- (1.) C. A. Rahim, J. This appeal has been filed against the judgment and order passed by learned II Additional Sessions Judge, Nainital dated 4. 8. 1979 in Criminal Appeal No. 83 of 1979 acquitting the accused-respondents from the charge under Section 185 of U. P. Municipalities Act, 1916.
(2.) THE prosecution case is that a complaint was filed with the allegation that on 29. 12. 1979 when Sri G. D. Sharma and Sri. A. H. Siddiqui, Work Agent and Junior Engineer of the Municipal Board inspected the Ajka Hotel, Mall Road, Nainital and found that owners of the said hotel, namely, Bankey Lal, Bharat Bhushan and Navin Chandra, respondents before this Court, had constructed four R. C. C. pillers of 1' x 1' diameter and construction of a room 6'9" x 6'9" was going on in the lane behind the hotel building. According to the prosecution the said construction was unauthorized and illegal as not being sanctioned by the Board. On the same day the Executive Officer of the Board issued notice under Section 186 of the aforesaid Act to the respondents asking them to remove the construction within three days. But inspite of service of notice accused-respon dents, continued the construction work. On 22. 1. 1977 another notice under Section 186 of the aforesaid Act was issued but it was not complied with and hence petition complaint was filed in the court of Munsif Magistrate, Nainital on 11. 3. 1977. Trial was held and the learned Munsif Magistrate after considering the evidence and materials on record found all the accused-respondents guilty of the offence punishable under Section 185 of the Act, convicted them and sentenced to pay a fine of Rs. 500/- each. He also found the accused-respondents not guilty of the offence punishable under Section 307/186 of the Act and acquitted them on that count. An appeal against the judgment and order was filed and it was heard by learned II Additional Sessions Judge, Nainital. By judgment and order dated 4. 8. 1979 the learned Judge allowed the appeal and set aside the conviction and sentence passed by the learned Munsif Magistrate alongwith an order to refund the fine if deposited. Against that order the Executive Officer Municipal Board, Nainital has preferred this appeal.
(3.) LEARNED counsel appearing for the appellant Municipal Board has submitted that the learned Sessions Judge erred in holding that the Executive Officer had no authority to lodge the complaint or to forward petition of complaint of the Municipal Engineer of the Board. LEARNED Judge held that the Executive Officer had no power or authority to forward the complaint to the Municipal Engineer. He also held that in schedule II of the Act offence under Section 186 has not been mentioned. The approach of the learned Judge seems to be erroneous. According to Section 314 of U. P. Municipalities Act the court can take cognizance punishable under the Act only on the complaint or upon the information received from the Board or some person authorised by the Board by general or special order. Learned counsel for the appellant has drawn my attention to section 60 (i) (d) of the Act wherein it has been provided that an Executive Officer of the Board has the power to exercise some of the powers of the Board including the powers held by section or sub-section specified in the first column of Schedule II. In first column of Schedule II Section 214 has been mentioned which speaks that the Executive Officer has the power to institute prosecution by making complaint and giving information and to authorise other persons to make such complaint and give such information.;