Authored By : William Comer Petheram, Beverley

William Comer Petheram, C.J. and Beverley, J.

1. This is a rule obtained on behalf of one Chandi Pershadto show cause why certain proceedings taken against him by the DeputyMagistrate of Monghyr should not be quashed, or why the case should not betransferred to some other district. The facts are these: On 5th May last ChandiPershad applied to the Municipal Commissioners of Monghyr for a license for twocarriages and six ponies, making the usual statement as required by Section 133of the Bengal Municipal Act III of 1884 of the Bengal Legislative Council. Alicense for two carriages and six ponies was granted, but at the same time thestatement was sent for verification to the overseer, who, on the 7th May,reported that Chandi Pershad had eight ponies and one horse. Thereupon theChairman of the Municipal Commissioners on the 8th May made an order to"prosecute Chandi Pershad for making false statement in the scheduleregarding the number of animals". On the following day Chandi Porshadpresented a petition offering to pay the tax on the other three animals, andpleading that he did not think he was liable to take out a license for them, asthey were old and diseased and unfit for work. This petition was laid beforethe Chairman on the 12th, and on the 13th the Chairman wrote: "Prosecutionhas already been sent by the Vice-Chairman. Nothing remains in my power to do.I can only write to the Magistrate that if this plea be correct, to dealleniently with him." Meanwhile on the 9th May a paper had been sent to theMagistrate on a printed form and headed "List of Municipal cases under ActIII of 1884 and Bye-laws," in which Chandi Pershad appeared as chargedwith an offence under Section 199 of the Penal Code, for "filing a falsestatement, that is to say, patting down in the schedule six ponies only insteadof eight ponies and one horse." This paper bears the signature of AbdurRahman, sub-overseer, Abdul Huq, overseer, and an endorsement "forwardedto the Magistrate for prosecution," which purports to be signed by theVice-Chairman.

2. On May 12th an order was made by the Deputy Magistrate,Abdus Salam: "Summon accused under Section 199, Penal Code, and witnesses.Fixed for 23rd instant."

3. On the 18th May the District Magistrate, Mr. H.A.D.Phillips, recorded the following order on the order sheet:

I see Moulvi Abdus Salam was in charge and took petitions onthe day this was presented. However, under my general order, he should havebrought to my notice an important case like this. The Municipality cannotinstitute prosecution, as offence is under Penal Code and not under MunicipalAct or bye-laws. However, Deputy Magistrate had power to institute. The casemay remain on his file. Section 182 and Sections 417-511, Penal Code, shouldalso be considered. Section 182 has recently been amended by the Legislature.As the prosecution is of some public importance, I think prosecution should berepresented by a pleader. Babu Gunga Churn Mukherji is instructed to appear. Iwould have authorised the Government pleader, but that he is also Chairman ofthe Municipality.

4. Accordingly, on the 19th, a summons was issued for theappearance of Chandi Pershad on the 23rd, when the witnesses for theprosecution were examined. On the 24th the Deputy Magistrate inspected theponies and horses and found three of them cased and rather unfit for use".On that date he directed that the accused should offer defence under Sections199, 182, and 417-511, Penal Code, and on the 19th June formal charges weredrawn up under those sections, and the proceedings dragged on, there being noless than nine postponements, until on the 16th July last they were stayed bythe order of this Court.

5. The rule was obtained on two grounds-(1) that theproceedings were improperly initiated, and (2) that upon the admitted facts thecharges framed against the accused are unsustainable in law.

6. The District Magistrate and the Deputy Magistrate haveboth submitted explanations to this Court, and we have had the advantage ofhearing Mr. Pugh on behalf of the Municipal Commissioners.

7. On the first point it seems quite clear, as admitted bythe District Magistrate, that the Municipal Commissioners had no power toinstitute the present prosecution. Their powers in this respect are defined bySection 352 of the Municipal Act, and are restricted to the prosecution foroffences created by that Act.

8. Nor does it seem to us that the Deputy Magistrate had anyauthority to initiate the proceedings. There was no private complaint beforehim, and it does not appear that he is empowered to take cognizance of offencesof his own motion in the manner prescribed by Clause (c) of Section 191 of theCode. The District Magistrate appears to admit this, but argues that his takingcognizance of the matter himself under Section 191, Clause (c), on the 18thMay, was sufficient authority for the continuation of the proceedings.

9. However that may be, we are clearly of opinion that thefacts, as alleged- and we may say at once that there is no dispute aboutthem-cannot in law constitute the offences with which the petitioner before ushas been charged.

10. The broad question which we have to consider is whethera person who, under the provisions of the Municipal Act, is liable to pay thetax for nine horses, but has taken out a license for six only, has committedthe offence (a) of giving false information as defined in Section 182 of thePenal Code, or (b) of making a false statement in some declaration which is bylaw receivable as evidence, as that offence is defined in Section 199, or (c)of attempting to commit the offence of cheating, as defined in Section 415. Theanswer to this question must depend on the obligation which a person whoapplies for a license to keep horses or other taxable things is under, to stateaccurately the number of horses, &c, in his possession, the object toattain which he makes the statement, and the legal character and value of thestatement when it has been made. This involves the consideration of theprovisions of the Bengal Municipal Act, 1884, under which the statement wasmade. By Section 86 the power is given to the Commissioners to order that thisparticular tax be levied within the limits of the Municipality, and Sections133 and 135 prescribe the mode in which the tax shall be collected, whileSection 137 imposes the penalty to which a person shall be subject, who keeps ahorse or other taxable thing without obtaining a license. By Section 133 theowner of the taxable thing must, within the first month of each half year,forward to the Commissioners a statement in writing, signed by him, of thehorses, etc., liable to the tax for which is bound to take out a license,together with the amount which is payable by him, for the current half year,for the horses, etc , specified in the statement. On receiving this statementand the money the Commissioners must under Section 135 give the applicant thelicense which he has asked and paid for; they have no power to refuse it in anycase, and if at the time it was applied for the person to whom the applicationwas made knew that the person who was applying for a license for one horse hadtwenty in his stables, he could not under any provision in this Act refuse thelicense for the one horse for which the tax was paid.

