NAGAR PALIKA OFFICER Vs. RAJENDRA SINGH SENGER

JUDGEMENT

(1.) THIS is an appeal by special leave under Section 417 (3) of the Code of Criminal procedure, from an order of acquittal.

(2.) RAJENDRA Singh (respondent) was prosecuted for an offence under Section 187 (8) of the M. P. Municipalities Act, 1961. The case against him was that he constructed a double storeyed building without obtaining sanction from the municipality as required by the law and this constituted an offence.

(3.) A complaint was filed by the Administrator of the Municipal Committee, bhander, before the Magistrate First Class, Datia-Bhander. The learned Magistrate ordered discharge of the accused who had been summoned on the said complaint. He says :--"nowhere a Magistrate is empowered to impose fine for construction done by accused without permission of the Municipality under Section 187 of the Act. The municipality can impose the requisite fine and can recover the amount of fine so imposed on an application made to the magistrate. But the Magistrate himself cannot impose any fine for unlawful construction. Thus I discharge the accused. " it is clear from this order that the Magistrate thinks that under Section 187 (8) of the Act, when any person is liable to be punished with for having begun any construction, alteration, addition or reconstruction without obtaining permission or giving the notice required by Sub-section (2), etc. , it is the Municipality itself which can punish the person and impose fine. This is not correct reading of the law, and it is also contrary to our principles of criminal jurisprudence. A provision is specifically made in Section 313 of the Act. It appears that the attention of the magistrate was not drawn to that section. Under Sub-section (1), of Section 313, the council or the Chief Municipal, Officer, or any other officer authorised by the council in that behalf in the case of Class I Municipality and the council or any other officer authorised by the council in that behalf in the case of other classes of municipality, may direct any prosecution for any offence under the Act or any rule or bye-law made thereunder. Sub-section (2) of Section 313, then enacts:--"any prosecution under this Act or under any rule or bye-law thereunder may, save as therein otherwise provided be instituted before any magistrate; and every fine or penalty imposed under or by virtue of this act or any rule or bye-law thereunder, and any compensation, expenses, charges or damages for the recovery of which no special provision is otherwise made in this Act may be recovered on an application to any magistrate by the distress or sale of any movable property within the limits of his jurisdiction belonging to the person from whom the money is claimed. " It is abundantly clear from Section 313 (2) that any Magistrate has jurisdiction to try the offence. The second part of this sub-section deals with the recovery of fine which may be imposed under Section 187 (8) by a Magistrate trying the offence within his jurisdiction vested in him under Section 313 (2 ). For these reasons the order of the Magistrate must be set aside.