Guha Ray, J.
1. This Reference under Section 438 of the Code of Criminal Procedure made by the Additional Sessions Judge of Midnapore recommends that the order of the Magistrate fining Mohan Tewari Rs. 350/- and imposing a daily fine of Rs. 30/- should be set aside. The facts briefly are that Mohan Tewari has a cattle shed in Chhoto Bazar close to Kotwali Bazar in a very thickly populated town of Midnapore where he keeps 30 or 35 heads of cattle in such a manner as to be a source of annoyance to the neighbours and the public in general and injurious and dangerous to the persons living close by. The Municipality served a notice on the petitioner under Section 452 of the Bengal Municipal Act directing him to remove the Khatal from there immediately on receipt of the notice. He did not remove the Khatal in spite of the notice. Then the Chairman of the Midnapore Municipality filed a petition before the Sub-Divisional Magistrate complaining against him under Section 453 read with Section 500 of the Bengal Municipal Act although in the petition itself instead of Section 453 of the Bengal Municipal Act the section, mentioned is Section 353. This mistake in the petition of complaint is reproduced by the learned Magistrate also who summoned him under Section 353 read with Section 500. The learned Magistrate then held a local enquiry and was dully satisfied as to the nuisance committed by Mohan Tewari. He accordingly made an order, the relevant part of which is as follows:
It is therefore, ordered under Section 453 (2) of B. M. Act that the O. P. who by maintaining a dairy in the heart of the town and a busy locality has created a nuisance as stated above and which unless removed once for all is bound to have adverse effect on the health of the locality, shall remove the cattle shed and the dairy which has given rise to the nuisance from the locality within thirty days from the date on which the order is made known to the party and to do all works necessary for the purpose, in default, to pay a fine of Rs. 350/-and a daily fine of Rs. 30/- till the nuisance is removed.
The learned Sessions Judge finds fault with the last part of the order, directing Mohan Tewari to pay in default of carrying out his order a fine of Rs. 350/- and a daily line of Rs. 30/- till the nuisance is removed. Evidently, this part of the order is bad in law. The learned Magistrate is not entitled to pass such an order till the offence is completed on the failure of Mohan Tewari to remove the nuisance complained of within the period of 30 days from the date when the order was made known to him. Till then there is no offence and nobody knows whether in fact and in law there will be an offence. It was therefore not open to the learned Magistrate to anticipate failure on the part of Mohan Tewari to carry out his directions during this period of 30 days, nor was it open to him to convict him in anticipation. The provision for daily fine is made in Section 502 (1) only in the event of the man's failure to carry out the nuisance even after his first conviction. In this case, there has been no conviction at all and the time for conviction has not yet come. It is only after Mohan Tewari fails to carry out the directions of the Magistrate that the question of his committing an offence can arise. The part of the order therefore of the learned Magistrate where he sentences Mohan Tewari to a fine of Rs. 350/-, in default of carrying out his directions and imposed a daily fine of Rs. 30/- till the directions were carried out must be set aside as illegal. It must be pointed out to the learned Magistrate that the failure of Mohan Tewari to carry out the directions of the Municipality is not an offence for Section 500 mentions only an offence under Section 453 (2) and not an offence under Section 453 (1).
2. The Reference is accordingly accepted and the learned Magistrate's order imposing a fine of Rs. 350/- on Mohan Tewari and a daily fine of Rs. 30/- till the nuisance is removed is set aside. The rest of the order directing Mohan Tewari to remove the nuisance in question is, however, left unaffected.