1. The petitioner contends that the order of the 1st Class Bench Magistrate's Court, Conjeeveram, dated 31st October 1933, discharging the respondent in contrary to law. The petitioner admitted during his examination as P.W. 1 in that Court that:
for the same offence the accused was charged in E.C. No. 378 of 1933,
and the order of the Court dated 3rd March 1933 which decided that case showed that the accused had been acquitted. The Court held that the accused was not liable to be tried again for the same offence in view of Section 403, Criminal P.C. and the ruling reported in Ramanujachariar v. Kailasam Iyer 1925 Mad. 1067.
2. It is now contended that the offence is not the same because the subsequent complaint alleged a subsequent notice to remove the same encroachment; except that the notice in the present case bears a subsequent date all the facts alleged in the present case are exactly the same-as those alleged in the previous case of the same year which ended in acquittal. The question for decision is whether the issue of subsequent notice avoids the bar imposed by Section 403, Criminal P.C. This question has been answered in the affirmative by Pakenham Walsh, J., in the two cases reported in Moidi Beary v. President Taluk Board, Mangalore 1932 Mad. 535 and President Panchayar Board Velgore v. Venkata Reddi 1932 Mad. 537 after reviewing all the previous decisions. It is clear however, from the Bench decision in Ramachandra Chetty v. Chairman Municipal Council, Salem 1926 Mad. 763 that the point now to be decided was not decided therein, on the other hand it is expressly stated therein that:
if a prosecution had been instituted on the first requisition and had failed or not been pressed, other considerations might come in, but that question does not arise here.
3. There are conflicting decisions by-single Judges on the point, and I feel myself at liberty to act upon the view which commends itself to my judgment. The offence consists as laid down by the Bench in Ramachandra Chetty v. Chairman Municipal Council, Salem 1926 Mad. 763 in the failure to obey the notice issued under Section 169, Local Boards Act, to remove or alter the encroachment; or in other words it is the failure to remove or alter the encroachment specified in the notice that constitutes the offence; once there is such failure the offence is complete, and failure to perform an act is ex necessitate rei continuous in character. Another separate or distinct offence is not brought into being by the issue of a sub-sequent notice when that notice is by the same authority and to the same person, and relates to the same encroachment or contains the same direction. To hold otherwise would be to go against the spirit of the ancient maxim 'nemo debet bis vexari pro Eadem causa', which is embodied in Section 403. I cannot bring myself to believe that it would be right or just, when the court has once decided that there has been no failure to remove an encroachment and acquitted the accused to make the same person liable to be tried again and again for failure to remove the same encroach merit, simply because the same authority hopes to get a different decision later on by issuing one notice after another. Otherwise, there would be no end to such prosecutions. The policy of the law relating to this subject is clear; if a person has been convicted for failure to remove an encroachment he is to be prosecuted again, not under Sub-section (1) of Section 207, Local Boards Act, for failure to remove the same encroachment but for 'continuing breach' under Sub-section 2 of that section which provides an effective remedy. The necessary implication is that if the person has been acquitted he goes free altogether. Courts must generally lean, in cases of doubt against any construction of a penal law which is patently oppressive to the subject, and in favour of a construction which is in accord with the general policy of the criminal law, which is to protect the subject from a fresh prosecution after he has been convicted or acquitted in respect of what is in substance the same matter. Even if the question of law had to be decided otherwise, I would not have been prepared in the circumstances of the case to interfere in revision with the order of the First Class Bench Magistrate's Court. The Revision Petition is therefore dismissed.