Delhi District Court
Pirzada Siraj Madani Nizami vs State Of Nct Of Delhi on 17 January, 2022
-: 1 :-
IN THE COURT OF MS. NEENA BANSAL KRISHNA:
PRINCIPAL DISTRICT & SESSIONS JUDGE,
SOUTH EAST DISTT., SAKET COURTS, NEW DELHI
CR No. 227/2021
Pirzada Siraj Madani Nizami
S/o Late Sh. Pir Zamin Nizami
R/o: 259, Basti Hazrat Nizamuddin, ....... Revisionist/
New Delhi - 110013 Accused
Versus
1. State of NCT of Delhi
2. The Commissioner
South Delhi Municipal Corporation,
Central Zone, Lajpat Nagar,
New Delhi - 110024
(Whatsapp No. 9911260565) ....... Respondents
First date before this Court : 16.11.2021
Date of Decision : 17.01.2022
ORDER
1. The Revision Petition under Section 397 Cr. P. C. has been filed against the Orders dated 15.01.2020 and 06.10.2021 vide which Ld. Metropolitan Magistrate has taken cognizance of the offences under Sections 332/ 461/466-A Delhi Municipal Corporation Act (herein- after referred as DMC Act ) and Section 188 IPC.
2. The facts in brief are that FIR No. 166/2019, Police Station Hazrat Nizamuddin was registered under Sections 332/461/466-A of DMC Act and under Section 188 IPC on the complaint dated 20.06.2019 written by Deputy CR No. 227/2021 Page 1 of 15 Pirzada Siraj Madani Nizami vs. State & Another -: 2 :- Commissioner, Central Zone to the SHO, which was received in the Office on 22.06.2019, wherein it was reported that Revisionist Pirzada Siraj Madani Nizami owner/builder of House No. 259, 1st Floor, Kot Mohalla, Near Nal Masjid, Basti Hazarat Nizamuddin, New Delhi had carried out the unauthorized constructions on the 1st Floor in portion/part above and adjoining entrance gate of the house of Pirzada Siraj Madani Nizami. It was informed that the unauthorized construction has been booked vide File No. 268/B/UC/EE(B)-I/CNZ/19 dated 23.05.2019 for action under Sections 332/343/344 of the DMC Act.
3. The investigations were carried out by HC Satender Kumar, who collected the relative documents, photographs and Inspection Reports and also the complaint. On completion of investigation, he filed the charge-sheet under Section 188 IPC & Sections 332/461/466-A of DMC Act in the Court on 29.11.2019.
4. Ld. Metropolitan Magistrate took the cognizance of offences on 15.01.2020.
5. Aggrieved by the order of cognizance, the present Revision Petition has been preferred.
6. It is submitted in the Revision Petition that the Charge- sheet under Sections 470/471/472 of the DMC Act clarifies that the DMC Act is a Special Act and special procedure is provided for dealing with the offences under the DMC Act. It also provides for the procedure for taking cognizance, Limitation period for taking cognizance and powers of the CR No. 227/2021 Page 2 of 15 Pirzada Siraj Madani Nizami vs. State & Another -: 3 :- Magistrate to hear the matter. The cognizance for the offence under the DMC Act, therefore, can be taken only in accordance with Section 471 of DMC Act. According to this section, period of limitation is 06 months from the date of commission of the offence or from the date on which the commission or existence of such offence is first brought to the notice of the complainant i.e. SDMC. In the present case, the offence was first brought to the notice of the police 26.04.2019, while the charge-sheet was filed on 29.11.2019 i.e. beyond a period of 06 months. Hon'ble High Court of Delhi in MCD vs. Ravindra Kumar Mahindra, 42 (1990) DLT 13 has held that limitation for taking the cognizance of offence under the DMC Act shall be governed exclusively by Section 471 of DMC Act and Section 468 Cr. P. C. shall not be applicable. The charge- sheet for the offences under the DMC Act is clearly barred by limitation and the cognizance is bad in law, which is liable to be set-aside. It is further submitted that the complaint before the SDMC is nothing but a counter-blast by two errant and disgruntled tenants of the Revisionist against whom an eviction petition was filed by the Revisionist. The said matter was eventually compromised and the complainant had undertaken that they would not pursue the complaint with the SDMC. It is further submitted that the impugned order for taking the cognizance is barred in law and is liable to be set-aside.
7. The Respondent after service appeared through counsel. No formal reply has been filed to the Revision Petition.
CR No. 227/2021 Page 3 of 15Pirzada Siraj Madani Nizami vs. State & Another -: 4 :-
8. Ld. Counsel for the Revisionist has argued that Section 471 of SDMC Act contains the complete procedure for taking cognizance on the charge-sheet and its trial. If the Charge sheet is filed beyond the period of limitation, there is no analogous provision under the DMC Act like IPC, which gives discretion to the Courts to waive the period of limitation. It has been further argued that under the DMC Act the cognizance taken by the Ld.MM is bad since it is clearly barred by limitation. In regard to cognizance under Section 188 IPC it is submitted that it is also bad in law and accused is entitled to be discharged.
