Shiv Dayal, J.
1. This is an appeal by special leave under Section 417(3) of the Code of Criminal Procedure, from an order of acquittal.
2. Rajendra Singh (respondent) was prosecuted for an offence under Section 187 (8) of the M. P. Municipalities Act, 1961. The case against him was that he constructed a double storeyed building without obtaining sanction from the Municipality as required by the law and this constituted an offence.
3. A complaint was filed by the Administrator of the Municipal Committee, Bhander, before the Magistrate First Class, Datia-Bhander. The learned Magistrate ordered discharge of the accused who had been summoned on the said complaint. He says :--
'Nowhere a Magistrate is empowered to impose fine for construction done by accused without permission of the Municipality under Section 187 of the Act. The municipality can impose the requisite fine and can recover the amount of fine so imposed on an application made to theMagistrate. But the Magistrate himself cannot impose any fine for unlawful construction. Thus I discharge the accused.'
It is clear from this order that the Magistrate thinks that under Section 187 (8) of the Act, when any person is liable to be punished with for having begun any construction, alteration, addition or reconstruction without obtaining permission or giving the notice required by Sub-section (2), etc., it is the Municipality itself which can punish the person and impose fine. This is not correct reading of the law, and it is also contrary to our principles of criminal jurisprudence. A provision is specifically made in Section 313 of the Act. It appears that the attention of the Magistrate was not drawn to that section. Under Sub-section (1), of Section 313, the council or the Chief Municipal, Officer, or any other officer authorised by the council in that behalf in the case of Class I Municipality and the council or any other officer authorised by the council in that behalf in the case of other classes of Municipality, may direct any prosecution for any offence under the Act or any rule or bye-law made thereunder. Sub-section (2) of Section 313, then enacts:--
'Any prosecution under this Act or under any rule or bye-law thereunder may, save as therein otherwise provided be instituted before any Magistrate; and every fine or penalty imposed under or by virtue of this Act or any rule or bye-law thereunder, and any compensation, expenses, charges or damages for the recovery of which no special provision is otherwise made in this Act may be recovered on an application to any Magistrate by the distress or sale of any movable property within the limits of his jurisdiction belonging to the person from whom the money is claimed.' It is abundantly clear from Section 313 (2) that any Magistrate has jurisdiction to try the offence. The second part of this sub-section deals with the recovery of fine which may be imposed under Section 187 (8) by a Magistrate trying the offence within his jurisdiction vested in him under Section 313 (2). For these reasons the order of the Magistrate must be set aside.
4. Now the question is whether this appeal is competent. The learned Magistrate has passed an order of 'discharge'. As such, the ordinary remedy against the order of discharge was in revision. Learned counsel for the appellant, however, contend that this being a summons case, there was no question of discharge and the only order which could be passed would be either of conviction or acquittal. There is no other kind of order which a Magistrate can pass in a summons case once the accused has been summoned.
5. The law is clearly this. In a summons case, or in a warrant case for the matter of that, if a Magistrate has no jurisdiction to try, he cannot make a valid order either of conviction or of acquittal. Even if his order expressly uses the word 'acquittal' it will not amount to an acquittal but can only be called a discharge. It will be called a 'discharge' simply because something has to be said about the accused who was summoned. It is only when the trial of a summons case is valid that it must be said that such a trial must end either in conviction or in acquittal and no third kind of order is contemplated. But where the trial is void either because the Court had no jurisdiction or because of some other reason, involving incompetence of the trial such as want of sanction, it is no trial at all and, therefore, there can be no order of conviction; so also no order of acquittal. In Hori Ram Singh v. Emperor, AIR 1939 FC 43, it was held that if the prosecution is defective for want of proper consent, the proceedings would be void and hence the proper order to pass is that the complaint should be dismissed and the order directing acquittal is wrong. This view was accepted by the Judicial Committee in Yusofalli Mulla Noorbhoy v. King, 76 Ind App 158 --AIR 1949 PC 264.
6. As a result of this discussion, the law may be summed up thus:--(1) Where a Magistrate had no jurisdiction to try a summons case, the trial is void and consequently an order of conviction or acquittal is also void because there is no trial at all. In such a case the proceedings must terminate with an order of discharge of the accused. (2) Where a trial of a summons case is void for want of sanction or for such other reason, then also the conviction or acquittal will be void and the proceedings must terminate in an order of discharge. (3) But when the trial of a summons case in valid, it must end either in conviction or in acquittal. No third kind of order is contemplated. Even if the word 'discharge' is used by the Magistrate, it must be read as 'acquittal.'
7. Judged by these tests, in the present case the learned Magistrate, for reasons we have already recorded, was competent to try. The order of discharge which he passed, in the eye of law, necessarily amounts to an order of acquittal. This appeal is, therefore, competent.
8. Although we have no doubt in what we have said as to the competence of this appeal there is no doubt in our mind that if this appeal was not competent, we would have exercised the powers of this Court under Section 439, Criminal P. C., and would have set aside the order of the learned Magistrate andpassed the same operative order which we are doing in this appeal.
9. The appeal is allowed. The order of acquittal (wrongly styled as one of discharge by the learned trial Magistrate) is set aside. The case shall go back to the learned Magistrate for proceeding with the trial in accordance with law.