JUDGMENT
Teunon, J.
1. (March 30, 1917.)—These six Rules were issued at the instance of three petitioners Amrita Lal Bose, Hari Prosad Bose and Dasu Charan Neogi. These three persons, it is admitted, are the co-sharer owners of a Theatre known as the Star Theatre situated in Cornwallis Street in the town of Calcutta and each, it appears, takes an active part in the management thereof.
2. On the 2nd, 5th, 6th, 9th, 12th and 13th November the performance at this Theatre was continued beyond the hour of 1 a.m. Six prosecutions were, therefore, instituted against the petitioners, who in each case were convicted on admissions made on behalf of all by their authorised agent, and sentenced each to pay a fine of Rs. 20.
3. In each case an application was made to this Court on the 2nd of January 1917 and the six Rules now before us were issued, calling upon the Municipal Magistrate and the Chairman of the Corporation to show cause why in each case the sentences complained of should not be modified.
4. By Section 559 of the Calcutta Municipal Act, 1899, Clause (52), it is provided that the General Committee may make bye-laws for the regulation of theatres and other places of public resort, recreation or amusement.
5. In Section 561 it is next enacted that in making a bye-law under Section 559, the General Committee may provide that a breach of it shall be punishable with fine which may extend to Rs 20. Of the bye-Jaws made by the General Committee under Section 559 (52), the 83rd provides with a certain exception which has no application here, that no performance shall be continued later than 1 A. m. The penalty is to be found in the 85th bye-law which says, “Every person guilty of a breach of any of these bye-laws shall be punishable with fine which may extend to Rs. 20.”
6. Thus in each of the six Rules the only question is whether in view of the provisions of Section 561 of the Act the imposition of a fine of Rs. 20 on each of the three petitioners, i.e. of a fine or fines exceeding in the aggregate Rs. 20 is authorised by law.
7. This same question, I may now observe, arose in Criminal Revision No. 1215 of 1916. See Amrita Lal Bose v. Chairman of the Corporation, of Calcutta, 40 Ind. Cas. 312: 21 C. W. N. 1009: 26 C. L. J. 29: 18 Cr. L. J.—Ed. In that case the conviction was in respect of an offence committed by the same three petitioners on the 3rd of September 1916. The Rule then issued at their instance was obtained on the 1st of December and eventually came on for hearing on the 18th of January. The Judges (Chaudhuri, J., and myself) having differed in opinion the case was referred to Chitty, J., who in agreement with Chaudhuri, J., delivered judgmenton the 19th of February, holding that a fine or fines exceeding Rs. 20 in the aggregate were not permissible. When on the 13th March the present Rules came on for hearing before the Bench as now constituted, learned Counsel (Mr. K. N. Chaudhuri) appearing for the petitioners contended that we had no jurisdiction to hear them. This contention appeared to resolve itself into two branches, the first being that we were bound by the decision of Chitty and Chaudhnri, JJ., in Revision No. 1215 of 1916, That, however, is not so. On the 18th of January there was but one Rule, or case No. 1215, before the Court. No reference was made at the hearing to these later Rules, and in fact at that time the returns to these Rules and the explanation or statement which, under Section 441 of the Code, the Magistrate is entitled to submit, had not been received. No doubt it was open to the petitioners or to learned Counsel appearing on their behalf to apply that the hearing of the first Rule should be postponed until the later Rules could be heard with it. But this course was not taken and the only case heard on the 18th January and decided by Chitty and Chaudhuri, JJ., on the 19th of February was Criminal Revision No. 1215 of 1916. It cannot be questioned that any Divisional Bench of this Court may differ from any other Divisional Bench on a question of law and in these oases, the question involved being one of great public importance, we both felt that we ought not to follow the previous decision without further examination of the grounds on which it was based.
8. It was next contended that as one of the Judges composing the present Bench (i. e., myself; was one of the Judges who had’ heard Revision No. 1215 on the 18th January and had then expressed an opinion contrary to the decision ultimately arrived at, the Bench so constituted had no jurisdiction to hear the present Rules. This appears to be a novel doctrine, which if given effect to would dislocate the business of this Court. An examination of the constitution of the Full Benches formed from time to time will show that an expression of opinion by a Judge on a question of law does not debar him from hearing and dealing with the same question on a subsequent occasion. I need refer only to the recent Full Bench which decided Criminal Revision No. 848 of 1916 Charu Chandra Mayumdar v. Emperor 37 Ind. Cas. 145, 21 C. W. N. 320: 25 C. L. J. 165: 18 Cr. L. J. 81: 44 C. 595 on the 4th of December last and to the Full Bench Queen-Empress v. Sri Chum Chungo 22 C. 1017: 11 Ind. Dec. (n. s.) 676, which on the 20th of December 1865 overruled the decision of Petheram, C. J., and Beverley, J., in the case of Prosonno Kumar Patra v. Udoy Sard 22 C. 669: 11 Ind. Dec. (n. s.) 446, decided on the 30th of April of that same year.
9. No doubt if learned Counsel appearing on behalf of the petitioners had felt genuinely embarrassed in his argument by the composition of the Bench, it was open to him to represent this to the Court and to apply with the courtesy due to the Bench that we should move his Lordship the Chief Justice to transfer these cases to some other Bench. To such an application so made we would have lent a ready ear. But this course was not taken, and to a claim advanced as of right, advanced too with unbecoming heat and discourtesy, we could not accede.
10. Having made his observations on the question of jurisdiction, learned Counsel next intimated that he did not propose to argue the matter further and on the merits, therefore, we have not had the benefit of his assistance.
11. We may now return to the question of law involved in the present Rules. Mr. Manmatha Nath Mukherjee, to whom we are much indebted, appearing for the Corporation, has placed before us all the authorities on which, so far as can be gathered, the petitioners rely. The following English cases have been referred to: Rex v. Clark (1777) 2 Cowp. 610: 98 E. R. 1267. Reg. v. Bean (1843) 12 M. & W. 39: 13 L.J. Ex. 33: 152 E. R. 1102: 67 R. R. 248, Reg. v. Littlechild (1871): 6 Q. B. 293: 40 L. J. M. C. 137: 24 L. T. 233: 19 W. R. 748. also Crepps v. Burden (1777) 1 Smith’s L. C. 657: (Seventh Ed., P. 651) 2 Cowp. 640: 98 E. R. 1283. The only Indian authority cited in this connection was the case of Reg. v. Showdar Chenar 7 B. H. C. E. Cr. 39, but my attention has since been drawn to the case of Gungadhur Sahoo, In re 22 W. R. Cr. 9. In Beg, v. Showdar Ghenar 7 B. H. C. E. Cr. 39, decided in 1870, Westropp, C. J., elaborately discussed the earlier English cases, and following apparently the cases of Reg. v. Rowan McNaghten (1845) 9 Ir. L. R. 93, Reg. v. Bleasdale (1792) 4 T. R. 809: 100 E. R. 1314, Hardyman v. Whitaker (1849) 2 East 573: 102 E. R. 489 and Partridge v. Naylor (1596) Noy 52: 74 E. R. 1021: Moore (K. B.) 453: 72 E. R. 689: Goulds. 145: 75 E. R. 1054: Cro. Eliz, 480: 78 E. R. 731, held that on the language of Regulation XXI of 1827, Section 4, only one forfeiture of double the amount of the duty plus double the value of the opium in question had been incurred. It is not for me to question the decision of a Full Bench of the Bombay High Court on a Bombay Regulation, but it may be noticed that in the case of Reg. v. Vakhatchand 1 B. H. C. R. 50, an earlier Pull Bench consisting of six Judges of the same Court had taken the contrary view. For present purpose it is sufficient to observe that the Regulation under consideration in both the Bombay cases above referred to was of a date long prior to the enactment of the Indian Penal Code in 1860. Similarly the case of Gungadhur Sahoo, In re 22 W. R. Cr. 9. was decided on the language of Section 17 of Bengal Act VII of 1864, while the definition of offence (section 40 of the Code) was not extended to acts punishable under local or special laws until 1870 by Act XXVII of that year. Moreover, the decision in Gungadhur Sahoo, In re 22 W. R. Cr. 9, appears to have proceeded in part on the fact that the two persons convicted in each of the two cases then in question were master and servant and on the view that the custody of the servant (whom the Court acquitted) was the possession of the master.
12. In the view I take, the English cases, in so far as they discuss the distinction between offences single (or joint and indivisible) in their nature and offences several in their nature, are of no authority here in India.
13. But the general rule, and, in my opinion, the only general rule laid down in these cases, and also in the case of Reg. v. Showdar Ghenir 7 B. H. C. E. Cr. 39, is that in each case the question must be determined by the language of the particular Statute. That rule is equally applicable in England and in India.
14. Here, therefore, we have to construe Section 561 of the Calcutta Municipal Act, and that Act is again to be read in the light of Bengal General Clauses Act, I of 1899, and also in the light of certain sections of the Indian Penal Code which, as is well known, was intended to replace the preexisting Criminal Law.
15. It cannot, we think, be questioned that the breach of a bye-law made under the provisions of the Calcutta Municipal Act is a thing punishable under a special or local law. To things so punishable, Section 40 of the Code, as amended by Act XXVII of 1870, extends the provisions inter alia of Section 109 of the Code. Similarly Section 3, Clause (1) of the Bengal General Clauses Act, we may observe, provides that unless there is anything repugnant in the subject or context the word ‘abet’ shall have the same meaning as in the Indian Penal Code. Section 109 of that Code provides in substance that whoever abets any offence shall be punished with the punishment provided for the offence. Persons who in concert commit an offence are treated each as having abetted the other. That is the case here. The three petitioners, the co-sharer owners and managers of this Theatre, it has been found, combined to continue the performance on the nights in question beyond the closing hour. They acted in concert, and there is no suggestion that in keeping the Theatre open anyone or two of them acted in defiance of the wishes of the others.
16. In my opinion, therefore, having regard to the provisions of Sections 40 and 109 of the Indian Penal Code, they are individually liable to the full penalty provided for the offence.