9. Ld. Counsel for the SDMC has argued that the Revisionist has committed the offence of raising unauthorized construction, which is clearly borne out from various Inspection Reports and documents of the Respondents. The proceedings have been initiated against the Revisionist in accordance with law and Revision Petition is without merits and is liable to be dismissed.
10.Ld. Chief Public Prosecutor has relied upon Suo Moto Writ Petition (C) No. 03/2020 in Miscellaneous Application No. 21/2022 decided on 10.01.2022 in which Hon'ble Supreme Court of India has observed that if the period of limitation has expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. It has been argued that the period of limitation has been waived by the Hon'ble Supreme Court of India and the CR No. 227/2021 Page 4 of 15 Pirzada Siraj Madani Nizami vs. State & Another -: 5 :- cognizance has been rightly taken in the matter.
11.I have heard the arguments and perused the record. My observations are as under:
12.The charge-sheet under Section 188 IPC & Sections 332/ 461/466-A of DMC Act has been filed in the Court on 29.11.2019 on which cognizance has been taken on 15.01.2020.
13.The cognizance in the present matter can be divided in two aspects. (1) Under the DMC Act and (2) under Section 188 IPC.
(1) LIMITATION UNDER DMC ACT:
14.Hon'ble High Court of Delhi in MCD vs. Ravindra Kumar Mahindra 42 (1990) DLT 13 has held that for the offence under the DMC Act, Section 471 of the Act shall be applicable which lays down the period of limitation within which cognizance can be taken for the offence committed under the DMC Act. It clearly bars Prosecution beyond a period of 06 months from the date of commission of offence or from the date when existence of such offence was brought to the notice of the complainant.
Section 468 Cr. P. C. shall not be applicable as the offence under the DMC Act shall be covered by the Act itself.
15.This aspect is also evident from Section 5 Cr. P. C. which provides that nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form CR No. 227/2021 Page 5 of 15 Pirzada Siraj Madani Nizami vs. State & Another -: 6 :- of procedure prescribed, by any other law for the time being in force.
16.The limitation for the offence under the DMC Act, therefore, shall be governed exclusively by Section 471 of the DMC Act, which provides that the period of limitation is 06 months from the date of commission of offence or from the date when the offence came to the knowledge of the complainant and there is no power with the court for condonation of delay.
17.The perusal of the charge-sheet and the documents collected by the IO show that the SHO, PS Hazrat Nizamuddin had informed the Deputy Commissioner of MCD vide letter dated 25.04.2019 about unauthorized construction being carried out in the property in question. The first information of commission of offence thus came into notice on 26.04.2019. The Prosecution has further alleged that the unauthorized construction in the premises of the Revisionist on the 1st Floor in portion/part above and adjoining entrance gate was booked by Delhi Municipal Corporation on 23.05.2019. The formal complaint given by Deputy Commissioner has been received by the SHO on 22.06.2019. Six months period from 25.04.2019 expired on 25.10.2019.
18.It is evident from the documents of the prosecution itself that the offence was first noted on 26.04.2019 for which the 06 months period expired on 25.10.2019 and even if date is taken as 23.05.2019, then too period of limitation expired on 22.11.2019. The charge-sheet has been filed in CR No. 227/2021 Page 6 of 15 Pirzada Siraj Madani Nizami vs. State & Another -: 7 :- the Court on 29.11.2019, which is beyond the period of limitation of 06 months. Considering that there is no power of waiver or extension of limitation period under DMC Act, cognizance of the offences under Sections 332/461/ 466-A DMC Act is clearly barred by limitation.
19.Under section 468 Cr. P. C. the limitation has been prescribed for the purpose of taking cognizance and therefore, section 473 Cr. P. C. has the applicability as the same empowers the court to condone the delay in taking cognizance. However, Section 471 DMC Act, bars Magistrate to award any punishment for the offences under the Act on a time barred complaint . Hence, even if the cognizance is taken of the offence by condoning the delay in filing the complaint, there is an absolute bar on awarding the punishment itself and thus, it can be concluded that there is an absolute bar to take cognizance of an offence under DMC Act on a time barred complaint.
20.In Ravindra Kumar Mahindra (supra) Delhi High Court observed as under:
"It, therefore, clearly bars prosecution beyond a period of six months from the date of the commission of the offence or from the date when the existence of such offence was brought to the notice of the complainant. In our view, therefore, Section 468 of the Code of Criminal Procedure is not applicable as the offence under the DMC Act will be covered by the provisions regarding limitation made in the Act itself."
