VADIA GRAM PANCHAYAT Vs. NAJA NARAN

JUDGEMENT

(1.) . What is the "continuing offence" ? Whether an illegal encroachment upon the panchayat land by way of an unauthorised construction of a building thereupon is a continuing offence ? If yes, whether the learned Magistrate was justified in the instant case in acquitting the accused by resorting to Sec. 468(l)(2)(b) of the Code of Criminal Procedure, 1973 (for short referred to as 'the Code') dismissing the complaint as hit by limitation ? These, in substance, are the points for consideration in this acquittal appeal.

(2.) . Few relevant facts leading to filing of this acquittal appeal are - Mr. Premshanker Ranchhodbhai, the Secretary, Vadia Gram Panchayat, filed a criminal complaint against one Naja Naran (respondent herein) before the learned J. M. F. C., Vadia alleging inter alia that the said Naja having illegally encroached upon certain open plot of the Gram Panchayat land has unauthorisedly constructed a building thereupon. It is further the case of the complainant that the Panchayat had accordingly issued a Regd. A. D. notice dated 20-11-1980 to the accused calling upon him to produce the evidence in support of his title and claim in respect of the disputed land, which was not complied with. Thus, as a result the case against the accused was placed before the General Meeting of the Panchayat on 13-12-1980, wherein a resolution Ex. 23 came to be passed directing the Taluka Development Officer (by a letter addressed to him at Ex. 28) to take measurements of the land in question. This having been done, a map of the disputed land showing encroachment was sent by the Taluka Panchayat showing therein that the accused had encroached upon 728 Sq. Yds. and 4 Sq.Ft. of land of Vadia Nagar Panchayat. On the basis of this, the Nagar Panchayat by yet another resolution No. 148 dated 16-10-1981 at Ex. 37 resolved to issue 30 days notice to the accused calling upon him to vacate the possession of the disputed land removing the unauthorized construction of the building thereupon. The notice Ex. 31 to the said effect was issued to the accused, which though served, was not complied with. It was in this back-drop of circumstances that the Vadia Nagar Panchayat was constrained to file a criminal complaint dated 19-10-1983 against the accused for the alleged offences under Secs. 447 and 114 of the I. P. C. and under Secs. 93 and 94 of the Gujarat Panchayats Act, 1961 (hereinafter for short 'the Act'). This came to be registered as a Criminal Case No. 153 of 1982 and summons against the accused were ordered to be issued.

(3.) . At the trial, while denying the guilt, the accused in his further statement admitted that he had encroached upon 728 Sq.Yds and 4 Sq.Ft. of the Panchayat land (Ref. : Q and A No. 1). He has also admitted that the building constructed on the disputed land was not removed even after filing of the complaint (Ref. : Q and A No. 5). As regards the necessary permission for construction of the building in question he had stated that because one man from Panchayat told him to do so, he constructed the said building (Ref. : Q and A No. 6).