P.K. Mohanti, J.
1. This Criminal Revision is directed against the appellate judgment maintaining the conviction of the petitioner under Section 385-A of the Orissa Municipal Act, 1950 and the sentence of fine of Rs. 250/- with a default sentence of simple imprisonment for six months and also a daily fine of Rs. 10/- from 14-3-75 until removal of the unauthorised construction.
2. Accusation against the petitioner was that he constructed a house in Padampur N. A. C. area without permission of the Notified Area Council and that despite issue of reminders by the Executive Officer of the Notified Area Council to stop the construction of the house he went on constructing the same.
3. The petitioner's plea was that about one month prior to the construction of the house he had applied for permission to construct a house, but his application was neither allowed nor rejected by the Executive Officer. Thereafter, he reported the matter to the Chairman of the Notified Area Council, but no action was taken. It was alleged that the construction of the house commenced about one month after filing of the application for permission.
4. Both the courts below concurrently held that the petitioner un-authorisedly constructed the house in violation of the provisions of Sections 263, 264 and 266 of the Orissa Municipal Act. The conviction under Section 385-A and the sentences awarded by the trial court were confirmed on appeal.
5. Mr. S. S. Basu, the learned Counsel appearing for the petitioner raised the following contentions:
(1) Imposition of the sentence of imprisonment in default of the payment of fine is illegal as the statute creating the offence, e.g. Section 385-A of the Orissa Municipal Act provides for fine only and not imprisonment in default,
(2) Imposition of the daily fine without fresh prosecution is in the nature of anticipatory fine and is bad in law.
6. Regarding the first contention, it is urged that as mere fine is provided for by Section 385-A of the Act, the Courts below had no jurisdiction to inflict the sentence of imprisonment in default of the payment of fine. Section 67, I. P. C. provides for imprisonment for non-payment of fine, when the offence is punishable with fine, only. The word 'offence' used in Section 67 has been defined in Section 40, I. P. C. According to the definition, the word 'offence' used in Section 67, I. P. C. denotes a thing punishable under the I. P. C. or under any special law or local law. In Section 41, I. P. C. the special law has been defined as a special law applicable to a particular subject and in Section 42 the local law has been defined as a law applicable to a particular part of India. The Orissa Municipal Act comes within the definition of special law and local law. Section 25 of the General Clauses Act (Central Act X of 1897)'provides that Sections 63 to 70 of the I. P. C. and the provisions of the Code of Criminal Procedure in relation to the issue and the execution of warrants for levy of fines, shall apply to all fines imposed under any Act, Regulation, Rule or Bye-law unless the Act or Regulation or Rule or Bye-law contains an express provision to the contrary. Similar provisions have been made in Section 27 of the Orissa General Clauses Act, 1937. Thus, a conjoint reading of Section 30 of the Code of Criminal Procedure and Sections 40 and 67 of the I. P. C. makes the position clear that a sentence of imprisonment can be awarded in default of the payment of fine even though no such imprisonment in default of the payment of fine is provided for by a local or special statute. In this view, I am fortified by a decision of the Supreme Court reported in : 1957CriLJ1023 (Bashiruddin Ashraf v. State of Bihar). In that case a mutwali was charged for violation of the provisions of Section 58 of the Bihar Wakfs Act, 1948 and was convicted under Section 65(1) of the Act and sentenced to pay a fine of Rs. 100/- and in default to undergo fifteen days simple imprisonment. On appeal, it was contended before the Supreme Court that the Magistrate had no power to award the sentence of imprisonment as the law did not prescribe any imprisonment in lieu of the fine imposed under the provisions of the said Act. Their Lordships held:
Section 33 of the Cr. P. C. (Section 30 of the new Cr. P. C.) read with Sections 40 and 67, I. P. C. appears to be a clear answer of this contention.
Thus, it is clear that Section 67, Indian Penal Code which deals with imprisonment in default of the payment of fine applies not merely to offences under the I. P. C. but also under the special law and the local law. The contention raised on behalf of the petitioner is devoid of any merit.
7. The second contention is that the imposition of daily fine in anticipation of an offence being committed is illegal. According to Section 385-A of the Orissa Municipal Act a daily fine may be imposed for each day during which the offence is proved to have been continued after the' 'first day'. 'First day' referred to here is the first day on which there was contravention of the order of the Executive Officer under Section 273-A requiring the petitioner to demolish the building. The legal position is well settled that the imposition of a daily fine in anticipation of an offence being committed is illegal. Such imposition of daily fine amounts to adjudication in respect of an offence which was not proved to have been committed on the date on which the order was passed. It would be imposition of a sentence in anticipation of commission of an offence in future which is clearly not authorised by law - Vide (1956) 22 Cut LT 202 (Rajballav Mishra v. Executive Officer, Notified Area, Committee, Bhubaneswar) (1967) 33 Cut LT 350 (Marchia Gram v. Executive Officer, Notified Area Council, Rourkela) and (1974) 1 Cut WR 461 (Executive Officer, Notified Area Council, Bhubaneswar v. K. Suryanarayana Subudhi).
8. While, therefore, maintaining the conviction of the petitioner under Section 385-A of the Orissa Municipal Act and the sentence of fine with the default sentence of imprisonment, I would set aside the order directing imposition of a daily fine.
9. The Criminal Revision is allowed in part.