The cognizance of the offences under DMC Act is therefore held to be bad in law being time barred.
CR No. 227/2021 Page 7 of 15Pirzada Siraj Madani Nizami vs. State & Another -: 8 :- (2) COGNIZANCE FOR THE OFFENCE UNDER SECTION 188 IPC:
21.The charge-sheet has also been filed under Section 188 IPC.
22.SECTION 188 IPC reads as under:
Disobedience to order duly promulgated by public servant.--Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Explanation--It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.
Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section.
23.From the bare reading of the aforesaid provision, the essential ingredients for the offence under Section 188 are:
(I) There must be an order/ promulgation by a public servant;
(ii) Knowledge of the order promulgated by a public CR No. 227/2021 Page 8 of 15 Pirzada Siraj Madani Nizami vs. State & Another -: 9 :- servant directing to abstain from certain act or disobedience.
(iii) there must be disobedience of such order made by public servant;
(iv) Such disobedience must be with the following consequences:
such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, or Such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray.
24.These are the mandatory requirement and pre-requisites for offence under S.188 which must be present in the charge sheet failing which the cognizance shall be bad in law. (I) ORDER OF PROMULGATION BY A PUBLIC SERVANT AND ITS KNOWLEDGE:
25.The first requirement is the promulgation of order by public officer, which has been allegedly disobeyed. Allahabad High Court in Bishan Datt vs. Emperor, 1948 All 50 (AIR V 35) (E) held that orders contemplated by Section 188 are orders made by public functionaries in the public interest.
26.In the present case, it is the statutory provision under the DMC Act which has been violated by raising unauthorized construction for which a written complaint dated 20.06.2019 was given by Deputy Commissioner, Central Zone to the SHO. The Act itself provides in detail the procedure to be followed and the manner in which the CR No. 227/2021 Page 9 of 15 Pirzada Siraj Madani Nizami vs. State & Another -: 10 :- offence is to be punished. There is no order or its promulgation by any public servant which has been allegedly violated nor is any injury or obstruction alleged to have been caused to any person employed to any person so employed to enforce the promulgation. The entire charge sheet talks about violation of a statute but there is no averment about any Order of a Public Servant.
27.Another connected aspect is knowledge of the promulgation of Order. In Bhoop Singh Tyagi vs. State, 97 (2002) DLT 374 (DB) wherein Hon'ble High Court of Delhi has held that a person must have the knowledge of such order and such disobedience must cause or tend to cause obstruction, announce or injury or risk of it to any person lawfully employ or danger to human life, health and safety.
28.Interestingly, neither is there any Order by public servant shown nor is there any averment of its publication to bring it in the knowledge of the accused. Thus, there is no question of knowledge or disobedience when there is no such Order or promulgation.
(II) DISOBEDIENCE OF THE ORDER TO CAUSE OBSTRUCTION, ANNOYANCE OR INJURY MUST BE TO ANY PERSON LAWFULLY EMPLOYED:
29.To constitute an offence under S.188, the disobedience per se is not the offence. Hon'ble High Court of Patna in Criminal Revision No. 1583/2010 titled Bharat Raut @ Bharat Rawat & others vs. State decided on 03.12.2010 observed that simplicitor disobedience is not CR No. 227/2021 Page 10 of 15 Pirzada Siraj Madani Nizami vs. State & Another -: 11 :- sufficient to bring home the offence under Section 188 IPC unless the consequences as stated in the subsequent paragraphs are not satisfied.
30.There is no averment that the alleged disobedience caused obstruction, annoyance or injury. The connected aspect is that such obstruction, annoyance or injury must be to any person lawfully employed. The words "lawfully employed" were considered in The King vs. Darbari Lal Show, 1950 Crl. LJ 59 , wherein Hon'ble Calcutta High Court observed that mere disobedience of the Order is not sufficient to establish to invoke provisions under Section 188 IPC. It must sauté or tend to cause danger to life health or safety, or cause or tend to cause obstruction, annoyance or injury, or risk of obstruction annoyance or injury to any person lawfully employed. If there are only submissions that there was any danger to human safety or any announce or cause any obstruction being caused, the offence under Section 188 IPC shall not be made out.
31.It has been explained in Habibar Rahaman vs Jagannath Mondal and Ors. 1982 CriLJ 1652 by Hon'ble Calcutta High Court that it is common knowledge that for enforcement of orders promulgated by Public Officer persons such as Police and other officials are lawfully employed. An Offence would be committed only if disobedience of the order causes of tends to cause obstruction annoyance or injury only to persons so employed.
