A. BEHERA Vs. DEONARAYANLAL

JUDGEMENT

(1.) THIS is a complainant's appeal against an order of the Magistrate, II Class, Cuttack, acquitting the Respondent of an offence under Section 211/383 of the Orissa Municipal Act.

(2.) THE Cuttack Municipality first started a case against the Respondent under Section 211 of the Orissa Municipal Act alleging that he had fitted an unauthorised drain -pipe to his latrine, in the first floor of his house in holding No. 52, Ward No. 24 of the Municipality and the said drain was -not kept in proper order and foul water was dripping on the passage of the adjoining house of Niladri Patra, on account of some leakage in the joint of the said pipe. The accused was, directed to put the latrine in proper order and on the failure of the accused to do so, he was prosecuted under Section 211 of (the Act: The Magistrate found that the drain -pipe of the accused was leaking and that the accused failed to comply with the requisition given by the Municipality, but acquitted him on the ground that the Municipality has not framed any bye -laws or regulations, the violation of which would make the accused liable under Section 211 of the Orissa Municipality Act. Against this order of acquittal the Municipality filed an appeal (Criminal Appeal No. 72/63) before this Court. This Court by its judgment dated 11 -11 -1963 maintained the order of acquittal mainly on the ground that the Municipality did not dispose of the objection filed by the accused in that case in accordance with law; and held that the order of acquittal, however, will not debar the Municipality from launching a fresh prosecution of the nuisance still continued. On 28 -1 -1964 the complainant inspected the premises and found the nuisance still continuing. A notice was issued to the accused directing him to remove the nuisance, but as the accused failed to carry out the direction, the Municipality filed a fresh complaint on 18 -2 -1964 against the accused on the very same allegations.

(3.) IN support of the prosecution case five witnesses were examined including A. Behera (p.w.5) the sanitary inspector of Cuttack Municipality and p.w.5 the zamadar of Cuttack Municipality. The defence examined on Bhagaban Sahu to show that in fact there was no leakage of the pipe as contended by the prosecution.