This is an appeal under section 378 of the Code of Criminal Procedure filed by the appellant-complainant against the order of acquittal dated 30.5.80 passed by the learned Judicial Magistrate, 2nd Class, Jorhat in C.R. Case No. 5477 of 1978.

2. The complainant's case is that he was running a shop in the left corner of the Jorhat Fish market -after obtaining due permission of the Jorhat Municipal Board But on 6.11.78 the accused-respondent along with some labourers of the Muni­cipality demolished his shop and took away all goods and articles worth about Rs. 775/-. Complainant has also alleged that he sustained a total loss of Rs. 13,000/-. The complainant filed a complaint petition before the court and the court after making preliminary inquiry issued summons against the accused-respondent under sections 379/427 of the Indian Penal Code. After examining the witnesses on behalf of the complainant the trial court framed charges under the aforesaid sections against the accused person to which be pleaded not guilty.

3. Five witnesses were examined on behalf of the compla­inant. Statement of the accused person was duly recorded who stated that as per orders of the Executive Magistrate and in the presence of the said Magistrate he demolished the constru­ction in question with the help of labourers of the Municipality. He has further stated that he removed the articles to the office of the Municipality. On witness was examined on behalf of the accused. It is an admitted fact that at the relevant time the Municipality, which was superseded, was under the control of the State Government.

4. The learned trial court after considering the entire evid­ence on record found the accused person not guilty on the ground that the accused is not liable for the occurrence and he is protected under the law'. He relied on the provisions of section 78 of the Indian Penal Code while arriving at the above decision.

5. Sri Mannan, learned Counsel for the appellant has urged that the construction in question was demolished by the Municipality in violation of the provisions of law and without giving reasonable opportunity to the complainant. He has further contended that in view of this, the demolition of the construction is illegal inasmuch as the order itself was not a valid and legal order. According to him the accused cannot get protection under section 79 of the Indian Penal Code as the demolition of construction by the accused was not done in good faith. In support of his contention that the order of demolition is illegal, the learned Counsel has drawn the attention of this Court to Parama Singh vs. Shi I long Municipal Board, AIR 1964 Assam 180.

6. In Parama Singh (supra) the question arose regarding the order passed by the Magistrate under the Assam Municipal Act, 1956 directing the petitioner to remove his stall. While allowing the petition this Court observed that the function of the Magis­trate being judicial it is necessary for him to investigate into the correctness of the stand taken by the Municipal Board and determine whether there is any substance in the objection which can be done only after giving notice to the persons affected-This case is not relevant for the purpose of instant case as this is a criminal prosecution under sections 379/427 I P.C. against the accused who was an Overseer of the Jorhat Municipal Board at the relevant time. If the appellant-complainant was dissatisfied with the order of the Municipal Board or if no notice was served on him his remedy lies elsewhere. In the pre­sent case the Court has to determine whether the prosecution has been able to prove the charges against the respondent-accused. Incidentally it may also be mentioned that on perusal of the evidence of Md. Abdul Samad (P.W. 2) it transpires that before the demolition of the construction he had approached the Deputy Commissioner against the order of demolition with a petition which was forwarded to the Office of the Jorhat Municipal Board. I refrain from mak

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