JUDGMENT : Das, J. - This is a complainant's appeal against an order of the Magistrate, II Class, Cuttack, acquitting the Respondent of an offence u/s 211/383 of the Orissa Municipal Act. 2. The Cuttack Municipality first started a case against the Respondent u/s 211 of the Orissa Municipal Act alleging that he had fitted an unauthorised drain-pipe to his latrine, in the first floor of his house in holding No. 52, Ward No. 24 of the Municipality and the said drain was-not kept in proper order and foul water was dripping on the passage of the adjoining house of Niladri Patra, on account of some leakage in the joint of the said pipe. The accused was, directed to put the latrine in proper order and on the failure of the accused to do so, he was prosecuted u/s 211 of (the Act: The Magistrate found that the drain-pipe of the accused was leaking and that the accused failed to comply with the requisition given by the Municipality, but acquitted him on the ground that the Municipality has not framed any bye-laws or regulations, the violation of which would make the accused liable u/s 211 of the Orissa Municipality Act. Against this order of acquittal the Municipality filed an appeal (Criminal Appeal No. 72/63) before this Court. This Court by its judgment dated 11-11-1963 maintained the order of acquittal mainly on the ground that the Municipality did not dispose of the objection filed by the accused in that case in accordance with law; and held that the order of acquittal, however, will not debar the Municipality from launching a fresh prosecution of the nuisance still continued. On 28-1-1964 the complainant inspected the premises and found the nuisance still continuing. A notice was issued to the accused directing him to remove the nuisance, but as the accused failed to carry out the direction, the Municipality filed a fresh complaint on 18-2-1964 against the accused on the very same allegations. 3. At the trial, the plea of the accused was one of a denial of any leakage of his pipe as alleged by the prosecution and further he took the stand that the complainant A. Behera was not duly authorised to initiate the prosecution and as such the prosecution was liable to be quashed. 4. 3. At the trial, the plea of the accused was one of a denial of any leakage of his pipe as alleged by the prosecution and further he took the stand that the complainant A. Behera was not duly authorised to initiate the prosecution and as such the prosecution was liable to be quashed. 4. In support of the prosecution case five witnesses were examined including A. Behera (p.w.5) the sanitary inspector of Cuttack Municipality and p.w.5 the zamadar of Cuttack Municipality. The defence examined on Bhagaban Sahu to show that in fact there was no leakage of the pipe as contended by the prosecution. 5. The learned Magistrate, in view of the evidence of the prosecution, held that the accused is liable u/s 211 of the Orissa Municipal Act as he failed to comply with the direction given in the notice (Ext. 2). He, however, acquitted the accused on the ground that A. Behera, was not duly authorised by the Executive Officer of the Municipality to file the present prosecution against the accused. It is against this order of acquittal, the complainant-Municipality has filed the present appeal. 6. Mr. Kanungo, learn counsel for the Respondent took up a preliminary objection that (i) the appeal itself is incompetent as A. Behera was not in the service of Cuttack Municipality at the time of filing of the appeal and as such the appeal has not been duly filed by the Municipality; (ii) The filing of the appeal itself not having been sanctioned by the Municipality the complainant was incompetent to present an application for leave to appeal u/s 417(8) of the Criminal Procedure Code, and (iii) The leave petition was filed by A. Behera in his private capacity and not as a sanitary inspector of the complainant Municipality, as by then, he had ceased to be in the service of the Municipality as a sanitary inspector. 7. From the order of the Magistrate it appears that he accepted the position that the Executive Officer sanctioned the prosecution of the accused as is evident from Ext. 4. He, however, was of the opinion that there is nothing in the evidence to show that the complainant A. Behera was duly authorised by the executive Officer to initiate the prosecution. It is on that ground alone, he acquitted the accused. 8. A Behera has been examined as p.w.1 in this case. 4. He, however, was of the opinion that there is nothing in the evidence to show that the complainant A. Behera was duly authorised by the executive Officer to initiate the prosecution. It is on that ground alone, he acquitted the accused. 