Bucknill, J.:— This was an application made by three persons asking that an order dated the 28th July of this year passed by a Magistrate of the first class at Monghyr convicting the accused in manner which will be referred to more particularly later and sentencing them to pay certain fines in connection with an alleged offence against the provisions of one of Municipal byelaws of that town might be set aside. It will be desirable at once to state that this bye-law which is No. 80 reads as follows:—
Nocturnal noises. “No person shall, except with the general or special permission of the Commissioners, beet a drum or tomtom or blow any high-sounding instrument after 10 P.M or before 6 A.M”
2. The Magistrate found one of the petitioners, whose name is Rahim, guilty of beating drum and sentenced him to pay a fine of Rs. 5 or in default of payment to 5 days' simple imprisonment; he also found the two other accused named Kishori and Tajammul guilty under S. 80 of the Municipal bye-law read with S. 114, Indian Penal Code and sentenced them to pay each a fine of Rs. 3 or in default of payment to 3 days' simple imprisonment.
3. The Magistrate's decision was brought by motion before the Sessions Judge of Monghyr who, however, merely stated that he saw no ground for interfering; the case has now been brought to this Court asking for the exercise of its revisional jurisdiction.
4. Now the arguments which have been put forward very ably by the learned Vakil who appears for the applicants raise numerous matters of very considerable general importance; for example, it is said that the byelaw itself is ultra vires and does not fall within the provisions of Section 350 of the Bengal Municipal Act. It is also suggested that there is no evidence that what took place was or had been complained of as being a nuisance. It is, I think, unnecessary here that I should enter into consideration of these points because there are other and perhaps more simple points put forward on behalf of the applicants upon which this case can be decided. These points put shortly are, firstly, that there was no proper sanction given by the Municipality to the prosecution; and, secondly, that, even supposing the sanction which appears to have been accorded was legal, the offence for which sanction to prosecute was accorded was not the offence with and for which the applicants were charged and tried and in respect of which they were convicted.
5. Another matter which was also raised was as to whether the instrument upon which it was found that the accused Rahim had been playing was, in fact, a drum within the meaning of S. 80 of the Municipal bye-law. I think it is at the outset desirable to peint out what was, apparently, the course of events which led up to the proceedings before the Magistrate. So far as can be gathered from the record; the Police appear to have made some enquiries presumably upon some kind of information which had been given to them. It does not appear exactly what this information was, but, at any rate, on the 21st May a police officer seems to have forwarded to the Sub-Divisional Officer printed form which is headed “complaint of an offence under Act III of 1884 and “Bye-laws.” This form is evidently one which is used in cases where it is necessary for the sanction of the Municipal a thority to be obtained before a prosecution is commenced because on it at the bottom is a printed Memo., reading “prosecution sanctioned, submitted to the Magistrate.” — Chairman M.C This police officer made, in forwarding this complaint to the Sub-Divisional Officer, the following observations. “This sort of nuisance is too common in the town.” Now this form contains on it certain columns, one giving the date and place of occurrence, another, the names of the persons who are alleged to have committed the offence and a third the nature of the offence with the sections under which it is proposed that they should be prosecuted. I find here that there were five persons who, it was suggested, should be prosecuted. In the last column the offence alleged is “singing with a high-sounding instrument at a late hour of the night against S. 80 of “the Municipal Bye-law.” The Sub-Divisional Officer forwarded this paper to the Chairman of the Municipality of Monghyr for necessary sanction on the 23rd May, and the printed Memo., to which I have referred above is signed by some one on what appears to be the 10th of June, who signs as “V. Chairman M.C” which it is agreed means Vice Chairman of the Municipal Council.
6. Now I may say at once that there is nothing whatever to indicate that before the Magistrate or before the Sessions Judge any question was raised that the sanction of the Vice Chairman was illegal; and I, therefore, think that it is as well to leave the consideration of that, perhaps somewhat difficult question, aside until one has looked at what took place before the Magistrate. The Magistrate seems to have had before him certain facts; but apparently the three applicants were not actually dealt with by him for, or charged before him with, the offence for which sanction (such as it was) had been granted (i.e for hiving sung with a high-sounding instrument at a late hour of the night) but with having beaten a drum or tomtom on May 10, 1922 at 11-30 P.M in the town of Monghyr. It was apparently proved to his satisfaction and not indeed contested that the witnesses for the prosecution who were police constables on duty saw that the accused Kishori was singing while the accused Rahim was playing on what is known as a Tabla. The accused Tajammul was playing on an instrument known as Jori. The other two accused we are not concerned with as it seems they did not appear.
