DHOOPO Vs. STATE

JUDGEMENT

(1.) THIS is a reference made by the Sessions Judge, Bharatpur and it arises out of the following circumstances.

(2.) PETITIONER Mst. Dhoopo raised certain constructions within the municipal limits of Deeg without the permission of the Municipal Board and, therefore, a notice was issued to her by the Municipal Board, Deeg, to refrain from making the construction. When she did not pay any attention to that notice and continued the construction undertaken by her, the Municipal Board, lodged a complaint against the petitioner in the court of the Sub-Divisional Magistrate, Deeg under secs. 170 (11), 203 and 251 of the Rajasthan Municipalities Act, 1959. The learned Magistrate after recording the evidence of the parties found the petitioner guilty of committing offence of raising construction on a public street without the permission of the Municipal Board and, therefore, she was convicted under secs. 170, 203 and 251 of the Rajasthan Municipalities Act,1959, and she was sentenced to pay fine of Rs. 10/,- 25/-and Rs. 15/- respectively on these counts. The learned Magistrate also ordered that in default of the payment of the fine she would serve simple imprisonment for a week. The petitioner thereupon preferred a revision application before the District and Sessions Judge, Bharatpur, who after hearing the parties came to the conclusion that the petitioner has not committed any offence under the Rajasthan Municipalities Act and therefore, recommended that the conviction and sentence passed by the learned Sub-Divisional Magistrate may be set aside. While making this recommendation the learned Judge further observed that the learned Magistrate had no jurisdiction to award a sentence of imprisonment in lieu of fine in view of the provisions of sec. 265 (2) of the said Act.

(3.) THE reference is partly allowed. THE conviction of the accused petitioner Mst. Dhoopo under sec. 170 (11) is maintained, the conviction and sentence under secs. 203 and 251 of the Rajasthan Municipalities Act are set aside. THE order of the learned Magistrate awarding a sentence of imprisonment in lieu of fine is also set aside. .