Somnath Iyer, J.- TheGroup Village Panchayat of Muthanallur in the District of Bangalore, has preferred this appeal from an order of acquittal, on a special leave obtained under section 417(3) of the Code of Criminal Procedure. The prosecution was started by this Panchayat on the allegation that the respondent commenced an unauthorised construction without obtaining the permission of the Panchayat which was required by section 53 of the Mysore Village Panchayat and Local Boards Act, 1959, which will be referred to as the Panchayat Act. So, it was said that the respondent had committed an offence punishable under section 235 of that Act The Magistrate came to the conclusion that the accused was within hi. rights in proceeding with the construction of his building, and that the Panchayat had filed a‘false case just to harass the accused’. He accordingly made an order discharging the accused under section 253(1) of the Code of Criminal Procedure. Since it is plain that the case before the Magistrate was a summons case and not a warrant case by reason of the fact that the maximum punishment which could be imposed as provided by section 235 of the Panchayat Act is a sentence of fine amounting to Rs. 500, the Magistrate was in error in making an order of discharge. So, the Village Panchayat was right in treating the order of discharge as an order of acquittal and in asking for special leave under section 417(3) of the Code of Criminal Procedure which this Court granted. It is plain that this appeal must be treated as an appeal from an order of acquittal. Mr. Rama Iyengar, the learned Advocate for the Panchayat, first submitted that the procedure adopted by the Magistrate in treating a summons case as a warrant case vitiated the proceedings and the order of acquittal which in effect he made There can be no doubt that the Magistrate was under the mistaken supposition that the case before him was a warrant case. That that is so is clear from paragraph 3 of his order in which he stated that the point to be determined was whether a prima facie case for the purpose of framing a charge against the accused was made out. That that is so is clear from paragraph 3 of his order in which he stated that the point to be determined was whether a prima facie case for the purpose of framing a charge against the accused was made out. What the Magistrate should have done on the contrary was to state to the accused when he appeared before him the particulars of the offence of which he was accused and to ask him if he had any cause to show why he should not be convicted. This is what he should have done under section 242 of the Code of Criminal Procedure, but he did not. But Mr. Srinivasan is, in my opinion, right when he contends that if the order of acquittal can otherwise be supported, the mere fact that there was the adoption of a wrong procedure by the Magistrate would become immaterial. So, the real question is whether the order eventually made by the Magistrate which although it purports to be an order of acquital, can be supported. In support of the conclusion that the prosecution case has to fail, the Magistrate assigned at least three reasons. The first was that the complaint was premature.. The second was that there was an order of stay issued by the Assistant Commissioner in an appeal preferred under section 53(4) of the Village Panchayat Act The third was that it was established that the accused had made an application for grant of permission under section 53(1) and that since no refusal of such permission was communicated within two months of the receipt of that application, it could be presumed under section 53(1) of the Panchayat Act that the permission was; accorded. It is obvious that none of these three reasons can be accepted as sound or legitimate. As can be seen from Exhibit D-1 on 30th August, 1963, the accused preferred an appeal to the concerned Assistant Commissioner against some order made by the Chairman of the Panchayat. Exhibit D-1 shows that in that appeal, the Assistant Commissioner made an order admitting the appeal and requisitioning the records. It is also seen that further proceedings relating to the matter before him were stayed. The complaint out of which this appeal arises was preferred on 2nd September, 1963. Exhibit D-1 shows that in that appeal, the Assistant Commissioner made an order admitting the appeal and requisitioning the records. It is also seen that further proceedings relating to the matter before him were stayed. The complaint out of which this appeal arises was preferred on 2nd September, 1963. The Magistrate thought that since an order of stay had been made by the Assistant Commissioner on 31st August, 1963, during the pendency of the appeal before the Assistant Commissioner, the complaint was premature. It is plain that in taking this view the Magistrate misunderstood the provisions of section 53(4) of the Panchayat Act. Section 53(1) of the Act forbids erection, alteration and reconstruction of a building or any addition to it without the written permission of the Panchayat. Sub-section (2) of that section provides that where there is any erection, alteration, addition or reconstruction, the Panchayat could, whether or not a prosecution is commenced under section 235, issue certain directions which are referred to in clauses (a) and (b) of that sub-section. What the Panchayat could do would be either to issue a direction that the construction, alteration or addition shall be discontinued or require the demolition of the building constructed or the alteration or addition made. Sub-section (3) empowers the Panchayat to implement its direction in the event of non-compliance with the direction so issued. Sub-section (4) next provides that from any order, direction or notice issued by the Panchayat under any of the three preceding sub-sections, an appeal shall lie to the Assistant Commissioner. Mr. Srinivasan appearing on behalf of the accused explained to us that in the appeal preferred to the Assistant Commissioner, a challenge was also made to the decision of the Panchayat to prosecute the accused. We have no material before us on the basis of which we could say that the appeal extended to that sphere. However that may be, what is abundantly clear is that there is nothing in sub-section (4) to section 53 which authorises an appeal from the