P.GOVINDA MENON,J. -
(1.) THIS appeal is filed by the Health Inspector of Shertalai Municipality against the order of the Additional First Class Magistrate,Shertalai acquitting the respondent who had been prosecuted for the offence of stocking laterite stones in the poromboke land vested in the municipality without the permission of the municipal council.P.W.1 the Health Inspector has produced the Government Order A3.15046/57/RD dated 17 -10 -57 whereby the land lying on either side of the Alleppey - Shertalai canal between Muttom lake and St.Mary's High School has been transferred to,the municipal council.S.406 of the Kerala Municipalities Act - - Act XIV of 1961(hereinafter referred to as the Act)provides that: "No person shall,without authority in that behalf,remove earth,sand,or other material or deposit any matter or make any encroachment from,in or on any land vested in the municipal council,or river,estuary,canal,backwater or water course(not being private property)or in any way obstruct the same."
"Save as otherwise expressly provided in or may be prescribed under this Act,for every such licence or permission,fees may be charged on such units and at such rates as may be fixed by the municipal council."
In pursuance of this power the municipal council has fixed the rates by a resolution Ext.P.6 and it has been duly published by notification Ext.P.7.
P.W.1.has given evidence that the accused had stacked laterite stones in this poromboke land between 1 -7 -62 to 28 -7 -62 and from 28 -7 -62 to 97 -8 -62,Ext.P.2,and P.3 are the two memos issued to the accused to show cause why he should not be prosecuted,duly served on the accused by P.W.3 the peon of the municipal office.P.W.2 the Health Assistant had gone and taken the measurements of the actual space occupied by the accused for stacking the stones.Ext.P.8 is the reply sent by the accused acknowledging receipt of the notice and admitting that he had stacked the laterite stones,but contending that no licence is necessary and alleging that the municipality has no right to demand any licence fee for the purpose.Ext.D1 cannot help the accused,as the restriction contained therein applies to a licence under S.195(1)or lease under Sub -s.( 3)of S.195 of the Old Act corresponding to S.213(1)and(3)of the new Act.
(2.) IN the complaint the sections mentioned were S.355 read with S.213(3)and S.363 of the Act.As pointed out by the Magistrate,S.213(3)refers to the.power of the municipality to lease road sides and street margins for occupation and the offence is failure to remove the encroachment.S.363(10)refers to failure to produce the licence on request.The learned Magistrate has stated that failure to remove the encroachment can arise only if a notice to remove the encroachment had been given to the accused as provided in S.212(1 ).No such notice had been given in this case.As for S.363(10)failure to produce the licence on demand there being no case that the accused was a grantee of any licence or permission no question of the accused contravening S.363(10)would arise.The learned Magistrate,therefore,found that the accused is not guilty of the offence under S.355 read with S.213(3)and S.363(10)of the Act.This is conceded both in the court below as well as here by the learned counsel for the appellant.He would say that the mention of S.213(3)and S.363 in the complaint is an obvious mistake and the facts disclosed would amount to contravention of the provisions of S.406 of the Act.By that section without authority,that is,without permission from the municipal council no person can deposit any matter on any land vested in the municipal council.S.355 says whoever contravenes any provision of any of the sections shall on conviction be punished with fine which may extend to the amount mentioned in that behalf in the fourth column of the fifth schedule to the Act.The penalty fixed for unlawful deposit of any matter is twenty rupees.
(3.) LEARNED counsel for the municipality contended before the learned Magistrate that the accused could be found guilty under S.406 even though the specific section was not mentioned in the complaint.Reference was made to S.246 of the Criminal Procedure Code.S.246 says:
"A Magistrate may,under S.243 or S.245,convict the accused of any offence triable under this chapter which from the facts admitted or proved he appears to have committed,whatever may be the nature of the complaint or summons."
Learned Magistrate refused to act under S.246 on the ground that the mention of S.406 was first hinted at by P.W.1 only during his cross examination and that the accused would be prejudiced if this charge of which the accused knew nothing when he was put on trial is now found against him.The view taken by the Magistrate is wholly erroneous.Right from the very beginning the accused had been told that what is complained against him is his stacking the laterite stones without the permission of the municipality.That is what was stated in the show cause notice Exts.P.2 and P.3 and in his reply Ext.P.8 he admitted the stacking and contended that no licence or permission was necessary.Again in the complaint in giving the details of the offence it has been specifically stated that the act complained against was the stacking of stones.The question put to him under S.342 also shows that the accusation which he had to meet was that he had stacked laterite stones,first between 1 -7 -62 to 28 -7 -62 and then between 28 -7 -62 to 9 -8 -62.Even though he first stated that he had not staked the stones when confronted with his notice Ext.P.8 he stated that he would have unloaded and stocked.Again when it came to evidence P.Ws.1 and 2 have given evidence that the accused had stacked stones without permission and that he was prosecuted for that offence.It is,therefore,un understandable how the learned Magistrate could say that the accused did not know the accusation against him and would be prejudiced if the proper provision of law is applied.The learned Magistrate is not bound to adhere to any particular section which happened to be mentioned by the complainant.He can apply any section of law which he thinks applicable to the facts disclosed and proved by the evidence.The learned Magistrate has therefore not exercised his discretion judicially in refusing to apply S.246 Cr.P.C.
