- (1.) This appeal by special leave is directed against the judgment and order of the High Court at Calcutta dated February 9, 1955, whereby that Court, in its revisional jurisdiction, set aside an order of acquittal dated December 15, 1953, passed by the Municipal Magistrate, Calcutta, in respect of the prosecution launched by the Corporation of Calcutta, respondent in this Court against the appellant.
(2.) The relevant facts are these On July 1, 1952, the Corporation of Calcutta made an application for summons under S. 488 of Bengal Act III of 1923, which was substituted by West Bengal Act XXXIII of 1951, against "the Director of Rationing and Distribution representing and Food Department of the Government of West Bengal". The offence complained of was "for using or permitting to be used premises No. 259, Chitpur Road, Upper, for the purpose of storing rice etc., under the provisions of the Bengal Rationing Order, 1943, without a licence under S. 386 for the year, 1951-52, corresponding S. 437 of the C. M. C. Act, 1951". Section 386(1)(a) of the Calcutta Municipal Act is in these terms : "No person shall use or permit to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a licence granted by the Corporation in this behalf, namely, any of the purposes specified in Schedule XIX". Item 8 of the said Schedule is "storing, packing, pressing, cleansing, preparing or manufacturing, by any process whatever, any of the following articles" and the articles mentioned include rice, flour etc.
(3.) The facts alleged by the prosecution were not denied on behalf of the Department, which was in the position of the accused, but it was contended by way of a preliminary objection that the prosecution was not maintainable in law. After hearing arguments for the parties the learned trial Magistrate passed an order acquitting the accused relying upon a decision of the Calcutta High Court in the case of Corporation of Calcutta v. Sub-Postmaster, Dharamtola Post Office, 54 Cal WN 429 : (AIR 1950 Cal 417), holding that the provisions of S. 386 of the Act, neither in terms nor by necessary implication, bound the Government. The respondent moved the Calcutta High Court in its revisional jurisdiction in Criminal Revision No. 282 of 1954, which was heard by a Division Bench consisting of J. P. Mitter and S. N. Guha Ray, JJ. Guha Ray, J., who delivered the judgment of the Court, Mitter, J. concurring, held that the previous decision of the same High Court in 54 Cal WN 429 : (AIR 1950 Cal 417) was clearly distinguishable. The distinction pointed out was that the previous decision of the Court had relied upon the decision of the Judicial Committee of the Privy Council in Province of Bombay v. Municipal Corporation of the City of Bombay, 73 Ind App 271 : (AIR 1947 PC 34), in a case arising before the coming into force of the Constitution. As the present case arose after the advent of the Constitution, the High Court did not feel bound by the aforesaid decision of the Privy Council and therefore examined the legal position afresh. On such an examination, the High Court came to the conclusion that the Indian Legislature in enacting laws acted on the assumption that the Government would be bound unless excluded either expressly or by necessary implication oftener than on the assumption that it would not be bound, unless the Legislature so provided expressly or by necessary implication. The High Court took the view that the decision of the Division Bench of the Madras High Court in Bell v. Municipal Commrs. for the City of Madras, ILR 25 Mad 457 was more in consonance with the law in India than the opposite view expressed in the Privy Council judgment aforesaid. They definitely decided that the law of India, even before the coming into effect of the Constitution, and even at the time of the passing of the Government of India Act, 1935, was that the Government was bound by a Statute unless it was exempted either expressly or by necessary implication. In that view of the matter, the High Court further observed that the question whether the decision aforesaid of the Privy Council was still good law under Art. 372 of the Constitution did not arise and that, if it did, it was inclined to the view that the law declared by the Privy Council was not continued by any provision of law. In effect, the High Court took the view that the State was bound by the Statute unless it was excluded from its operation either expressly or by necessary implication. In that view of the matter, it held that S. 386 of the Act bound the appellant, set aside the order of acquittal and sent the case back to the learned Magistrate for disposal according to law. The appellant made an application for special leave to appeal from the aforesaid judgment and order of the High Court, and obtained special leave in September 1955. It is thus clear that this case has remained pending in this Court for about five years. If this Court agreed with the view expressed by the High Court, the case would have to be tried on merits and the trial would begin more than eight years after the institution of the petition of complaint, but, as will presently appear, this prosecution was misconceived and therefore, in effect, no one has been the worse for the long pendency of the prosecution, which now must come to an end.;