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1978 (9) TMI 168

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....tered post which he received on December 7. On the respondent's failure to comply with the requisition the Municipality, through the appellant who is its Law Assistant, filed a complaint against him under s. 240(1)(b) read with section 500(1)(b) of the Bengal Municipal Act, XV of 1932, ("The Act"). The respondent took a preliminary objection to, the maintainability of the complaint on the ground that since the prosecution was not instituted within six months next after the commission of the offence, it was barred by limitation under section 533 of the Act. That objection having been rejected by the trial court, the respondent filed a revisional application in the Calcutta High Court. It will not be quite accurate to say that the respond....

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....ion of such offence". The narrow question for determination in this appeal is whether the prosecution was instituted in the instant case within six months next after the commission of the offence as required by S. 533 of the Act. For a proper appreciation of this question it is necessary to advert briefly to the scheme of the Act because, without a proper appreciation and understanding of what in fact constitutes an offence for the present purposes, it will be impossible to resolve the question as to whether the prosecution is barred by limitation. Section 240(1) of the Act confers by its three clauses various powers on the Commissioners. Under clause (a) the Commissioners may, without giving a notice, remove any obstruction or encroachmen....

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....ully given" to a person or "any requisition lawfully made upon him". Respondent having been allowed by the notice dated December 5,1967 a period of fifteen days for the removal of the encroachment alleged to have been erected by him, it is plain that within and during that period he could not have been prosecuted under section 500(1)(b) for failure to comply with the direction or requisition. The reason simply is that by the terms of the very notice which contained the direction or requisition, he was at liberty to remove the encroachment at any time within fifteen days after the receipt of the notice. In other words, failure to comply with the direction or requisition occurred for the first time, within the meaning of section 500(1)(b), on....

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....croachment. On that date no offence indeed was committed because, as stated above, the offence charged against the respondent consists in his failure to remove the encroachment within the time allowed by the Municipality by its notice. We must, therefore, proceed on the basis that the failure to remove the encroachment having occurred on the expiry of December 20, limitation began to run for the purpose of S. 533 on that and not on any earlier date. The only question which then requires examination is whether the prosecution which was filed on June 19, 1968, was instituted as required by S. 533, "within six months next after the commission" of the offence. An argument was raised in the High Court that "six months" must be construed to mean....