Another point on which the learned Magistrate has based his order of acquittal is that the complaint is barred by limitation.S.389 is the relevant section and we are concerned only with the proviso to the section.The proviso reads:
"Provided that failure to take out a licence,obtain permission or secure registration under this Act shall,for the purpose of this section,be deemed a continuing offence until the expiration of the period,if any,for which the licence,permission or registration is required and,if no period is specified,complaint may be made at any time within twelve months from the commencement of the offence."
So this section provides two periods of limitation,( 1)a period of three months;and(2)a period of 12 months.The proviso deals with offences relating to acts I done without licence or permission and the acts prohibited by S.406 would certainly be covered by the proviso.The proviso states that failure to take out a licence,or obtain premisssion shall be deemed to be a continuing offence till the expiry of the period for which the licence or permission is required.It also states that if no period is specified,the complaint may be made at any time within 12 months of the commencement of the offence.So two kinds of licences or permissions are contemplated:( 1)licence or permission for which a period is specified;and(2)licences and permissions for which no period is specified.While in the cases of licences and permissions falling in the first group(i.e.where the period is specified)the period of limitation(three months)commences from the expiry of the period for which licence is required,in the latter group of cases where no period is specified,limitation begins to run from the commencement of the offence and the period of limitation is 12 months.On going through the Act it would be seen that in certain cases in respect of some licences specified periods are fixed while in respect of other licences or permissions there is an omission to specify the periods.While the Act has specified the period of one year for licences issued under S.284,297 and 306,clauses 4 and 5 of S.284,cl.5 of S.297 and cl.3 of S.306 of the Act,no period has been specified for licences issued,for example,under S.213(1)and(5)or S.293 or S.307 or for permission under S.285 or S.216 of the Act.In these cases it will be seen the period is only specifiable but is not specified.Therefore,according to the terms of the section in case of licences or permissions for which a specific period has been already fixed by the Act the period of limitation is three months and it begins to run only from the expiry of the period specified,while in cases where no period is fixed,but is only specifiable according to exigencies of each case,the period of limitation is 12 months which runs from the commencement of the offence.If this be so,S.406 under which the licence or permission has to be taken does not specify the period of licence and so the latter portion of the proviso prescribing the twelve months period would apply.The complaint was in respect of offences covering 2 periods viz .,1 -7 -62 to 28 -7 -62 and 28 -7 -62 to 9 -8 -62.Limitation would begin to run in respect of the first offence from 1 -7 -62 and in respect of the second offence from 28 -7 -62 and the period of 12 months would expire with reference to the first offence only on 1 -7 -63 and with respect to the second offence only on 28 -7 -1963.The complaints were filed on 4 -2 -63,well within the period of limitation.
The view that I have taken finds support in two decisions of the Madras High Court.In Commissioner,Municipal Council,Vellore v Damodara Mudaliar(50 MLW 524 ),the prosecution was for affixing cinema advertisements on vehicles and road side vested in the Municipal council of Vellore without licence,for which no period is specified and under the proviso to S.347 of the District Municipalities Act,the offence has to be deemed to be a continuing offence and the complaint may be made within twelve months from the commencement of the offence.It was held that the acquittal of the accused on the ground that the complaint is barred by limitation under S.347 of the Act which requires complaints in other cases to be filed within three months is therefore untenable and it cannot be sustained.
In the other case in In re Rahim Sahib(52 MLW 370 ),the prosecution was for installing a rice mill without the permission of the local authority and the complaint was made within twelve months from the commencement of the offence.It was held that the complaint was within time.
The lower court was wrong in thinking that the complaints,are barred.The order of acquittal has,therefore,to be set aside.The accused is found guilty and convicted under S.355 read with S.406 of the Act and sentenced to pay a fine of Rs.10/ -(rupees ten ),in default to suffer simple imprisonment for one week.Under S.363(11)it is also ordered that the licence fee claimed by the Municipality will be recovered summarily and paid over to the Municipality.Time for payment one month from this date.