JUDGMENT
Kulwant Sahay, J.
1. The petitioner was convicted by the Sub-Deputy Magistrate of Dinapore under Section 2, Clause (2) of the Bye-laws framed by the District Board of Patna which provides that whoever makes any encroachment or causes obstruction by means of a building wall, chabutra or fencing or by planting trees or cultivating crops, or in any other way on any road, shall on conviction, be liable to a fine not exceeding Rs. 20 and to further penalty not exceeding Rs. 2 each day after the imposition of the fine for the continuance of the encroachment, obstruction or nuisance. The offence with which the petitioner has been charged is that he has constructed a house on a portion of the District Board road. The learned Sub-Deputy Magistrate has found it as a fact and in fact it was admitted before him that there was a slight encroachment on the District Board road. He accordingly imposed a fine of Rs. 15 under Section 2, Clause (2) of the Bye-laws. In so far as the fine of Rs. 15 is concerned, the petitioner has no grievance; but the learned Sub-Deputy Magistrate proceeded, to impose a further fine of Rs. 2 per day till the encroachment continued. The petitioner objects to the fine of Rs. 2 per day for the period during which the encroachment continued. He contends that the Magistrate had not jurisdiction to impose a fine for an offence which had not been committed at the time the charge was laid against him and the sentence was passed. In other words, he says that the conviction in so far as it relates to a future offence of continuing the encroachment is bad in law.
2. To my mind the contention is sound. The learned Sub-Deputy Magistrate allowed the petitioner one month’s time to remove the encroachment and he ordered that if the petitioner failed to remove the encroachment within a month, he would be liable to pay a fine of Rs. 2 per day till the encroachment continued. It has been stated on behalf of the petitioner that within the month allowed by the Sub-Deputy Magistrate, he approached the District Board authorities for a settlement of the portion of the road encroached upon and the District Board authorities, as a matter of fact, have settled this portion of the road with him on a certain rental per year. The letter of the District Board Engineer on the record supports this contention of the petitioner. As authority for the proposition that it is bad in law to impose a daily fine in anticipation of the commission of the offence, reference has been made to Ram Krishna Bishwas v. Mohendra Nath Mozumdar 27 C. 565 : 14 Ind. Dec. (N.S.) 371, Nilmani Ghatak v. Emperor 7 Ind. Cas. 931 : 37 C. 671 : 11 Cr. L.J.540 and In re Limbaji Tulsiram 22 B. 766 : 11 Ind. Dec. N.S. 1094. These cases support the contention of the learned Vakil for the petitioner.
3. The sentence of fine of Rs. 2 per day imposed by the learned Sub-Deputy Magistrate for the continuation of the encroachment is, therefore, bad in law and must be set aside. The fine of Rs. 15 imposed by him under Clause (2) of Section 2 for the encroachment will stand. The additional fine of Rs. 2 per day has already been realised. This will be refunded.