SUMAN TAWAFF Vs. GAYA MUNICIPALITY

JUDGEMENT

(1.) IN making the order which he did the learned trying Magistrate misdirected himself in law as to the scope of Sub-section (2) of Section 203 of the Bihar and Orissa Municipal Act, 1922. Under that provision it was open to the trial Court to impose a daily fine for........every day after the expiration of eight days from the date of service of the requisition to remove the staircase. The effect of such an order would have been that a warrant would have issued against the petitioner for the realisation of a certain sum of money. What the learned trying Magistrate has done, however, was to direct that if the petitioner does not remove her staircase within a fortnight from the date of his order, she will be liable to pay a fine of Rs. 5 for every day thereafter that the staircase is allowed to remain. Agarwala, J., as he then was, in 'Haluman Sah v. Motihari Municipality, AIR (24) 1937 Pat 352 pointed out that this was illegal as, in effect, it amounted to imposing a sentence in anticipation of the commission of an offence. The learned advocate for the petitioner has complained that the learned trying Magistrate held a local inspection and yet omitted to record any memorandum. An irregularity of this kind is not, however, sufficient to vitiate the trial. The purpose of the learned trying Magistrate in making the local inspection was merely to discover whether the petitioner had two staircases or one staircase, and it is scarcely possible that the omission to record a memorandum caused any prejudice to the petitioner. The order of the Courts below will be varied to this extent that that part of it imposing a daily fine will be set aside. Subject to this modification, the application is dismissed.