1. The petitioner has been convicted under Section 197 read with Section 203 of the Bihar and Orissa Municipal Act, the allegation against him being that he errected some huts on a portion of land belonging to the Municipality. He was given notice to vacate the land by the end of December 1935, but he failed to do so.
2. The learned Honorary Magistrate who tried him sentenced the petitioner to a fine of Rs. 15 and directed him to remove the huts within one month from the date of the Magistrate's order, and further went on to direct that failing to comply with the order regarding the removal of the huts, the petitioner was to pay a fine of Re. 1 per day until the encroachment was removed. This order was upheld on appeal. A learned Judge of this Court directed a rule to issue with regard to the legality of the sentence.
3. It has been held in a series of cases that a fine in respect of an offence which has not yet taken place cannot be imposed in anticipation of the commission of offence. That is precisely what the learned Magistrate has done in the present case by directing the petitioner to pay a fine of Re. 1 a day after the expiry of one month from his order if the but has not been removed by that time. The learned Government pleader points out that under S. 203 of the Act it was competent for the Magistrate to impose a daily fine. This, however, is in respect of an offence which has already taken place, that is to say, it was open to the Court to impose a daily fine from the date when the petitioner failed to comply with the Municipal order directing him to vacate the land. The learned Magistrate, however, did not apparently see fit to impose that fine, but has imposed a fine in respect of an offence which had not been committed at the date of the order. The order directing the petitioner to pay a fine of Re. 1 a day till the encroachment is removed is, therefore, set aside and if any part of this daily fine has been realized, it will be refunded.
W.D/A.L
4. Order set aside.