minal Appeal No 145 of 1965
Appeal by special leave from the judgment and order dated January 15 1965 of the Mysore High Court in Cr
Revision Petition 299 of 1964
H R Gokhale and R B Datar for the appellant
R Gopalakrishnan and SP Nayar for the respondent
The Judgment of the Court was delivered by Bhargava J
The appellant K M Kanavi was the President of the Municipal Borough of Gadag Betgeri from 11th January 1960 to 15th March 1963
He was removed from the President ship on 15th March 1963 by an Order passed by the Government of Mysore for neglect of duty and incapacity under section 212 of the Bombay Municipal Boroughs Act 1925 No XVIII of 1925 hereinafter referred to as the Act which was applicable to Gadag Betgeri even though it was situated in the State of Mysore because it was earlier a part of the State of Bombay
On the next day ie on 16th March 1963 the Government passed an order superseding the Borough
The appellant filed two writ petitions challenging these two orders of his removal and supersession of the Borough
The order of supersession was quashed by the High Court of Mysore by its judgment dated 10th April 1963 in Writ Petition No 4921963 reported in The Presi dent Gadag Betgeri Municipal Borough vs State of Mysore1
Thereafter elections were held for the office of the President because the appellant had ceased to be the President under the order of removal
One Malashetti was elected as the President of the Borough on 22nd April 1963
On 25th April 1963 the new President asked the appellant to hand over all the papers documents and property belonging to the Municipal Administration
On 2nd May 1963 the appellant sent three keys and two files of papers by registered parcel to the new President
The new President returned it on the ground that those articles had not been delivered to him in person by the appellant and be considered it unsafe to take delivery of the registered parcel
When sending this parcel the appellant wrote an accompanying letter in which he specifically stated that he was retaining certain papers as they were needed by him for his writ petition which was pending against his order of removal
Thereafter on 20th June 1963 the State Government made an order under sub section
2 of section 23A of the Act directing the appellant to hand over charge of all the papers 1 823 And properties which were in his possession to the new President
He was also asked to hand over an iron cupboard with its keys and contents which were with him
This Government Order was served on the appellant on 9th July 1963
The appellant did not comply with the Order and consequently on 21st September 1963 the Government of Mysore sent an order to the Divisional Commissioner directing him to take necessary action under section 23A of the Act to prosecute the appellant since he had defied the Government Orders and had refused to hand over charge of the papers and properties of the Borough to the newly elected President
The Divisional Commissioner in turn wrote to the Deputy Commissioner on 5th October 1963 requesting him to take immediate action under section 23A3 of the Act to prosecute the appellant
The Deputy Commissioner then passed an order authorising the newly elected President of the Borough to be the formal complainant in respect of this prosecution which had been ordered by the Government and to file a criminal complaint against the appellant
This order was made by the Deputy Commissioner on 24th December 1963
The new President Malashetti thereupon filed a complaint against the appellant for an offence punishable under section 23A3 of the Act
The complaint itself is dated as 3rd January 1964 but the judgment of the High Court mentions that the complaint was actually presented in Court on 8th January 1964
Since these dates are not very material for decision of the point on the basis of which this appeal is being decided we have not tried to ascertain the exact date of presentation of the complaint in court
On the basis of this complaint and the facts mentioned above the appellant was convicted by a Magistrate for the offence under section 23A3 of the Act and was sentenced to pay a fine of Rs 501  in default to suffer simple imprisonment for seven days
The appellant filed a revision against this order of conviction in the High Court of Mysore and challenged it on three grounds
One ground was that the complaint filed by the new President Malashetti was incompetent as it was not filed in accordance with the procedure laid down in the Act so that the proceedings taken by the Magistrate were without jurisdiction
The second point was that even if it be held that the complaint was validly filed the provisions of section 23A of the Act were not attracted as the appellant could not be held to be a retiring President and an order under section 23A2 can only be made against a retiring President
The third plea was taken that the complaint was barred by time
The High Court did not accept any of these three pleas and dismissed the revision
The appellant has therefore come up to this Court in appeal by special leave
