AMIR HASAN KHAN Vs. EMPEROR

JUDGEMENT

(1.) Mr. Amir Hasan Khan, Government Pleader of Fatehpur, has been convicted of an offence under Section 185 of Act II of 1916 of the U.P. Municipalities Act, and has been fined Rs. 25. This Act carne into force with effect from the 1st of July 1916. The offeree was committed prior to that date when the former Act was in force. While the former Act was in force, Mr. Amir Hasan Khan applied for sanction to build a certain enclosure wall on his chabutra and to cover a certain drain with stone slabs. Sanction was given in the language set forth in the Magistrate s judgment. It did not sanction in clear terms the covering of the drain, but the Magistrate has very clearly given as wide a meaning as possible to it in favour of the accused, and has held that it could be said to cover his application in so far as the drain was concerned. The drain is a fairly deep one and fairly broad. The accused, instead of covering the drain with stone slabs, which could easily have been moved for the purpose of cleaning the drain, covered it with a brick arch so that it cannot be opened at all, though it is stated that the drain is sufficiently deep to allow of a man entering it and cleaning it. All this had happened previous to the present Act coming into force. On the 6th of July a complaint was made by the Chairman of the Board to the Magistrate, and the accused has been tried, and the Magistrate has applied Section 185 of the new Act and has convicted him thereunder, on the ground that the accused has acted contrary to the sanction given to him. The sentence imposed is a fine of Rs. 25.

(2.) The first question for decision is whether the conviction under Section 185 of Act II of 1916 can stand. The offence was committed before the Act came into force. There are no saving clauses in the Act, but it seems to me that Section 6 of the General Clauses Act I of 1904 applies. It lays down that where any United Provinces Act repeals any enactment, then, unless a different intention appears, the repeal shall not affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or affect any remedy in respect of any such liability, penalty, forfeiture or punishment as aforesaid; and any such remedy may be enforced and any such penalty, forfeiture, or punishment imposed as if the repealing Act had not been passed. It is quite clear, therefore, that the former Act must apply and the conviction, if any, must be under the old Act I of 1900. The act complained of was an offence under Section 147 of Act I of 1900, and the penalty which could be imposed under that section was a maximum fine of Rs. 50. The penalty which can be imposed under the corresponding section of the new Act is a fine of Rs. 500. It seems to me that there can be no doubt that the accused technically committed an offence under the Act, but it is extremely doubtful that his action was wilful. He has explained that he found difficulty in obtaining the necessary stone slabs and so he built a brick arch, not thinking that he was thereby doing anything wrong. This is probably- correct and I think that the accused may be given credit for his good faith in the matter. Technically, however, he was in fact guilty. It is extremely doubtful that any prosecution whatsoever would have been allowed in this matter, had it not been for the friction which had previously arisen between him and the Chairman of the Board. In these circumstances I think the following order should be passed.

(3.) I alter the conviction to one under Section 147 of Act I of 1900, and I reduce the fine to one of Rs. 2-8. I order accordingly.