Mukerji, J. - (1.) THIS is an appeal by the Municipal Board of Shikohabad on special leave obtained from this Court Under Section 417(3), Code of Criminal Procedure against an order of acquittal made by the learned Assistant Sessions Judge of Mainpuri, Sri Ghattarpal Singh.
(2.) THE facts giving rise to this appeal may be briefly stated as follows: The Municipal Board of Shikohadad framed a byelaw under which it was obligatory for anyone who wished to establish a flour mill to first obtain a licence for the said purpose. Mahabir Sahai Pandey the Respondent to this appeal established a flour mill and it is the admitted case of the parties that he did not possess or obtain the necessary licence. On 25 -10 -56 Yashpal Singh and Amar Singh two employees of the Municipal Board discovered that Mahabir Sahai Pandey not only had set U.P. a flour mill but was actually running that mill at about 5 O'clock on that date without a licence. Yashpal Singh therefore, put up a report, apparently, to the Chairman of the Board drawing his attention to the fact that Mahabir Sahai had set up a flour mill and was running it in contravention of the provisions of the Municipalities Act which required the obtaining of a licence before anybody could establish and run a flour mill. On receipt of the information, the President of the Municipal Board, Sri Kashi Ram Gupta, sanctioned the prosecution of Mahabir Sahai under the provisions of Section 299(1) of the Municipalities Act, this sanction by the President was made on 1 -11 -56. On 16 -11 -56 a formal complaint against Mahabir Sahai was filed by the President under his own signature.
(3.) ON the aforementioned complaint Mahabir Sahai was prosecuted in the court of B.L. Agarwala, a Magistrate of the second class at Shikohabad. Before the learned Magistrate the evidence that was led on behalf of the Board was that under the bye law it was necessary for Mahabir Sahai to obtain a licence before he could establish or run a flour mill. Further evidence was led to show that on 25 -10 -56 Mahabir Sahai had actually been running the flour mill at about 5 O'clock in the evening. Mahabir Sahai did not challenge the fact of his having established a flour mill though at one stage of the proceedings he challenged the fact of his running the mill at about 5 O'clock. The defence that was taken was that the byelaw, the breach of which was pleaded as an offence, was not a valid bye -law and secondly, that the prosecution could not succeed because a prosecution could only be launched under a resolution of the Municipal Board and not merely on the sanction and filing of the complaint by the President of the Board. Reliance was placed on the provisions of Section 314 of the Municipalities Act which is in these words: Unless otherwise expressly provided no court shall take cognizance of any of the offence punishable under this Act whereof a list is given in Schedule VIII for the purpose merely of easier reference or under any rule or bye -law, except on the complaint of, or upon information received from, the Board or some person authorized by the Board by general or special order in this behalf.;