N. Kandaswami Pillai and Another vs The Executive Officer, Panchayat Board

Yahya Ali, J.—The petitioner in this case was acquitted on a previous occasion of an offence u/s 194 read with Section 207 of the Madras

Local Boards Act, 1920, for having erected a factory without permission from the prescribed authority. He was subsequently prosecuted for

running the factory and convicted. After that conviction it would appear that a fresh charge sheet was filed against him for the erection of the

factory and he was prosecuted under the same sections namely Section 194 read with Section 207 of the Act. When the case came up the plea

was raised on behalf of the petitioner (accused) that a fresh prosecution did not lie in view of the previous acquittal, being barred by the doctrine of

autrefois acquit u/s 403 of the Code of Criminal Procedure. The Magistrate who dealt with the case overruled this objection and directed that the

trial should proceed. The reason mentioned by him is that the executive officer withdrew the complaint on the previous occasion even before the

question was put to him u/s 242 of the Code of Criminal Procedure and therefore it cannot be held that the accused were tried and acquitted

within the meaning of Section 248 of the Code of Criminal Procedure. This view is clearly wrong. As set out in Section 242 of the Code the trial of

a summons case begins when the accused appears or is brought before the Magistrate, and not when he is asked to show cause why he should not

be convicted. Before setting aside the order I wanted to be sure whether the erection of a factory is not a continuing offence and whether Section

403 of the Code applies to a continuing offence. The language of Section 207 of the Local Boards Act itself clearly shows that in order to

constitute a continuing offence within the meaning of schedule IX of the Act, it is necessary that the person should have been first convicted of that

offence and then continued to commit the same offence again. In the present case there has been no such original conviction and a continuance of

the offence. Even otherwise the erection of a factory cannot be deemed to constitute a continuing offence because it is an act which can be

performed only once although the running of the factory may constitute a continuing offence.

The petition is allowed and the order of the Magistrate is set aside and the proceedings before the Magistrate are quashed in view of the bar

arising by reason of the previous acquittal.