17. Apart, however, from the sections of the Indian Penal Code which, in my opinion, are applicable and, therefore, must be applied, on the language of the section itself, I come to the same conclusion. The breach of a bye-law is an offence. The Section (section 561) provides in effeot that this offenoe ” shall be punishable with” fine which may extend to Rs. 20, There is nothing unique in this language. In Section 40 of the Indian Penal Code an offence is spoken of as a thing made punishable by” or ” punishable under the Code or a special or local law”, as the case may be. Similarly, Sections 64 and 67 speak of “offences punishable with fine” or ‘ imprisonment ” and so forth, but when we come to the operative or punitive sections punishment for each individual offender is provided. In this connection the Criminal Procedure Code and also some other special laws may be referred to. I need not, however, elaborate this argument. In my opinion when the section provides that the offence consisting in the breach of a bye-law shall be punishable with fine which may extend to Rs. 20, it means and provides that such offence in every individual offender guilty thereof is punishable to that extent.
18. The last contention put forward in the application of the petitioners is that they being joint owners of the Theatre in question are one person” for the purposes and within the meaning of the 83rd and 85th bye-laws.
19. This contention appears to be based on the Bengal General Clauses Act, Section 3, Clause 66 Fed 2140: 30 U. S. App. 90: 13 C. C. A. which says that unless there is anything repugnant in the subject or context, ” person ” shall include any company or association or body of individuals, whether incorporated or not. On this definition it may be that where rights are specially conferred or obligations specifically imposed upon the ‘owners’ of premises these three co-owners are for such purposes to be considered as one. But here the case appears to me to be different. A breach of this bye law, which consists in the continuance of a performance beyond a stated hour, may, I venture to think, be committed by the individual actor, the manager, the proprietor and by all aiding and abetting them in the continuance thereof. Further-under the definition on which reliance is placed three persons can be treated as one only when there is no repugnancy in the subject or context. Here and in Indian penal legislation in general, in my opinion, there is such repugnancy, and in further support of this view I should refer to Section 26 of the Bengal General Clauses Act, which provides inter alia that in the absence of express provision to the contrary Section 64 of the Indian Penal Code “shall apply” to all tines imposed under any Bengal Act. Section 64 of the Code provides that in every case of an offence punishable with fine only, it shall be competent to the Court to direct that in default of payment the offender shall suffer imprisonment. No doubt in the case of Basanta Kumari Devi v. Corporation of Calcutta 11 Ind. Cas. 143: 15 C. W. N. 906: 12 Cr. L. J. 375, a Bench of this Court held that in the case of the bye-law then before them imprisonment could not be imposed. But with all respect to the learned Judges who so decided, I am unable to agree in the view which then found favour. Neither in that case nor in this does the Act or bye-law contain any express provision to the contrary, and I am, therefore, of opinion that that case was wrongly decided, and in this connection I may refer to the case reported as Lakmia, In re 18 B. 400: 9 Ind. Dec. (n. s.) 775. Further the case of Basanta Kumari Devi v. Corporation of Calcutta 11 Ind. Cas. 143: 15 C. W. N. 906: 12 Cr. L. J. 375, may be distinguished inasmuch as the Court was there dealing with a continuing breach.
20. The liability of the offenders to imprisonment would seem to negative the contention that three offenders can be held to constitute one ‘person.’
21. To sum up, I am of opinion that when Section 561 of the Calcutta Municipal Act provides that a breach of a bye-law shall or may be punishable with fines which may extend to Rs. 20, it provides that the offence shall be so punishable in each and every individual offender, that bye-law 85 is, therefore, not ultra vires, and that three offenders cannot be considered to be one person within the meaning and for the purposes of the section and of the bye-laws now in question.
22. I am, therefore, of opinion that the present Rules should be discharged.
Newbould, J.
23. The question that arises in these Rules is whether the Magistrate had power to impose on each of the three petitioners the full penalty provided bylaw for the breach of a bye-law of the Calcutta Municipality. The same question arose recently when the same petitioners were convicted of a breach of the same bye-law, and it was held by Chitty and Chaudhuri, JJ., Teunon, J., dissenting, that the total amount of the fines imposed on the petitioners could not exceed the sum of Rs. 20, the full penalty provided for the offence, When these Rules came up for hearing, the learned Counsel for the petitioners contended that this previous decision was binding on us and we must make these Rules absolute and had no jurisdiction to do otherwise. He refused to assist us by arguing in support of these Ruins or in reply to the arguments of the learned Pleader for the respondent in support of our having jurisdiction. On this point, I think it unnecessary to add anything to the remarks of my learned brother, with which I entirely agree.
24. The offence of which the petitioners were convicted on their plea of guilty was breach of Bye-law No. 83 duly made by the General Committee of the Calcutta Municipality, under Section 559 (52) of the Calcutta Municipal Act, III (B. C.) of 1899. This bye-law is as follows:
25. “Hour of closing Theatres. No performance shall be continued later than 1 a.m. unless with the particular permission of the Chairman for any particular occasion.” The penalty clause of these bye-laws made under Section 561 of the same Act is to the following effect:—“Every person guilty of a breach of any of these bye-laws shall be punishable (a) with fine which may extend to Rs. 20….” It is unnecessary to quote the remainder of the clause which relates to continuing breaches. To me it seems perfectly clear that under this penalty clause each of the petitioners who has committed a breach of Bye law No. 83 is punishable with a fine of Rs. 20. I will consider later the question whether this penalty clause is ultra vires. Assuming that it is not, I find myself unable to agree with my learned brother Chitty, J., that the dictum of Lord Mansfield in Rex v. Clark (1777) 2 Cowp. 610: 98 E. R. 1267, supports the contention of the petitioners in the present case. This case and o; her English oases on the point are discussed by Westropp, C. J., in Reg. v. Showdar Chenar 7 B. H. C. E. Cr. 39. He states: “The English decisions would appear to show 37 Ind. Cas. 145, 21 C. W. N. 320: 25 C. L. J. 165: 18 Cr. L. J. 81: 44 C. 595, that if the penalty be imposed by an Act of the Legislature upon each person convicted, even where the offence would in its nature be single, or 22 C. 1017: 11 Ind. Dec. (n. s.) 676. if the quality of the offences be such that the guilt of one person may be distinct from that of the others, in either of these cases the penalties are several.” Now in Rex v. Clark (1777) 2 Cowp. 610: 98 E. R. 1267. Mr. Buller in support of the Rule argued “only one penalty can be recovered.” For it is not said “that every person offending shall for every such offence forfeit” but “if any person or person, shall, etc., the party or parties shall for every such offence forfeit and lose £40 ” Lord Mansfield in his judgment did not discuss that argument, but discharged the Rule on the ground that the offence in that case was in its nature several and not single. There is nothing in his judgment to contradict the first portion of Lord Westropp’s Concise statement of the effect of the English decisions, namely, that even where the offence would in its own nature be single, the penalties are serveral if the penalty be imposed by an Act of the Legislature on each person convicted. I have considered the English cases referred to in Reg. v. Showdar Chenar 7 B. H. C. E. Cr. 39 and cannot find any of them contradict the rule that where the enactment makes every person” offending liable to the penalty, separate penalties can be imposed on each person. The only case that seems at all to support the petitioners’ contention Partridge v. Naylor (1596) Noy 52: 74 E. R. 1021: Moore (K. B.) 453: 72 E. R. 689: Goulds. 145: 75 E. R. 1054: Cro. Eliz, 480: 78 E. R. 731, in which in spite of the words of the Act making every person offending” liable to forfeit £5, it was held that but one £5 shall be forfeited, in an action against three persons. But as pointed out by Westropp, C. J., at pages 46 and 47 of the report above mentioned Reg. v. Showdar Chenar 7 B. H. C. E. Cr. 39, this is a very peculiar case and can be distinguished on the ground that this was a civil action by a private person and the penalty was of the nature of compensation rather than fine.
26. The decision in Reg. v. Showdar Chenar 7 B. H. C. E. Cr. 39 itself does not help the petitioners. In that case it was held that only one penalty was leviable because the words of the enactment infringed (Regulation XXI of 1827, Section (4) were not every person shall forfeit” but “any person or persons” (page 45). It was also pointed out in the judgment of Couch, C. J., (page 40) with which Westropp, C. J., concurred that the penalty not being a fixed sum but varying according to the quantity of opium kept or concealed is more consistent with its being a single one than with there being several penalties. I draw special attention to this remark, because in the only case of this Court which I have been able to find containing a reference to Reg. Showdar Ghenar 7 B. H. C. E. Cr. 39, namely, Gungadhur Sahoo In re 22 W. R. Cr. 9, that decision was approved on the ground that in that case also the sum in which the parties were liable to be fined was not a fixed one, being liable to vary according to the quantity of contraband salt found in their possession.
27. I now come to the question whether this penalty clause of the bye-laws is ultra vires. The section of the Calcutta Municipal Act under which it was made is Section 561, which, excluding the portion relating to a continuing breach, runs as follows: “in making a bye-law under Section 559 the General Committee may provide that a breach of it shall be punishable (a) with a fine which may extend to Rs. 20….”
28. I cannot find in these words any restriction preventing the General Committee from providing, as they have done, that every person guilty of the breach of a bye-law shall be punishable with a fine which may extend to Its. 20. Whatever may be the law in England, it appears that the Indian Legislature has made no distinction between the punishment of an offence and the punishment of an offender. The expression punishment of an offence must connote the punishment of an offender. One cannot hang a murder or imprison a theft. The Indian Penal Code refers indiscriminately to offenders being punishable and offences being punishable. For example see Sections 59 and 60 for the former expression and Sections 62 and 64 for the latter. The words “offence punishable” are a convenient and compact expression for longer phrase such as “an offence for which a person who has committed the same is punishable.” Another example of the use of the expression offence punishable being used in this sense may be found in the Bengal Excise Act, 1909. Section 46 of that Act provides for the punishment of, persons and Section 56 refers to “any offence punishable under Section 56.” Also in Section 40 of the Indian Penal Code it is stated that “the word offence denotes a thing made punishable by the Code.” But all the operative sections of the Cede by which offences are made punishable commence with the word “whoever” and expressly provide for the punishment of the person committing the offence. There is nothing in the Calcutta Municipal Act to suggest that the Legislature, when it empowered the General Committee to make a breach punishable”, used the words in any other sense than that in which the words offence punishable” are used in the Penal Code. The words used are capable of easy interpretation and it is, therefore, unnecessary to consider the intention of the Legislature. If it were, I should hold that it was highly improbable that they intended to prevent the imposition of more than one sum of Rs. 20 for a breach of this bye-law irrespective of the number of persons who committed the breach. The number of convictions of the present petitioners shows that a single fine of this amount is insufficient as a deterrent. Unless more persons than one can be separately punished for these offences, it obviously pays the owners of any popular theatre to treat the bye-law with contempt. For these reasons I am of the opinion that the penalty clause under which the petitioners have been separately convicted is intra vires of Section 561 of the Calcutta Municipal Act.
