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S.P. Thiruvengadasami Naidu vs Municipal Health Officer on 24 February, 1949
S.P. Thiruvengadasami Naidu vs Municipal Health Officer on 24 February, 1949

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Madras High Court
Public Prosecutor vs Ponnuswami Mudaliar on 12 March, 1943
Equivalent citations: AIR 1943 Mad 570
Author: Horwill

JUDGMENT Horwill, J.

1. The respondent had built a house with a verandah; and he received notice from the President of the District Board to remove the front portion of it, the notice alleging that that portion was an encroachment on the public road. He failed to comply with the notice and so was prosecuted. The President examined the Local Fund Survey Maistry and the local Karnam as P.Ws. 1 and 2; but did not file any of the survey records or any other documents in proof of the encroachment. The Sub-Magis-trate felt that the evidence was rather weak, but finally found the accused not guilty on the ground that the dispute was of a civil nature. The Crown has appealed against the acquittal of the respondent. It is needless to say that the Sub-Magistrate ought not to have disposed of this case on the ground that he has. There may be a bona fide dispute between the District Board and the accused about the ownership of the land; but the Magistrate cannot avoid his responsibility to go into that question and decide the dispute to the best of his ability. Any case launched under these provisions of the Local Boards Act is necessarily of a civil nature; for the Court has to decide whether the land said to be encroached upon belongs to the Local Board or to the accused. If the former and the notice was in order, then the accused has to be convicted whether he acted in good faith or not.

2. I do not however think that the interests of justice require that the acquittal should be set aside; because the evidence is undoubtedly weak and the prosecution have to discharge the burden in this class of criminal case as in all others of proving their case beyond all reasonable doubt. The Local Board chose to put into the box only the Local Fund Maistry and the Karnam, who had some general knowledge of what had taken place; but were not in a position to answer the questions put to them in cross-examination. So that the Court was 'left in some doubt as to whether there was an encroachment or not. Moreover, the Local Board can at any time launch another prosecution if another notice is disobeyed; and it will then have an opportunity of proving in a manner more satisfactory that there was an encroachment. I may however say that in my opinion the Local Board should not launch a fresh prosecution without giving the respondent an opportunity of paying for the encroachment in the same way as his neighbours have been allowed to do. P.W. 1 says that when the President and the Assistant Engineer inspected the locality, they decided that the accused should be allowed to purchase the land on which he had encroached for-the sum of Rs. 33-12-0. The appeal is dismissed.