1968 P Cr (PLP)

SIDDIKY, J.‑This application is under section 561‑A of the Code of Criminal Procedure for quashing the proceeding in U. R. (M. R.) Case No. 52 of 1964 pending before Mr. B. Rahman, 1st Class Magistrate, Barisal (South), against the petitioners under sections 54‑AA and 74‑E of the Inland Mechanically Propelled Vessels Act, 1917. Of the four petitioners before us, petitioner No. 3 Altafuddin Kazi is one of the 13 partners of Messrs Sreepur River Transport Company and the rest of the petitioners are employees of the said firm. Petitioners Nos. 1 and 2 (Muhammad Mia and Kala Mia) are the Serangs of launches `M. L. Sreepur' and 'M. L. Titumir' respectively and petitioner No. 4 (Muhammad Mostafa) is an Inspector in the service of the said Messrs Sreepur River Transport Company. `Sreepur' and 'Titumir' arc the motor launches owned by the said firm. The proceeding was started by the Sub‑Divisional Officer (S), Barisal on 31‑3‑64 on the basis of a letter addressed by the Assistant Traffic Officer, IWTA; to Messrs Kamaluddin Chowdhury & Co. It is said that Messrs Kamaluddin Chowdhury & Co. is the firm which runs a rival motor‑launch business in Barisal. Section 54‑AA of the Inland Mechanically Propelled Vessels Act, 1917, reads thus: "The owner of a mechanically propelled vessel shall publish as often as may be necessary (i) tables showing the times of sailing and fares, and (ii) tariffs showing freights, and shall put the same on sale to the public. Any person contravening an order under section 54‑A or section 74‑B or any provision of section 74‑D shall be liable for each offence to a tine not exceeding one thousand rupees." Section 54‑AA of the aforesaid Act was amended by an Ordinance, being East Pakistan Ordinance No. XXXIII of 1959, by the Governor of East Pakistan on 25‑4‑59 which was published in the Dacca Gazette (Extraordinary) on Monday the 27th of April 1959. By this amendment the original section 54‑AA was re numbered as subsection (1) of the said section and two new subsections were added which read as follows‑‑ (2) Before publication of such time‑tables, fare‑tables, or tariffs of freight, the owner of a mechanically propelled vessel shall submit them to the Provincial Government for approval. (3) The Provincial Government may, by notification in the official Gazette, appoint any person or authority to exercise the powers under this section." The original section 74‑E of the Inland Mechanically Propelled Vessels Act, 1917, was amended by East Pakistan Ordinance No. XIV of 1963, which was published in the Dacca Gazette (Extraordinary) on Friday, August 30, 1963. The amended section reads thus:‑ "Whoever contravenes an order under section 54‑A, 54‑AA, 74‑B or 74‑D shall be punished, for each offence, with imprisonment for a term not exceeding six months, or with fine not exceeding one thousand rupees, or with both." The underline' is ours. It is submitted by Mr. Kamal Hossain, the learned Advocate appearing for the petitioners, that there being no order contemplated under section 54‑AA of the Act as amended, the question of contravention of such an order to become punishable under section 74‑E, as amended, does not arise. Under section 54‑AA of the aforesaid Act, according to Mr. Hossain, the owner of a vessel is only required to submit a time‑table to the approving authority and there is no order contemplated under this section. All that can be said is that the violation of the provisions of section 54‑AA may be made punishable but the punishing section, i.e., 74‑E, does not speak of violation of any of the provisions of section 54‑AA; on the other hand, it speaks of contravention of an order made under section 54‑AA. He, therefore, submits that in the absence of any provision for an order in section 54‑AA, there cannot be any contravention of such an order which can be said to be punishable under section 74‑E and, consequently, there cannot be any penal proceeding for contravention of any non‑existent order under section 54‑AA. It is found from section 74‑E of the original Act that the legislature made punishable the contravention of the order under section 54‑A or section 74‑B or any provision of section 74‑D which, in our opinion, was correctly done as no order was contemplated under section 74‑D. Similarly no order being contemplated under section 54‑AA, the punishment provided for in section 74‑E cannot be for any contravention of such an order. It seems to us that the person, who was responsible for drafting the amended section 74‑E of the Inland Mechanically Propelled Vessels Act in East Pakistan Ordinance No. XIV of 1963, without taking any care whatsoever as to whether the phrase `contravenes an order' is at all applicable to violation of the provisions of section 54‑AA, inserted tho said new section in the Act which undoubtedly is defective. The amendment should have read "whoever contravenes an order under