29. The only other point to be considered is whether the three petitioners constitute a single person and are liable to a single fine on this account. It appears from the evidence of their agent on whose admission they were convicted that as well as being partners, they each take an active part in the management of the Theatre. The first petitioner is the dramatic director, the second is the business manager, and the third sells tickets. On this I would hold that they have been convicted for their individual acts and not as a body of individuals forming a person within the definition of that word given in Clause (32) of Section 3 of the Bengal General Clauses Act, I (B. C.) of 1899. But in any case that definition cannot apply in the present Act, since the subject of a penal clause is repugnant to such an interpretation. I am unable to agree with the decision of a Bench of this Court in Basanta Kumari Devi v. Corporation of Calcutta 11 Ind. Cas. 143: 15 C. W. N. 906: 12 Cr. L. J. 375, (15), that imprisonment cannot be enforced under Section 64, Indian Penal Code, for non-payment of a fine for an offence under the Calcutta Municipal Act. Section 40 of the Indian Penal Code and Section 26 of the Bengal General Clauses Act seem to me to clearly apply, But this case can be distinguished on the ground that the Judges deciding it only dealt with the question of a daily-fine for a continuing breach and expressly held it unnecessary to discuss the effect of the General Clauses Act and made no reference to Section 40, Indian Penal Code, Since these offences are punishable with imprisonment in default of payment of fine, the three petitioners cannot be treated as a single person as the imprisonment could not be apportioned.
30. But for the recent decision in the similar case referred to at the commencement of my judgment I would discharge these Rules, but as that cannot be done the case must be referred for decision to a Full Bench.
31. By the Court.—For the reasons given in our separately recorded opinions we are agreed that the six cases before us should be referred, under Part II, Chapter V, rule 5 of our rules, to a Full Bench for such orders as to such Bench may seem fit.
32. The question for the determination of the Full Bench we state as follows:
Was the case of Amrita Lal Bose v. Chairman of the Corporation of Calcutta 40 Ind. Cas. 322: 26 C. L. J. 29: 21 C.W.N. 10091 18 Cr. L. J. 674. being Criminal Revision No. 1215 of 1916, rightly decided?
33. On the reference coming before the Full Bench.
34. Mr. Norton (with him Mr. K. N. Chaudhnri and Babu Hemendra Nath Sen, for the Petitioners.)—I shall support the judgment of the 3rd Judge Mr. Justice Chitty, so my learned friend on the other side should first begin the case and submithis arguments against the decision of Mr. Justice Chitty.
35. The Hon’ble Mr. B. C. Mitter, (Offig. Advocate-General, with him Babu Manmatha Nath Mookerjee, for the Opposite Party.)—The practice and rules of the Court are that one who attacks the judgment of the Judges referring a case to the Full Bench ought to begin.
Mr. Norton, J.
36. If your Lordships want me to begin, I have no objection. (After stating the facts of the case), the offence committed by the three petitioners is a single offence, and the punishment which could be awarded under the Municipal Bye-laws Nos. 83 and 85 cannot exceed the maximum of Rs. 20. If there are more persons than one committing a breach of the bye-law, the offence is not aggravated in the least. The offence and its consequence remain just the same, whether it is committed by one person or ten persons jointly. The public health is not affected more by the fact that many persons took part in continuing the theatrical performance after 1 a.m. The object of the Municipal Law is to punish the offence and not the offenders. Again the performance of the Theatre up to I a.m., was not prohibited by the bye law. So the persons who were responsible for the performance could not be regarded as offenders in any sense up to 1 a.m. in the night. But a minute after 1 a. m., all of them would become offenders, if it is contended on the other side that the object of the bye-law is to punish the offenders and not the offence. The persons who organised the performance could not stop it at once after 1 a.m., if any of the organisers objected to the discontinuance. Hence it would be unreasonable to hold that each of the offenders should be fined, with a fine which may extend to Rs. 20. Moreover, the persons who being associated together carry on a theatre should be regarded as a single person according to the definition of the General Clauses Act, So that if you want to punish the person, you must punish the association or the Company as an unit and not each of its members individually.
37. Refers to Section 559, Clause 52, of the Municipal Act and Section 628, the Bengal General Clauses Act, the Municipal Bye-laws Nos. 83, 84 and 85 and reads the judgment of Mr. Justice Chitty.
38. The judgment of Mr. Justice Chitty is final under Section 429, Criminal Procedure Code, and these oases ought not to have been referred to the Full Bench at all, specially when these cases are intimately connected with the case which was decided finally by the 3rd Judge Mr. Justice Chitty.
Mookerjee, J.
39 Why should a person who commits a breach of the bye-law, get a lesser punishment if he associates with himself several other persons as his accomplices P Should not the latter at any rate be regarded as abettors?
40. No. You cannot read into the Municipal Act the provisions of the Indian Penal Code. The powers of the Municipal Magistrate are limited by the Municipal Act, and he can-not punish a person as abettor when there is no such provision in the Municipal Act. I submit that the proper construction of the bye-law is that by it a breach is punishable as an offence and not the persons individually who commit the breach. Refers to Rex v. Clark (1777) 2 Cowp. 610: 98 E. R. 1267. Reg. V. Dean (1843) 12 M. & W. 39: 13 L.J. Ex. 33: 152 E. R. 1102: 67 R. R. 248, Reg. V. Littlechild (1871): 6 Q. B. 293: 40 L. J. M. C. 137: 24 L. T. 233: 19 W. R. 748, Reg. v. Showdar Ghenar 7 B. H. C. E. Cr. 39, Gungadhar Sahoo, In re 22 W. R. Cr. 9, Reg. v. Vakhatchand 1 B. H. C. R. 50, Lakmia, In re 18 B. 400: 9 Ind. Dec. (n. s.) 775, Crepps v. Burden (1777) 1 Smith’s L. C. 657: (Seventh Ed., P. 651) 2 Cowp. 640: 98 E. R. 1283. Basanta Kumari Devi Corporation of Calcutta 11 Ind. Cas. 143: 15 C. W. N. 906: 12 Cr. L. J. 375.
41. If your Lordships think that the Bye-law No. 85 means that each of the persons commit-ting the bread! is punishable with a fine which may extend to Rs. 20, then I submit that the Municipal Corporation bad no power under the Municipal Act to frame such a bye-law. Therefore it is ultra vires.
42. The Hon’ble Mr. B. C. Mitter.—It is curious to see that when Mr. Justice Chitty comes to the question of fine in his judgment, he thinks that each of the persons should pay a portion of the fine. If the offence is punishable and not the offenders, the Court bad no power to say that each of the persons should pay a portion of the fine. If A alone commits the breach he might be fined Rs 20; if he is shrewd enough he will take nineteen Others as his accomplices, and “he result will be that when the fine of Rs. 20 is imposed for the breach, each of the offenders will escape by paying a fine of Re. 1 only.
43. This is an absurd position. It leads to the result that the more are the persons who take part in committing the breach, the less is the punishment each of them is likely to suffer. I submit that each of the persons commuting the offence is punishable. Reads Section 559, Clause 2, and Sections 21 and 26, Bengal General Clauses Act.
JUDGMENT OF THE PULL BENCH.
Sanderson, C. J.
44. This matter refers to six Criminal Revision Cases Nos. 13, 14, 15, 16, 17 and 18 of 1917.
45. The question which has been referred to the Full Bench is as follows:—“Was the case Amrita Lal Base v. Chairman of the Corporation of Calcutta 40 Ind. Cas. 322: 26 C. L. J. 29: 21 C.W.N. 10091 18 Cr. L. J. 674, being Criminal Revision No. 1215 of 1916, rightly decided?”
46. That revision case was heard by Teunon and Chaudhuri, JJ., who were divided in opinion and the case was, therefore, under Section 429 of the Criminal Procedure Code, laid before Chitty, J., who after hearing the case gave his opinion agreeing with that expressed by Chaudhuri, J. Consequently, the judgment was in accordance with Chitty, J.’s opinion and the question we have to consider is whether that decision was correct.
47. The matter arose in the following manner:
48. Three persons, Amrita Lal Bose, Hari Prosad Bose and Dasu Charan Neogi, are joint proprietors of the Star Theatre, Cornwall’s Street, Calcutta. A complaint was laid against them by the Corporation of Calcutta, alleging that on the 3rd September 1916, in breach of Clause 83 of the bye-laws made under Section 559 (52) of the Calcutta Municipal Act of 1899, they had continued a performance at the Star Theatre later than 1 a.m.
49. On the 24th November 1916, one of the petitioners appeared before the Magistrate and admitted the offence charged, whereupon the Magistrate fined Amrita Lal Bose Rs. 20 and the other two petitioners Rs. 10 each, i.e., Rs. 40 in all.
50. The three individuals concerned petitioned the High Court and a Rule was granted by Teunon and Beachcroft, JJ, on the 1st December 1916, in Revision Case No. 1215 of 1916, calling upon the Magistrate to show cause why the order of the 24th November 1916 should not be set aside.
51. On 18th January 1917, the Rule was argued before Teunon and Chaudhuri, JJ., and as already stated the learned Judges differed in opinion, Teunon, J., being in favour of discharging the Rule and Chaudhuri, J., being of opinion that the Rule should be made absolute. When the matter was referred to Chitty, J., he agreed with Chaudhuri J. Consequently, the Rule was made absolute, the conviction of the three petitioners was upheld but the penalty imposed was limited to Rs. 20, and it was ordered that it should be apportioned equally between the three petitioners. In the meantime prosecutions had been instituted with reference to six other cases against the same three persons, the allegation being that they had continued the performance at the Theatre after 1 a.m. on the 2nd, 5th, 6th, 9th, 12th and 13th November 1916. They were convicted in each case and fined Rs. 20 each.
