1. This is a reference under Section 438, Criminal Procedure Code, by the Sessions Judge of Noakhali recommending that the conviction of the accused and the sentence passed on him under Section 218 of the Bengal Municipal Act by the Sub-Divisional Magistrate of Noakhali may be set aside.
2. The accused put up a fence and is alleged to have thereby encroached on a public drain, which lies towards the east of a public road within the Noakhali Municipality. On the 20th December 1915, the Municipality served a notice on him under Section 202 requiring him to remove within eight days the fence, which was described as an obstruction. The accused preferred an objection on the 23rd December, stating that the fence put up by him was not an obstruction as the eastern part of the drain appertained to the land of an ad joining school. On that very day the Chairman passed an order in the following terms: 'I have seen the place. Nabin Chandra Aich (the accused) has encroached on the Municipal drain. Move District Magistrate requesting criminal prosecution against him.' The petitioner was then placed on his trial and was fined Rs. 10 under Section 218 of the Bengal Municipal Act by the Sub-Divisional Magistrate, to whom the case was made over by the District Magistrate. The legality of this conviction is in question before us.
3. Part V of the Bengal Municipal Act includes Sections 173--219. Section 175 prescribes the procedure to be followed in all cases where the owner or occupier of any land is required to execute any work or to do anything within a specified time. The first step is the service of the notice on the owner or occupier, who is required to execute such work or to do such thing in the manner provided in Sections 356 and 357. The second paragraph of section ) 75 sets out the substance of the contents of the notice. Section 176 allows the person on whom the notice has been served to prefer a written objection to the Commissioners within a prescribed time. The second paragraph of Section 176 and the first paragraph of Section 177 specify the Municipal authority by whom the objection is to be heard and disposed of. Section 178 then lays down that after the objection has been heard, an order shall be recorded, withdrawing, modifying or making absolute the requisition against which the objection is preferred. If the requisition is not withdrawn on the objection, the order must specify the time within which the requisition shall be carried out, which shall not be less than the shortest time which might have been mentioned in the original requisition. Section 179 next provides that such order shall be explained orally to the objector, should he be present at the office of the Commissioners, or if such order cannot be so explained, notice of the order shall be served on him in the manner laid down in Section 356. Then follows the very important provision in Section 179 that such explanation of or service of the notice of the order shall be deemed a requisition duly made under the Act to execute the work or to do the thing required. It is consequently plain that there are two distinct stages in the preliminary procedure; there is, first, the initial notice under Section 175 followed by the objection, if any, on the part of the person notified and there is, next, the explanation or notification of the order absolute, if any, made after his objection had been heard. This procedure is, by virtue of Section 175, applicable in its entirety to a case under Section 202. In the case before us, as is clear from the facts already recited, there was compliance with the provisions of Sections 175 and 176 but not with those of Sections 178 and 179. Consequently there was a failure to observe the essential preliminary steps before an application could be made to the Magistrate under Section 202. The proceeding before the Magistrate was thus without jurisdiction and the conviction and sentence cannot be sustained.
4. We accordingly accept the recommendation of the Sessions Judge, set aside the conviction and sentence on the petitioner and direct that the fine, if paid, be refunded.