1. The accused in this case was charged with disobedience of a notice served on him by the Union Board to vacate an encroachment. He then represented that it had been removed which was found to be untrue. An application to be given the site was refused and finally notice was issued to him Under Section 159(1) which he did not obey. Process was sent to the accused and the case was taken up by one Magistrate who was succeeded by another. The accused claimed a de novo trial. In the course of the de novo trial the defence was set up that as the accused had been previously convicted of the same offence he could not be again tried. The learned Sub-Magistrate for this and other reasons said:
I do not see sufficient grounds to proceed further. I dismiss the complaint Under Section 203, Criminal P.C.
2. That is quite obviously a wrong order. Notice having gone to the accused and arguments having been heard the proceedings had gone past the stage at which the complaint could be dismissed. The trial was one under the Summons Chapter and the proper order should have been one of acquittal. Notice was however sent to the Public Prosecutor and to the accused about this revision petition and they have been heard. I must treat this petition as one in substance against an acquittal. If it had been one against the dismissal of the complaint Under Section 203 it would have been disposed of without notice to the other side. I have in a recent case Moidi Beary v. President Taluk Board, Mangalore : AIR1932Mad535 dealt with the question whether a previous acquittal or conviction bars a prosecution for disobedience of a fresh notice Under Section 159(1), Local Boards Act; and following Narayana Ayyar v. Rakkupayal  M.W.N. 645, I decided that it does not and that the offence was the disobedience of the notice and not the encroachment. I have dealt there with all the cases cited on either side and see no reason to alter my opinion. The next reason given by the learned Magistrate is that Section 26, General Clauses Act, makes the prosecution illegal. That section has no application if the offences are distinct as I held there following Narayana Ayyar v. Rakkupayal  M.W.N. 645. It was attempted to be argued that there is a difference between a previous trial ending in a conviction and one ending in acquittal. I am unable to see where the distinction lies. If there were any distinction I should have thought that the accused should be in a better position after an acquittal than after a conviction. The last argument raised is that the accused should have been proceeded against Under Section 207(2) and that as this was not done he could not be proceeded against Under Section 159(1). Assuming that he could have been proceeded against Under Section 207(2) I fail to see why the President of the Panchayat Board was not at liberty to choose the milder Section 159 (1). Thi3 gave the accused a locus penitentiae as he could obey the notice whereas Under Section 207 he could not escape the punishment for continuing the encroachment after the conviction. A complainant may pursue any one of several remedies he has: vide Subbuswami Goundan v. Kamakshi Ammal A.I.R. 1929 Mad. 834. It cannot be true that because a man can be proceeded against Under Section 207(2) he cannot be proceeded against Under Section 159(1). Obviously so, for supposing that after the first conviction he still fails to vacate the place for a certain number of days, then vacates it, trespasses again, is served with a notice Under Section 159(1) and disobeys such notice, it is perfectly clear that he can be proceeded against for disobedience of the notice Under Section 159(1) or for the period during which he failed to vacate the site after his conviction Under Section 207(2) and the fact that a prosecution Under Section 207(2) is not launched against him would not at all prevent his being prosecuted Under Section 159(1).
3. The real object of the contention in this case seems to be that if the accused is proceeded against Under Section 207(2) he intends to raise as a defence the plea of limitation. I express no opinion at all as to whether that would be a good defence. Although, as I have said, I must take this to be a private revision petition against an acquittal, nevertheless as it is a question of law and as I consider it to be a matter of public importance this revision petition is allowed. The acquittal, as I must call it, is set aside and the accused should be tried by some other Magistrate having jurisdiction.