52. In each case Rules were issued by the High Court. On the hearing by Teunon and Newbould, JJ., of these Rules the same points were involved as on the hearing of the Revision Case No. 1215 of 1916, and these two learned Judges, disagreeing with the decision of Chitty, J., in that case, have referred the matter to the Full Bench.
53. The question is whether the Magistrate in the Criminal Revision Case No. J 215 of 1916 had power to impose a fine exceeding the sum of Rs. 20 in respect of the offence alleged; it was contended that the Magistrate in imposing upon the joint proprietors the three fines, the total of which exceeded Rs. 20, had acted in contravention of the law.
54. The determination of this question depends upon the Calcutta Municipal Act, 1899, Sections 5059 (clause 52: and 561: and upon two bye laws made by the General Committee under Section 559 (52), viz., Bye-laws Nos. 83 and 85. Section 559 (52) of the Calcutta Municipal Act, 1899, provides that the General Committee may make bye laws for the regulation of theatres and other places of public resort, recreations and amusement and Section 561 provides that In making a bye-law under Section 559, the General Committee may provide that a breach of it shall be punishable (a) with fine which may extend to Rs. 20, and in the case of a continuing breach, with fine which may extend to Rs. 10, for every day during which the breach continues, after conviction for the first breach”.
55. Certain bye-laws were made under Section 559 (52) of the Act for the regulation of theatres and one of them, viz., Bye-law No. 83, provides that ‘ no performance shall be continued later than 1 a.m. unless with special permission of the Chairman for any particular occasion”, and No. 85 provides that “every person guilty of a breach of any of these bye-laws shall be punishable—(a) with fine which may extend to Rs. 20, and in the case of a continuing bleach with fine which may extend to Re. 10 for every day during which the breach continues after conviction for the first breach.”
56. The main contentions urged by learned Counsel on behalf of the petitioners were 37 Ind. Cas. 145, 21 C. W. N. 320: 25 C. L. J. 165: 18 Cr. L. J. 81: 44 C. 595, that the offence was, in its nature, single, and that the penalty was also single, in other words, that although all the petitioners could be convicted of the offence the Magistrate could not imposes fine of more than Rs. 20 in respect thereof, 22 C. 1017: 11 Ind. Dec. (n. s.) 676. That if Bye law No. 85 enabled the Magistrate to impose a fine upon each person convicted of the offence, so that the total of the fine exceeded Rs. 20, the bye-law was “ultra vires.” 22 C. 669: 11 Ind. Dec. (n. s.) 446. That it was not necessary to hold that the bye-law was ultra vires” because of the definition of the word “person” in the Bengal General Clauses Act, 1899, Section 3 (32), which provides that unless there is anything repugnant in the subject or context, ‘person” shall include any company or association or body of individuals, whether incorporate ed or not,” and that consequently the word person would include the three petitioners as joint proprietors of the Theatre and that they could properly be regarded as a person” for the purpose of Bye-law No. 85.
57. We were referred to several cases as to the construction to be placed upon Statutes, dealing with the imposition of penalties for the breach of an offence, but there can be no doubt as to the principle of construction which should be applied to this matter. It is as follows:
58. “If either the penalty be imposed by the Act upon each person convicted, even where the offence would in its own nature be single, or if tie quality of the offence be such that the guilt of ore person may be distinct from that of the others, in either of these cases the penalties are several,” see Reg. v. Littlechild (1871): 6 Q. B. 293: 40 L. J. M. C. 137: 24 L. T. 233: 19 W. R. 748, per Hannen, J., at page 296.
59. In each case the question must be determined by the language of the particular Statute.
60. In this case we have to consider not or by the Act but also the bye-laws made under the Act. It was urged that the offence was single in its nature even when committed by three persons: of this I am not satisfied, but I do not thick it is necessary to express any definite opinion thereon, for on a true interpretation of the Bye-laws Nos. 83 and 85, 1 think there is no doubt that it was the intention of those framing the bye-laws to impose upon each person convicted of a breach of the Bye-law No. 83 a fine to the extent mentioned in Bye-law No. 85. I think the words used in Bye-law No. 85 make that clear.
61. In my judgment this interpretation of the bye-law is not inconsistent with the definition of the word ‘person” in the Bengal General Clauses Act, 1899, Section 6 (82). The three petitioners are alleged to be joint proprietors of the Star Theatre. With great deference to the learned Judges who have held the contrary view, I have considerable doubt whether the petitioners merely because they are carrying on the Theatre jointly could be said to come within any of the expressions mentioned in the section viz., any company or association or body of individuals, whether incorporated or not.” Even if they do, the section is not an exhaustive definition of the word “person” but only provides that the word person” shall include certain bodies of individuals, which without such definition might not be affected by the provisions of the Act in question; and in my judgment, it does not prevent the Bye law No. 85 from applying to the three petitioners, each of whom, according to the statement made by one of the petitioners, as recorded in the Magistrate’s letter of explanation in Amrita Lal Bose v. Chairman of the Corporation of Calcutta 40 Ind. Cas. 322: 26 C. L. J. 29: 21 C.W.N. 10091 18 Cr. L. J. 674, was in his individual capacity taking some part in the management of the Theatre.
62. It is said, however, that if this is the correct interpretation of Bye-law No. 85, it is ‘ultra vires’ by reason of the provisions of Section 561. This section, as already mentioned, provides, that in making a bye-law under Section 559, the General Committee may provide that a breach of it shall be punishable (a) with fine which may extend to Rs. 20, etc.
63. The question, therefore, is whether the terms of that section are such as to prevent the General Committee from making a bye-law which imposes a fine to the extent of Rs. 20 upon each person who is guilty of a breach of the bye-law in question. The expression in the Act, ‘ the Committee may provide that a breach of it shall be punishable” with a fine which may extend to Rs. 20, obviously involves the punishment of an offender or offenders but the incidence of the fine with reference to such offender or offenders was not dealt with in the Act itself, and I think the intention was to leave it to the General Committee to make bye-laws dealing with that matter.
64. In my judgment, therefore, Bye-law 85 is not “ultra vires” and by the express terms of that bye-law each of the petitioners was liable to be fined to the extent of Rs. 20 for the breach of Bye-law No. 83.
65. I do not think that this case is covered by the decision in Reg. v. Showdar Ghenar 7 B. H. C. E. Cr. 39. In the first place that was not a case, such as we have before us, of a general provision in an Act with a power to a Municipal body to make bye-laws for the purpose of carrying out in detail the general provision, but the offence and punishment were dealt with in one Regulation which the Court had to construe.
66. Secondly, as Couch, C.J., pointed out at page 40, The penalty not being a fixed sum but varying according to the quantity of opium kept or concealed is more consistent with its being a single one than with there being several penalties.” In this case the penalty is a fixed sum. There might have been some analogy between the two cases, if, exempli gratia, instead of a fixed sum there had been a provision that the penalty should vary according to the amount of the takings at the performance of the Theatre. Further it seems to have been suggested by Westropp, C. J., at page 45, that if the Regulation had contained words similar to those found in the bye-law now under consideration, viz., every person offending against this Regulation,” the decision in that case might have been different.
67. In the case under consideration the penalty of Rs. 20 was directed to be apportioned equally between the petitioners, although the Magistrate had fined one petitioner Rs. 20 and the other two Rs. 10 each. It has not been explained under what provisions such an order of apportionment could be made: but if this could be done the anomalous result would occur that if a man committed a breach of the bye-law by himself, he would be liable to a fine of Rs. 20, but that if he and two others committed the breach, he would be liable for a third of that sum only, For these reasons in my judgment, the answer to the question addressed to us should be that (the Criminal Revision case No. 1225 of 1916) Amrita Lal Bose v. Chairman of the Corporation of Calcutta 40 Ind. Cas. 322: 26 C. L. J. 29: 21 C.W.N. 10091 18 Cr. L. J. 674, was not rightly decided.
68. In my judgment, therefore, the Rule should be discharged in each of the above-mentioned cases.
Woodroffe, J.
69. I agree with the judgment about to be delivered by Mr. Justice Mookerjee.
Mookkejee, J.
70. The question referred to the Full Bench for determination has been framed in the following terms:
Was the case of Amrita Lal Bose, v. Chairman of the Corporation of Calcutta 40 Ind. Cas. 322: 26 C. L. J. 29: 21 C.W.N. 10091 18 Cr. L. J. 674. (Criminal Revision No. 1215 of 1916 rightly decided?
It may be observed at the outset that the reference is not strictly in accord with rule 5 of Chapter V of the Rules of the Court, which provides as follows:
If the question arises in any case coming before a Division Court as a Court of Criminal Appeal, Reference or Revision the Court referring the case shall state the point or points on which they differ from a decision of a former Division Court, and shall refer the case to a Full Bench for such orders as to such Bench may seem fit.
71. Consequently, what has to be referred to the Full Bench is the entire case, and the point or points on which the referring Division Court differs from the decision of the former Division Court has also to be stated: in other words, the question, that is, “the point of law or usage having the force of law” mentioned in rule 1 should also be formulated. In these circumstances, it is necessary to specify the point of law involved in this reference.
72. Section 559 of the Calcutta Municipal Act, 1899, authorises the General Committee, by Clause 52, to make bye-laws for the regulation of theatres and other places of public resort, recreation or amusement. Section 561 next provides in the following terms for the imposition of penalties for breaches of bye-laws:
In making a bye-law under Section 559, the General Committee may provide that a breach of it shall be punishable
(a) with fine which may extend to Rs. 20 and in the case of a continuing breach with fine which may extend to Rs. 10 for every day during which the breach continues, after conviction for the first breach, or
(b) with fine which may extend to Rs. 10 for every day during which the breach continues after receipt of written notice from the Chairman to discontinue the breach.
73. The General Committee has framed bye-laws under Section 559 (52), which have been duly sanctioned by the Local Government and published in the Calcutta Gazette. Bye-law No. 83 is in the following terms:
No performance shall be continued later than 1 A. m. unless with the special permission of the Chairman for any particular occasion.
