Lutti Singh vs The Behab Municipality

We think that this rule must be made absolute, and upon the ground that the prosecution is barred by the limitation prescribed by sec. 353 of the Bengal Municipal Act. The obstruction complained of seems to have taken place some time before the 22nd February 1895. A notice for the removal of the said obstruction was served on the Petitioner on the 26th February 1895; the Petitioner did not evidently comply with this requisition, but he preferred certain objections before the Municipality. The second notice was served upon him on the 12th February 1896, and subsequently, that is to say, on the 24th February, the objections that he had preferred were rejected. The fact that the Petitioner had not complied with the requisition of the notice served upon him in February 1895 and February 1896, was brought to the notice of the Chairman on the 8th March 1896; and the present prosecution was instituted on the 9th November 1896, that is to say, more than six months after the date when the matter was brought to the notice of the Chairman. The offence committed by the Petitioner may be taken to be continuous in its nature; but notwithstanding this, we fail to see how the prosecution could be instituted more than six months after the commission of the obstruction was brought to the notice of the Chairman, which, as we have already said, was on the 8th March 1896. The trying Magistrate, in his explanation, draws a distinction between what he describes as " terminable continuous offence," and " offence still continuing; " and referring to sec. 218 of the Municipal Act, he argues that the offence committed by the Petitioner must be taken to have continued even upon the date that the prosecution was instituted. We are, however, unable to accept the distinction drawn by the Magistrate as correct, or the argument which he derives from the provisions of sec. 218. That section, as it will be observed, only deals with the punishment to be imposed upon a party for the non-compliance with the requisition of the Municipal Commissioners, and it has hardly any bearing upon the question now before us. We think that sec. 353 is very clear, and that the present prosecution is barred by the provisions of that section. Accordingly this rule will be made absolute, the conviction will be set aside, and the fine, if paid, refunded.