A.S.QURESHI - (1.)This is the filed by the Porbandar Nagarpalika against the order of acquittal passed by the learned Judicial Magistrate First Class Porbandar on 7/02/1979 acquitting the accused for offences punishable under sec. 183(1) to (6) and sec. 178(3) and (6) of the Gujarat Municipalities Act 1963
(2.)The prosecution case was that the respondent No. 1 original accused in the summary case No. 811/70 had illegally constructed a projection in the premises in which he lives as a tenant. The accused in his statement under sec. 313 of the Criminal Procedure Code has stated that he had not carried out any construction as alleged and that he was too poor to make any construction in a tenanted premises. The learned Magistrate after regarding oral evidence and taking on record documentary evidence decided that the prosecution had failed to prove that the complainant was duly authorised in terms of sec. 248(1) of the Gujarat Municipalities Act 1963 hereinafter referred to as the Act. Hence the learned Magistrate did not go into the merits of the case and discharged the accused on the short ground that the prosecution was not duly sanctioned.
(3.)Mr. A. H. Mehta the learned Counsel for the Municipality has urged that the learned Magistrate was not justified in disposing of the case on the preliminary issue that the complainant was not duly authorised as per the provisions of the said Act. Mr. Mehta has urged that there is documentary evidence on the record of this case namely Exh. 13 collectively consisting of two documents one of which is a report by the Municipal Engineer regarding the alleged illegal construction. The second document in Exh. 13 (collectively) consists of recommendation by the Chief Officer to the Executive Committee for passing the appropriate resolution and on the reverse side of the said report there is endorsement purporting to be a direction by the Chief Officer to the Sub-overseer Mr. P. V. Thanki P.W. 1. (Exh. 10) to take appropriate action in the matter. It must be noted that this direction is purported to have been given by somebody on behalf of the Chief Officer. The person who is said to have signed this endorsement was one Mr. C. D. Oza who is said to be the incharge Chief Officer. Mr. Mehta has argued that this endorsement on the reverse side of the recommendation of the Chief Officer should be regarded as a sanction for the prosecution granted by the Chief Officer. This contention of Mr. Mehta cannot be upheld because the authorisation for prosecution must be granted in the clearest possible terms. It must not be left to be inferred from some other act or order. The present endorsement can in no way be interpreted to mean that it was the authorisation as contemplated under the provisions of the Act. Hence the learned Magistrate was right in coming to the conclusion that the prosecution had failed to prove the proper authorisation for prosecution and therefore he was justified in acquitting the accused.