P L D 1959 (W (PLP)

Mirza Akhtar Hassan for Respondent. Date of hearing : 2nd March 1959. This is a criminal reference under section 438, Cr. P. C. by Mr. M. Yakub Nur Nabi, 1st Additional Sessions Judge; Sukkur for setting aside the order of the City Magistrate, Sukkur, dated 21‑3‑58, refusing to credit the fine recovered in Municipal cases to the Municipality. On 21‑1‑58 the Sukkur Municipality made an application under S. 200 (2) of the Sind Municipal Borough Act to the City Magistrate that fine imposed in Sukkur Municipality v. Tahir Hussain be paid to them. The Learned Magistrate declined to make any such order: In his opinion no such order could be made and the Municipality was directed to approach the Govern ment for that purpose. The matter was taken in revision to the Additional Sessions Judge and he is of the opinion that the Municipality concerned is entitled to the fine impose in Municipal cases. After hearing the learned counsel for the parties, I am of the opinion that the view of the learned Additional Sessions Judge is not correct and the order of the Learned City Magistrate is in accordance with law. The fine of Rs. 10 (ten) in this case was imposed for an offence under S. 152 Clause (i) of the Municipal Borough Act XVIII of 1925. Under S. 200 (2) of the said enactment the fine can be recovered on an application to any Magistrate by the dis tress and sale of any moveable property within the limits of his jurisdiction belonging to the person from whom the money is claimable. I do not think that this sub‑clause implies that the Municipality should be paid the fine recovered in cash immediately and in case of non payment is entitled to it through distress or sale of moveable property of the offender. This provision only allow the Municipality to move the Magistrate for the recovery of the fine. This is a departure from the ordinary provision of Criminal law namely S. 386, Cr. P. C. Under this provision of law it is the duty of Magistrate to recover the fine in any of the mode prescribed therein and no outsider is entitled to move in the matter. The special provision in the Municipal Boroughs Act is a departure from the ordinary law and the Municipality has also been authorised to move in the matter. If the legislature intended that the fine recovered under the Municipal Boroughs Law should be credited or paid to the Municipality, there would have been a specific provision to this effect and the question would have not been left in the darkness. It appears to me that under S. 5 of the Criminal Procedure Code the manner of trying or otherwise dealing with all offences under the special law is ordinarily to be exercised under its pro visions subject to any other provision in the special enactment. Under S. 545, Cr. P. C. the Court is entitled to order that out of the fine recovered, a portion of it will be paid towards the ex penses of prosecution and some portion of it will be paid as compensation to any person for any loss or injury caused by the offence. This means that as a general rule the fine recovered will go to the Government treasury and the question of the payment of some amount of it as compensation and so in defraying expenses properly incurred in the prosecution are incidental to it. The learned counsel for the Municipality frankly admitted before me that the Government usually decide such question by resolution. They direct the Court trying the special offences to pay the fine after deducting some amount towards expenses incurred by the Government on the cost of the establishment of the special Magistrate Court and on account of Bhatta to witnesses etc. No such resolution has been produced in this case. Under the circumstances I am of the opinion that the Magistrates trying offence under the said Municipal Boroughs Act have no power to order the payment of the amount recovered as fine to the Municipality. Their power is confined to S. 545 Cr. P. C. and they are to follow other directions of the Government in this respect. For the reasons given above I decline to interfere in the matter. The order of the City Magistrate will stand. The reference will be answered accordingly. K. B. A. Reference answered accordingly.