EXECUTIVE OFFICER BERHAMPUR Vs. GURUNATH PANIGRAHI

JUDGEMENT

(1.) In this appeal the Executive Officer, Berhampur Municipality (in short, 'the complainant') calls in question the legality of the judgment of acquittal passed by the learned Judicial Magistrate First Class (Transport), Berhampur (in short, the JMFC). Gurunath Panigrahi (in short, 'the accused') faced trial for the alleged contravention of provisions contained in Sections 264 and 273 of the Orissa Municipal Act, 1950 (in short, 'the Act') thereby attracting culpability in terms of Section 385 -A of the Act.

(2.) THE accusations which led to the trial of the accused are as follows : - - On 7 -3 -1984 accused was found constructing a new house having R.C.C. roof in Ward No. 19 adjoining the road within the area of Berhampur Municipality without taking prior approval from the complainant. In course of enquiry, the Amin (PW 1) noticed the infraction and reported the matter to the Town Surveyor (PW 2) who enquired into the matter and submitted prosecution report. The accused took the stand that in fact there was no new construction, but some minor repairs were effected. Additionally, it was pleaded that the prosecution report which was lodged on 14 -8 -1994 was barred by limitation. The learned JMFC came to hold that since the case has been filed after lapse of more than three months from the date of detection, is barred by limitation. He also held that there was no material to show any new construction. Mr. Misra, learned counsel appearing for the complainant submitted that the conclusion of the learned JMFC are erroneous. With reference to Ext.3, the letter of the accused to the complainant, submitted that there is clear admission about major changes being effected. The effect of the letter has not been considered by the learned JMFC. Additionally, it was submitted that proviso to Section 347 provides that period of limitation is one year not three months as erroneously observed by the learned JMFC. There was no appearance on behalf of accused in spite of notice.

(3.) ADDITIONALLY , I find that the learned JMFC has lost sight of proviso to Section 347 of the Act which provides that the failure to take out a licence or obtain permission under this Act shall, for the purposes of this section, be deemed a continuing offence until the expiration of the period, if any, for which the licence or permission is required, and if no period is specified, complaint may be made at the time within twelve months from the commencement of the offence. There is no dispute that permission is necessary for making construction/reconstruction or alteration or addition as provided under Sections 264 and 273 of the Act. Therefore, the proviso is clearly applicable to the case at hand. Prosecution report having been filed within twelve months from the commencement of the alleged offence, the same is within time. The conclusions of the learned JMFC with regard to limitation is unsustainable. Since quantification of punishment is necessary in terms of Section 385 -A of the, Act, the matter is remitted back to the learned Magistrate for such quantification. The same shall be done after notice to the opposite, parties. The appeal is allowed to the extent indicated above.