperor

Meredith, J.—The petitioners, Satrughana Behera and Kanhei Behera, have been convicted by a third class Magistrate under Rule 59 of the Municipal Bye-law. The Magistrate sentenced them each to pay a fine of Rs. 15 and directed that they should remove the obstruction within 15 days from the date of his order, failing which they would be liable to pay a daily fine of Rs. 2. An appeal against their conviction and sentence has been dismissed by the Additional District Magistrate, Cuttack.

The facts of the case are that on 30th December 1942, a notice (Ex.2) was issued on the petitioners (evidently u/s 196, Bihar and Orissa Municipal Act) stating that the petitioners had obstructed a sweeper''s passage leading to the latrine of Sri Mohan Prusty, resulting in the latrine being left unattended and causing nuisance and affecting the health of the inmates of the house and neighbouring public, and so had committed an offence under bye-law 59, and directing them to remove the obstruction within two days, failing which legal action would be taken. The obstruction was not removed, and the prosecution and conviction followed, the conviction being on 5th May 1943.

The first point taken for the petitioners is that they had been already tried and convicted for the offence in question, and sounder Section 403, Criminal P.C., could not be again tried and convicted. What happened -was that Mohan Prusty, the owner of the house of which the latrine could not be cleaned, lodged an independent complaint on 6th January 1943, and for that the petitioners were tried by a first class Magistrate, and on 8th March 1943, they were convicted u/s 341, Penal Code, for wrongfully restraining the sweeper, and sentenced to pay fines of Rs. 10 each, in default to undergo simple imprisonment for one week each. It is stated that there was no appeal against this conviction, and sentence.

In answer to this contention reliance is placed on Section 403 (4), Criminal P.C., read with Section 375, Municipal Act. Section 403 (4) provides that

A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.

Section 375, Municipal Act, provides inter alia, that no prosecution for an offence under the Act or any bye-law made in pursuance thereof shall be instituted without the order or consent of the Commissioners. It is accordingly contended that, as there was no sanction by the Commissioners, the Magistrate-was not then competent to try the petitioners for the offence committed under bye-law 59, and consequently Section 403 (4), Criminal P.C., is applicable. Reliance is placed on Babu Lal v. Ram Saran AIR 1930 Pat. 26 in which it was laid down that the words "competent to try the offence" mean that in order to obtain the advantage of the common law rule the accused on the second occasion must show that the former Court was in a position, had it so chosen, to try and acquit or convict the accused of the offence subsequently charged. The words "competent to try" are also equivalent to "in a legal sense to have tried and acquitted or convicted." They refer narrowly to the legal position of the Court at the time of the former trial in relation to the particular offence committed by the accused, and not broadly to the jurisdiction of the Court with regard to the class of offence in general. A different view of the meaning of the words "competent to try" was taken by the Madras High Court in In re Ganapathi Bhatta (1913) 36 Mad. 308. Whether the Patna ruling is correct or not, I am bound by it. There is, however, another difficulty. Section 375 does not provide for any form of sanction, but speaks merely of consent, and it might well be argued that at the trial before the Magistrate municipal consent could have been deemed to have been given as an inference from the fact that the municipality had itself lodged a similar prosecution by its complaint of 2nd February 1943, which was made long before the conviction by the Magistrate, which, as I have said was not until 8th March.

The real answer to the contention for the petitioners seems to me to be provided by the provisions of Section 403 (2), Criminal P.C., read with Section 235 (l). Section 403 (2) provides that

A person acquitted or convicted of any offence may be afterwards tried to any distinct offence for which a separate charge might have been made against him on the former trial u/s 235, Sub-section (1).

Section 235, Sub-section (1) says:

If, in one series of acts so connected together as to form the same transaction more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.

It appears to me that the offences u/s 341 and bye-law 59 clearly fall within this provision in Section 235, and Section 403 (2) is, therefore, applicable. The offence of restraining the sweeper u/s 341 was an entirely different and distinct offence from the offence under bye-law 59. One was merely an offence against the person, and had nothing whatever to do with the public health or convenience. Section 341 contemplates purely a personal wrong to a particular person, and indeed it might well have been argued that no offence u/s 341 had actually been committed. However, that may be, and I am of course expressing no actual opinion as to whether the conviction u/s 341 was proper or not, he offence under the municipal bye-laws is entirely distinct. It is an offence against the public health and convenience. The gravamen of the charge was not any wrong to the sweeper, but the inconvenience and wrong to the owner of the house and the general public in preventing cleaning of the latrine. Bye-law 59 is in these words:

No person shall obstruct any existing passage leading to any public or private latrine, drain, sink, or cess-pool, which may be necessary for the purpose of cleansing the same and which have (sic) been ordinarily (or ''regularly'') used by the municipality for the said purpose.

