Judgment Case ID: 2390

Judgment:
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 S.P. 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 21(2) 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	 i.e.	 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. 492/1963 reported in The Presi dent	 Gadag Betgeri Municipal Borough vs State of Mysore(1). 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 23A(3) 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 23A(3) 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 23A(3) 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 23A(2) 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 CI/68 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 23A(3) 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 23A(2) 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 23A(3). 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 200(1) 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 200(1) 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 200(1) 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 200(1) 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 200(1) 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 200(1) 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 200(1) 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. C.Chakravarty(1). 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 Another(1)	 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 Agarwala(2) 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 Jethalal(3). That decision has already been disapproved by this Court in the case of Mangulal Chunilal(1)	 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 200(1) of the Act. In this connection	 a new point that was raised was that	 whenever an Order under section 23A(2) 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 23A(2) 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 200(1) of the Act. On the language of section 200(1) 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 23A(2) made punishable under section 23A(3) 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 200(1) of the Act would govern even such a proceeding. The legislature left section 200(1) 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 23A(3) of the Act	 so that the remedy may now lie in a suitable amendment of section 200(1) 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 200(1) 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 R.K.P.S. Appeal allowed.

Summary:
Section 23A(3) 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 200(1) 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 23A(3)	 not on the direction of the Standing Committee or the Chief Officer as required by section 200(1) 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 200(1) 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 200(1) 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 200(1) 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 200(1)	 as it stands at present	 is clearly applicable even to a proceeding for punishment of a retiring President under section 23A(3) 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 200(1). L828 E]