Delhi District Court
Ashok Saran vs Municipal Corporation Of ... on 9 March, 2016
1
IN THE COURT OF SH. SANJEEV AGGARWAL SPECIAL JUDGE
CBI03 (PC ACT) DELHI
CR No. 17/15 and CR No. 18/15
Ashok Saran
S/o Late Sh. Raghunandan Saran
R/o Flat No. 9, Pearelal Building, 4042,
Janpath, New Delhi .....Petitioner
Versus
Municipal Corporation of Delhi(S.P.Zone) .... Respondent
AND
Ashok Saran
S/o Late Sh. Raghunandan Saran
R/o Flat No. 9, Pearelal Building, 4042,
Janpath, New Delhi .....Petitioner
Versus
Municipal Corporation of Delhi(S.P.Zone) .... Respondent
09.03.2016
O R D E R
1. Vide this common order, I shall dispose off the above mentioned criminal revision petitions bearing Nos 17/15 and 18/15 which have been filed against the order dated 10.03.2015 passed by Ld. MM on the application of the CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 2 petitioner U/s 472 of Delhi Municipal Corporation Act 1957(hereinafter referred to as DMC Act) and the petition bearing no. 18/15 against the order dated 10.03.2015 passed by the same Ld. MM on the application U/s 471 of the DMC Act.
2. Brief facts are the petitioner was running a petrol pump at Rani Jhansi Road, New Delhi with 20 HP power without any factory licence, nor there was any licence displayed at the petrol pump site. The said petrol pump was being run in the name of M/s Saran Motors Ltd., and accordingly was challaned U/s 416/417/430 and 461 of the DMC Act. After filing of the challan dated 29.06.04 in the court cognizance of the same was taken on 26.08.04. Thereafter notice was framed against the petitioner U/s 416/417/430 of the Act, to which he pleaded not guilty and claimed trial.
3. During the trial various applications were moved by the applicant from time to time including the application in question U/s 472 of the Act, as it was contention of the petitioner that the court of Ld. Traffic MM/Municipal Magistrate has no power to issue B/w against the petitioner/accused to procure his presence, as the said Section 472 of the Act only provides in CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 3 case petitioner does not answer the summons, then matter may be disposed off in his absence and fine can be imposed upon him. Therefore the issuance of B/w was without any jurisdiction.
4. Regarding the contentions in CR No. 18/15, it was stated that under Section 471 of the Act the limitation for filing the complaint is six months and this period of six months shall start accruing from the date of commission of offence or on the date when the commission of offence or existence of such offence was brought to the notice of the complainant. It has been argued by the petitioner that he had been running the said petrol pump since 1961 and the same was under the knowledge of MCD and he had also obtained trade licence which he had been renewing from time to time. Copy of the same he has proved on record during the trial as ExCW1/D2. Therefore he has argued that under Section 471 of the Act the limitation prescribed is either the date of commission of offence or the date on which the commission or existence of such offence was brought to the notice of the complainant. He has argued that clause (a) of Section 471 speaks about the actual commission of the date of offence or in the alternative CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 4 when the same was brought to the notice of the complainant. Since it is quite possible that in some cases date of actual commission of the offence would not be known to the complainant who would be coming to know of the same later on on some other date. In the present case he has argued that he is having trade licence for last 3040 years and therefore the date on which the commission of offence if any which was brought to the notice of the complainant was much prior to the date of challan, which was 29.06.04 vide challan ExCW1/1, therefore he has argued that under Section 471 of the Act the cognizance beyond the period of six months is expressly barred.
5. He has further argued that as per Section 4 & 5 of the Criminal Procedure Code all the offences under the Indian Penal Code had to be investigated, inquired, tried and dealt with according to the provisions of Cr.P.C and all offences under any law have to be investigated, inquired into, tried and dealt with the same provisions but subject to any enactment for the time being enforce regulating the manner or place of investigating, inquiring, trying or otherwise dealing with such offence and as per Section 5 the specific provision to the contrary will prevail CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 5 over the provisions of Cr.P.C.
6. Relying upon the same he has argued that Special procedure has been prescribed under the DMC Act for proceeding before the Municipal Magistrate U/s 469, 470,471 and 472 and as per Section 471 the period of limitation has been prescribed as 6 months from the date of actual commission of offence or when the commission of offence was brought to the notice of the complainant first time, since there is a special procedure under DMC Act for trying the offences under the Municipal Act, same will prevail over the provisions of Criminal Procedure Code, therefore Sections 468 to 473 of Cr.P.C would not be applicable to the present case.
7. He has further argued that as per Section 472 of DMC Act if a person summoned to appear before the Magistrate under the provisions of DMC Act fails to appear on the service of summons the magistrate has two options to proceed, either it is proved that the service of summons have been duly effected in that case he can hear and determine the case in his absence and it is further shown that no sufficient cause has been shown by that person for his appearance. He has argued that the very provision of Section 472 shows that if the CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 6 summons have been duly served upon the person and no sufficient cause is shown by the person for his non appearance the magistrate has only the power to hear and determine the case in the absence of such person and he may impose fine, as per the provision(s) applicable under which he has been summoned. However, he has no right or power to issue B/w, as no power is available under DMC Act and provisions of Cr.P.C would not apply.