section 54‑A, 74‑B or violates any of the provisions of sections 54‑AA and 74‑D shall be punished, etc." Mr. Hossain next contended that in point, of fact his clients submitted the time‑table on 2‑3‑64 to the Bakerganj Launch Owners Syndicate. Ltd. which controls service motor‑launches within the district of Bakerganj and of which the Sub‑Divisional Officer, Sadar (South), Barisal, happens to be the Vice‑Chairman, for its onward transmission to the approving authority, namely, the Inland Water Transport Authority, and, therefore, it cannot be said that petitioner No. 3 or, for that matter Messrs Sreepur River Transport Company, did not comply with the requirements of section 54‑AA of the Inland Mechanically Propelled Vessels Act, 1917. Mr. Hossain further contended that the submission of the time‑table through the said Syndicate is essential because this Syndicate has to control, adjust and guide the plying of motor‑vessels within its jurisdiction to avoid any clash in timings between the two rival companies or two rival motor‑launch owners and also for the convenience of the general public. It is pointed out by Mr. Hossain that on 24‑3‑64 opposite party No. 1 (Motahar Ali Mia) made a complaint to the Sub‑Divisional Officer, Sadar (South), Barisal, for drawing up a proceeding against the petitioners under sections 144 and 101 of the Code of Criminal Procedure; but the learned S. D. O. did not take any notice of the said petition of complaint. On 31‑3‑64 the magistrate passed the following order "Seen S. R. of notice of the petition and also the letter of Asstt. Traffic Officer IWTA addressed to Messrs Kamaluddin Chowdhury. I find the accused persons are committing offence under section 74‑E/54‑AA

1. M. P. V. Act. Cognizance taken and issue summons upon all the accused persons mentioned in the petition. To 5‑5‑64." By this order he took cognizance of the case and initiated the proceeding under sections 74‑E and 54‑AA of the Inland Mechanically Propelled Vessels Act, 1917. Mr. Hossain therefore submits that the previous complaint, made under sections 144 and 107 of the Code of Criminal Procedure by the opposite party No. 1 who happen: to be a rival motor‑launch owner, was out of malice and without any foundation whatsoever and that is why the Sub‑Divisional Officer did not draw up any proceeding under any of those two sections against the petitioners. Mr. Hossain in this connection submits that from the order of the Magistrate it will be clear that it is he who initiated the proceeding under sections 74‑E and 54‑AA of the Inland Mechanically Propelled Vessels Act, 1917, on 31‑3‑64 at instance of a letter addressed to Messrs Kamaluddin Chowdhury which is a private firm running motor‑launch business in the district of Barisal. From this as well, according to Mr. Hossain, it will appear that the present proceeding too was initiated at the instance of a rival motor‑launch company although the name of the Traffic Officer of the IWTA is mentioned in the said order who, is said to have addressed the letter to Messrs Kamaluddin Chowdhury. If, the learned Advocate submits, the IWTA which is the authority under the Act to approve the time‑table had any cause for complaint against the petitioners, there could be no bar for the Traffic Inspector or for any other officer of the 1 WTA to have lodged ,a complaint direct to the S. D. O., Sadar Barisal. From all these facts, Mr. Hossain has with emphasis argued Ali that the present proceeding is a motivated one and the process of the Court is being abused at the instance of some interested parties to harass the petitioners. Next Mr. Hossain contended that, if at all anybody has committed any offence under sections 54‑AA and 74‑E of the aforesaid Act, it is the Sreepur River Transport Company and/or their partners or owners. According to him, petitioners Nos. 1, 2 and 4 who are but employees of the said firm, cannot be said to be guilty of the offence of not filing the time‑table with the approving authority because it is only within the absolute competence of the proprietor or proprietors of the motor‑launches to submit such time‑table to the relevant authorities and not that of the subordinates and employees of these categories. He, there fore, submits that the proceeding against petitioners Nos. 1, 2 and 4 are wholly unjustified. We entirely agree with the submissions of Mr. Hossain that no case lies against the petitioners under section 55‑AA read with section 74‑E of the Inland Mechanically Propelled Vessels Act, 1917, as such, it can very well be said to be an abuse of de process of the Court. We, therefore, cannot allow B this proceeding to continue any further. In the result, we make the Rule absolute and quash the proceeding in U. R. (M. R.) Case No. 52 of 1964, pending before Mr. B. Rahman, 1st Class, Magistrate, Barisal (South), against the petitioners. MAHMUD HUSAIN, J.‑‑I agree. Petition accepted.