Emperor Vs. Merwanji M. Mistry - Court Judgment

Excerpt:
criminal procedure code (act v of 1898), sections 245, 562(1a)-city of bombay municipal act (bom. act iii of 1888), section 471-conviction by magistrate-sentence according to law-' warned and discharged,' not a proper sentence.;where an accused is found to have committed an offence under section 471 of the city of bombay municipal act 1888, it is not competent to the magistrate to warn and discharge him, on his abating the nuisance complained of; but the magistrate should pass a sentence according to law.;the operation of section 562(1a) of the criminal procedure code is confined to offences under the indian penal code.;emperor v. pandu ramji (1926) 28 bom. l.r. 297, followed. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed 50% of his property to s and 50% to j in a letter addressed to the 1st respondent, viz., s, he is purported to have recorded that the he had given all his shares to her - will was not only unnatural but was surrounded by a large number of suspicious circumstances held, it is a fit case where the high court should have appointed a receiver and/or an administrator with suitable directions. s alone had been given exclusive powers not only to execute documents but also induct tenants. - the magistrate thereupon postponed the cases to august 9, 1927, in order to give the opponent an opportunity of removing the accumulations and obstructions complained of, and of furnishing the names of the tenants that were referred to. but, as i have already pointed out, this warning and discharging was net a form of sentence or order that the magistrate bad power to pass in the case; but the accused, who has appeared in person, says that he would prefer this court to dispose of the case, and we think that in the circumstances that will be the best course. therefore, we set aside the order 'warned and discharged',and substitute an order convicting the accused of offences under section 471 of the city of bombay municipal act, 1888, with reference to the contravention of sections 372(f) and 258(d) of the act that was complained of, and sentence the accused in each case to a fine of re.fawcett, j.1. in this case the opponent, the owner of certain stable premises, was prosecuted for offences under section 471 of the city of bombay municipal act, 1888, in having allowed stable litter to be kept on his premises, and having allowed dung from these premises to pass into certain drain in contravention of provisions of the city of bombay municipal act. there were two separate cases which came up for hearing before the presidency magistrate, 5th court, on july 26, 1927. it was then represented on behalf of the accused that the accumulations of stable litter had been removed and that the obstruction to the drains was due to the action of tenants and that also would be removed. the magistrate thereupon postponed the cases to august 9, 1927, in order to give the opponent an opportunity of removing the accumulations and obstructions complained of, and of furnishing the names of the tenants that were referred to. on august 9, the magistrate was informed, as the petition admits to be the case, that the accumulations and obstructions had been removed, and he then passed an order in each case as follows : 'complied: warned and discharged.'2. the municipal commissioner for the city of bombay comes to us in revision and urges that this order was illegal and that it should accordingly be set aside, and such order passed as this court deems fit. it is pointed out by mr. kemp for the petitioner that the two offences in question were punishable only with fine under section 471 of the city of bombay municipal act; that, therefore, the two cases were tried as summons cafes in accordance with schedule ii of the criminal procedure code, and that, under section 245 of the code, the magistrate was bound either to record an order of acquittal or of conviction, and in the latter case, he was bound, unless he proceeded in accordance with the provision of section 562, criminal procedure code, to pass a sentence upon the accused according to law. the magistrate's order 'warned and discharged' is of a nature that suggests the analogy of an order for release of an accused after due admonition, such as is authorized by sub-section (1a) of section 562. but that particular sub-section does not apply in the present case, because it is confined to cases of an offence under the indian penal code, whereas this is an offence punishable under the city of bombay municipal act. this has already been pointed out by this court in regard to offences under the motor vehicles act, 1914 : cf. emperor v. pandu ramji : (1926)28bomlr297 . nor is the case one that falls under sub-section (1) of section 562, criminal procedure code, because the offence is not punishable with imprisonment, but only punishable with fine. therefore, the order, supposing it to be one of conviction, is illegal in that the magistrate has not passed a sentence according to law,3. it is contended by the learned government pleader that the order does not say that the accused is convicted and that the magistrate may have intended to acquit the accused. in my opinion that is not a construction that can be put upon the order, because the facts i have already mentioned show that it was admitted that there were certain accumulations of litter and obstructions to drains, and time was given to the accused to get the accumulations and obstructions removed, so that the note that the magistrate has made-'complied'-can only mean that the accused had taken action which put an end to the offences in question, but which did not in any way affect the fact that such offences had been committed at the time when they were alleged to have been committed. i think, therefore, the magistrate's note must be taken as meaning that there had been an offence in each case, but that in view of the compliance by the accused with what he had undertaken to do at a previous hearing, he considered it sufficient merely to warn and discharge him. but, as i have already pointed out, this warning and discharging was net a form of sentence or order that the magistrate bad power to pass in the case; and it was contrary to the provisions of section 245 that he should pass a sentence upon the accused according to law. therefore, i think that the objection that the order passed was illegal must be admitted.4. we might send the case back to the magistrate, after setting aside that order, with the direction that he should pass an order in each case according to law. but the accused, who has appeared in person, says that he would prefer this court to dispose of the case, and we think that in the circumstances that will be the best course. the case appears to us to be one where a nominal fine will meet the ends of justice, especially as this application for revision is made mainly in order that presidency magistrates may not pass such an order of 'warned and discharged' in future cases where they have no authority to do so. therefore, we set aside the order 'warned and discharged', and substitute an order convicting the accused of offences under section 471 of the city of bombay municipal act, 1888, with reference to the contravention of sections 372(f) and 258(d) of the act that was complained of, and sentence the accused in each case to a fine of re. 1 which must be paid within three days.mirza, j.5. i concur