P L D 1961 Dacca 502 (PLP)

This rule has been obtained by the accused petitioner and is directed against an order dated 30‑9‑59 passed by the learned Sessions Judge of Dinajpur, upholding the order of the learned trial Court, convicting the accused petitioner under section 175 of the Pakistan Penal Code and sentencing him to pay a fine of Rs. 250 in default, to suffer simple imprisonment for three months.

2. The prosecution case in a nut‑shell was that the Divisional Commissioner, Rajshahi Division, superseded Sankarpur Union Board, P. S. Kotwali,. District Dinajpur, under section 56 (1) (b) of the Village Self‑Government Act, 1919 and appointed the accused‑petitioner to exercise and perform all the powers and duties of the Union Board under section 57 (1) (b) and (c) of the said Act till the next general election. The general election was held on 23‑6‑58 and the result was published in the Dacca Gazette on 7‑8‑

58. The accused‑petitioner was there‑upon directed by the Sub‑Divisional Magistrate as well as the Circle Officer concerned to make over charge to the newly elected President but did not comply with those directions. The Sub‑Divisional Magistrate accordingly lodged complaint against the accused petitioner who was then called upon to stand his trial under section 175 of the Pakistan Penal Code.

3. The defence of the accused‑petitioner was that he was always willing to make 'over the charge but could not do so in the absence of any direction from his appointing authority, to wit, the Divisional Commissioner. As for ‑the directions of the Sub‑Divisional Officer and the Circle Officer the defence case appears to have been that these were unauthorized and the accused‑petitioner vas not legally bound to act upon .the same i.e., that he did not commit any offence by refusing to comply with the said directions. Ultimately, however, the learned trial Magistrate found the accused‑petitioner guilty and sentenced him as already stated above. As against that decision the accused‑petitioner preferred an appeal before the Sessions Judge but the appeal was eventually dismissed and the order of conviction and sentence of the accused‑petitioner upheld. It is in these circumstances that j the accused‑petitioner came up to this Court in revision and obtained the present Rule.

4. Mr. S.. M. S. Rahman, counsel, appearing on behalf of the accused‑petitioner has contended that the Sub‑Divisional Officer. and the Circle Officer were not legally authorised to issue any direction upon the accused‑petitioner regarding the charge to be made over by him and no offence was committed by the accused‑petitioner because of his not acting upon those directions. He has further contended that the Rule 35 of the Rules for the election of Members,. Vice‑President and President of the Union Board providing for charge to be made over by an outgoing President to the newly elected president has no application to, the local authority or person or persons appointed by the Divisional Commissioner to, take charge of a Union Board on supersession thereof and that the learned Courts below were wrong in finding the accused guilty on the score of violation of the, said Rule. It appears that the charge against the, accused petitioner as shown by the substance of the accusation put to him during .his examination under section 242 of the Code of Criminal Procedure was that he committed an offence punishable under section 175 of the Pakistan Penal Code by refusing to make over charge to the newly elected President as required under the direction issued by the Sub‑Divisional Officer and the Circle Officer. It, however, appears that there is no provision within the four corners of Village Self‑Government Act, authorizing the Sub‑Divisional Officer or Circle Officer to pass any order or issue any direction to a person directed by the Divisional Commissioner to exercise and perform the powers and duties of a President of a Union Board with respect to charge to be made over by him to the newly elected President. This was expressly conceded by the Circle Officer '(D. W. 2) who clearly stated in his evidence that "there is no specific provision in the Union Board Election Rules, 1958 that the local authority will make over the charge .to the newly elected P. U. B. under orders of Circle Officer, Sub‑Divisional Officer or District Magistrate." The learned Magistrate too has found "that there is no specific provision either ire the Village Act or in the Rules regarding the making over of charge by a local authority". It would thus follow that the directions issued by the Sub‑Divisional Officer and the Circle Officer were clearly unauthorised and accordingly the accused petitioner, in my opinion, did not commit any offence by his non‑compliance with those directions. The trial Magistrate has, however, taken that view that even though the directions issued by the Sub‑Divisional Officer and Circle Officer were unauthorised the accused petitioner brought himself within the mischief of section 175 of the Pakistan Penal Code as his refusal to make over the charge constituted contravention of section 6 and Clause 2 of section 57 of the Village Self‑Government Act as well as of Rule 35 mentioned above. So far as the two above mentioned sections of the Village Self‑Government Act are concerned, there is nothing whatsoever at all in either of them regarding the charge to be made over by a local authority, or, person or persons put in charge of‑ a Union Board by the Divisional Commissioner under section 57 (1) (b) or for the matter of that even by a sitting President. As for the Rule 35, the provision embodied therein is as follows "Rule

