COMMISSIONER TELLICHERRY MUNICIPALITY Vs. GOPALAN NAIR

JUDGEMENT

(1.) THE Commissioner of the Tellicherry Municipality has filed this appeal against the order of the Judicial Sub Magistrate,Tellicherry acquitting the respondent who was prosecuted for offences under sections 355 read with sections 251(1)and 267 of the Kerala Municipalities Act,1960 "hereinafter referred to as the Act.

(2.) THE charge against the accused was that he failed to comply with the requisition made by the Com­missioner to cut and remove two coconut trees and secure another one which were standing near house No.17/338A endangering the safety of the inmates of the house. Section 251(1)of the Act is in the following terms: "If any tree or any branch of a tree or the fruit 'of any tree be deemed by the Commissioner to be likely to fall and thereby endanger any person or any structure,the Commissioner may by notice require the owner of the said tree to secure,lop or cut down the said tree so as to prevent any danger therefrom." Section 267 of the Act reads: "If any tree or branch of any tree appears to the Com­missioner to be likely to be a nuisance to the adjacent house or wells or tanks,the Commissioner may by notice require the owner of the said tree to chop,secure or cut down the said tree so as to prevent the nuisance therefrom." Section 355 is the penal section.It reads:

(3.) LEARNED Sub -Magistrate acquitted the accused on the ground that section 267 of the Act has no application,because the tree stands in the compound of the accused and no question of nuisance to the adjacent house would arise and secondly that the prosecution is barred by the principle of autrefois convict as laid down in section 403(1 ),Cr.P.C The view of the learned Magis­trate that the conviction in the earlier case would be a bar to this prosecution is wholly wrong.Section 403 would be a bar for the prosecution of the accused if he is tried for the same offence,but the learned Magistrate was in error in thinking that the offence in this case is the same as the offence with which he was tried and convicted in the pre­vious case.There the offence was failure to comply with the notice dated 25th July 1961 but here it is failure to obey a fresh notice Ex.P -4,dated 1st November 1962. Whether the acquittal or conviction in a previous case of failure to comply with the directions contained in the notice would be a bar to the prosecution of the accused for failure to obey a fresh notice has been considered in the case in Secretary,Malabar Market Committee,Kozhihode v.Bapputty 1961 KLJ 1373,where the entire case -law has been discussed and it was held that the offences are not the same and therefore section 403,Cr.P.C.will have no ap­plication.It is unfortunate that this decision which the Magistrate is bound to follow has been overlooked result­ing in a wrong acquittal of the accused.Learned Counsel for the appellant referred to certain other decisions,but it is unnecessary to deal with them as the decision referred to above is directly in point. It might also be pointed out that the view taken by the learned Magistrate regarding section 267 is equally in­correct.What the section says is that if any tree is a source of nuisance or danger to a house adjacent to it(tree)the Commissioner may require the owner of the said tree to chop,secure or cut down the said tree.It is the Commissioner who must be satisfied about the need and the observations of the Magistrate in paragraph 7 of the judgment is thoroughly unjustified.Learned counsel for the petitioner did not attempt to support the view taken by the learned magistrate on both the points. The acquittal of the accused is,therefore,unsustain­able in law and has to be set aside.We find the accused guilty and convict him of the offence charged,but we take a lenient view and sentence him to pay a fine of Rs.5,in default to simple imprisonment for two days.