8. A Behera has been examined as p.w.1 in this case. His evidence along with the documents, Exts. 1, 2, 3 and 4 clearly established that he was authorised by the Executive Officer to initiate the present prosecution. As already seen the accused-Respondent was also prosecuted u/s 211 of the Orissa Municipal Act in connection with the very offence for which be has been presently charged. In that case, the accused was acquitted by the trial Court and the order of acquittal was maintained by this Court, mainly on the ground that the objection filed by the accused was not duty considered by the municipal authorities, and as such prosecution for non-compliance with the original requisition was held to be improper. But the Court however, held that there is no bar for the Municipality to launch a fresh prosecution if the nuisance still continues. After disposal of that case on 11-11-1963 the municipal authorities through A. Behera enquired if the nuisance still continued. A. Behera on inspection of the site, noticed the existence of the nuisance and submitted a report on 28-1-1964 (Ext. 1) on the basis of which a notice, Ext. 2, was issued directing the accused to remove the nuisance within a specified time. On 12-2-1964 the complainant A. Behera again visited the spot and found that the accused had not complied with the requisition, nor had he replied thereto though the notice was served upon him on 8-2-1964. He accordingly submitted a report on 18-2-] 964 to the Executive Officer for prosecution of the accused for noncompliance with the requisition and after the Executive Officer sanctioned the prosecution, a complaint was filed on 20-2-1964. 9. From the petition of complaint it would appear that the prosecution has been sanctioned by the Executive Officer, Cuttack Municipality. The oral evidence of p.w.1 and the chain of documents clearly establish that A. Behera was authorised to file the complaint against the accused. In the complaint -petition itself it has been clearly mentioned that the Cuttack Municipality has lodged this complaint through Sri A. Behera (p.w.1) in this case. The oral evidence of p.w.1 and the chain of documents clearly establish that A. Behera was authorised to file the complaint against the accused. In the complaint -petition itself it has been clearly mentioned that the Cuttack Municipality has lodged this complaint through Sri A. Behera (p.w.1) in this case. Thus, there cannot be any dispute that there was a valid sanction for initiation of the proceeding against the accused. The learned Magistrate was therefore not correct in saying that A. Behera was not authorised to initiate the prosecution against the accused and that finding of the learned Magistrate must, therefore, be set aside and it must be held that there was a valid sanction to prosecute the accused. 10. With respect to the merits of the case, the learned Magistrate accepted the prosecution version that the accused has not complied with the directions mentioned in the notice, Ext. 2, and as such he is liable for punishment u/s 211 of the Orissa Municipal Act (hereinafter referred to as 'the Act'). Looking to the evidence, I do not find any reason to differ from the learned Magistrate on the question of non-compliance with the requisition by the accused P.w.1 as the sanitary inspector who made a local inspection and submitted a report, stating that the nuisance was still continuing. On the basis of that report the accused was asked to remove the nuisance. When p.W.1 visited the s pot for the second time on 12-2-1964 he found the nuisance still continuing and he accordingly submitted a second report, Ext. 3/3 to the Executive Officer who directed the prosecution of the accused. On inspection p.w.1 found that on account of defective joint in the soil-pipe of the latrine of the accused foul water was dropping over the passage of Niladri Patra and causing bad smell. This pipe serves as the drain-pipe for the latrine of the accused which was constructed without the permission of the Municipality. P.w.5 is the zamadar of the Municipality. He also deposed that in between the house of the accused and one Niladri Patra, there is a passage belonging to Niladri and above the passage runs the latrine pipe of the accused and due to defects in the joints foul water was dropping on the passage and Le had been seeing it for the last two years. He served the notice, Ext. He served the notice, Ext. 3 on the accused for removal of the nuisance. Some other witnesses were also examined such as p. ws. 2, 3 and 4. Their evidence also discloses that the latrine pipe of the accused is responsible for the dropping of the foul water on the passage of Niladri Patra. P.w.4 Musi Patra is a neighbour of Niladri. He has also deposed that the house of the accused adjoins the house of Niladri who also is his uncle. There is an intervening passage. Above the passage there runs a cement pipe which is used by the accused as his latrine pipe and due to some defect foul water leaks out of the cement pipe and the only passage for the inmates of the house of Niladri becomes unfit for use. In spite of the notice to the accused, he still persists in not taking care to repair the same. In view of this evidence the learned Magistrate was perfectly justified in holding that a case u/s 211 of the Orissa Municipal Act has been made out against the accused. 11. Mr. Kanungo, learned Counsel for the Respondent, however, contended that the appeal is not maintainable as the appeal has been filed by A. Behera who is no longer in the service of the Municipality, at least he was not so at the time when he filed the appeal. He, therefore, contended that the appeal is incompetent. The contention is absolutely without any substance. 