A Receiver cannot be prosecuted without the permission of the court that appointed him.

BHATTACHARYA, J. :- This appeal by special leave is at the instance of the Corporation of Calcutta. The respondent, Sudhamoy Bose. was acquitted by the Municipal Magistrate on the ground that no permission to prosecute the accused opposite party had been obtained from this Court which had appointed him Receiver (in suit No. 1224/50 of this Court in its Original Side : Jagmohon Kotari v. Dawdoyal Kotari).

2. Briefly, the facts are as follows : The opposite party is a Receiver in respect inter alia of premises No. 201 A. Harrison Road. He was prosecuted for exercising the calling of a Private Market Owner at 201A Harrison Road without a licence under Sec. 222 read with Schedule VII of the Calcutta Municipal Act. (West Bengal Act XXXIII of 1951) for the second half-year, 1956-57, on payment of Rs. 60/-, It was alleged that the Corporation-staff had to remove on average more than 5 -cubic feet of refuse matter daily. The case of the opposite party was that the premises did not constitute a Private Market the fact being that certain shop rooms on the ground floor had been let out to tenants for the exclusive business of sale of cloth. It was stated that the cloth business was being carried on at the instance of tenants for the last half a century or so and at no point of time the Opposite party or Ms predecessor in interest had ever taken any license under Sec. 222 of the present Calcutta Municipal Act or under any pre-existing Act. Accumulation of refuse materials was also denied. Private sweepers who were engaged for the premises were said to have removed instantly even a bit of paper. Above all, it was the opposite party's contention that in the absence of permission of the Court he could not be prosecuted in his capacity as a Receiver. This contention was accepted by the Municipal Magistrate who acquitted him.

3. Against this background the existing law on the subject of leave to prosecute a Receiver may be considered.

4. As has been laid down in unmistakable language, on a wide survey of case-law on the subject, in Banwarilal Agarwal v. Sudhamoy Bose, 59 Cal WN 481, the rule requiring leave to sue a Receiver has as its basis considerations of public policy and this rule has become a part of the law of the land and crystallised into a rule of law, and this rule is applicable to all actions statutory or otherwise unless there are exceptions recognised in the rule itself or unless such exceptions are made expressly or impliedly by the statute in question conferring the particular right of action.

5. The earliest decision on this point in so far as a criminal case is concerned is to be found in Dunne v. Kumar Chandra Kishore, 7 Cal WN 390. It was a case under Sec. 145 of the Criminal Procedure Code. Overruling an objection that if a Receiver was to be excepted an exception which is not contained in the statute will be imported it was held that the Receiver could not be made a party to any proceeding without previous leave of the court appointing him. This principle was reiterated in Fink v. Calcutta Municipal Corporation, 7 Cal WN 706. The fine imposed on the Receiver by the Municipal Magistrate for not taking steps to close certain service privies and to make certain structural alterations in a certain building under his control as Receiver, was ordered to be refunded on the ground inter alia that a Receiver could not be made a party to any proceedings without leave oft the court appointing him.

6. It was held in Anath Nath Dev v. Mahendra Nath Srimaney, 13 Cri LJ 488 (Cal), by a Division Bench of this Court that it was not a general rule of law that in all criminal proceedings the leave of the court was not necessary to prosecute a Receiver. It was a case of defamation, arising out of a matter of repairs of the estate in the possession of the Receiver and was based upon a letter in which he claimed that he was acting on behalf of the estate. It was held that leave was required to proceed against a Receiver when he acted for