PUBLIC PROSECUTOR Vs. GOPALAKRISHNAN PILLAI

JUDGEMENT

(1.) THIS is an appeal against the acquittal of the accused of a charge under Section 199, District Municipalities Act, of raising his wall without the permission of the executive authority of the trichmopoly Municipality. The accused was first convicted by the Town Sub-Magistrate, Trichinopoly; but the conviction was set aside in appeal by the Sub-Divisional Magistrate on the technical ground that the provisions of Section 347 had not been properly complied with, in that the Commissioner merely sanctioned the prosecution and did not specifically authorise it. The complaint made by the Municipality was on a printed form in general use. In column 7 are written the particulars of the offence committed and below is to be found the signature of the person who is to conduct the prosecation in this case the Prosecuting Sanitary Inspector. In column 12 are to be found the recommendation of the Health Officer and the order of the Commissioner. In this case the Health Officer recommended the prosecution and the Commissioner sanctioned it. It is true that sanction implies a passive attitude, whereas authorization implies an active attitude; but it we look at the act of the Commissioner rather than at the actual word used, I do not think there is much room for doubt that the special authorization required by Section 347 was in fact given. The form vised in this case was that ordinarily used by the Municipality for prosecution and the whole object of putting up this matter to the Commissioner was to obtain the special authorization required by Section 347. Moreover, as the learned Public Prosecutor points out, it is not necessary that the complaint should show on the face of it that there was any express authorization although the Magistrate must of course be satisfied on that matter before he makes enquiry into the complaint. One would expect the Commissioner to be consulted about the desirability of launching a prosecution before the complaint is submitted to him for his signature. I do not consider that there was any justification for the conclusion of the Sub-Divisional Magistrate that the Commissioner had riot specially authorized the prosecution.

(2.) MR. Jayarama Iyer pleades that even though the Sub-Divisional Magistrate erred, there is no need to further harass the accused by fining him. This case's however in a sense a test case; and if the acquittal is not set aside, the municipality might be emuarrassed in its proceedings against other persons who violale the District Municipalities Act. The trail Magistrate thought that Rs. 25 was a suitable fine and i do not consider that this sentence can be wild to be excessive. The order of acquittal is therefore sot aside and the accused convicted under S, 199 and sentenced to a fine of Rs. 25.