PUBLIC PROSECUTOR Vs. MURTHUJAKHAN SAHIB

JUDGEMENT

(1.) The accused was charged under Section 159(1) read with Section 207(1) of the Madras Local Boards Act for disobeying a lawful notice of, the District Board of Salem to remove an encroachment. He was duly convicted by the Sub-Magistrate of Dharmapuri and on appeal, the Sub-Divisional Magistrate, Dharmapuri, set aside the conviction on two grounds. The first was purely on a question of fact; and he came to the conclusion that there had been no encroachment. Secondly, he held that a previous acquittal for the disobedience of a like notice in 1939 by the Panchayat Board was a bar to a conviction in the present case. The Crown has appealed.

(2.) On the point of law the Magistrate is clearly wrong. The offence that the accused was alleged to have committed in 1939 was not the offence for which he has been charged now. The offence in both cases consisted of disobeying a particular order; but the order disobeyed in the present case was not the order that the accused disobeyed in 1939. So the offence was not the same and he was not therefore acquitted of the same offence in 1939. This matter was brought before this Court in revision in this very case during the trial before the Sub- Magistrate, and the revision petition filed by the accused was dismissed.

(3.) I do not think that the Crown would have preferred the present appeal had the Sub- Divisional Officer not erred on this point of law. It is not usual for the Crown to prefer an appeal against an appellate judgment on a point of fact unless the judgment is perverse. The prosecution still contends that the Magistrate did not properly consider the real points in dispute; but where there is evidence on both sides regarding a civil right, the matter is better decided in a Civil Court. Although the District Board was not barred from preferring the present complaint, I think they should have accepted the finding in 1939 and not availed themselves of their technical right to have the same matter re-agitated in another Criminal Court. One would expect a responsible body like a Local Board, after an adverse finding by a Criminal Court on a question of title, to seek to establish that title in a Civil Court. It would not be right to harass the same person again and again in Criminal Courts on the same question.