Decided on September 13,1961



- (1.) THE petitioner was convicted and sentenced under sec. 500 of the Bengal Municipal Act for failure to remove an unauthorised latrine. The petitioner's case was that he had no such latrine. Before me Mr. Das has taken two points: The first point is that the complaint was by the Chairman of the Municipality without reference to the Commissioners. Sec. 533 of the Act provides that no prosecution for an offence under the Act or any rule or bye-law made in pursuance thereof is to be instituted without the order or consent of the Commissioners. Therefore, argues Mr. Das, the prosecution at the instance of the Chairman was without jurisdiction. The answer to the argument is to be found in sec. 51 of the Act. Mr. Talukdar for the opposite party has in this connection referred me to a Bench decision of this Court in 20 C. W. N. 824. In my view, the Chairman of the Municipality had power as representing the Commissioners to file the complaint concerned.
(2.) THE second point taken by Mr. Das is that the prosecution was barred under the latter part of sec. 533. It appears that the discovery of an unauthorised latrine was made in August 1959, that it was on the 7th of September, 1959, that a notice under sec. 263 was served but that the complaint was not filed until the 17th of May,1960. Thus, more than six months had elapsed before the prosecution was launched. In my view, such a prosecution is prohibited by the latter part of sec. 533.
(3.) MR. Talukdar has asked me to reconsider my decision on the ground that the offence complained of was the failure on the part of the petitioner to comply with a notice which, in fact, did not reach the petitioner until the 15th of September 1959. The notice concerned gave the petitioner 7 days within which to remove the unauthorised latrine. That would bring us to the 22nd of September, 1959. The complaint, however, was not filed until the 17th of May the following year. Therefore, in any event, no prosecution for the offence was initiated within 6 months. As I have said, the prosecution was in any event barred under sec. 533 of the Act. That being the position, the conviction and the sentence concerned must be and are set aside. If there should be any unauthorised latrine, the petitioner should either get it authorised or remove it. If [however there is no such latrine, the petitioner need do nothing.;

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