74. Bye-law No. 85 is in the following terms:
Every person guilty of a breach of any of these bye-laws shall be punishable
(a) with fine which may extend to Rs. 20, and in the case of a continuing breach with fine which may extend to Rs. 10 for every day during which the breach continues after conviction for the first breach, or
(b) with fine which may extend to Rs. 10 for every day during which the breach continues after receipt of written notice from the Chairman to discontinue the breach.
75. In the case of Amrita Lal Bose v. Chairman of the Corporation of Calcutta (17) three persons, who were joint proprietors of the Star Theatre, were found to have committed a breach of Bye-law No. 83, inasmuch as the performance at the theatre was continued beyond the prescribed hour on the night of the 3rd September 1916. The Municipal Magistrate convicted the accused persons, and imposed a fine of Rs. 20 upon one of them and of Rs. 10 upon each of the others. The legality of this sentence was called in question before this Court, on the ground that it was not competent to the Magistrate to impose a fine of more than Rs. 20 in the aggregate upon the three accused persons. This contention was upheld by Chitty and Chaudhuri, JJ. (Teunon, J., contra). According to the judgment of Chitty, J., the penalty imposed was reduced from Rs. 40 to Rs. 20 to be apportioned equally between the three accused persons. There appears to have been other breaches of the bye-law in question at the same Theatre on the 2nd, 5th, 6th, 9th, 1020th, and 13th November 1916. The joint proprietors were thereupon prosecuted and convicted as before and as the cases were decided by the Magistrate before the pronouncement of the final decision by this Court in the case previously mentioned, he imposed a fine of Rs. 20 upon each accused for each breach of the bye-law. These cases have been brought up to this Court for revision of the sentences as illegal and unauthorised by law. Teunon and Newbould, JJ., who have heard these six Rules, have expressed their dissent from the view of the law adopted by Chitty and Chaudhuri, JJ., and have referred the question for decision by a Full Bench. The question for determination by this Bench may, consequently, be formulated as follows:
When several persons have been jointly convicted of a breach of Bye-law No. 83, are they jointly liable under Bye-law No. 85 to pay a fine not exceeding Rs. 20 or is each person so convicted liable to pay a fine which may extend to Rs. 20?
76. The answer to this question depends upon the true construction of Bye law No 85 read with Section 561 of the Calcutta Municipal Act. Before we interpret Section 561 whereon Bye-law No. 85 is founded, we may usefully recall a fundamental principle which, as some of the cases in the books show, has not always been borne in mind.
77. The distinction between a tort and a crime, between a civil suit and a criminal proceeding, may be regarded as of an elementary character, and the same wrongful act sometimes gives rise to a civil as well as to a criminal liability. The purpose of the civil suit is to compel the defendant to compensate the plaintiff for what he has unjustly suffered, while the object of the criminal proceeding is punishment and the cure of what may be called a public wrong. A crime is thus a wrong which the Government deems injurious to the public at large and punishes through a judicial proceeding, instituted in its own name or en its behalf. The line of demarcation between a civil and a criminal proceeding may sometimes be difficult to draw, and judicial opinion has differed in individual instances as to the true effect of a statutory proceeding, whether it is in its nature civil or criminal, or, as is sometimes said, quasi civil or quasi criminal. Reference may be made in this connection to B. v. Chorley (1848) 12 Q. B. 515: 12 Jur. 822: 116 E. R. 960: 76 R. R. 330 and R. v. Russell (1854) 3 El. & Bl. 942: 23 L. J. M. C. 173: 18 Jur. 1822: 2 W. R. 555: 118 E. R. 1394: 97 R. R. 845, and it may be noted that the mere fact of a fine no more shows that an indictment is a criminal proceeding; than the ancient fine in trespass. As pointed out in a note to Reg. v. Paget (1862) 3 F. & F. 29, (where it was ruled’ that an indictment for the obstruction of a highway intended to effect the removal of a nuisance is in substance a civil and not a criminal case) the distinction taken in the most ancient and approved authorities between a criminal and a civil proceeding is whether the real end or object of the proceeding is punishment or reparation (Mirror of Justices, Chapter XI, Section 3: 1 Reeves Hist. Eng. Law 32). This fundamental distinction between a tort and a crime cannot be ignored or rejected, and leads inevitably to the position that while in a civil suit for damages, however numerous the wrong-doers, the plaintiff is to be compensated for his loss only once, in a criminal proceeding, where each wrong-doer is as guilty as though the others were not guilty also, the full penalty must be inflicted on each precisely as if he had committed the crime unaided. Indeed, from the point of view of criminal jurisprudence, the circumstance that the wrongdoer had participants in the commission of the crime, may sometimes make his position worse. In any event, where a crime has been committed jointly by two persons, the guilt of one is undoubtedly not mitigated, even though it may not be enhanced, from the fact that another may be also guilty. The essence of the matter is that the proceeding has been instituted not to indemnify a person to the extent of the loss he may have suffered from a wrongful act, but to inflict punishment on the wrong-doer for an act which the Government deems injurious to the public at large, from the point of view of principle, consequently, the rule must be deemed established beyond question that all who participate in the commission of a crime are severally responsible to the State, as though the crime has been committed by any one of them acting alone: there is prima facie no such thing as division of responsibility among the several participants in a crime. Based on this elementary truth the conclusion must be sustained that although joint actors in the commission of a crime are jointly tried and convicted, each must be separately punished as if he had committed the offence alone and must respond in full to his own separate sentence. I do not deny that it is open to the Legislature to depart from this fundamental principle and to rule that where a particular offence has been committed by several persons jointly, one collective sentence should be inflicted upon them jointly; but, in my opinion, the legislative intent to depart from what I cannot but consider as a fundamental principle of criminal jurisprudence must be established beyond all reasonable doubt.
78. Reliance has been placed on behalf of the petitioners upon a passage in the work of Paley on the Law of Summary Convictions (8th Edition, page 287), where the rule is stated in the following terms: Though several offenders may be, as it seems, included in one conviction for offences jointly committed, it depends upon the wording of the particular Statutes applicable to each case, and the quality of the offence, whether each person be liable to a distinct penalty or all collectively to but one.” This formulation is based upon a long line of authorities, which have an interesting history. The earliest case traceable in the reports is that of Partridge v. Naylor (1596) Noy 52: 74 E. R. 1021: Moore (K. B.) 453: 72 E. R. 689: Goulds. 145: 75 E. R. 1054: Cro. Eliz, 480: 78 E. R. 731, which was an action of debt against three persons, upon 1 & 2 Ph. and M. C. 12, Section 1, to recover a penalty for wrongfully impounding a distress. The Court of Error, reversing the divided judgment of the Court of Common Pleas, ruled that the judgment should be joint for one penalty against all. It should not be overlooked that the proceeding to recover the penalty under the Statute was in form civil. In the next case of B, v. Drake (1687) 2 Shower (K. B.) 489: 89 E. R. 1058 on a conviction of two persons under 13 Car.: II C. 10, a Statute enacted for the prevention of the unlawful coursing of deer in a forest, a separate penalty of the full amount was imposed upon each and was maintained, notwithstanding the contention that the design of the Statute was to give only one satisfaction for the deer spoiled. In R. v. Ring (1712) 1 Salk. 182: 01 E. R. 166, upon conviction of two persons under 3 Wm. and M. C. 10, Section 2, a Statute enacted for the prevention of deer-stealing, a separate penalty of the maximum amount was imposed upon each offender. Reliance was placed upon Partridge v. Naylor (1596) Noy 52: 74 E. R. 1021: Moore (K. B.) 453: 72 E. R. 689: Goulds. 145: 75 E. R. 1054: Cro. Eliz, 480: 78 E. R. 731, but Powell, J., overruled the contention on the ground that the penalty was not in the nature of a satisfaction to the party grieved, but a punishment on the offender; and he added the important observation that crimes are several, though debts be joint.” The next case, Marriott v. Shaw (1718) 1 Comyns 274: 92 E. R. 1069, which arose upon a conviction under 5 Anne C. 14, Section 4, for killing several hares on the same day, is of no real assistance, except to this extent that the acts were treated as one offence. No reason was assigned, however, in support of this view. In Hardyman v. Whitakar (1849) 2 East 573: 102 E. R. 489, which arose upon 12 Anne C. 114, Section 4, it was ruled that only one penalty was, under the terms of the Statute, jointly payable by the persons who had, in contravention thereof, kept a lurcher to kill and destroy the game. The same view was subsequently taken with reference to the same Statute in H. v. Bleasdale (1792) 4 T. R. 809: 100 E. R. 1314. Meanwhile, the question had arisen for consideration before Lord Mansfield in R. v. Clark (1777) 2 Cowp. 610: 98 E. R. 1267, where three persons had been placed on trial under 8 George, I C. 18, Section 25, for assaulting and resisting Custom House Officers in the execution of their duty and rescuing out of their custody brandy and geneva which they had seized. It was argued that there was only one offence for which only one penalty could be inflicted. This contention was overruled; but Lord Mansfield proceeded to enunciate the principle applicable to cases of this character: where the offence is in its nature single, and cannot be severed, there the penalty shall be only single, because though several persons may join in committing it, it still constitutes but one offence. But where the offence is in its nature several, and where every person concerned may be separately guilty of it, there each offender is separately liable to the penalty: because the crime of each is distinct from the offence of the others, and each is punishable for his own crime. For instance, the offence created by the Stat. 1 and 2 Phil., and Mar. C. 12 is the impounding a distress in a wrong place’: (a) one, two, three or four, may impound it wrongfully: it still is but one act of impounding: it cannot be severed. It is but one offence: and, therefore, shall be satisfied by one forfeiture. (b) So, under the Stat. 5 Anne C. 14, for the preservation of the game: killing a hare is but one offence in its nature; whether one or twenty kill it, it cannot be killed more than once, (c) If partridges are netted by night, two, three or more may draw the net: but still it constitutes but one offence, (d) But this Statute relates to an offence in its nature several, a several offence at Common Law: and the Statute adds a further sanction against that which each man must commit severally. One may resist, another molest, another run away with the goods, one may break the officer’s arm, another put out his eye. All these are distinct acts: and every one’s offence is entire and complete in its nature, (e) Therefore each person is liable to a penalty for his own separate offence.”
