Walsh, J.:— The history of this matter has been very ably set out in the admirable and thorough judgment of M. Mushtaq Ali Khan, Magistrate, first class, of Bareilly who tried the original case. The applicant before me has been convicted of selling night-soil as Sanitary Inspector of the Pilibhit Municipality, and while it was his duty, as such Sanitary Inspector, to see that the work of transport and deposit of the night-soil was properly done, he is alleged to have sold three cartloads for about Rs. 200 in all, and the mere statement that a Sanitary Inspector of a municipal board could do that, behind the back of his employers, and pocket the money, without committing a criminal offence, is calculated, at first sight, to cause surprise. One substantial point, however, has been ably argued on his behalf in revision, as to whether the night-soil which this man sold could be described, in any way, as the property of the municipal board who are the complainants, so as to constitute an offence under section 409 of the Indian Penal Code. At the time in question the Pilibhit Municipality had been going through a crisis with their sweepers, though, according to the Magistrate, the prosecution of the Sanitary Inspector seems to have, put an end to the trouble. The sweepers in this municipality are a class of persons recognized by the Municipalities Act as house scavengers or customary sweepers with a customary right to do house sweeping. It appears, further, that they had entered into an arrangement with the municipality for disposing of the night-soil, which they had the right to collect, in accordance with the municipality's directions, at a price which ultimately reached something like Rs. 2-8-0 per 100 donkey loads. I have been referred to two annual reports of the municipality, signed by their Secretary and Chairman, for 1919 and 1922, respectively, in which this arrangement is set out in a summary form in a schedule to be submitted to the Sanitary Commissioner, and is therein described as a sale by these sweepers, and a purchase by the municipality, and it must be conceded to Mr. Nihal Chanel, who argued on behalf of the applicant, that if this is the correct description, the point on which he urged this Court to interfere would be a good one. Whether it would be a complete answer to the case is a matter to which I will refer hereafter, but my view is that it is a fallacy to describe it as a mere sale. In my opinion it is more properly described as an arrangement by which the municipality undertakes to collect all night-soil and refuse from private houses, through the instrumentality of the customary sweepers, for a reward arranged by contract between them from time to time. It is an extremely narrow view to take, to cut up, so to speak, each day's work of the removal of night-soil into a series of independent transactions of mere sale, and the opinion which I have formed that this legal definition does not really answer the test, becomes much stronger when the provisions of the Act are carefully examined.