7. The whole argument which took place before the Magistrate (and which he says was dealt with by the pleader for the defence at very great length) was that the Tabla was not a drum at all still less a tomtom and much instructive information has been placed before me as to what is the nature of this instrument. It would certainly seem that although it is probably one which falls within the strict definition of the word “drum” it could hardly be included in the same category as those familiar instruments in a western band such as the brass-drum, kettle-drum, or side-drum all of which are struck with drumsticks and which produce or can produce a very loud noise. It is said that the Tabla (and pictures which have been produced before me show that is the case) is a little instrument which is played on by the fingers primarily for the purpose of keeping musical time and that it does not produce any strident or loud noise and cannot be heard from any considerable distance. As for the Jori this is said to be a musical instrument something in the nature of small “bells”.
8. Now the Magistrate undoubtedly felt very considerable diffidence in coming to the conclusion that the playing on a Tabla constituted the mischief against which this bye-law 80 was directed, for he says in his decision “so far as the law stands the accused Rahim was committing an offence and Kishori and Tajammul were abetting it. The learned pleader for the accused argued that the Municipality did not mean to penalize singing or dancing which according to him cannot go on without a Tabla. Although there is force in this argument and as a matter of fact such singing and dancing with Tabla-music goes on in big towns through most part of the night, I am not aware whether in those Municipalities there is such a law or not or whether singers or musicians there have to take previous permission of the Municipal Commissioners or not. As the law in this town stands, I must find the accused guilty. If the members of the public think that such music is not objectionable, it is for them to approach the Municipal authorities to delete this section of the bye-law or to take other measures to enforce their will”, and he seems with reluctance to find the accused guilty in favour of the general broad principles which the Magistrate has mentioned and which the learned Vakil for the applicants here has brought to my attention.
9. But be that as it may, apparently these persons were carrying on some form of concert late in the evening and apparently again the carrying on of this concert seems to have been thought objectionable or to have been regarded by some as creating an undesirable noise in the town late at night. If this had not been so, it is difficult to see or to imagine why this prosecution was ever instituted or, let us assume, sanctioned. At the same time one cannot help feeling that it may well be that considerable care should be exercised in putting into operation against persons the provisions of a bye-law such as this which can so obviously be utilised in unduly repressive and unnecessarily restrictive manner. The real point, however, upon which I have come to the conclusion that I must set aside this conviction is one which it is admitted is a matter of considerable substance. It will be observed that the sanction (whether that was itself valid or not) given by the Vice-Chairman of the Municipality was granted in respect of an offence alleged to have been committed by way of “singing with a high-sounding instrument at a late hour of the night”. Now whatever may be the exact definition in English of the word Tabla or whatever may be the prop an-construction of the bye-law itself there can be no doubt that under no circumstances could the playing of the Tabla be regarded as “singing with a high-sounding instrument”. The accused were not convicted or even charged apparently with “singing with a high-sounding instrument” which was the only offence in connection with which sanction, for whatever it was worth, had been granted by the Vice-Chairman of the Municipality. I find it difficult to contemplate that even where a valid sanction has been given by a Municipality to prosecute persons for an assumed violation of one of their bye laws that a Magistrate should be by virtue of that sanction capable of convicting them for an offence against another, and, carrying that principle down into a single bye law itself which contains disjunctive and alternative offences; I think it is equally incompetent for a Magistrate to convict persons of an offence, of one of such mentioned in such bye-law, when sanction has as a matter of fact been only given by the Municipal authorities to prosecute in connection with another. In this case sanction had been given to prosecute for the offence of “singing with a high-sounding instrument”. The principal accused, however, has been convicted of “playing on a drum” and the other two with having abetted him. Under these circumstances the conviction, to my mind, is obviously had and must be set aside.
10. Conviction set aside.