79. With all respect for the opinion of so eminent a Judge as Lord Mansfield one may be permitted to make a few observations on this exposition of the law. (a) The Statute 1 and 2 Ph. and M. C. 12, to which reference is made, contemplates a proceeding, civil in form, for recovery of the penalty: consequently, the case decided thereupon, Partridge v. Naylor (1596) Noy 52: 74 E. R. 1021: Moore (K. B.) 453: 72 E. R. 689: Goulds. 145: 75 E. R. 1054: Cro. Eliz, 480: 78 E. R. 731, cannot be accepted as a precedent applicable to a criminal proceeding. (b) With reference to the statement that an act of impounding by one, two, three or four, is one offence, suppose the object impounded was a human being, and numbers were jointly indicted for his false imprisonment: would there, then, be but one act, one offence, or would each be;, liable to receive his several sentence, the full penalty of the law? (c) With reference to the observation that killing a hare is but one offence in its nature, for whether one or twenty kill it, it cannot be killed more than once, may it not be asked whether the analogy would apply to the case of killing a man? If twenty kill a man once and are found guilty of wilful murder, is the statutory sentence to be passed upon one or upon all? (d) With reference to the illustration about the netting of partridges, what would happen if two, three or more persons jointly draw away the net and steal it P Would not all be liable to be convicted and would not each receive the appropriate sentence? (e) With regard to the concluding observation, the question may be put, whether each would riot be guilty of what the joint offender did as if his own hand had performed the act? I see no escape from the conclusion that the illustrations given by Lord Mansfield are not based on sound principle, and that the true distinction was pointed out by Powell, J., when he observed that the criminal proceeding is taken, not with a view to indemnify the person injured, but to punish the offender. The cases of E. v. Hube (1794) 5 T. R. 642: 101 E. R. 305 and Barnard v. Gostling (1802) 2 East. 569: 102 E. R. 487 do not develop any fresh point of view, and, consequently, do not require detailed consideration. But reference may be made to the observation of Ashurst, J., in the former case to the effect that if the Court were to hold that where one person had disturbed a congregation, he would be liable to pay a penalty of twenty pounds, but that if the offender had nineteen persons to assist him, each would be liable to pay twenty shillings only, the conclusion would be absurd, because the amount of the penalty we aid be diminished with the increase in the gravity of the offence. The later decisions in Morgan v. Brown (1886) 4 Ad. & E. 515: 6 N. & M. 57: 1 H. & W. 717: 5 L. J. M. C. 77: 111 E. R. 881: 43 R. R. 422, Reg. v. Bean (1843) 12 M. & W. 39: 13 L.J. Ex. 33: 152 E. R. 1102: 67 R. R. 248, Reg. v. Gridland (1857) 7 El. & Bl. 853: 27 L J. M. C. 2: 3 Jur. (n. s.) 1213: 5 W. R. 679: 119 E. R. 1463: 110 R. R. 860, In re Hartley (1862) 31 L. J. M. C. 232: 136 R. R. 800. Mayhem v. Wardley (1863) 14 C. B. (n. s.) 550: 8 L. T. 604: 2 N. R. 325: 143 E. R. 561: 135 R. R. 812 and Reg. v. Littlechild (1871): 6 Q. B. 293: 40 L. J. M. C. 137: 24 L. T. 233: 19 W. R. 748, all furnish instances where, upon joint trial, separate sentences were passed upon the offenders who had jointly committed the offences. In one of these cases, of Reg. v. Dean (1843) 12 M. & W. 39: 13 L.J. Ex. 33: 152 E. R. 1102: 67 R. R. 248, Baron Alderson observed that he must look at the Statute to see whether it was intended that every person offending should be punished or merely that every offence should be punished. This is open to- the obvious criticism that when an offence is said to be punished, it is the offender who is visited with the punishment. The truth is that when an offence has been jointly committed, each offender is prima facie liable to be punished irrespective of the guilt of the others who may have participated with him in the commission of the crime. To take a case out of the operation of this, the primary rule, the legislative intent must be made manifest beyond doubt that all the offenders must be jointly subjected to a single penalty. The Court should not lightly depart from the principle that since one who participates with others in a crime is guilty as though he had performed the criminal act unaided, on a joint conviction of all the offenders or on a conviction of some after the others have had their punishment, each should receive a several sentence, the same in extent and intensity as if he had done the whole alone and had been alone convicted. The principle is otherwise in a civil suit for damages, where the full penalty for the damage suffered can be exacted only once.
80. As regards cases decided in the Courts of this country, stress has been laid principally upon the decision of a Full Bench of the Bombay High Court in Reg. v. Showdar Chenar 7 B. H. C. E. Cr. 39, which overruled the earlier decision in Reg. v. Vakhatchand 1 B. H. C. R. 50 and restored the authority of the decision in B. v. Rajgur (1854) 3 Morris Fouzdari Rep. 673. The decision of the Full Bench is to the effect that where several persons knowingly harbour, keep or conceal a parcel of smuggled opium, under Section 4 of Bombay Regulation XXI of 1827, only one penalty of double the value of such opium, and of double the amount of duty leviable upon it, is recoverable. This view was followed by this Court in a case under Section 17 of the Bengal Salt Act (Act VII of 1864 B. C.) Gungadhur Sahu, In re 22 W. R. Cr. 9. It is not necessary for our present purpose to determine whether, upon the terms of the Regulation in question, the interpretation adopted by the Full Bench can be justified. It cannot be denied, however, that the question of construction was one of great doubt, as is amply indicated by the fact that the Full Bench of five Judges overruled a decision, which, though pronounced by three Judges, had the concurrence of three other Judges who had been consulted by them. Sir Michael Westropp, who had been a party to the earlier decision and recorded an elaborate opinion in support of his altered view, was guided principally by the decisions in England, and also relied upon the: judgment of the Court of Queen’s Bench in Ireland in R. v. Bowan McNaghten (1845) 9 Ir. L. R. 93. The oases in England, as we have seen, no doubt recognise a distinction between several penalty and joint penalty for offences jointly committed, and rest this differentiation upon the phraseology of particular Statutes and the quality of the offence in each case. In the large majority of cases however, the conclusion was actually reached’ that the offence was several in its nature, and each offender was liable to have a separate penalty inflicted on him. We further find that the earliest case traceable, where a joint penalty was imposed, was in form a civil proceeding, and that although the distinction between a civil and a criminal proceeding was emphasised as early as 1712, it was overlooked or ignored in subsequent cases, which treated the matter, not as one of principle, but rather as one of form dependent upon minute distinctions in the language used in the Statutes. Indeed, a review of the cases in the English Courts almost creates the impression that the distinction maintained therein between joint and several penalty owed its origin to a desire to mitigate the severity of the game laws or the revenue laws. As regards the Irish case mentioned by Westropp, C. J,, it does not directly elucidate the point in controversy and merely shows that when a a person has been adjudged guilty on a charge that lie did knowingly harbour and Conceal and also did knowingly permit and suffer to be harboured and concealed certain contraband articles, it could not be maintained that the information charged two offences and that there was duplicity in the conviction. I do not feel pressed by the decision of the Full Bench of the Bombay High Court and lam not prepared to extend its application to other cases. As Lord Mansfield said in Rex v. Clark (1777) 2 Cowp. 610: 98 E. R. 1267, there is no cause of greater ambiguity than arguing from cases without distinguishing accurately the grounds upon which they were determined; and Couch, C.J., endorsed the same view when he rested his decision in Reg. v. Showdar Ghenar 7 B. H. C. E. Cr. 39, on the language of the Regulation.
