Pigot and Hill, JJ.
1. The defendant in this case having been convicted on March 22nd, 1892, for not taking out before 1st December 1891 a half-yearly permit in accordance with bye-laws (C) 4, 6, made under the provisions of Section 412 of Bengal Act II of 1888, by the Municipal Commissioners of Calcutta (and which are in force), was charged with continuing his offence by failing for the space of seven days subsequent to the said conviction to take out the permit for the half-year ending 31st March 1892, whilst still carrying on his business as a milkman.
2. The questions referred by the Magistrate are as follows:
1. Whether a failure to take out a permit as and when directed by Section C, Sub-sections 4, 6 and 7 of the bye-laws, made and confirmed under Section 412 of Bengal Act II of 1888, constitutes a complete offence covering the entire half-year in respect of which such failure was committed.
2. Whether, after conviction for failure to take out such permit, a person can again be prosecuted or convicted for omitting to take out a permit for and during the same half-year in respect of which he has been convicted.
3. The bye-laws (C) 4, 6, under which the taking out the permit is prescribed, are as follows:
4. Every person who shall exercise in Calcutta any of the professions, trades or callings prescribed in the following schedule (Rule 7) shall take out a half-yearly permit and pay to the Commissioners such sum as may be due by him according to the rates mentioned in the said schedule for the removal and carrying away of offensive matter or rubbish resulting from such business, trade, profession or calling.
6. Such permit shall be for a period of six months commencing in April and October in each year, and shall be taken out not later than the 1st of June and the 1st of December in that year.
4. Section 417 of the Act provides that–
Whoever infringes any bye-law made and confirmed, or any rule made and sanctioned under this Act, shall be liable to a fine not exceeding Rs. 20 and to a further fine not exceeding Rs. 10 for each day during which the offence is continued after he has been convicted of such offence.
5. The question is whether this section applies to the present case.
6. It is to he observed that the bye-laws (C) 4, 6, prescribe the taking out of a permit; they do not prohibit the carrying on of the trade without such permit. Whether such a bye-law could he made under the Act by the Commissioners need not be considered here.
7. The violation of the bye-laws consists in the not taking out the permit on or before the 1st December 1891 whilst still carrying on his business as a milkman. For this offence of not taking out a permit for the half-year the defendant has been already convicted, and we agree with the Magistrate in thinking, as we gather that he does, that the offence of not taking out a permit on or before December 1st, 1891, which was complete when that day had passed and for which he has been so punished, cannot be continued by his omission to take out a permit.
8. We do not think that the first question put by the Magistrate need be answered; it is not so expressed as to admit of a satisfactory answer. The second question put disposes of such matter as arises in this case.
9. We answer the second question in the negative.
10. We have answered the second question submitted to us upon the assumption made in the reference to us that it was competent for the Municipal commissioners by the bye-laws made under Section 412 to create the duty or obligation of taking out a permit, and that under Section 417 disobedience to such bye-law would constitute a punishable offence. We regret that Counsel did not appear for the defendant, so that we had not the advantage of hearing arguments in the case; we shall therefore limit ourselves to intimating the doubt which seems to us to exist on this point.
11. Under Section 412 (C) the Commissioners may make bye-laws with regard to–
(C) the deposit, whether in the public streets or otherwise, of rubbish and offensive matter, the removing and carrying away of the same and charging the person responsible for such deposit with the expenses of removing it.
12. It may be assumed that under the provision a bye-law making due regulations with respect to the recovery of expenses incurred in removing any rubbish and offensive matter deposited by the defendant in the carrying on of his trade might well be made.
13. There is a long way, however, between a bye-law such as this and one which creates the obligation of taking out a permit, and paying a sum fixed beforehand, on taking out the permit. The Act does not itself provide for this, and it is, we think, open to serious question whether the not taking out such a permit is within Section 417 at all.
14. As to Section 419, it is enough to say that we are clearly of opinion that the permit required by these bye-laws is not such a licence as is contemplated by that section.