RAMAUTAR DUBEY Vs. RAMBRICH SINGH

JUDGEMENT

(1.) The petitioner has been convicted for a breach of bye-law (1) of the bye-laws framed by the District Board of Shahabad under the powers conferred upon it by Section 189, Bihar and Orissa Local Self-Government Act, 1885. The bye-law provides inter alia that whoever encroaches on any road by the construction of any building or structure, thereon, except by the permission of the Chairman of the District Board, shall be liable to pay a fine not exceeding Rs. 60, and to a further fine not exceeding Rs. 2 for every day the offence is continued. The petitioner has been sentenced to pay a fine of Rs. 20, or to undergo simple imprisonment for two weeks in default, and also to pay a fine of a rupee a day if the obstruction be not removed within three weeks from the date of the conviction.

(2.) The conviction and sentences are challenged by the petitioner on the ground that the prosecution was improperly instituted, that is to say, that it was not instituted by a person authorised to institute it. Section 189 of the Local Self- Government Act empowers every District Board or Local Board to make bye-laws for carrying out all or any of the purposes of the Act, and Section 140, empowers the Board making bye-laws to provide that a breach of the same shall be punished with fine which may extend to fifty rupees; and in the case of a continuing breach, with a further fine which may extend to five rupees for every day during which the breach is continued after the offender has been convicted of such breach, Section 141, however, requires prosecutions under the Act for breach of the bye-laws to be instituted by any Board, or by any person authorised by the Board in this behalf. Two questions, therefore, arise on the construction of this section, namely, (1) whether it is only the Board making the bye-laws, the breach of which is complained of, that is authorised to institute a prosecution for the breach, or whether a Board may institute a prosecution for the breach of bye-laws framed by some other Board, that is to say, whether a Local Board may institute a prosecution for a breach of the bye-laws framed by the District Board, or by some Local Board other than itself, or whether it is only with respect to the breach of its own bye-laws that a Board may institute a prosecution; and (2) whether, in the case of prosecution by a Board, the power to institute the prosecution may be exercised by the Chairman of the Board in the absence of power conferred on him by the Board to do so. The prosecution in the present case was instituted on a form headed "Prosecution Form District Board Shahabad." At the bottom, under the words "prosecution sanctioned," is the signature of "Rambrich Singh, Chairman of the Local Board of Buxar," and the complaint is said to be in respect of a breach of the first bye-law of the District Board of Shahabad, the material portions of which have been set out above. If this be regarded as a prosecution by the District Board, there is no [evidence on the record that the Chairman of the Local Board of Buxar has been authorised by the District Board to institute this prosecution. Even if it be permissible for a Local Board to prosecute in respect of a breach of a bye law framed by a District Board, there is no evidence that the Local Board of Buxar authorised its Chairman to institute this prosecution, or that the complaint is by the Local Board itself. It does not purport to be signed by the Chairman for and on behalf of the Board, but merely by the Chairman of the Board as such. We have been shown no authority either by way of a statutory provision, or a framed under powers conferred by the statute, or derived from a resolution passed by the Board in the exercise of its powers, authorizing a Chairman to institute a prosecution on behalf of the Board. The proceedings in this case were defective ab initio, and must, therefore, fail.

(3.) I, cannot, however, leave the matter there without remarking once more on the inadequacy of the preparation made by those in charge of prosecutions for placing before the Court the materials essential to enable the Court assume jurisdiction of the matter placed before it, or to exercise its powers properly. When the institution of a prosecution is confined to a particular person, or a body, or when a thing is directed to be done in a particular way, it is absolutely necessary for the prosecution to place on the record the materials from which the Court may see that the prosecution has been instituted by that person or body, and that it has been instituted in the manner required by the statute, When this is not done, it is a mere waste of public time and of the time of Courts, which are already pressed with an abundance of work, to investigate alleged breaches of the law and come to decisions which must inevitably be upset when the authority under which the proceedings were instituted is challenged.