81. The question under consideration has been repeatedly examined in the Courts of the United States, and the view is well settled there that, as a general rule, crimes are several and that when two or more persons are convicted of the same offence in a criminal prosecution (as distinguished from a penal or quitam action which is civil) the sentence against them must be several; each is subject to the full penalty and punishment provided for the criminal act, in the same manner as if he had been the sole offender. Reference may here be made to some of the leading decisions on the point. In U. S. v. Ismenar Cranch C. C 150: 26 Fed. Cas. No. 15450, wherein the defendants were jointly indicted and convicted for keeping a gaming house, it was held that the fine imposed must be several. In Turner v. U. S. 66 Fed 2140: 30 U. S. App. 90: 13 C. C. A., wherein the defendants were jointly indicted and convicted of cutting timber on Government land, the Court said: The defendants were indicted, tried jointly, and both were convicted, and the Jury found the damages committed by them to be 248,80 dollars. Section 2461 of the Revised Statutes provides that ‘every such* person (meaning every person who has violated the section) shall pay a fine of not less than triple the value of the trees and timber so cut, destroyed or removed, and shall be imprisoned not exceeding twelve months.’ The fine provided is a part of the punishment as much as is the imprisonment; it is necessarily assessed against each, just the same as the imprisonment. Any reasoning which would make the money-penalty joint would necessarily make the imprisonment joint.” In McLeod v. State 35 Ala. 395. it was held that where two persons were jointly indicted, tried and convicted for living in adultery, and their common surety confessed judgment, on the conviction a separate judgment should be rendered against each with his surety, for the amount of the fine and costs. In Curtis v. Hurlburt 2 Conn. 309. the Court said: “All offences at the Common Law are several, that is, though several join in the commission of the act, and that act is single, yet each is guilty severally, and is liable to a separate punishment. If two should jointly take, and with a felonious intent carry away, the goods of another, each would be guilty of the crime of theft, and might be prosecuted jointly or separately. When a Statute creates an offence, it may be joint or several, according to the language made use of. The Statute on which the present question arises is, that no person shall use any bush seine in Ousatonnick river, etc., on penalty of sixty-seven dollars for every such offence’. The question is, whether this is a several offence in each person concerned in it, or only one offence in them all, so that one penalty only can be inflicted. No words can be more appropriate than the words of this Statute to designate a several offence—no person shall do the act, under a certain penalty, for each offence. It is the same as the words, every person who does the act—whoever does the act—if any person shall do the act, such person shall suffer a certain penalty. As by the Common Law, when several join in the commission of a crime, each is considered as severally doing the act, so here, though several may join in the act, yet every person is considered as severally committing the crime and incurs a several penalty”. In State v. Hunter 33 Iowa 361, it was said: “The record does not present us with a copy of the indictment, but it is stated in argument that the defendants were jointly indicted under the Statute for the suppression of intemperance. Section 4789 of the Revision provides, that in all misdemeanors, defendants jointly indicted may be tried separately or jointly in the discretion of the Court; but there is no statutory provision, to which our attention has been called, authorizing a joint judgment. Indeed, in the very nature of the case, the judgments would necessarily be separate against each person convicted. The person committing an offence against the State must himself be amenable to the law; another person cannot be substituted for him or be made to suffer for his violation and although two or more persons may together commit an offence, each is punishable for his own crime and not for that of the other. The infliction of the penalty upon one of two jointly tried and convicted will not satisfy the judgment in respect to the other, as will a satisfaction by one of two joint judgment-debtors in a Civil action operate as a full satisfaction of the judgment as to both.” In Caldwell v. Commonwealth 7 Dana. (Ky.) 229, the Court said: “in prosecutions on behalf of the Commonwealth, each individual is responsible for his own individual act, and must answer to the Commonwealth, personally, for his own personal offence. If both are guilty, each is guilty, and each must make his fine to the Commonwealth for the penalty fixed by law to the offence of which he has been found guilty. Though in criminal and penal cases, the prosecution may be joint, the judgment should be several, as the judgment addressed itself to each individual offender, as the punishment of his delictum.” In Bosley v. Commonwealth 7 J. J. Marsh. (Ky.) 598, it was said: “We think the verdict and judgment erroneous. Although the law allows a joint indictment and trial, still a joint judgment is erroneous, because thereby one of the defendants may be compelled to pay the whole amount, and in that event he would not be entitled to contribution from his co-defendants. Thus, the other defendants would escape punishment entirely, and the whole burden might fall upon him who was least blameable in the transaction. So far it would, savor of punishing one man for the guilt of another.” In Jones v. Commonwealth 1 Call (Va) 555, wherein several persons were indicted for an assault, and it was held an error to impose a joint fine against them, Roane, J., said: “In this country, I consider the construction as fortified not only by the principles of natural justice, which forbid that one man should be punished for the fault of another, but also by the clause of the Bill of Rights prohibiting excessive fines, and the Act of’ October 1786 (c. 65, 12 St. L. 355) founded on the spirit of it, and providing that the fine should be according to the degree of the fault and the estate of the offender. But it is most unreasonable, and directly in the teeth of the Act, that one man should suffer the punishment imposed by the Jury upon all who may chance to be with him; and who were all in the contemplation of the Jury, who assessed the fine. This is so unjust and contrary to the spirit of the Bill of Rights, that even if it were established by adjudged cases to be the law, nay even if an Act of Assembly should pass authorizing it, in express terms, I should most probably be of opinion that the one should be exploded and the other declared unconstitutional, and not law.” In Waltzer v. State 3 Wis. 785, the Court said: “It is unnecessary to notice all the errors assigned in this case, as the form of the judgment is fatal. This was a criminal prosecution, and even admitting that all of the defendants could be and were properly tried jointly, the punishment should have been several. Bach should have been sentenced to pay a fine, according to the nature and aggravation of his offence. Every individual is answerable for his conduct to the State. The guilt of one is neither mitigated nor enhanced from the fact that another may he also, guilty.” In Reg. v. Grannis 5 Manitoba 153, wherein it was contended that where two persons, in that case a partnership, were convicted of Belling intoxicating liquors, the fine imposed upon them should be several and not joint, the Court, though the ease was reversed on another ground, said: ‘In 2 Hawkins P. C. c. 48, Section 18, it is laid down, that where there are several defendants, a joint award of one fine against them all is erroneous, for it ought to be several against each defendant, for, otherwise, one who had paid his proportionable part might be confined in prison till all the others have also paid theirs, which would be in effect to punish him for the offence of another.” In Barn’s Justice (30th Edition), Volume I, page 1154, where this passage from Hawkins is referred to, it is said: ‘if several defendants are convicted, whether the offence is in its nature single or joint, a joint award of one penalty against them is bad.” There is a statement to the same effect in Paley on Convictions, page 278. And in Morgan v. Brown (1886) 4 Ad. & E. 515: 6 N. & M. 57: 1 H. & W. 717: 5 L. J. M. C. 77: 111 E. R. 881: 43 R. R. 422, Littledale, J., said at page 519: “The general result of the authorities cited in Hawkins, 1 think, is that, where a fine is imposed upon several defendants, it should be imposed upon them separately.” There are, on the other hand, isolated cases where joint penalties have been imposed Lemons v. State 60 Ala. 130, Barada v. State 13 Mo. 94, explained in State v. Berry 21 Mo. 504, Wiggins v. Henderson 22 Nov. 103: 36 Pac. 459. The rule deducible from the oases in the American Courts may consequently be best stated in the words of Caldwell, J., in Thompson v. State (1900) 105 Tenn. 177: 51 L. R. A. 883: 80 Am. St. Rep. 875, though joint actors in the com-Mission of the same offence and jointly tried and convicted, it is proper that punishment be inflicted upon the defendants separately as if each had committed the offence alone, each is bound to respond in full to his own separate sentence; satisfaction, in whole or in part, of that against one of them not satisfying that against the other one, in any sense or to any extent,” People v. Kent (1908) 151 Mich. 134: 14 Ann. Cas. 208, State v. White (1911) 125 Tenn. 143: 140 S. W. 1059, U. S. v. Babson I Ware 462: 24 Fed. Cas. 14489, Calico v. State 4 Ark. 430, Straughan v. State 16 Ark 37, State v. Hopkins 7 Blackf. 494, Gathings v. State 44 Miss. 343, State v. Gay 10 Mo. 440, March v. People 7 Barb. N. Y. 391, State v. Smith 1 Nott, M. 13.
82. What, then, is the true position, if we seek to interpret Bye-law No. 85, read with Section 561 of the Calcutta Municipal Act? The section authorises the General Committee to prescribe by a bye-law that a breach thereof shall be punishable with fine which may extend to Rs. 20. Bye-law No. 85 provides that every person guilty of a breach of Bye-law 83 shall be punishable with fine which may extend to twenty rupees. Prima facie, every person guilty of such a breach is punishable, regardless of the circumstance that there may be other persons who may have participated in the commission of the offence and may be equally punishable. I do not lay stress on the use of the expression every person” in Bye-law No. 85; the inference I “would draw would be precisely the same, even if the bye-law had been so framed as to read that “breaches of any of these bye-laws shall be punishable.” I do not base my conclusion on the form of the expression, but on the substance of the matter. We have to, construe a provision which operates as a statutory rule for the punishment of an offence. Unless intention to the contrary is established beyond the possibility of all doubt, the’ Court should interpret the provision in the light of the principle that all who participate in the commission of a crime are severally responsible, as though the offence had been committed by each of them acting alone. In the case before us, there is nothing to indicate that the framers of the bye-law acted on the principle that the larger the number of persons who participate in its violation, the smaller the responsibility and liability to punishment of each offender. I see no escape from the conclusion that the decision of the majority in Amrita Lal Bose v. Chairman of the Corporation of Calcutta (17) cannot be defended on principle. I am fortified in this view by the nature of the order made in that case he Magistrate had imposed a fine of twenty rupees upon one of the accused persons, and a fine of ten rupees upon each of the others. This Court imposed a fine of twenty rupees to be apportioned equally amongst them. If, as was held, the quality of the offence made the liability joint, how could a distinct penalty be imposed upon each? Mr. Norton was constrained to concede that a sentence in this form could not be supported; on the other hand, if a joint sentence was passed and the Crown proceeded to levy the fine from one of the offenders, the others would in substance escape all punishment. No explanation was offered in justification of such a result. Furthermore, it is conceivable that, in a case of this character, the several offenders might not be guilty to the same extent and some discrimination should be exercised in imposing the sentence, as the Magistrate actually did. No explanation was even suggested as to how this can be achieved, if a joint penalty has to be inflicted or if the penalty imposed has to be equally apportioned.
83. My conclusions may be summarised as follows:
84. (1) As a general principle of criminal law, all who participate in the commission of an offence are severally responsible, as though the offence had been committed by each of them acting alone, consequently although as joint actors in the commission of the crime they may be jointly tried and convicted, each must be separately punished, as if he had committed the offence alone. 22 C. 1017: 11 Ind. Dec. (n. s.) 676. This general principle is applicable in the construction of Bye-law No. 85 read with Bye-law No. 83 and Section 561 of the Calcutta Municipal Act; consequently, each person who has committed a breach of the bye-law in question is, upon conviction, liable to be punished with the maximum amount of the prescribed fine, regardless of the number of persons who may have been associated with him in the commission of the breach. 22 C. 669: 11 Ind. Dec. (n. s.) 446. The case of Amrita Lal Boss v. Chairman of the Corporation of Calcutta (17) was not correctly decided, and (1777) 2 Cowp. 610: 98 E. R. 1267, the convictions and sentences in the six cases before us must be upheld and the Rules discharged.
Fletcher, J.
85. I agree in the judgment delivered by the learned Chief Justice.
Richardson, J.
86. I agree, The question whether the petitioners are liable to a single punishment or to several punishment for each offence committed is mainly a question of construction.
87. The answer depends in the first instance on the bye-laws under which the petitioners were convicted and sentenced.
88. The validity of Bye-law No. 83 is not questioned, but it is argued that Bye-law No. 85 is repugnant, to the principal Act, and ultra vires. The repugnancy suggested is that while Section 561 of the Act enables “a breach” of a bye-law to be punished, Bye-law 85 says that ‘every person guilty of a breach” shall be punishable. It is argued that if the bye-law means that every person participating in a breach is separately amenable to the punishment provided, it goes further than Section 561 warrants. This contention is in my judgment untenable.