12. Section 347 of the Act makes provision regarding prosecution for offences against the provisions in the Act, rules or bye-laws made under it. It runs as follows: 137. Save as otherwise expressly provided in this Act, no person shall be tried for any offence against the provisions of this Act, or of any rule, regulation or by-laws made under it, unless a complaint is made by the police or the Executive Officer of a municipal council, or by a person expressly authorised in this behalf by the municipal council or its Executive Officer, within three months of the commission of the offence. But nothing herein shall affect the provisions of the Code of Criminal Procedure, 1898, in regard to the power of certain Magistrates to take cognizance of offences upon information received or upon their own knowledge or suspicion. Provided .... But nothing herein shall affect the provisions of the Code of Criminal Procedure, 1898, in regard to the power of certain Magistrates to take cognizance of offences upon information received or upon their own knowledge or suspicion. Provided .... Similar provision has also been made in Section 391 of the Act. Thus, the provision of Section 347 and Section 391 makes it clear that any person expressly authorised in this behalf by the Executive Officer of a Municipality can file a complaint and it is not necessary that the complainant must be serving under the Municipality when he files a complaint or appeal. In fact the wording of the section is sufficiently clear and wide enough to bring within its ambit a person like the complainant, A. Behera. The only question is whether he was duly authorised by the Municipal Council or the Executive Officer in this behalf. 13. Section 417 of the Criminal Procedure Code, lays down the procedure which governs appeals in cases of acquittal. Sub-section (3) of the section says that if an order of acquittal is passed in any case instituted upon a complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. 14. In this case, there cannot be any doubt that the Cuttack Municipality through Sri A. Behera was the complainant in the trial Court and the same complainant also made an application u/s 417(3) in this Court for leave to appeal against the order of acquittal. No doubt, A. Behera was not in the service of the Municipality on the date when he filed the application for special leave or the appeal itself. But as we have seen from the provisions of Section 347 of the Act, it is not necessary that he should have been in the service of the Municipality to entitle him to present the appeal. To meet the contention of Mr. Kanungo, an affidavit was filed by the assistant Law Cleark of the Cuttack Municipality who looks after the criminal cases of the said Municipality. To meet the contention of Mr. Kanungo, an affidavit was filed by the assistant Law Cleark of the Cuttack Municipality who looks after the criminal cases of the said Municipality. Therein it has been asserted that though A. Behera who originally filed the complaint has been transferred to the Vigilance Department since 13-4-64, he was yet authorised to file the present appeal in the High Court under instructions of the Municipal Council. A. Behera being the person who had filed the complaint on behalf of the Cuttack Municipality is quite competent to file the appeal on behalf of the said Municipality even though he is no longer in the service of the said Municipality. This position is clear from the provisions of Section 347 of the Act as quoted above. Accordingly, the appeal must be held to be quite competent and is maintainable. 15. Section 211 of the Act requires that all house-drains, whether within or without the premises to which they belong, and all private latrines and cess-pools within the Municipality shall be under the control of the Municipal Council, but shall be altered, repaired, cleansed and kept in proper order at the expense of the owner of the premises. Section 383(1) of the Act makes a general provision regarding penalties specified in the schedule, and says that (1) whoever (a) contravenes any provisions of any of the sections specified in the first column of schedule IV, or -(b) contravenes any rule or order made under any of the said specified sections, or (c) fails to comply with any direction lawfully given to him or any requisition lawfully made upon him under or in pursuance of the provisions of any of the said section, shall be punishable with fine which may extend to the amount mentioned in that behalf in the fourth column of the said schedule. Section 211 is one of the sections which finds mention in schedule IV and a punishment of fine of Rs. 53/ - has been provided in the 4th column of that schedule. There cannot be any doubt that the accused failed to comply with the direction lawfully given to him under the requisition Ext. 2 in pursuance of Section 211 of the Act. Thus, he contravened the provision of Section 383(1)(c) of the Act. 53/ - has been provided in the 4th column of that schedule. There cannot be any doubt that the accused failed to comply with the direction lawfully given to him under the requisition Ext. 2 in pursuance of Section 211 of the Act. Thus, he contravened the provision of Section 383(1)(c) of the Act. He must accordingly be convicted u/s 211/383 (1)(c) of the Act and sentenced to pay a fine of Rs. 50/ - in default to undergo S.I. for one month. The appeal is accordingly allowed. Final Result : Allowed