TMI Blog1957 (10) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... to a fine of ₹ 50, in substitution of the order of conviction under s. 488/299 of the Act, of a fine of ₹ 75, passed by the lower courts. The facts found by the courts below which are necessary to be stated for the purpose of this appeal, are as follows: The appellant who is the owner of the premises No. 10/3, Swarnamoyee Road, Howrah, encroached upon an area of 57' x 3' of the road-side land of the Howrah Municipality to which the provisions of the Act have been extended. A notice, the terms of which we shall set out hereinafter, was served on the appellant to remove the encroachment aforesaid, and as he failed to carry out the terms of the notice within the specified time, the prosecution leading up to this appeal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand passed by the High Court. The learned Judge agreed with the appellate court that the complaint was not barred. The High Court also agreed with the lower courts on their findings on the merits, that is to say, it affirmed the finding that the appellant had encroached upon the road-side land of the Municipality. The High Court accepted the argument raised on behalf of the appellant that on the facts found, namely, that the offending structure was a compound wall and not something which was a part and parcel of the main building, the offence if any, would come under s. 300, and not s. 299, read with s. 488 of the Act. The High Court further took the view that as the accused was fully aware of the nature of the accusation against him, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hips of the Judicial Committee of the Privy Council in the case of Begu v. The King-Emperor (1). It was argued before their Lordships that the conviction of the appellants before the Judicial Committee under s. 201, Indian Penal Code, without a charge under that section, was a serious departure from the procedure laid down in the Code of Criminal Procedure. In that case the initial conviction was for murder under s. 302 of the Indian Penal Code, but the High Court had set aside that conviction and substituted a conviction under the lessers. 201. After discussing the provisions of ss. 236 and 237 of the Code of Criminal Procedure, their Lordships made the following observations which fully cover the present controversy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les, shall be punished. The substantive portion of the notice is in these terms: Take notice that you are hereby required by the Municipal Commissioners of Howrah, within thirty days from the date of service of this notice to remove the encroachment caused by a compound wall measuring 57'-0 x 3'-0 upon Swarnamoyee Road attached to premises No. 10/3 and that in default, the provisions of the above Act will be enforced. This notice is headed as under s. 299 of the Act. It is nomore in controversy, as found by the courts below, that the offending part of the structure comes under s. 300 which refers to a wall, etc., not being a portion of a building or fixture, as contemplated in s. 299. The contention now has narrowed dow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ext sought to be contended that there was substantial prejudice to the appellant inasmuch as if the conviction were under s. 299 and not s. 300, read with s. 488, he may have been entitled to claim compensation. There are several answers to this contention. In the first instance, he himself invited the High Court to interfere with the order of conviction passed by the lower courts. If the High Court has set right the technical defect, as it was bound to do when the matter had been brought to its notice, the appellant has no just grievance, keeping in view the fact that the amount of fine has been reduced as a result of the alteration in the section. Secondly, if he has any rights to claim compensation in a civil court the judgment and order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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