35. Publication of result and making over of charge by sitting President :‑ Within ten days from the declaration of the results of pool the Circle Officer shall communicate the same to the sitting President, who shall immediately cause its publication by a notice within the Union and forthwith make over charge within a period not exceeding fifteen days from the date of declaration of result to the newly elected President. The Circle Officer shall at the same time send a list of the duly elected candidates to the Sub‑Divisional Magistrate who shall send a copy to the District Magistrate within a fortnight from the date of the receipt in his Office. The District Magistrate shall send a copy of the list to the Superintendent, East Pakistan Government Press, for publication in the Official Gazette."

5. As far as I can see, the above Rule, according to it plain language, provides for charge to be made by a sitting President to the newly elected President and not by a local authority or person or persons placed in‑charge of Union Board on its supersession by the Divisional Commissioner under section 57 (1) (b) of the Village Self‑Government Act. This Rule, therefore, did not apply to the case of the accused petitioner. This view appears to receive unmistakable support and confirmation also from the provision of section 57 (1) (b) B persons called wherein it is upon down exercise and perform the powers and duties of the Union Board on its supersession shall do so in such manner as the Commissioner may direct. This shows that rules framed under the Act in regulation of business of the Boards under the normal circumstances shall have no application to the local authority or persons mentioned above, we shall be guided by directions issued by the Commissioner from time to time. It also strikes me as rather highly questionable to make one person criminally liable for an act or omission on application to him by implication or analogy of a rule, which on the face of it i.e., in express terms, does not apply to him. It may be mentioned in this connection that the accused‑petitioner was all along making appeals to the Sub‑Divisional Officer to obtain direction from the Divisional Commissioner regarding the charge to be made over by him and eventually applied for time to obtain such direction himself. It is interesting to note that the Divisional Commis sioner actually issued a direction though at long last to the effect that the accused‑petitioner should make over charge, if he had not already done so. In any case Rule 35 on the basis of which the petitioner has been convicted has no application and as such the conviction cannot be sustained. Moreover, charge against the petitioner having been his refusal to carry out the directions of the Sub‑Divisional Officer and Circle Officer and not violation of Rule 35, the petitioner can rightly complain of serious prejudice in as much as he had no notice of the parti culars constituting the offence he has been convicted of and was as much denied the opportunity of meeting the same. In this view of the matter, too, even apart from any other illegality, the conviction of the petitioner could not be supported. But as already pointed out above, the petitioner has committed no offence at all coming within the mischief of section 175 of the Pakistan Penal Code.

6. It may also be worthwhile alluding to another contention urged on behalf of the petitioner even though that has ceased to have any practical utility or importance for his purpose. That relates to the sentence of simple imprisonment for three months awarded in default of payment of fine, which is in excess of the limit prescribed in that behalf under section 65 of the Pakistan Penal Code. This is a patent illegality committed by the learned trial Magistrate and overlooked by the learned Sessions Judge.

7. For the reasons stated above, the Rule must succeed and is accordingly made absolute. The order of conviction and sentence of the accused‑petitioner complained of is set aside and he is acquitted of the charge against him. The fine, if already paid, should be refunded to him. K. B. A. Rule made absolute.