PUBLIC PROSECUTOR Vs. S IBRAHIM SAHEB

JUDGEMENT

(1.) This case was referred to a Bench by one of us sitting singly. The question that arose for determination was whether the Executive Authority, if he starts proceedings under section 216 of the Madras District Municipalities Act (V of 1920) against a person, will he be barred from filing a complaint under aection 199 of the same Act against a person who has violated the provisions of the Act under Chapter X ?

(2.) For an appreciation of this point, the facts have to be kept in mind. A complaint was filed by the Commissioner of Cuddapah Municipality on the allegation that the respondent commenced a construction of a wall running from north to south for a building in the vacant site to the east of door No. 13/26 in the Badarkhan Masid Street of Cuddapah town without obtaining permission from the Executive Authority of the said Municipality. Thereby he committed an offence under section 199 read with section 317 (a) of the Act. The respondent was examined by the trial Court and he pleaded " not guilty " to the charge and stated that the wall that was constructed was a partition wall between himself and one Mohammad Hussain and this he got constructed with the help of an Amin of the Court and a Police Constable as per the decree of the District Munsif's Court, Cuddapah, dated 18th January, 1962. He further stated that he stopped the construction of the wall and has sent the plans to the Commissioner for approval. The Inspector, who has examined himself as P.W. 1, noticed the unlawful construction on 5th December, 1962 when he was going on inspection accompanied by his maistry (P.W. 2). He duly verified this fact that the construction was unlawful and gave a report to the Commissioner, Exhibit P-1. Afterwards he issued a show cause notice to the respondent on 6th December, 1962 under Exhibit P-2 which was served on the respondent on 7th December, 1962. The respondent" replied to this notice under Exhibit P-3 on 10th December, 1962. After the reply was received, no further action was taken by the Executive Authority. Instead, after obtaining sanction of the Commissioner under section 347 of the said Act, a complaint was filed against the respondent. In the course of the trial, P.Ws. 1 and 2 were examined by the Bench of the Magistrates before whom this case came up.

(3.) The respondent was acquitted by the Court on two grounds : firstly, that there was a discrepancy between the evidence of P.Ws. 1 and 2 with regard to the height of the wall that was raised ; snd secondly, that notices under section 216 (1) and (2) were issued to the respondent and, therefore, the prosecution should have been launched under section 216 read with section 317 of the Act. We are inclined to think that the first ground on which the acquittal is based is wholly unsustainable. The respondent himself has admitted in his examination under section 342, Criminal Procedure Code, that he had raised the wall. If there is any discrepancy with regard to the height of the wall, that would not make the evidence of these two witnesses suspicious. Both of them have stated that the height of the wall was 10 feet. The only difference is that, P.W. 1 had stated that the measurements were taken from the northern side of the wall from the road level while P.W. 2, the maistry has not clearly stated how the measurements were taken. But the Court was inclined to take the view that P.W. 2 had stated that the measurements were taken from ground level which we failed to detect in his evidence. Therefore, we think that this argument of the lower Court about the discrepancy with regard to the height of the wall is irrelevant.