The emphasis is on the cleansing of the latrines and drains and the public health, and the offence consists in preventing that proper cleansing. The complaint by Mohan Prusty was actually for an offence said to have been, committed on 3rd January 1943, whereas, as I have said, the municipal notice (Ex. 2) was issued on 30th December 1942. The facts were apparently that the petitioners first built a wall in the passage way, causing a partial obstruction, but containing a door so as to permit passage (if they cared to leave it open) and finally completed the obstruction on 3rd January by also erecting a fence at the entrance or exit of the passage way. Thus, it might be said that the two trials were for two different acts of obstruction. I think, however, the right way to look at the case is the way I have just indicated, namely, as a series of acts so connected together as to form the same transaction and constituting more offences than one. The case, as I have said, is clearly covered by Section 403 (2), Criminal P.C., and the present conviction was not therefore illegal.

The next point taken is that the notice (Ex. 2) was illegal because it was signed only by a Municipal Commissioner, and not by the chairman himself. I am not satisfied that the gentleman, who signed the notice, was not in fact acting as chairman at the time, but whether he was or not, it is clear from the notice that he signed it for the chairman. The notice was also signed by the Sanitary Inspector and Health Officer, and I am quite satisfied that it was proper notice u/s 196 "by the Commissioner", to use the words of that section. Apart from that however the legality of the notice appears to me irrelevant. The petitioners might have been tried and convicted u/s 203 (2), Municipal Act, for disobeying the notice, but in point of fact they were not. The course adopted was to convict them under bye-law 59. That bye-law says nothing about any notice, and the offence under it could have been committed without the issue of any notice at all. There is therefore nothing in this point.

Lastly it is urged that the imposition of a daily fine was not legal, and for this proposition reliance is placed on a decision of a Single Judge of this Court, Haluman Sah Vs. Motihari Municipality, . In that case Agarwala J. pointed out that it is not open to a Magistrate to impose a daily fine in anticipation of the commission of the offence of disobeying his order for removal of an obstruction. It is competent, he says, for a Magistrate u/s 203 to impose a daily fine on the accused in respect of an offence which had already taken place on the date of the order, but when the Magistrate directs the accused to remove the encroachment within a particular period and to pay a fine on the expiry of such period until removal of the encroachment, the Magistrate cannot impose such fine as no offence has been committed OK the date of the order.

The present case is clearly distinguishable, as the facts are entirely different. It cannot be said that no offence had been committed on the date of the order. The offence was the obstruction, and had been committed before 30th December 1942 when the notice to remove the obstruction was issued. It was quite competent to the Magistrate in the present case to impose a daily fine independently of the provisions of Section 203 (2). Bye-law 59 provides for a fine of Rs 50 and a daily fine of Rs. 2. These words "daily fine, Rs. 2" must be read together with the provisions of Bye-law 2. Bye-law 2 says:

The penalty for the infringement of any of these bye-laws shall be (c) in the case of a continuing offence a further fine, not exceeding the sum (if any) stated at the foot of the bye-law as the daily fine; which daily fine may be imposed for each day after written notice of the offence from the Commissioner.

The Commissioners gave written notice of the offence on 30th December 1942 the offence having been committed prior to that date. Under these provisions therefore it was plainly open to the Magistrate to impose a daily fine for each day after 30th December. The Magistrate did not do this. He imposed a daily fine only after the expiry of 15 days from the date of his order, but that was not imposing a fine in anticipation of the commission of an offence. He was imposing the fine not for any anticipated failure to disobey his own order for removal of the obstruction, but for the failure to remove the obstruction in response to the municipal notice, and if he did not impose the daily fine from the date of service of the notice, it was plainly merely because he thought it fair to give the petitioners a reasonable time to remove the obstruction after he had held them guilty of the offence. It was in substance merely a suspension of the imposition of the daily fine to allow a reasonable opportunity for removal of the obstruction. I consider that the Magistrate was quite competent to do what he did and that he showed a wise discretion in acting as he did. There is therefore no substance in this contention.

Though I have held that the petitioners could be legally convicted at the trial now under consideration despite the fact that they had been previously convicted and sentenced upon the same series of facts, I think the fact that they had been fined in the other case should be taken into consideration in considering the sentence in the second trial. Though different offences might have been constituted by the acts, they were actually tried at both trials for the same acts, and in such cases, whether the trials be joint or separate the Courts generally hold that separate sentences are not necessary or desirable. I am not prepared to interfere with the imposition of the daily fine, as that is obviously necessary to secure the removal of the obstruction, and I would uphold that portion of the sentence, merely directing that the daily fine should begin to run only after the expiry of seven days from the date of this order, but with regard to the independent fines of Rs. 15 each, having regard to the fact that the petitioners have already been fined separately Rs. 10 each in the previous case, I set them aside.

With this modification of sentence the application is dismissed.