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Present; Lyall Grant J.
DUCKWORTH v. ABDUL AZIZ.
718—P. C. Avissawella, 14,574.
Small Towns Sanitary Ordinance—Failing to repair well—Continuingoffence—Conviction on the same charge several times.
Where a person- is charged under the Small Towns SanitaryOrdinance with failing to carry out repairs to a well and convicted,it .is not open to the Court to convict him again on the same chargeas for a continuing offence.
PPEAL from a conyiction by the Police Magistrate ofAvissawella
Rajakarier, for accused, appellant.
November 8, .1928. Lyall Grant J.—
The accused in this case was charged on the complaint of theSanitary Inspector of Eheliyagoda, inasmuch as that he did, on or■about September 17, 1927, at Eheliyagoda, within the jurisdictionof the Police Court of Eheliyagoda, fail to carry out the repairs to hiswell situated at. premises bearing assessment Nos. 47-48 in Eheliya-goda town aforesaid, as required-by notice in writing dated June 1,1927, issued by the Chairman of the Sanitary Board, Ratnapura,under rule 13 in chapter 15 of the rules framed under section 9s (2)<f) of Ordinance No. 18 of 1892, as amended by Ordinance No. 30 of1914, and servedupon him on September 1,1927. Rule 13 providesthat the Chairman may “ cause notice to be given in writing to the-owner or lessee or occupant of any compound in which there is awell used for drinking or domestic purposes …. to execute.such repairs as the Chairman may consider to be necessary and ifsuch notice is not complied with within 14 days such person shallbe guilty of an offence.”
Apparently the case was called on several-occasions, and therewas no return to the summons, but on September 1, 1928, theaccused was present, the charge was explained from the summons;and the accused then stated that he was prepared to repair the wellas required. The learned Magistrate adjourned the case to Septem-ber 8, presumably in order to give the accused time to effect therepairs. On September 8 the case was called .again, when theaccused was present and it appeared that the work was not com-pleted. Thereupon the Magistrate fiend the accused Rs. 10 and
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proceeded to make farther order for the completion of the work bySeptember 22. On September 22 no charge was framed, but theSanitary Inspector was present and gave evidence and stated thatthe accused had not done ail that he wasrequired to do by the notice.The accused also gave evidence and admitted that he had not done' anything more since the 18th. /.The accused was thereupon foundguilty and fined Bs. 25, and in default 3 weeks' rigorous imprison-ment. The Magistrate then said -that the case was to be calledagain on October 6, for the accused to finish the drain and otherrepairs as required.
The learned Magistrate has evidently treated the failure tocomplete the work as a continuing'offence, and apparently takesup the attitude that upon the original charge he can bring theaccused up and fine him from time to time until the work is completed.There was no appearance for the Sanitary Inspector in appeal, and.I have not had the benefit of any argument on his behalf. I find itdifficult, however, to discover what justification the Magistrate hasfor pursuing this course against the accused. The penal section ofthe Local Sanitary Bates Ordinance, No. 18 of 1892, under whichaccused is punishable, is section 9 K. That section reads that “ ifany person without lawful authority or excuse (proof whereof shallbe on him) contravenes any regulations made under the Ordinance,or does or omits to do anything which under the provisions of thisOrdinance or of any regulation made thereunder he ought not to door omit, he shall be guilty of an offence and punishable with finewhich may extend to Bs. 50, or in default of payment of such finewith imprisonment, simple or rigorous, which may extend to onemonth.” In the absence of any citation of authority to supportthe line of action which has been taken by the Magistrate, I am ofopinion that this section only justifies the Court in proceedingagainst the accused once upon any one charge, and that when theCourt has found the accused guilty on a charge and hap sentencedhim the case is at an end, and that the Court cannot bring him upsubsequently upon the same charge and inflict a further penalty.
Any subsequent failure to complete the work must be thesubject of a fresh charge.
The proceedings of the Court after September 8 are set aside.