89. In the nature of things when a punishment is provided for an offence the punishment must obviously fall on an offender. What is meant by punishing an offence” is punishing an offender for that offence. The expression may be elliptical, but it is perfectly natural and quite in accordance with general usage and the usage of the Legislature in other Aots. In Section 40 of the Penal Code an “offence” is spoken of as “a thing made punishable.” In Clause (o) of Section 4 of the Criminal Procedure Code the definition of offence” is ‘any act or omission made punishable by any law for the time being in force.” This definition is repeated in Section 3 (37) of the General Clauses Act, 1897, and in Section 3 (30) of the Bengal General Clauses Act, 1899. Section 195 of the Criminal Procedure Code speaks of “any offence punishable” under certain specified sections of the Penal Code. In Section 64 of the Penal Code the punishable offence’ and the offender are brought into juxtaposition:— In every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine….”
90. According then to the ordinary meaning of the words which occur in Section 561, they refer to and contemplate the punishment of offenders. Within the limits expressly prescribed the General Committee are empowered to make provisions for the punishment of those who commit breaches of their bye-laws. The words of the section are, in my opinion, wide enough to authorize provision being made for the punishment of joint offenders or persons who join in committing a breach of any bye-law not only in the manner described as single, but also in the manner described as several. If, therefore, Bye law No. 85 permits several punishment, the contention that it is for that reason inconsistent with Section 561 and, therefore, invalid falls to the ground.
91. Then what is the true meaning of Bye-law 85? In my opinion the bye-law read by itself is clearly capable of being construed so as to authorise several punishment. More than that, both by their own force and upon the analogy of the penalty sections of the Penal Code, such a construction is the obvious and natural construction of the words used. The bye-laws, it must be borne in mind, cannot be read as providing for either mode of punishment in the alternative. Whichever mode is provided, the other is excluded. There are no alternative words and where the law imposes a several penalty, a joint penalty is illegal and vice versa. Prima facie, the bye-law clearly imposes several punishment.
92. This conclusion is supported by certain provisions of a general character included in the codified criminal law of this country. It is not disputed that offences under the Penal Code are severally punishable. Under Section 40 of the Code, the word ‘offence’ primarily denotes “a thing made punishable under this Code,” but in certain specific sections of the Code it denotes ‘a thing made punishable under this Code or under any special or local law,” a “special law” being by definition a law applicable to a particular subject and a local law” a law applicable only to a particular part of British India. Among the sections in which the word has the extended meaning are Sections 64 to 67 relating to imprisonment in default of payment of fine, Section 71 relating to the punishment of offences made up of several parts, and Sections 109, 110, 112, 114, 115, 116 and 117, which occur in the chapter relating to abetment, The result is to assimilate in these and other respects Offences punishable under a special or local law to offences punishable under the Penal Code, and 1 note in passing that in the case which has been so much referred to, R. v. Clark (1777) 2 Cowp. 610: 98 E. R. 1267, Aston, J., gave the liability to punishment for abetment as a reason for considering that the offence in that case was a several’ offence.
93. I conceive that an offence created by, and punishable under, bye-laws is an offence under the special or local law under which the bye-laws were framed. But if there be any doubt as to the applicability of Section 40 of the Penal Code to offences under bye laws, no such doubt attaches to the provision, also a general provision contained in Section 26 of the Bengal General Clauses Act, 1899, to the following effect:—“Sections 33 to 70 of the Indian Penal Code, and the provisions of the Code of Criminal Procedure for the time being in force in relation to the issue and the execution of warrants for the levy of fines shall apply to all fines imposed under any Bengal Act or any rule or bye-law made under any Bengal Act, unless the Act, rule or bye-law contains an express provision to the contrary.” This enactment makes no mention of the sections of the Penal Code relating to abetment, but it is not necessary to press the argument founded on those sections and for all practical purposes that argument may be disregarded. It is sufficient in the present case to advert to the provisions relating to imprisonment in default of payment of fine. It may be that the proviso at the end of Section 26 leaves room for’ the imposition of a single fine or a single punishment in any case in which the -Legislature may choose by apt words to impose such a penalty and that accordingly the notion of ‘single offence,’ whatever the expression may mean, is not excluded. But clearly in the generality of cases, in all those cases such as the present where the provisions of the Penal Code referred to are not made inapplicable, the mode of punishment contemplated is several punishment. Under Section 64 of the Penal Code ‘in every case in which…an offence is punishable with fine only, in which the offender is sentenced to fine, it shall be competent to the Court which sentences such offender to direct by the sentence that in default of payment of the fine, the offender shall duffer imprisonment for a certain term.” In such cases the term of imprisonment, which may be imposed in default is regulated by Section 67. Now if it be supposed that the punishment to which the petitioners are liable under Bye-law No. 85 is a single punishment, only a single fine can be imposed. The fine cannot be apportioned among the petitioners, because as soon as it is apportioned, the punishment becomes several. That being so, how is imprisonment in default of payment to be imposed? The imprisonment, as the Advocate General pointed out, cannot be apportioned anymore than the fine.
94. Some attempt was made to argue that the petitioners as constituting a partnership were one person within the definition in Section 3 (32) of the Bengal General Clauses Act. But that definition only applies unless there is anything repugnant in the subject or context”, and for the present purpose it is quite impossible to regard them as one person. They might perhaps criminally he jointly liable to a fine, just as civilly they might be jointly liable under a decree for damages, but they are not liable to fine as one person and they cannot be imprisoned as one person. Mr. Norton admitted that if one of the partners took no part in continuing a performance after 1 a. m., he would not be liable at all. The petitioners are clearly liable not as a partnership but as three individuals, though as three individuals they might conceivably be jointly liable.
95. In my opinion these provisions of the Penal Code made applicable by Section 26 of the Bengal General Clauses Act strongly support the view that the punishment admissible under Bye-law No. 85 is several and not single.
96. Lastly, it is said that there is something in the nature of the offence created by Bye-law No. 83 such that Bye-law No, 85 must be read, if this is at all possible, as imposing only a single punishment. The offence, it is said, is by its nature a single” offence. The argument was based by Mr. Norton on the decision of a Pull Bench of the Bombay High Court in R. v. Showlar Ghenar 7 B. H. C. E. Cr. 39, where nearly all the English cases are cited by Westropp, C. J. It would be tedious; to go through these cases again. The mainstay of the whole contention is to be found in the observations of Lord Mansfield in B. v. Clark (1777) 2 Cowp. 610: 98 E. R. 1267, which have already been-read.
97. The difficulty, I have is in understanding the conception of a single offence” which is involved in those observations, nor was much light thrown upon the point at the Bar. The Advocate-General (for the Municipality) felt himself pressed by the weight of Lord Mansfield’s authority and it is impossible not to share that feeling. Speaking with diffidence, I confess that I cannot in my own mind see how any offence which several persons may join in committing’ oan by its nature be repugnant or antagonistic to the notion of several punishment. The illustrations given do not help me. As the learned Chief Justice observed in the course of the argument, a man, like a hare, has only one life, yet several persons may be severally hanged or transported for life for the same murder. I have tried to think of an explanation, but the only explanation I can suggest is that a term which may be appropriate to the punishment provided in particular cases is sometimes ascribed to the offence. In such cases what is really single is the punishment and not the offence. I have not examined the cases to see whether this suggestion is well founded. Nor would such an inquiry serve any useful purpose. For, if the suggestion accounts for the original employment of the term single offence,’ the term might afterwards come to be employed in cases where it could not be so easily justified. Another suggestion which may be hazarded as regards the earlier English cases, especially cases under the game laws, is that they were’ decided according to what the Judges conceived to be the equity of the Statute,” a mode of construction which has gone out of favour and fashion in consequence of the more precise legislation of modern times.
98. The term ‘single’ has other uses: it sometimes denotes one complete offence as distinguished from other and separate offences of the same kind. In this sense the theft of a book is a single offence. There is not a separate theft of each leaf, So by exercising his ordinary Galling on a Sunday’ a man only commits one Offence’ Grepps v. Durden (1777) 1 Smith’s L. C. 657: (Seventh Ed., P. 651) 2 Cowp. 640: 98 E. R. 1283, per Lord Mansfield]. Curiously enough in that case the hare was again referred to in illustration, “killing a single hare is an offence but the killing ten more on the same day will not multiply’ the offence or the penalty imposed by the Statute for killing one.”
99. The term again may perhaps be applied to offences, such as perjury, which an offender can only commit alone.
100. But neither of these uses of the word affords any clue for the determination of offences which several persons may join in committing but which nevertheless are so single in their nature as to demand only a single punishment. I do not know by what tests such ‘single’ offences are to be distinguished from ‘several’ offences. I confess, therefore, that I can and nothing in the Bombay case or in the English oases there cited which really throws any light on the question how this Bye-law No. 85 made under the Calcutta Municipality Act is to be construed. The offence of continuing a performance later than 1 a. M. seems in a sense single enough, but is it more single than stealing a book? If, however, the distinction between single and several offences as explained in R. v. Clark (1777) 2 Cowp. 610: 98 E. R. 1267, is to be applied, an offence according to that case appears to be ‘several’ if it is the product of different persons doing different things, and I can easily conceive that the offence in the present case, the continuance of a performance after 1 a. m., was on each occasion on which it was committed the result of different acts done by each of the three petitioners.
101. From whatever point of view the question before us be approached, the considerations which arise point to the conclusion that the words of Bye-law No. 85. must be taken in their ordinary meaning. “Every person guilty of a breach…shall be punishable…” means that every person convicted of a breach shall be liable to the penalty. This conclusion is consistent with the most recent of the English oases oiled before us, which is also apparently the last reported case in England on the point, R. T. Littlechild (1871): 6 Q. B. 293: 40 L. J. M. C. 137: 24 L. T. 233: 19 W. R. 748. There without going into the question whether the offence committed was in its nature single or several, separate penalties were upheld, because a penalty was imposed by the Act upon each person convicted. So in the passage from Paley on Summary Convictions (6th Edition, page (276). which was quoted by Hannen J., If either the penalty be imposed by the Act on each person convicted, even’ where the offence would in its own nature be single or ii the quality of the offence be such that the guilt of one person may be distinct from that of the other, in either ‘ of these cases the penalties are several.” Paley’s summary of the result of the English cases supports the suggestion above ventured that a ‘single offence’ in this connection means an offence for which a single punishment is expressly provided by law.
102. For the reasons indicated, I agree that the ‘ question put to the Full Bench should be answered in the negative.