EMPEROR Vs. DHARALA MANGAL JAMA

JUDGEMENT

(1.) These are three cases where certain persons have been convicted and sentenced, under Section 155 of the Bombay District Municipal Act, by the Third Class Magistrate of Anand, He sentenced each of them to pay a daily fine until the encroachment complained of is removed.

(2.) The District Magistrate has referred the cases to this Court on the ground that the sentences were illegal, as there was no previous conviction under that section, and a prospective fine is not justified without such a previous conviction, according to the view taken by this Court in Emperor V/s. Byramji Pudumji (No. 1) (1919) I.L.R. 43 Bom. 836, s.c. 21 Bom. L.R. 759. he recommends that the order for a daily fine should be converted into a sentence of substantive fine, viz., in one case (No. 20 of 1926) a fine of Rs. 50, in the other two cases the amount of a fine already recovered, i.e., Rs. 37-14 in case No. 21, and Rs. 40-2 in case No. 19.

(3.) We have heard Mr. Koyajee on behalf of the accused in case No. 19, and the Government Pleader for the Crown. It is quite clear that this Court, as well as the High Courts of Allahabad, Calcutta and Madras, have ruled that in cases of this kind a Court cannot sentence a person to pay a fine for a prospective offence, but can only impose a daily fine for failure or disobedience which is proved to have continued for a certain period after the date of the first conviction, or after the date of such notice or requisition as may be required by the enactment. Of course, if such an enactment clearly says that the Magistrate can fine prospectively, then that principle will not apply. But Section 155 of the Bombay District Municipal Act is as follows :- Whoever disobeys or fails to comply with any lawful direction given by any written notice issued by a Municipality under any power conferred by this chapter, or fails to comply with the conditions subject to which any permission was given to him by the Municipality under any power as conferred, shall, if the disobedience or failure is not an offence punishable under any other section, be punished with fine which may extend to fifty rupees, and with further fine which may extend to five rupees for every day on which the said disobedience or failure continues after the date of the first conviction.