Section 116 of the Act, particularly sub-sections (a) and (b), vests in the municipality the care of night-soil deposits, and also of rubbish and night-soil collected by the board from houses Mr. Nihal Chanel's argument is that it is not collected by the board but is collected by the customary sweepers, who can do what they like with it, until they actually transfer it to the municipal rubbish heap by an act of bargain and sale, which presumably takes place by night in a series of somewhat unsavoury transactions. Up to a point this view is, of course, correct. If there were nothing to the contrary, and the Act protected the sweeper, as it undoubtedly does, in the exercise of his customary right to collect this stuff, he would be, when he left the owner's premises from which he took it, presumably the sole owner and free to do with it as he liked. His rights in this regard are protected by section 200 which prohibits the municipality, which may otherwise undertake house scavenging, from undertaking it without the consent of the sweeper in any particular house over which that sweeper enjoys the customary right. But this right has its correlative duty, naturally enough in a matter so important to public health, and a customary sweeper who does not collect, or fails to perform the house scavenging in a proper way, is not only liable to be fined, but may have his customary right forfeited by the Magistrate. The question, therefore, arises: what is he to do with it? He is interested in collecting it if he can get rid of it, but he cannot lawfully refuse to collect. He may no doubt sell a portion of it if he can get a purchaser, or deposit it in a legitimate place, because his arrangement with the municipality does not the him down to a definite quantity in the supply which he is to bring to the deposit each night. But at this stage two important sections of the Act come into operation. By section 273 the board may, amongst other things, appoint a place for the disposal of the night-soil (and in this particular case they had done so) and they may give directions as to the time, manner and conditions subject to which any offensive matter may be deposited, and they must appoint a place inside municipal limits, unless they get the previous sanction of the District Magistrate. Any occupier of land whose night-soil is deposited otherwise than in a place appointed under section 273, or any person (which, of course, includes a customary sweeper) contravening any direction of the board under clause (c) of section 273, is made liable to a fine by section 274. So that if the sweepers in pursuance of a strike, or as suggested by Mr. Nihal Chand, attempted to make arrangements with a private person to deposit night-soil outside municipal limits, which involves obtaining the consent of the municipality, they would experience very considerable difficulty in making any Substantial or satisfactory arrangement. No municipality, I suppose, would seriously attempt to prevent a small sale to some person who for his own convenience wanted a ready transaction with a sweeper in this sort of stuff. But subject to that, if the municipality does its duty, the sweepers, if they decline to enter into an arrangement with the municipality, or having entered into it, proceed to break it, or, in other words, to strike, would soon find themselves in a great difficulty because they must deposit the stuff somewhere. They cannot deposit it under any permanent arrangement in a place not sanctioned by the municipality without committing an offence, and if they deposited it at casual places, they would be committing a series of offences against other sanitary provisions of the Act, or committing nuisances, besides risking, the loss of their livelihood. So that it seems to me that if a strike took the very worst form of refusal altogether by the sweepers to have anything to do with the municipality, it would, if the municipality did their duty, end in all the sweepers finding themselves in jail before the district was visited by a serious epidemic, and I have no doubt that was the scheme intended by the Legislature. That is to say, the sweepers are, in practice, forced into the hands of the municipality. The board may only undertake the house scavenging subject to the rights of the customary sweepers, and this board has undoubtedly done so. But the provisions as regards breaches of the directions of the board for depositing contain no exception in favour of the customary sweepers.

The sweepers being forced, as I have said, into the hands of the municipality (and, of course, in nine cases out of ten this is the natural body with whom the customary sweepers would seek to make an arrangement), when an arrangement is once made and the sweepers undertake to transport and deposit at the given place this night-soil at a given rate, the municipality has, in my opinion, undertaken house scavenging with the consent of the customary sweepers, and, therefore, the rubbish and soil collected from houses is collected by the board from that moment within the meaning of section 116. I think this view is borne out by the use of the language to which I have referred in section 200. The consent of the sweeper is given when he enters into an arrangement with the municipal board.

To my mind this is an answer to the rather formidable point which was raised in argument. Even if I had been compelled to hold that the point was a sound one, I am not sure that it would have been an answer to this case. The finding is that the Sanitary Inspector, well knowing the proper place for deposit, and taking advantage of the fact commonly known that there was a war between the sweepers and the municipality and that the sweepers were taking their stuff elsewhere, used his authority with the sweepers to deposit the stuff at an unauthorized place and proceeded to sell it. A servant acting within the scope of his employment cannot, in order to defraud his master, set up a breach of his master's regulations in his own favour, and it must be taken, I think, that in any case when this night-soil was deposited at an unauthorized place, the Sanitary Inspector still held it there at the disposition of his employers and that if he chose to sell it, the money would belong to his employers, and to appropriate it to his own use would be a breach of trust. However, I propose to decide it on the first point.

The question of sentence was taken into account in the very able judgment of the Magistrate who tried the case. I agree with what he says. It is an abuse of a position of trust by an educated man who ought to set an example to those under him. I assume that it is his first offence, though I have always a suspicion, when a public servant is caught in this sort of thing, that it is not the first time and that he has not deserved the reputation which his position gives him. Of course a man could not get such a position and would not able to commit this class of fraud if he had not originally a good character. There is reason to fear that the public, at any rate, are far from being edified by exhibitions of breach of trust by persons in favoured positions who afterwords seek to escape the well-merited punishment which an ordinary thief receives. On the other hand, as the Magistrate has said, “while the offence is a serious one and demands a severe sentence, having regard to Hori Lal's antecedents, I content myself with passing a fairly light sentence on him.” I see no reason to interfere. The application is rejected. The applicant must surrender to his bail and serve the rest of his sentence.

Application rejected.