CR No. 227/2021 Page 11 of 15Pirzada Siraj Madani Nizami vs. State & Another -: 12 :-
32.In Dalganjan Koeri & Ors. vs. State, AIR 1956 Allahabad 630 it was observed that the orders contemplated under Section 188 IPC are Orders made by public functionaries in public interest. The disobedience of any order passed in favour of a party to the litigation by a Court may result in annoyance to the party in whose favour it has been passed, but it cannot be said that it necessarily causes or tends to cause obstruction or annoyance or injury to any person.
33.In the present case, the complaint dated 20.06.2019 nowhere show any cause of action of obstruction, announce or injury to any person lawfully employed. The basic ingredient of Offence under S.188 is therefore lacking.
(III) D ISOBEDIENCE CAUSES OR TENDS TO CAUSE DANGER TO HUMAN LIFE, HEALTH OR SAFETY, OR CAUSES OR TENDS TO CAUSE A RIOT OR AFFRAY:
34.The prosecution does not claim that the alleged disobedience caused danger to human life, health or safety, or caused or tended to cause a riot or affray. The onus to plead the basic facts is on the prosecution which is conspicuously missing in the entire charge sheet. The ingredients of the offence under S.188 are not disclosed and no cognizance for this offence could have been taken.
CR No. 227/2021 Page 12 of 15Pirzada Siraj Madani Nizami vs. State & Another -: 13 :- (IV) COMPLAINT UNDER SECTION 195 CR. P. C. FOR OFFENCE UNDER SECTION 188 IPC:
35.Another aspect for consideration is that for an offence under Section 188 IPC, complaint under Section 195 Cr. P. C. is necessarily required to be made.
36.Section 190 Cr. P. C. provides that any person can set the law in motion by making a complaint, but Section 195 Cr.P.C. prohibits the Courts from taking cognizance of certain offences. The Court cannot take cognizance for the offences under this Section except on the complaint of a particular person. Similar observations were made in M. S. Ahlawat vs. State of Haryana & Another, AIR 2000 SC 168 and Sachida Nand Singh & Another vs. State of Bihar & Another (1998) 2 SCC 493 .
37. Clause 1(a) of Section 195 Cr. P. C. provides that no Court shall take cognizance of the offence punishable under Section 188 IPC except on the complaint in writing of the public servant is concerned.
38.From Section 195 Cr. P. C. it is evident that the law requires that there must be a complaint by the public servant whose lawful order has not been complied with and as such complaint must be in writing. Section 195 Cr. P. C. is mandatory and its non-compliance would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction is void ab initio being without jurisdiction.
CR No. 227/2021 Page 13 of 15Pirzada Siraj Madani Nizami vs. State & Another -: 14 :-
39.Hon'ble Supreme Court of India in Criminal Appeal Nos. 127-130/2008 titled C. Muniappan & others vs. State of Tamil Nadu , arising out of SLP (Criminal) No. 1482-1484 of 2008 decided on 30.08.2010 observed that in the absence of any written complaint by the concerned public person to the Court under Section 188 IPC, the genesis of the prosecution case becomes doubtful and the appellant is entitled to be discharged.
40.Hon'ble High Court of Delhi in Bajranglal Parikh & Ors vs. Sate Of Assam, 2008 (Suppl.) DLT 486 reaffirmed that no cognizance in the absence of the complaint to the Court under Section 188 IPC can be taken as the charge- sheet cannot be treated as a complaint in writing to the public servant. It was thus held that the Court has no power to take cognizance of the charge sheet under Section 188 IPC which is thus barred under Section 195 Cr. P. C.
41.In the present case, there is no complaint whatsoever, addressed by the public authority to the Court. Only complaint is made by Deputy Commissioner of MCD to the SHO. There is another complaint dated 26.07.2019 made by IO HC Satendra Kumar to the Deputy Commissioner, Central Zone, MCD, New Delhi requesting for permission under Section 195 Cr. P. C. However, no complaint to the court as contemplated under Section 195 Cr. P. C. has been made.
42.In the present case, neither is there any complaint of the complainant under Section 195 Cr. P. C. nor fundamental ingredients have been established for the offence under CR No. 227/2021 Page 14 of 15 Pirzada Siraj Madani Nizami vs. State & Another -: 15 :- Section 188 IPC in the charge-sheet. It is held that the cognizance under Section 188 IPC is bad in law.
CONCLUSION:
43.In view of above discussion, the impugned orders dated 15.01.2020 and 06.10.2021 are hereby set-aside. The Revision Petition is allowed.
44.Trial Court Record be sent back along with a copy of this order.
45.File be consigned to Record Room.
Announced in the open (NEENA BANSAL KRISHNA) Court on 17.01.2022 Principal District & Sessions Judge, South East, Saket Courts, New Delhi CR No. 227/2021 Page 15 of 15 Pirzada Siraj Madani Nizami vs. State & Another