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Petitioner: ABDUL HALIM MIAN VS Respondent: MAFI MIAN
P L D 1960 Dacca 867
P L D 1960 Dacca 867
Before Chakraborti, J
ABDUL HALIM MIAN‑Complainant
versus
MAFI MIAN AND OTHERS‑Opposite‑Parties
Reference No. 203 of 1958, decided on 11th December, 1958.
(a) Bengal Municipal Act (XV of 1932), Ss. 198 & 500 Sentence of imprisonment in default of payment of fine Illegal.
Where the Magistrate finding persons guilty under section 198 of the Bengal Municipal Act, 1932 convicted them under section 500 of the Act and sentenced them to pay a fine of Rs. 40 each, in default, to simple imprisonment for one month each, it was held that the Magistrate was not competent to impose the sentence in default of payment of fine.
(b) Bengal Municipal Act (XV of 1932), S. 500 (2)‑Daily fine can be imposed only on failure to comply with Magis trate's direction.
The incorporation of subsect ion (2) to section 500 of the Bengal Municipal Act, 1932 clearly indicates that a daily fine is to be imposed only when the accused fails to comply with the directions of the Magistrate.
Abdul Quddus in support of the Reference. Behter Ali in opposition to the Reference
JUDGMENT
Read the letter of Reference and heard the learned Advo cates both in support of the Reference and also in opposition thereof.
2. There was a case against the accused opposite‑parties for plying ferry‑boats within two miles of the Municipal ferry ghats without the sanction of the Municipal Commissioners and the District Magistrate of Dacca. The learned Magistrate found the accused opposite‑parties guilty under section 198 of the Bengal Municipal Act and convicted them under section 500 of the said Act and sentenced them to pay a fine of Rs. 40 each, in default, to simple imprisonment for one month each. He further directed them to stop the plying of ferry‑boats within two miles of the Municipal ferry ghats forthwith. There was a motion before the Sessions Judge by the Municipality and the learned Sessions Judge was of opinion that the sentence of simple imprisonment for one month each in default of payment of fine, as passed by the learned Magistrate, was not warranted by the Bengal Municipal Act, 1932. The learned Sessions Judge was also of opinion that the learned Magistrate erred in omitting to impose a daily fine in accordance with column No. 4 of the Table annexed to section 500 of the Bengal Municipal Act. Section 500 of the Act deals with certain offences punishable with fine and provides
"(1) Whoever commits any offence by‑----
(a) contravening any provision of any of the sections, sub sections, clauses of sections or provisos of this Act mentioned in the first column of the following table, or
(b) failing to comply with any direction lawfully given to him or any requisition lawfully made upon him under any of the said sections, subsections, clauses or provisos,
shall be punished with fine which may extend to the amount mentioned in that behalf in the third column of the said table.
(2) Whoever, after having been convicted of any offence referred to in clause (a) or clause (b) of subsection (1), continues to commit such offence shall be punished for each day after the first during which he continues so to offend, with fine which may extend to the amount mentioned in this behalf in the fourth column of the said table."
In the table; the Act provides for a fine of Rs. 50 under section 198 and a daily fine which may be imposed is Rs. 10. Now the learned Magistrate has sentenced the accused opposite‑parties to a fine of Rs. 40 each but he was clearly in error in imposing the sentence in default of payment of fine; and the Reference, in so far as it relates is this part of the learned Magistrate's order, is accepted.
3. As regards the other part of the Reference, namely, the learned Magistrate omitted to impose a daily fine in accordance with column No. 4 of the Table annexed to section 500 of the Bengal Municipal Act, 1932, I am of opinion that the learned Judge was not quite correct. Clause (b) of subsection (1) of section 500 of the Act provides : "failing to comply with any direction lawfully given to him or any requisition lawfully made upon him under any of the said sections, subsections, clauses or provisos, shall be punished with fine which may extend to the amount mentioned in that behalf in the third column of the said table." Now subsection (2) of section 500 reads : "Whoever, after having been convicted of any offence referred to in clause (a) or clause (b) of subsection (1), continues to commit such offence shall be punished for each day after the first during which he continues so to offence, with fine which may extend to the amount mentioned fn this behalf in the fourth column of the said table." This incorporation of subsection (2) clearly indicates that a daily fine is to be imposed later on when the accused fails to comply with the direction of the learned Magis trate, because that would involve a question of investigation into facts, one party might contend that the order has not been complied with and the other party might contend that the direction has been complied with.
(4) I, therefore, accept the Reference, in part and set aside the order of the learned Magistrate imposing the sentence of simple imprisonment in default of payment of fine. The rest of the learned Magistrate's order is maintained.
K, B. A. Reference partly accepted.