decision of the Village Panchayat to commence a prosecution under section 235 of the Act. In Mohamed v. Gurupur Village Panchayat1 it was explained that the pendency of an appeal under section 53(4) was no bar to a prosecution and conviction under section 235. In Mohamed v. Gurupur Village Panchayat1 it was explained that the pendency of an appeal under section 53(4) was no bar to a prosecution and conviction under section 235. The only challenge which could be made in an appeal under section 53(4) is a challenge to an order of direction or notice made or issued by the Panchayat under sub-sections (1), (2) or (3) of that section and there is no provision in any one of those three sub-sections for the commencement of a prosecution for disobedience to the provisions of sub-section (1). The only relevant statutory provision under which a prosecution can be so commenced, is section 235 of the Act, and, it is under that section that the prosecution against the accused was really commenced. So, it becomes obvious that the appellate jurisdiction of the Assistant Commissioner under section 53(4) does not extend to the power to make an adjudication on the correctness or otherwise of the decision of the Panchayat to commence a prosecution under section 235. That being so, there was no power in the Assistant Commissioner to issue an order staying the operation of the decision of the Village Panchayat in this regard. Mr. Srinivasan however urged that an order, or direction under section 53(1) to which section 43(4) refers , would also include an order or direction that the person who made the unauthorised construction should be prosecuted. I do not think that that is the correct interpretation of sub-section (4). Under sub-section (1) of section 53, the Panchayat, may, either accord permission or refuse, or it may accord permission subject to conditions. It is to any one of those orders or directions that sub-section (4) refers and not to a decision to prosecute for disobedience to section 53(1). The view taken by the Magistrate that the complaint was a premature complaint is therefore, unsupportable and therefore, must be negatived. We should also for the same reason state that the Magistrate should not have taken into consideration the order of stay made by the Assistant Commissioner, which, in the circumstances had no relevance or effect. Now turning to the question whether the Magistrate was right in thinking that the accused could depend upon the presumption enjoined by section 53(1) that the permission for the construction had been granted, it seems to me that Mr. Now turning to the question whether the Magistrate was right in thinking that the accused could depend upon the presumption enjoined by section 53(1) that the permission for the construction had been granted, it seems to me that Mr. Rama Iyengar, the learned Advocate for the Panchayat is right in urging that the view taken by the Magistrate does not rest upon any rational basis. All that was elicited from the prosecution witnesses on behalf of the accused was that the Block Development Officer had issued a communication to P.W. 2 who is the Secretary of the Panchayat that he proposed to make an enquiry into an allegation that an application by the accused for the grant of a license had become unavailable in the records of the Panchayat. P.W. 2 did state that the Block Development Officer did send a communication that he proposed to make such an enquiry. But he also added that he had sent a reply to the Block Development Officer that the accused had made no such application for a license and that the Block Development Officer had commenced no enquiry into that matter. The defendant allowed the matter to lie there without proceeding to place further material in respect of the allegation that more than two months before the accused started the impugned construction, an application had indeed been presented to the Panchayat for permission to commence it. That being the position, the Magistrate was surely not right in thinking that on the materials before him it was completely established that the accused did make an application and that there was no communication of refusal of permission by the Panchayat during a period of two months after the presentation of the application. It was for the accused to produce proof that he had presented that application and no such proof was produced. Mr. Srinivasan, however, urged that if only the Chairman and the Secretary of the Panchayat who gave evidence as P.Ws. 1 and 2 had produced before Court the registers and books of the Panchayat, those registers and books would have completely established the truth of the allegation that an application for permission had in fact, been made by the accused. Mr. Srinivasan, however, urged that if only the Chairman and the Secretary of the Panchayat who gave evidence as P.Ws. 1 and 2 had produced before Court the registers and books of the Panchayat, those registers and books would have completely established the truth of the allegation that an application for permission had in fact, been made by the accused. But this argument overlooks the fact that the burden of establishing the presentation of the application was on the accused, and, it was for him if he wished to have the benefit of the presumption claimable by him under section 53(1) to produce all the materials on the basis of which that presumption could be claimed by him. That being the true position, the order of acquittal made by the Magistrate, although he called it an order of discharge, is unsupportable and should be set aside. Since the Magistrate adopted a wrong procedure in disposing of this matter and since the adoption of that procedure has perhaps resulted in the deprivation of an opportunity to the accused and the prosecution to produce all the evidence on which they proposed to rely in support of their respective contentions, what we should do, in my opinion, is to send back the matter to the Magistrate so that there could be a proper trial of the case in accordance with law. It is ordered accordingly. It is made clear that the Magistrate should now proceed with the trial under Chapter 20 of the Code of Criminal Procedure and allow both sides to produce all the evidence which they wish to produce. Ahmed All Khan, J.-I agree. S.V.S. ----- Order set aside and case remanded.