R E MARRIOTT Vs. MUNICIPALITY OF HOWRAH

JUDGEMENT

(1.) This rule arises with reference to the conviction of the General Manager of the Bast Indian Railway tinder Section 14, Licensed Warehouse and Fire Brigade Act of 1893. A complaint on behalf of the Howrah Municipality was originally filed on 31 March 1939 against the Superintendent, Way and Works, Bast Indian Railway. It appears however that, in a similar case in respect of the year 1937-38, it had been pointed out by the trial Court that the proper person against whom proceedings should be taken was the General Manager of the East Indian Railway. The latter case was decided on 22 August, 1939 and it was on account of that decision that, on 10 April 1940, the General Manager of the East Indian Railway was substituted in the present case for the Superintendent, Way and Works. In the judgment of the learned Magistrate which is dated 28 June 1940, the General Manager was found guilty under Section 14 Licensed Warehouse and Fire Brigade Act of 1893 and was ordered to pay a fine of Rs. 20 for not having taken out a license as required by the relevant provisions of that Act and was further directed to pay a daily fine of Re. 1 until the sum of Rs. 1500 said to be due to the Municipality of Howrah had been paid. Admittedly, it was sought to prosecute the General Manager of the East Indian Railway not in his personal capacity but as the representative of the railway, and one of the main points which learned Counsel on behalf of the petitioner has sought to establish is that the prosecution was misconceived. In this connexion, Mr. S. M. Bose contends that there is no provision in the Railways Act (Act 9 of 1890) or any other law, under which it is possible to prosecute the Bast Indian Railway through its Manager. He maintains that, if it had been necessary to institute a prosecution in respect of an alleged breach of the Licensed Warehouse and Fire Brigade Act, proceedings should have been taken either against the General Manager personally or against such other person who might have been actually responsible for the alleged breach and that the requisite sanctions under Section 270, Government of India Act, 1935 and Section 197, Criminal P.C., should have been obtained.

(2.) Mr. Bose further argues that, in view of the provisions of S.7, Railways Act, the railway is entitled to construct such warehouses as it may require and it follows from this provision that the railway has an unfettered right to use such warehouses after their construction, which cannot be restricted by any authority conferred upon a Municipality by a local Act such as the Licensed Warehouses and Fire Brigade Act of 1893. He, therefore, contends that the provisions of the latter Act are inapplicable in the case of a railway. Mr. Boss's further main contention is to the effect that, in any view of the case, the license fee demanded by the Howrah Municipality is a tax which has not been mentioned in any notification under S.135(1), Railways Act. This being the case, he argues that the railway was quite justified in refusing to pay the fee and was not required to take out a license under the Licensed Warehouse and Fire Brigade Act. Learned Counsel for the petitioner also pointed out that, in any event, the daily fine which was imposed by the learned Magistrate was illegal having regard to the anticipatory nature of the order. In support of this last contention, he relied on the cases in Ram Krishna Biswas V/s. Mohendra Nath (1900) 27 Cal 565, Nilmani Ghatak V/s. Emperor( 10) 37 Cal 671 and Prabhu Ram V/s. Emperor ( 37) 24 AIR 1937 Lah 155 It may be mentioned in passing that on this point Mr. S. K. Basu, on behalf of the opposite party, admitted that the order as regards the daily-fine could not be supported. The first main point for consideration in connexion with this case is whether the prosecution was misconceived by reason of the fact that it was directed against the General Manager of the Bast Indian Railway. As already stated, it is admitted that it was not sought to prosecute the General Manager in his personal capacity but it was the intention to prosecute the Bast Indian Railway under the name and description of the General Manager of the railway.

(3.) Mr. Bose contends that the course which was adopted was illegal. He points out that the Bast Indian Railway is a State Railway and that it is vested in the Governor-General in Council. He argues that a State Railway cannot be a legal entity and, although it is possible in civil cases to sue the railway through the Governor-General in Council under the provisions of S.79, Civil P.C., he contends that it is impossible to take criminal proceedings against a State Rail-way as the Governor-General in Council cannot be prosecuted in the criminal Courts. Mr. Basu on behalf of the Municipality admits that the criminal Courts in this country would have no jurisdiction over the Governor-General in Council, but he relies on the provisions of certain sections of the Railways Act for the purpose of showing that it was intended by the Legislature that in the matter of criminal prosecutions a railway administered by the Government should be placed in precisely the same position as a railway administered by a railway company. There can of course be no doubt that a company may be prosecuted in a suitable case. This was the effect of the English decisions in Tyler's case, Queen V/s. Tyler and International Commercial Co., Ltd (1891) 2 Q B 588 at p. 592 and the case in Pharmaceutical Society v. London & Provincial Supply Association (1880) 5 A C 857. These decisions were followed by the Rangoon High Court in Rangoon Electric Tramway & Supply Co., Ltd. V/s. Emperor ( 33) 20 AIR 1933 Rang 70, in which Page C. J. observed that a company is a legal entity, and, where a duty is imposed upon it by statute the breach of which is made an offence, unless there is anything to the contrary expressed or implied in the statute, a company can be convicted of an offence. The learned Chief Justice was however careful to point out that a company cannot be sentenced to a term of imprisonment "for the best of all reasons that a company is not endowed with a physical body that can be confined." Of course, there are certain cases in which it would be impossible to prosecute a company, for example, in connexion with murder or other offences involving personal violence: Rex V/s. Cory Bros. & Co (1927) 1KB 810. It is nevertheless clear from the provisions of Secs.2 and 11, Indian Penal Code, that companies are liable to punishment in suitable cases and it also follows from Section 3 (5), Licensed Warehouse and Fire Brigade Act of 1893, read with Section 14 of that Act, that ordinarily a company which used an unlicensed warehouse would render itself liable to prosecution under that Act.