Murtaza Hussain - (1.) THIS revision is directed against the order dated 10-2-1976 passed by the Sessions Judge, Bijnor, in Criminal Appeal No. 1960 of 1975 whereby he has upheld the order dated 19-6-1975 passed by the Tehsildar-Magistrate 2nd Class at Bijnor. Through that order the learned Magistrate convicted the petitioner for an offence under section 307 (b) of the U.P. Municipalities Act and sentenced him to pay a fine of Rs. 25/- per day with effect from 27-5-1969 and in default to undergo simple imprisonment for two days for each default.
(2.) THE facts of the case, giving rise to this revision are that the Executive Officer of the Municipal Board, Bijnor, filed a complaint against the petitioner alleging that some unauthorised constructions were made by him in municipal limits and without obtaining Board's sanction for the same. That complaint was handled by a Magistrate of the 2nd class at Bijnor who, through his order dated 27-5-1969, convicted the petitioner u/sec. 185/307 (b) of the U.P. Municipalities Act and sentenced him to pay a fine of Rs. 250/- or in default to undergo R.I. for one month. Inspite of that conviction and notice having been issued by the Board the petitioner did not remove the aforesaid unauthorised constructions. Another complaint was then filed against him u/sec. 307 (b) of the Municipalities Act. THE petitioner took a preliminary plea to the effect that that second prosecution was barred by sec. 403 CrPC (old). That plea was negatived by the Magistrate concerned. THE petitioner filed a rivision before the then Sessions Judge, Bijnor. He made a reference to this Court for quashing the proceedings which were pending against the petitioner in the Magistrate's court on the basis of the aforesaid second complaint. On 28-8-1973 that reference was rejected by Honourable Mohd. Hamid Hussain, J. with a finding that because the petitioner was allegedly committing a continuing offence so his second prosecution was not barred. After the rejection of that reference the record was sent back to the Magistrate concerned who passed the order dated 19-6-1975 against the petitioner sentencing him to pay a fine of Rs. 25/- per day with effect from 27-5-1969 or to undergo two days S.I. for each default. It has already been remarked above that the said order of the Magistrate has been upheld by the learned Sessions Judge in Criminal Appeal No. 160 of 1975. The only point of law urged on behalf of the petitioner is that because he was tried by a second class Magistrate and u/sec. 32 CrPC (old) a second class Magistrate could hot award imprisonment exceeding six months or fine exceeding Rs. 500/- and in the present case the total amount of fine awarded to the petitioner was running into thousands of rupees and the imprisonment prescribed for him in default was extending to years so the order passed by the Magistate concerned was without jurisdiction. 1 do not find any force in this contention. Sec. 307 (b) of the U.P. Municipalities Act is a spatial provision of law. It lays down that the person concerned shall be liable on conviction before a Magistrate to a fine which may extend to Rs. 1,000/- and in case of a continuing breach to a further fine which may extend to Rs. 25/- for every day after the date of the first conviction during which the offender is proved to have persisted in the offence. The first sentence contemplated by this section refers to the conviction of the accused for disobedience to notice issued to him by the Board. The second sentence is for continuing breach of the direction contained in the notice. The' petitioner was awarded the first sentence when he was convicted on 27-5-1969 u/sec. 185 read with sec. 307 of the U.P. Municipalities Act. The junior engineer of the Municipal Board, namely, Nirmal Kumar, has stated that the unauthorised construction for which the petitioner was convicted on 27-5-1969 was still continuing in breach of the direction contained in the notice issued to the petitioner. For that continuing breach he could be awarded a fine at the rate of Rs. 25/- per day. Sec. 32 (1) Cr.PC (old) lays down the sentences which can be awarded by Magistrates of different categories whereas sec. 32 (2) lays down that the court of any Magistrate may pass any lawful sentence combinding any of the sentences which it is authorised by law to pass. Sec. 307 (b) of the Municipalities Act empowers a Magistrate to award recurring per diem fine in case of continuing breach by an accused. For every day's breach a fresh offence is committed by the accused and for each of that offence a separate sentence has to be awarded to him. Those separate sentences lawfully awarded by a Magistrate can be combined by virtue of sec. 32)2) CrPC (old). The order passed by the. Magistrate in the present case is thus a combination of different per diem sentences which the Magistrate, who tried the petitioner, could legally award to him. I am, therefore, of the opinion that the order under revision does not suffer from any jurisdictional defect.
(3.) IT has also been contended on behalf of the petitioner that the amount of fine per day awarded to the petitioner by the learned Magistrate is excessive. I find force in this contention. The first conviction of the petitioner was ordered on 27-5-1969, whereas the present conviction was orderded on 19-6-1975, i.e. about six years after the first conviction. A fine of Rs. 25/- per day for that entire period would be much too excessive. In the interest of justice, therefore, I reduce the amount of Rs. 25/- per day as fine awarded to the petitioner by the trial court to Re. 1/- per day. The petitioner is given six months' time to pay the amount of fine due from him otherwise he will have to undergo S.I. for one day for default of payment of each day's fine. Except for this modification in the sentence of the petitioner this petition is dismissed. Petition dismissed.;