11. We are now in a position to decide whether there is anyground for charging Chandi Pershad with an offence under any of the sections ofthe Penal Code, which have been mentioned in the charge which has been framedagainst him. Mr. Phillips is in error in supposing that Section 182 has beenrecently amended. That section is in the same form at this moment as it waswhen it was originally enacted, but for the purposes of this case we willassume that it has been amended in the way Mr. Phillips imagines, and that asit now stands in the Code, the latter part must be read independently of theearlier portion, so that a person who gives false information to a publicservant intending to cause him to do, or omit, something which he ought not todo, or omit, if the truth were known to him, is guilty of an offence under thesection. On this assumption it is impossible to bring the present case withinthe section, because the action of the public servant must of necessity be thesame, whether he believed the statement to be true or knew it to be false. Ineither case the only thing which he is authorised by the law to do is to takethe money and give the license which is applied for in exchange for it, andthis is in fact what was done here. We suppose the suggestion is that thepublic servant to whom the application is made may be induced, by the statementcontained in it, to omit to make an inspection of the applicants premisesunder the powers of Section 140. But the Commissioners cannot make aninspection under that section, unless they have reason to believe thatsomething will be found for which the owner is liable to the tax, and for whicha license has not been taken out, and it is obvious that the form of thisapplication could not have the effect of inducing them to make or refrain frommaking an inspection which they could only make when they were induced to do soby some cause entirely independent of such an application, as that alone couldnot reasonably raise such a suspicion or dispel it if it were raised by someother cause.

12. We now come to Section 199 of the Penal Code. Thatsection subjects any person who makes a false declaration, which declarationmay be used as evidence of the matters stated in it, to the penalties forperjury, that is to say, renders him liable to rigorous imprisonment for threeyears. It needs a very slight acquaintance with the Indian Evidence Act, andwith the principles of law which are embodied in it, to satisfy any one thatthe statement made by the accused for the purpose of taking out these licensesis no evidence at all against anyone but himself, and could only be evidenceagainst himself as proving an admission by him, that at the time he made it hehad in his possession six horses, and no more, for which he was liable to paythe tax. It is obvious that it is impossible to strain the words of the sectionso as to bring such a case within them, and we are clearly of opinion that onthe facts alleged here no charge can be framed against Chandi Pershad underSection 199.

13. The only other section which is mentioned in the chargeis Section 417 read with Section 511, and the argument by which it is sought tobring the case under that section is, we think, even more impossible than thatwhich relates to the other sections. It is well recognised law that a personcannot be convicted of attempting to commit an offence unless the offence wouldhave been committed had the attempt proved successful [The Empress v. RiasatAli I.L.R. Cal. 852] and it is extremely difficult to understand what it issuggested that Chandi Pershad had tried to do which he had not succeeded indoing. He applied for a license for six horses and obtained it, but of courseit cannot be said that he cheated any one by doing that. If the suggestion isthe same as that which we suppose is made with reference to Section 182, it mustfail for the same reason, as the applicant cannot have tried to dishonestlyinduce the Commissioners to omit to inspect his premises, merely by presentinghis application in this form, when the fact is that they had no power toinspect thorn at all, unless there was some other reason which justified themin doing so.

14. We feel bound to say that Mr. Pugh did not attempt tocontend that the charges framed against Chandi Pershad could be sustained. Herather confined himself to urging the impropriety of our interference at a timewhen the case is still pending before the Magistrate. There can be no doubt,however, that we have the power to interfere at any stage of the case, and whenit is brought to our notice that a person has been subjected for over two monthsto the harassment of an illegal prosecution, we think it is our bounden duty tointerfere.

15. The fact is that the Municipal Act itself provides thepenalty for the omission to take out a license and empowers the MunicipalCommissioners to take the necessary steps for enforcing that penalty. In thepresent case the Municipal Commissioners did not think fit to avail themselvesof the remedy given them by the Legislature, but instituted a prosecution whichthey have no power to institute on charges that cannot be sustained, and theMagistrate of the District has lent the sanction of his authority to supportthis illegal action. The Municipal Act is intended to be complete in itself asregards offences committed against the Municipal Commissioners; and we can findno indication in the Act of any intention to make a delinquent also liable topunishment under the Penal Code. No penalty is attached to the omission to makea return under Section 133, and there are no words in the Act constituting themaking a false return a penal offence. Whenever there is an intention to applythe provisions of the criminal law to acts authorized or required by particularstatutes, that intention is always made clear by express words to that effect.Instances of this may be found in the Cess Act (Bengal Act IX of 1880), Section94; in the Estates Partition Act (Bengal Act VIII of 1876), Section 148; in theincome Tax Act II of 1887, Sections 35 and 37; in the Land Acquisition Act I of1894, Section 10, and in many other Acts. In the Bengal Municipal Act there areno such words as are necessary to make the provisions of the Penal Codeapplicable, and we have no power to import them. The Municipal Commissionershave their remedy in a case like this under the Act itself. The remedy may notin their opinion be sufficient, but they are not entitled to go beyond it.

16. For these reasons we make the rule absolute and setaside the entire proceedings taken against the petitioner in this case.

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Chandi Pershad vs.Abdur Rahman (13.08.1894 - CALHC)