PUBLIC PROSECUTOR Vs. BVSABAPATHY CHETTY

JUDGEMENT

(1.) This appeal raises a question of some importance, and of rather frequent recurrence, on which there are conflicting rulings of this Court.

(2.) The respondent is a resident in Orathanad in the District of West Tanjore. He is the owner of a shop by the side of a District Board road passing through the village, and he is alleged to have made an encroachment on the road by putting up in front of his shop a tin sunshade 11 feet long and 2 feet broad. On the 6 of February, 1937, he was served with a notice, dated the 21 of January, 1937, issued by the President of West Tanjore District Board under Section 159(1) of the Madras Local Boards Act, requiring him to remove the encroachment, before the 21 of February, 1937. Alleging that the respondent had failed to remove the encroachment, the District Board overseer, duly authorised by the President, prosecuted him in C.C. No. 118 of 1937 on the file of the Sub-Magistrate of Orathanad for an offence under Section 207 (1) of the Local Boards Act. When the case came on for trial, the respondent pleaded that he had already been prosecuted in the matter of the same encroachment in C. C. No. 295 of 1936 in the same Court, that the prosecution had been withdrawn by the ex officio President, that he had thereupon been acquitted under Section 248 of the Criminal Procedure Code, and that the previous acquittal was a bar to any further proceedings on the same facts. The learned Sub-Magistrate, relying on the decision of Pandrang Row, J., in Rangachariar V/s. Venkatasami Chetty (1934) 67 M.L.J. 873 : I.L.R. 58 Mad. 513, acquitted the respondent under Section 403 of the Criminal Procedure Code. The learned Public Prosecutor has preferred this appeal.

(3.) It is quite clear that the order of acquittal is wrong. If Section 403 of the Criminal Procedure Code is applicable, the respondent could not have been put on his trial at all in C.C. No. 118 of 1937. Section 403 does not say that a person who has been tried and convicted or acquitted shall be acquitted if an attempt is made to prosecute him again for the same offence. It says that he shall not be tried at all.