In this case the facts which have been enumerated above were not disputed even during the trial of the case and the defence 8Sup CI68 13 824 of the appellant was confined to the three grounds mentioned above which were urged in the revision before the High Court
To appreciate the first ground mentioned above it is necessary to reproduce section 23A and sub section
1 of section 200 of the Act which are as follows  23A 1 On the election of a new President or Vice President the retiring President or Vice President in whose place the new President or Vice President has been elected shall hand over charge of his office to such new President or Vice President as the case may be
2 If the retiring President or Vice President fails or refuses to hand over charge of his office as required under sub se ction 1 the State Government or any authority empowered by the State Government in this behalf may by order in writing direct the President or the Vice President as the case may be to forthwith hand overcharge of his office and all papers and property of the municipality if any in his possession as such President or Vice President to the new President or Vice President
3 If the retiring President or Vice President to whom a direction has been issued under sub section 2 does not comply with such direction he shall on conviction be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to Rs 500 or with both
1 The standing committee and subject to the provisions of sub section 3 the Chief Officer may direct any prosecution for any public nuisance whatever and may order proceedings to be taken for the recovery of any penalties and for the punishment of any persons offending against the provisions of this Act or of any rule or by law thereunder and may order the expenses of such prosecutions or other proceedings to be paid out of the municipal fund  Provided that no prosecution for an offence under this Act or by laws framed thereunder shall be instituted except within six months next after the date of the commission of the offence or if such date is not known or the offence is a continuing one within six months next after the commission or discovery of such offence
 Sub section
1 of section 23A casts the duty on the retiring President to hand over charge of his office to the new President when a_new President has been elected
It is obvious that when handing over 825 charge the retiring President must hand over to his successor all the papers and property belonging to the Borough
Sub section 2 of section 23A envisages a case where the retiring President fails or refuses to hand over charge of his office in that manner
This sub section empowers the State Government or any authority empowered by the State Government in this behalf to make an order in writing directing the retiring President to forthwith hand over charge of his office and all papers and property of the municipality to the new President
Sub section 3 of section 23A prescribes the punishment which can be awarded to a retiring President who is convicted for not complying with a direction issued under sub section
It is clear that in the present case the appellant was not liable to conviction under section 23A3 merely because he refused to hand over complete charge to Malashetti when the latter asked him to do so by his letter dated 25th April 1963 or even by the subsequent reminder dated 6th May 1963
The failure of the appellant to hand over the property however led the State Government to make a direction under section 23A2 on 20th June 1963 and this Order of the Government was served on the appellant on 9th July 1963
This Order was not complied with by the appellant according to the case of the prosecution
It was because of the failure of the appellant to comply with this Order that the complaint was filed by the new President under section 23A3
The complaint was therefore clearly for initiating a proceeding for the punishment of the appellant who had offended against the provision under sub section
2 of section 23A of the Act
Under section 2001 of the Act direction for taking such proceedings could be made either by the standing committee or by the Chief Officer
Admittedly Malashetty was not the Chief Officer nor did he file the complaint under any direction made by the Standing Committee of the Borough
It is on this ground that the plea has been put forward on behalf of the appellant that the complaints against him was incompetent and no conviction could be validly recorded against him on its basis
The High Court rejected this plea on the ground that in its opinion section 2001 of the Act is only an enabling section which gives the power to the Standing Committee and the Chief Officer to make directions for taking of proceedings of this nature and it cannot be held to be exhaustive of the authorities who could make directions for initiation of such proceedings
The High Court took notice of the fact that in the Act there is no provision forbidding cognizance of an offence being taken except on a complaint made under a direction of the Standing Committee or the Chief Officer and interpreted the expression may direct used in section 2001 of the Act as indicating that it was an enabling section permitting the Standing Committee and the Chief Officer to make necessary directions
