V.B. Raju, J.
1. In Criminal Case No. 445 of 1959 on a complaint filed by the Gondal Municipality the applicant was convicted under Section 122(1) of the Bombay District Municipal Act; 1/901 for not having removed certain goods. In the order dated 15-6-1959 the learned Magistrate observed: The accused liable to pay a fine of Rs. 2/per dient
2. On an application made by the Municipality the First Class Magistrate Gondal passed an order on 20-10-1959 holding that it was proved by the report of the Chief Officer Gondal' Municipality that the accused had not removed the goods upto 1-10-1959. He therefore ordered that warrant to recover the fine of Rs. 100/- for total 86 days at the rate of Rs. 2/per day for 86 days between 24-6-59 and 28-9-1959.
3. In revision it is contended that this order passed by the learned Magistrate is improper and? should be set aside.
4. It is clear Jhat the order is improper. Under Section 122(1) of the Bombay District Municipal Act when an offence is committed the accused person shall be punished with fine which may extend to twenty five rupees and with further fine which may extend to Rs. 5/-for every day on which such projection encroachment obstruction or deposit continues after the date of the first conviction for such offence. The function of Magistrate is to impose a sentence of fine in appropriate cases and not merely to observe that an accused person is liable to pay fine. The liability to pay fine is created by the Legislature. When the teamed Magistrate passed on order on 15-6-59 that the accused would be liable to pay a fine of Rs. 2/per diem in case he did not remove the nuisance he passed a conditional order. The order of the learned Magistrate dated 15-6-59 is therefore not an order imposing a fine of Rs. 2/for every day after 15-6-1959.
5. The Learned Counsel for the Slate has argued that in view of Sub-section (2) of Section 161 of the Act the order of the learned Magistrate could be executed by an application. Sub-section (2) of Section 161 of the Act reads as follows:
Any prosecution under this Act or under any bye-laws 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 bye-law thereunder and also all claims to compensation or other expenses for the recovery of which no special provision is otherwise made in this Act may be recovered on application to such Magistrate by the distress and sale of any movable property within the limits of his jurisdiction belonging to the person from whom the money is claimable.
6. The meaning of this sub-section is that if there is an order of a Magistrate imposing a fine or penalty may be recovered by an application under Sub-section (2) of Section 161 of the Act. But in the instant case the order passed by the learned First Class Magistrate Gondal on 15-6-59 is an order imposing a fine of only Rs. 2/-. The rest of the order is only a conditional order providing that if the accused continued to break the law he would be liable to pay a fine of Rs. 21- for every day. Such a conditional order cannot attract the application of Sub-section (2) of Section 161 of the Act.
7. It is true that in view of Sub-section (1) of Section 122 it is open to the prosecution to approach the Magistrate a second time after the conviction for an offence for an order under that sub-section for a fine in respect of encroachment obstruction or deposit which had continued after the date of first conviction for such offence and the application made to the First Class Magistrate Gondal in October 1959 can be treated as such an application. It was open to the First Class Magistrate Gondal to pass an order under Section 122(1) of the imposing a fine extending to Rs. 5/- for every day on which the projection encroachment obstruction or deposit had continued after the date of the first conviction. But before doing so he must be satisfied by evidence that the projection encroachment obstruction or deposit had continued after the date or the first conviction. For this purpose the prosecution merely relied on a report made by the Chief Officer Gondal Municipality. The Chief Officer of the Gondal Municipality has not given evidence and his report is not admissible in evidence. The Chief Officer or any other officer of the Municipality should have been examined to prove that the projection encroachment obstruction or deposit had continued after the date of the first conviction. If it has been proved by admissible evidence then it was open to the learned Magistrate to pass an order under Sub-section (1) of Section 122 of the Act in respect of the period after the date of the first conviction and it was then open to the Municipality to make an application for the recovery of fine or penalty under Sub-section (2) of Section 161 of the Act. In this case the report of the Chief Officer Gondal Municipality not being admissible in evidence there is no proper proof of the fact that the nuisance continued to be committed after the date of the first conviction for such offence. The learned First Class Magistrate Gondal was therefore wrong in ordering the issue of a warrant of the recovery of fine of Rs. 172/-.
8. The revision application is therefore allowed and the order of the First Class Magistrate Gondal is set aside. Fine if paid should be refunded.