Full Judgment
1. In this case one Golapi Bewa was accused, under Section 267 of the Bengal Municipal Act, 1884, of erecting a hut without permission. On the case coming up for trial, the accused pleaded generally that she was not guilty. Evidence was given that the accused erected the huts. The Bench of Magistrates did not go into the question whether the accused has built the hut, or whether she had given notice to the Municipal Commissioners, but held that a notice to the accused under Section 267 is a condition precedent to a prosecution under that section, and that without such notice a conviction under that section, is bad. The District Magistrate relying on the decision in the unreported case, Legal Remembrancer v. Choita Raj Bhor Criminal Appeal No. 1507 of 1902 unreported has recommended that the acquittal of the accused be set aside. In our opinion this recommendation should be complied with, and the case sent back for determination whether the accused erected the huts, and, if so, whether she gave a month's previous notice to the Commissioners. Section 243 of the Act forbids the erection of huts without a month's notice to the Commissioners, and if any one erects a hut without such notice he is liable to punishment under the first portion of Section 267. It is true the Commissioners may, if they like, take action under Section 244 instead, but they are not bound to do so. If they do take action under Section 244, and the person erecting the hut fails to remove it when required to do so, he is then liable to punishment under the second portion of Section 267. The provision for a continuing penalty can of course only apply to the second offence, as the first offence is not continued after it has once been com-committed. The last 26 words of the section apparently apply to both offences but this seems to be a mere inadvertence in drafting and does not justify the conclusion which relates only to continuing offences, that is to say, to failing to remove huts when required to do so. The same remark applies to the use of the word and' for 'or' in the middle of the section. But that erecting a hut without notice to the Commissioners, and failing to remove huts when required to do so, are two distinct offences seems to be clear from the repetition of the word ' whoever.' If failing to remove huts when required to do so is an essential ingredient in an offence under Section 267, the second whoever' is ungrammatical. A reference to the somewhat analogous Sections 237, 238 and 263 confirms us in the view that the erection of a hut is punishable without a precedent requisition. We, therefore, set aside the acquittal and direct that the case be retried.