Bombay High Court
Emperor vs Dahyabhai Savchand Jhaveri on 23 January, 1941
Equivalent citations: AIR 1941 BOMBAY 273
JUDGMENT John Beaumont, Kt., C.J.
1. This is a reference made to us by the Additional Sessions Judge of Ahmedabad, wherein he suggests that the conviction of the accused under Section 123(7) of the Bombay Municipal Boroughs Act, 1925, is illegal and ought to be quashed.
2. The facts are not in dispute. On May 26, 1938, the accused gave notice under Section 123(1) of the Act that he desired to make certain additions to his house, and permission was granted to him. But then on May 1, 1939, he gave a further notice that he desired to make certain other additions, one on the west side and one on the south side, and on June 9 a reply was sent to him by the Municipality saying that the projection in the west shown in the plan should be removed, and thereafter arrangements would be made for the permission. That was certainly not a refusal of permission to make the erection on the southern side, although no permission was actually given. The accused afterwards made the erection on the southern side, and he was prosecuted under Section 123(7) and convicted and fined Rs. 10.
3. So far as material, Section 123 provides in Sub-section (1) that before beginning to construct any building, or to alter externally or add to any existing building, notice has to be given by the building owner to the Chief Officer, and under Sub-section (7) whoever begins any construction, alteration, addition or reconstruction without giving the notice required by Sub-section (1), or, except as provided in Sub-section (5), without awaiting the legal orders of the Chief Officer, shall be punished as therein mentioned.
4. The contention of the accused is that he was not bound to await the orders of the Chief Officer because he came within the exception contained in sub-s Section (5), which provides so far as material:--
A work proposed in a notice given under sub-section (2) may be proceeded with in the manner specified in such notice, provided such manner is not inconsistent with any provision of this Act or of any by-law for the time being in force thereunder in the following cases, namely:--
(a) in case the Chief Officer within, one month from the receipt, of the notice given under sub-section (1) has" not issued any orders in the matter.
It is, no doubt, a' fact in this case that the Chief Officer had not issued any notice in the matter, and, therefore, the accused was entitled to proceed with the extension of his house under Sub-section (5), provided that the building was not inconsistent with any provision of the Act or of any by-law.
5. Mr. Shah for the Municipality says that the building in question is a projection over a street, and is, therefore, prohibited by Section 143. The learned Magistrate seems to have inspected the premises, but there is no finding as to whether the building projects over a public street, and there is no evidence before us on the subject. Therefore, the question arises whether the burden is upon the Municipality to show that the accused's act is inconsistent with any other provision of the Act, or whether the burden is upon the accused to show that his building is not inconsistent with any provision of the Act.
6. Mr. Patel for the accused relies on a principle, which has been established in English cases, that where an exception is in the enacting clause imposing a prohibition, then the burden is upon the prosecution to prove that the case does not fall within the exception. In The King against Prattern (1796) 6 T.R. 559 and in Gill against Scriven (1796) 7 T.R. 27 that principle was laid down, and the Court in the latter case, referred to an earlier case of Jones v. Axen (1694-1732) 1 Ld. Raym. 119, where Treby C.J. stated the rule in this way:--
The difference is, that where an exception is incorporated in the body of the clause, he who pleads the clause ought also to plead exception; but when there is a clause for the benefit of the pleader, and afterwards follows a proviso which is against him, he shall plead the clause, and leave it to the adversary to shew the proviso.
7. That principle was applied in two later cases, Taylor v. Humphries (1864) 17 C.B.N.S. 539 and Davis v. Scarce (1869) L.R. 4 C.P. 172, to the English Statute 11 & 12 Vic. c. 49. That statute made it an offence for a, publican to supply refreshment before a certain hour on Sunday to anyone except travellers, and it was held that in a prosecution under the Act the burden was, upon the prosecution to prove that the people supplied were not travellers, and that the burden was not upon the publican to prove that they were travellers. Those cases perhaps may be distinguished on the ground that there was a common law liability of an innkeeper to supply refreshments to those who visited his hotel, and that the prohibition against supplying refreshment on Sunday except to certain persons was in respect of the whole prohibition an exception from the common law liability, and the burden was upon the prosecution to prove that the case did not fall within such exception. However, the cases in the Term Reports seem to establish the principle for which Mr. Patel contends, and, no doubt, in this case the exception does fall within the terms of the section imposing the liability. But in India the rule is as laid down in Section 105 of the Indian Evidence Act, which provides:--
When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in, any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
8. It seems to me that that is a general provision which imposes the burden of bringing himself within an exception upon the person who relies upon the exception, and there is no distinction between a case in which the exception is contained in the body of the Statute imposing the prohibition and a case in which it is not so included. I think, therefore, that we must hold that in this case, having regard to the terms of Section 105 of the Indian Evidence Act, the burden is upon the accused, who relies upon the permission given to him by Sub-section (5) to prove that he comes within the terms of that sub-section, and is thereby relieved of the liability which is otherwise upon him under Sub-section (7), and' as there is no evidence before us that what he has done is not inconsistent with any provision of the Act, the conviction must be upheld.
9. We, therefore, make no order on the reference.
Macklin, J.
10. I agree.