ZILA PARISHAD ETAWAH Vs. MAUJILAL

JUDGEMENT

(1.) ALL these four appeals can be disposed of by one judgment because question of law arising in them is one and the same,Zila Parishad brought a complaint under Sections 270 and 240 of Zila irishads Adhiniyam against the respondent. Section 240 is not a Penal Section. Zila Parishad moved the Magistrate for correcting the section under which the respondents be punished. The City Magistrate did not allow the application. By order dated 21-9-1972 the City Magistrate rejected the complaint. Notice has been served upon the respondents, but none of them has put In appearance in the cases. The City Magistrate has mentioned that in Criminal Reference No. 189 of 1969 Baleshwar v. State through A. Z. P. Etawah, this Court held that Section 240 was not Penal. Section 240 relates to Chapter XI captioned "Rules, Regulations and Bye-Laws". In this Chapter there are six sections 237 to 242. Section 237 empowers the State Government to make rules for carry ing out the purposes of the Act. Section 238 compowers the Zila Parishads to make regulations rules consistent with the Act, by special resolution in the matters enumerated therein. Section 239 empowers the Parishads, where requir ed by the State Government, to make bye-laws for its own purposes, consistent with the provisions of the Act, in respect of matters required by the Act and for the purpose of promoting or maintaining the health, safety and conveni ence of the inhabitants of the rural area and for furtherance of the adminis tration of the Act. Section 240 provides that in making a rule the State Government, and in making a bye-law the parishad, with the sanction of the Prescribed authority, may direct that a breach of it shall be punishable with fine which may extend to two hundred and fifty rupees and, when the breach is a continuing breach with a further fine which may extend to ten rupees for every day after the first conviction. Sections 241 and 242 makes provi sion for publication of regulation made by State Government and confirma tion of regulations and bye-laws made by the parishads. It is evident from the above that while making a rule the State Govern ment and while making a bye-law the parishad shall make provision that its breach would be punishable with the punishment provided in Section 240. Therefore, it can easily be said that Section 240 is not per se penal. The Zila Parishad made an application for correction of this section. The record has been weeded out. It appears that the respondents had made encroachments on the Parishad's land and the parishad wanted to realise Tehbazari which the respondents did not pay. The parishad, therefore, alleged that the respondents had committed breach of the bye-law. The learned City Magistrate has not mentioned in his order that the allegations of the complaint did not make out any offence punishable under the Adhiniyam. In case the Magistrate had held so the position would have been different. It is the duty of the Court to punish an offender if it finds that he has committed any offence under any provisions of law. Therefore, merely on the ground of mentioning a wrong section a Criminal Court is not justified in dismissing the complaint. The Criminal Court has to ascertain whether any offence has been committed by the of under. If it comes to the conclusion that the offender has committed an offence, the Court should punish him under the appropriate provision. In these cases the parishad moved an application for correction of the section. The Magistrate should have allowed the application because it is the duty of the Magistrate to punish an offender under an appropriate pro vision. For passing an order of amendment no specific provision in the Code is required in the cases like the present one. For what has been stated above, the order of the City Magistrate dated 21-9-1972 has to be set aside. ALL the four appeals are allowed. The order of the City Magistrate dated 21-9-1978 dismissing the complaints of the appellants against the res pondents is set aside. The Magistrate is directed to dispose of the cases according to law. The record, if necessary, may be re-constructed.