EMPEROR Vs. KASSAM ALIBHAI

JUDGEMENT

(1.) This is an appeal by the Government of Bombay against an order of acquittal of the accused. The case is a very trivial one, but a point of law of some importance is involved in it. The accused was charged under Section 313A of the City of Bombay Municipal Act of 1888 with hawking without a license. The learned Honorary Magistrates, who heard the case, were of the opinion that the complaint, being lodged by the police and not by the Municipal Commissioner, was ultra vires, and that they could not dear with the case; and then somewhat illogically they ordered that the accused should be acquitted. In any view of the case, I think, that order must be wrong. If the learned Magistrates had no valid complaint before them, their proper course was to decline to take cognizance of the case. They could not make an order of acquittal except in a case in which they had taken cognizance and heard the evidence.

(2.) However, in considering what order we ought to make, we have to determine the substantial question with which the learned Magistrates dealt, viz., whether a prosecution for an offence under Section 313 A of the City of Bombay Municipal Act can be lodged by the police. By Section 4 of the Act certain Municipal authorities are constituted, including a Municipal Commissioner. Then by Section 313A it is provided: Except under and in conformity with the terms and provisions of a license granted by the Commissioner in this behalf, no person shall hawk or expose for sale in any-public place or in any public street any article whatsoever.

(3.) The present accused was charged with having committed an offence under that section. Then Section 471 provides that whoever contravenes any provision of any of the sections mentioned in the first column of the following table shall be punished as therein provided, and one of the sections referred to in the column is Section 313A, which is punishable by a fine. The sections dealing with complaints, which are relevant for the present purpose, are Section 514 and the following sections. Section 514 imposes a limit of time within which any complaint may be lodged, but it does not specify the person by whom the complaint can be lodged. Section 515 enables any person who resides in the city to complain to a Presidency Magistrate of the existence of any nuisance, and the Magistrate has to take certain steps upon that complaint. Then Section 516 has some bearing on the matter. That provides that any police-officer may arrest any person who commits in his view any offence against the Act, if the name and address of such person be unknown to him, and if such person, on demand, declines to give his name and address. Then Sub- Section (2) provides: No person so arrested shall be detained in custody after his true name and address are ascertained or, without the order of a Magistrate, for any longer time, not exceeding at the most forty hours from the arrest, than is necessary for bringing him before a Magistrate competent to take cognizance of his offence.