In these circumstances the High Court con  826 cluded that this provision could not be held as laying down that the Standing Committee and the Chief Officer were the exclusive authorities who could institute proceedings of the nature mentioned in that sub section
On this view the High Court further proceeded to hold that a complaint could have been filed for an offence under the Act by even a private individual so that the complaint filed by Malashetty who was interested in his capacity as the newly elected President was competent and valid
We are unable to accept the interpretation put by the High Court on section 2001 of the Act
It is true that there is no specific provision in the Act laying down that cognizance of an offence under the Act is not to be taken except on a complaint filed in accordance with a direction made under section 200 1  but the scheme of the Act and the purpose of this provision in section 2001 makes it clear that the legislature intended that such proceedings should only be instituted in the manner laid down in that sub section
The word may was used only because the legislature could not have enacted a mandatory provision requiring the Standing Committee or the Chief Officer to make a direction for institution of proceedings in all cases
This word was intended to give a discretion to the Standing Committee or the Chief Officer to make directions for taking proceedings only when they considered it appropriate that such a direction should be made and to avoid compelling the Standing Committee or the Chief Officer to make such directions in all cases
The use of this word may cannot be interpreted as laying down that if a proceeding for punishment of any person for con travention of any of the provisions of the Act is to be instituted it can be instituted in any manner without complying with the requirements of section 2001 of the Act
If the interpretation put by the High Court on this provision is accepted it would mean that this provision was totally unnecessary because there would be no need to confer power on the standing committee or the Chief Officer to make such directions if such directions could be made or proceedings instituted at the instance of any private individual
We cannot accept the submission that this provision was made in the Act simply by way of abundant caution
In fact if the provision had been made with such an object in view there is no reason why the power should have been expressed to be conferred on the standing committee and the Chief Officer only and not on the President of the Municipality
We consequently hold that if any proceeding for punishment of any person for contravention of any of the provisions of the Act is to be instituted it must be instituted in the manner laid down in section 2001 of the Act and in that manner only
This view of ours follows the principle laid down by this Court in Ballavdas Agarwalay
Shikri J CChakravarty1
In that case 1  827 the Court had to interpret a similar provision in section 537 of the Calcutta Municipal Act 1923 under which it was laid down that the Commissioner may institute defend or withdraw from legal proceedings under that Act or under any rule or bye law made thereunder
The Court held that though the word used was may
this provision must be read as requiring that the institution or withdrawal from legal proceedings under that Act must be by the Commissioners and no other authority
The decision was given on the basis that the scheme of the Act made it clear that section was intended to confer exclusive power on the Commissioners
The interpretation that it was a mere enabling section because of the use of the word may was rejected and it was hold that if the other interpretation canvassed was accepted the section would become clearly otiose
That principle clearly applies to the interpretation of section 200 1 of the Act with which we are concerned
In Mangulal Chunilal vs Manilal Maganlal and Another1 a similar interpretation was put on section 481  1  of the Bombay Provincial Municipal Corporation Act 1949 which also used the word may when laying down that the Commissioner may take or withdraw from proceedings against any person who is charged with any offence against this Act or
This Court referred to the decision in Ballavdas Agarwala2 and said  Similarly here it seems to us that only the authorities mentioned in section 481 read with section 69 can launch proceedings against persons charged with offences under the Act or the rules regulations or by laws made under it In the case before us reliance was placed on the other side on a decision of the Bombay High Court in The State vs Manilal Jethalal3
That decision has already been disapproved by this Court in the case of Mangulal Chunilal1 and need not detain us
On this view it must be held that the complaint in the present case which was instituted by Malashetty the newly elected President without any order or direction by the standing committee or by the Chief Officer was not competent as it did not comply with the requirements of section 2001 of the Act
