RADHA KISHAN Vs. CHAIRMAN OF THE GAUHATI MUNICIPALITY

JUDGEMENT

(1.) This rule has been issued to show cause why the conviction of the petitioner under Section 221, Sub-section (1), Clause (e) read with Sub-section (3), Assam Municipal Act (1 of 1923), and the sentence of a fine of Rs. 100 passed on him under that section should not be set aside on grounds 1, 2 and 3 of the petition. Ground 1 is to the effect that the trial Court had no jurisdiction to try the casa against the petitioner inasmuch as the complaint that was originally made and on the basis of which the case was started was not a complaint made against the petitioner, but was a complaint against the petitioner's gomastha, Gajananda Das and that the Deputy Commissioner had given his consent to the institution of proceedings against Gajananda Das and not against the petitioner. Ground 2 is much to the same effect as ground 1. Ground 3 purports to challenge the validity of the order or consent of the Municipal Board in respect of the prosecutions that is required by Section 318 of the Act.

(2.) The Health Officer of the Gauhati Municipality submitted a report to the Chairman of that Municipality in which it was stated that, on 8 March 1927, the said Health Officer has purchased a quantity of mustard oil from Gajananda Agarwalla of the Radha Krishna Oil Mill Company and that on examination of the said sample, in accordance with the provisions of the Act, it was discovered that the stuff was not genuine. By the said report the Health Officer asked that sanction might be accorded to a prosecution under Section 221 of the Act. It appears that the Chairman, on receipt of the said report, endorsed it over to the Vice- Chairman with the following remarks: V.C. Please see whether prosecution will stand on these cases. Reports are contradictory as it appears to me.

(3.) The next endorsement is that of the Vice-Chairman who simply forwarded the papers to the Deputy Commissioner "for favour of prosecution." The Deputy Commissioner as far as can be made out from the papers that T have before me, returned the papers to the Vice- Chairman with a request to report whether a prosecution would stand. The Vice-Chairman, therefore, reported to the Deputy Commissioner that a prosecution would lie under the Assam Municipality Act, 1923. On that the Deputy Commissioner passed an order which ran in these words: Prosecution sanctioned. Summons to accused under Section 221 of Act 1 of 1923. To Srijut T. Bhuyan, S.D.M., for disposal.