EMPEROR Vs. MERWANJI MMISTRY

JUDGEMENT

(1.) In this case the opponent, the owner of certain stable premises, was prosecuted for offences under Section 471 of the City of Bombay Municipal Act, 1888, in having allowed stable litter to be kept on his premises, and having allowed dung from these premises to pass into certain drain in contravention of provisions of the City of Bombay Municipal Act. There were two separate cases which came up for hearing before the Presidency Magistrate, 5th Court, on July 26, 1927. It was then represented on behalf of the accused that the accumulations of stable litter had been removed and that the obstruction to the drains was due to the action of tenants and that also would be removed. The Magistrate thereupon postponed the cases to August 9, 1927, in order to give the opponent an opportunity of removing the accumulations and obstructions complained of, and of furnishing the names of the tenants that were referred to. On August 9, the Magistrate was informed, as the petition admits to be the case, that the accumulations and obstructions had been removed, and he then passed an order in each case as follows : "Complied: warned and discharged."

(2.) The Municipal Commissioner for the City of Bombay comes to us in revision and urges that this order was illegal and that it should accordingly be set aside, and such order passed as this Court deems fit. It is pointed out by Mr. Kemp for the petitioner that the two offences in question were punishable only with fine under Section 471 of the City of Bombay Municipal Act; that, therefore, the two cases were tried as summons cafes in accordance with Schedule II of the Criminal Procedure Code, and that, under Section 245 of the Code, the Magistrate was bound either to record an order of acquittal or of conviction, and in the latter case, he was bound, unless he proceeded in accordance with the provision of Section 562, Criminal Procedure Code, to pass a sentence upon the accused according to law. The Magistrate's order "warned and discharged" is of a nature that suggests the analogy of an order for release of an accused after due admonition, such as is authorized by Sub-section (1A) of Section 562. But that particular sub-section does not apply in the present case, because it is confined to cases of an offence under the Indian Penal Code, whereas this is an offence punishable under the City of Bombay Municipal Act. This has already been pointed out by this Court in regard to offences under the Motor Vehicles Act, 1914 : cf. Emperor V/s. Pandu Ramji (1926) 28 Bom. L.R. 297. Nor is the case one that falls under Sub-section (1) of Section 562, Criminal Procedure Code, because the offence is not punishable with imprisonment, but only punishable with fine. Therefore, the order, supposing it to be one of conviction, is illegal in that the Magistrate has not passed a sentence according to law,

(3.) It is contended by the learned Government Pleader that the order does not say that the accused is convicted and that the Magistrate may have intended to acquit the accused. In my opinion that is not a construction that can be put upon the order, because the facts I have already mentioned show that it was admitted that there were certain accumulations of litter and obstructions to drains, and time was given to the accused to get the accumulations and obstructions removed, so that the note that the Magistrate has made "complied" can only mean that the accused had taken action which put an end to the offences in question, but which did not in any way affect the fact that such offences had been committed at the time when they were alleged to have been committed. I think, therefore, the Magistrate's note must be taken as meaning that there had been an offence in each case, but that in view of the compliance by the accused with what he had undertaken to do at a previous hearing, he considered it sufficient merely to warn and discharge him. But, as I have already pointed out, this warning and discharging was net a form of sentence or order that the Magistrate bad power to pass in the case; and it was contrary to the provisions of Section 245 that he should pass a sentence upon the accused according to law. Therefore, I think that the objection that the order passed was illegal must be admitted.