In this connection a new point that was raised was that whenever an Order under section 23A2 of the Act is made and is disobeyed only the State Government which made the Order or the new President to whom the papers and property of the Borough have to be given under the direction made by the Government will have the knowledge that the retiring President has failed to 1 Criminal Appeal No 59 of 1965 decided on 23 11 1967
2  3 828 comply with the direction and has thus committed an offence punishable under section 23A2 of the Act and consequently it should be held that a complaint in respect of such an offence was not intended to be covered by the provisions of section 2001 of the Act
On the language of section 2001 of the Act however we must reject this contention because it clearly lays down that the Standing Committee and the Chief Officer are the authorities who can order proceedings to be taken for the punishment of any person offending against the provisions of the Act and the present prosecution of the appellant is clearly for an offence of failing to comply with a direction under section 23A2 made punishable under section 23A3 of the Act
It may no doubt appear anomalous that the prosecution of even a retiring President in such circumstances has to be ordered by the Chief Officer who was his subordinate at least during the time when he was working as the President
It seems to us that this anomaly has arisen because when section 23A in its present form was introduced in the Act by the Bombay Act XL of 1950 and for the first time a retiring President was made liable to conviction for failing to comply with a direction made under sub section 2 of that section the Legislature did not notice that section 2001 of the Act would govern even such a proceeding
The legislature left section 2001 of the Act untouched
That provision as it stands at present is clearly applicable even to a proceeding for punishment of a retiring President under section 23A3 of the Act so that the remedy may now lie in a suitable amendment of section 2001 of the Act
The conviction of the appellant on the basis of the complaint filed by the new President Malashetty in disregard of the provisions of section 2001 of the Act must therefore be held to be invalid and set aside
Since the appeal succeeds on this one ground we do not con sider it necessary to discuss the other two grounds raised by the appellant for challenging his conviction
The appeal is allowed and the conviction and sentence of the appellant are set aside RKPS Appeal allowed


Summary:
Section 23A3 of the Bombay Municipal Boroughs Act 1925 makes it an offence if a retiring President to whom a direction has been issued by the State Government to hand over charge of his office does not comply with such direction and under section 2001 the authorities who may direct  any prosecution for punishment of any person offending against the provisions of the Act are the Standing Committee and the Chief Officer
The appellant who was removed from the office of President ship refused to obey the order of the State Government directing him to hand over charge to the newly elected President
He was prosecuted and convicted for an offence under section 23A3 not on the direction of the Standing Committee or the Chief Officer as required by section 2001 but on a complaint filed at the instance of the State Government by the newly elected President
The High Court dismissing revision application against the order of conviction took the view that section 2001 was only an enabling provision and it could not be held to be exhaustive of the authorities who could make directions for initiation of such proceedings
In appeal to this Court HELD The conviction must be set aside
The Scheme of the Act and the purpose of section 2001 make it clear that if any proceeding for punishment of any person for contravention of any of the provisions of the Act is to be instituted it must be instituted in the manner laid down in section 2001 of the Act and in that manner only
The word may was intended to give a discretion to the Standing Committee or the Chief Officer to make directions for taking proceedings only when they considered it appropriate that such a direction should be made and to avoid compelling the Standing Committee or the Chief Officer to make such directions in all cases
If the interpretation of the High Court were to be accepted it would mean that this provision was totally unnecessary because there would be no need to confer power on the Standing Committee or the Chief Officer to make such directions if such directions could be made or proceedings instituted at the instance of any private individual
826 C D F Baliavdass Agarwala vs Shri J C Chakravarty  Mangulal Chunilal vs Manilal Maganlal and Another Criminal Appeal No 59 of 1965 decided on 23 11 1967 followed  The State vs Manilal Jethalal  referred to
Section 2001 as it stands at present is clearly applicable even to a proceeding for punishment of a retiring President under section 23A3 even though it might look anomalous that the prosecution in such 822 circumstances has to be ordered by the Chief Officer who was his subordinate at least during the time when he was working as the President
The remedy lies in suitable amendment of section 2001
L828 E