B.R. Ramanujachariar vs T.V. Kailasam Iyer

Srinivasa Iyengar, J.—The petitioner in this case was charged before the Stationary Second Class Magistrate of Mannargudi with an offence

u/s 159 read with Section 207 of the Local Boards Act, Madras Act XIV of 1920 He raised a plea in bar of the prosecution on the ground that

for the same offence, he was previously charged in C. C. No. 215 of 1923, on the file of the same Court, that the complaint was then withdrawn

by the local authority and that the order of acquittal then passed by the Magistrate u/s 248 of the Cr. P.C. was a bar to the present prosecution.

The learned Counsel for the District Board of Tanjore has con- tended before me that according to the scheme of the Act the offence consisted

not in the encroachment alleged to have been made by the accused but in his failing'' to comply with any direction lawfully given to him within the

terms of Clause (c) of Section 207 of that Act and that, therefore, the local authority was entitled again and again to give notice u/s 159 and every

time the conditions in the notice were not complied with, there would be an offence committed by the person to whom such notice is given. There

is a very fatal objection to the maintainability of such a contention. u/s 223 of the same Act it is provided that"" "" no person shall be tried for any

offence against the provisions of this Act, or of any rule, or bye-law made under it unless complaint is made by the Police, or the President of a

Local Board, or by a person expressly authorised in this behalf by; the Local Board or its President within three months of the commission of the

offence. The contention of the learned Counsel for the District Board of Tanjore comes to this that it is within, the powers of the Local! Board to

extend the period of limitation prescribed by Section 223 by giving fresh notice; and constituting the disobedience to each of such fresh notices as

amounting to an offence u/s 207. To construe it in! that manner would obviously be to defeat the provisions of the principle underlying'' Section

I take it that the real principle underlying that section is that it should not, be within the power or province of a local authority to molest and

annoy persons by prosecutions which are not promptly under-taken by the local authority. If this view is correct it follows that the original offence

was at any rate committed on, the expiry of the first notice given by the local authority to the accused. The prosecution, therefore, was liable to be

launched within three months of that date, and as the present prosecution is undertaken long after the expiry of three months from that date the

present complaint is not sustainable.

Even apart from this, there is another objection to the maintainability of the'' present prosecution. There has been an acquittal by a competent

Court in respect of the offence charged against the accused in the year 1923. If it was. an offence not to comply with and. carry out the directions

of the notice issued by the local authority in the year 1923 and if of that offence the accused was acquitted he cannot possibly be tried again for the

same offence, and I cannot read the sections of the Act as contemplating different offences being committed in respect of the. same subject-

matter'' every time the local authority choose to give a fresh notice and launch a prosecution. My attention has been drawn to the second clause of

Section 207 which provides for enhanced sentence in the case of persistent or old offenders. That has, however, nothing to do with the question

what is the offence that is contemplated by the Act for which a penalty is provided. It is no doubt true that Section 159 of the Act is not very

happily worded. Taking a common sense view of the provisions of Section 159, it seems to be clear that the real offence in such cases is the

wrongful encroachment that is committed by the person. The notice referred to in the section is in a sense merely in the nature of a condition

precedent to the prosecution and all that the Act says is that no one should be prosecuted straight away simply because he has committed or is

deemed to have committed an act of encroachment, but the Act required that some notice should be given to him and. that he should be

prosecuted only if, even after such notice, he fails to remove the encroachment. No doubt the contention that it is merely a failure to comply with

the direction contained in the notice can be advanced having regard to the terms of Section 207 of the Act, and having regard to those terms, it is

impossible to say that the offence is complete even before any notice is given because the Legislature clearly treats as an offence only a failure to

comply with the terms of the notice. But taking the real nature of the acts said to constitute the offence and the terms of all the sections, it is clear

that an offence within the meaning of the Act comes to be committed at any rate on the expiry of the notice by which the person., is called upon to

remove the encroachment and fails to do so within the time limited in the notice. It will be against all principle to hold that even though a person,

commits an offence by thus disobeying the terms of the notice, he should be deemed to commit a fresh offence every time the local authority

chooses to give a fresh notice calling upon him to remove the obstruction. In any view, therefore, the present prosecution cannot possibly be

sustained and I must, therefore, hold that the Sub-Magistrate was wrong in the view taken by him that the plea in bar was not valid. In my

judgment the plea is not only valid but sound and in that view the complaint should be dismissed and I direct accordingly.