8. On the other hand, Ld. Counsel for the MCD has argued that court of criminal procedure would be applicable to the present case, as DMC Act is subject to the provisions of Criminal Procedure Code, even otherwise petitioner was only having trade licence that was for storage of non dangerous petroleum products, but the same was only a trade licence and the said licence was separate from the licence U/s 416 and 417 of the Act, as U/s 416 of the Act No person without the permission in writing of the Commissioner, establish in any premises, or materially alter, enlarge or extend, any factory, workshop or trade premises in which it is intended to employ steam, electricity, water or other mechanical power.
9. He has argued that, since the accused was not found having CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 7 any factory licence U/s 416/417, as he was using 20 HP motor power to run the said petrol pump without any licence, therefore he was booked under U/s 416/417/430, which is punishable U/s 461 of the Act. Therefore he has argued that petitioner has been rightly challaned under the said sections, as a trade licence is separate from factory licence which was required U/s 416/417 of DMC Act, since accused/petitioner was not having the same. Therefore his argument is without any substance. The petitioner has been challaned on 29.06.2004, whereas cognizance has been taken on 26.08.04 within the period of six months. Therefore cognizance is within the limitation as the said period of limitation commences from either the date of commisison of offence or on the date when the said offence was first brought to the notice of the complainant which in this case was brought on 29.06.2004, therefore cognizance of challan has been taken well in time.
10.Regarding issuance of B/w he has argued that court had ample powers to issue B/w to procure the attendance of any accused who has been booked under the provisions of DMC Act and the power is to be derived from the provisions of Criminal Procedure Code and no special power is needed, as CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 8 it is the general power of the court to coerce the attendance of any accused, who is not appearing in answer to the court summons. In that eventuality the court has ample powers to procure the attendance of any accused. Therefore he has argued that both the revisions petitions which have been directed against the order dated 10.03.2015 are without any merit and they are liable to be dismissed.
11. I have heard the petitioner in person as well as Sh. Umesh Gupta Ld. counsel for MCD and perused the record.
12.Section 4 & 5 of the Criminal Procedure Code are reproduced as under:
4. Trial of offence under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code(45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 9 inquiring into, trying or otherwise dealing with such offences.
5. Saving -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 of procedure prescribed, by any other law for the time being in force.
13.The cojoint effect of Section 4(2) and Section 5 is that all the offences, whether under Indian Penal Code or under any law have to be investigated, inquired into, tried and othewise dealt with according to the provisions of Cr.P.C, unless there is any enactment regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences in which case special enactment will prevail over the Criminal Procedure Code i.e the provisions of Special or local law will prevail over the Criminal Procedure Code, unless there is a specific provision to the contrary.
14. Let us examine, whether under DMC Act precisely for offence(s) U/s 470, 471 and 472 the provisions of Cr.PC will apply or that of DMC Act will apply. The relevant Act 470, 471 CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 10 & 472 are reproduced as under:
470. Cognizance of offences -All offences against this Act or any rule, regulation or byelaw made thereafter, whether committed within or without the limits to Delhi, shall be cognizable by a municipal magistrate and such magistrate shall not be deemed to be incapable of taking cognizance of any such offence or of any offence under any enactment which is repealed by, or which ceases to have effect under, this Act by reason only of his being liable to pay any municipal tax or rate or benefited out of the Municipal Fund.
471 Limitation of time for prosecution -
No person shall be liable to punishment for any offence against this Act or any rule, regulation or byelaw made thereunder, unless complaint of such offence is made before a municipal magistrate within six months next after -
a) the date of the commission of
such offence, or
b) the date on which the
commission or existence of such offence was first brought to the notice of the complainant.
CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 11 472 Power to magistrate to hear cases in absence of accused when summoned to appear -If any person summoned to appear before a magistrate to answer a charge of an offence against this Act or any rule, regulation or byelaw made thereunder fails to appear at the time and place mentioned in the summons, or on any date to which the hearing of the case is adjourned, the magistrate may hear and determine the case in his absence, if -
a) service of the summons is proved to his satisfaction, and
b) no sufficient cause is shown , for the non appearance of such person.
15.Section 470, 471 and 472 are under the heading " Magistrate and proceedings before Magistrate", which had been headlined U/s 469 of DMC Act. Since DMC Act is a Special Act which makes special offences committed under the Municipal law and also Special Procedure which has been prescribed for dealing with the said offences committed under DMC Act for taking cognizance, limitation and the powers of the Magistrate to hear and decide the said cases. The provisions of DMC Act would prevail over the Criminal Procedure Code with regard to the proceedings before the CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 12 Municipal Magistrate U/s 469, 470, 471 and 472 of the DMC Act. Further the said position is clarified from reading of Section 466A and 467 of the same Act, the relevant provisions are reproduced as under:
466A. Certain offences to be cognizable: The Code of Criminal Procedure, 1973(2 of 1974), shall apply to,
(a) an offence under sub section(5) of section 313 or section 332 or sub section(1) of section 333 or subsection(1) of section 334 or section 343 or section 344 or section 345 or section 347;
(b) an offence under sub section (1) of section 317 or subsection (1) of section 320 or subsection(1) of section 321 or subsection (1) of section 325 or section 339 in relation to any street which is a public street, as if it were as congnizable offence
a) for the purposes of investigation of such offence; and
b) for the purposes of all matters other than -
(1)matters referred to in section 42 of that Code, and (2)arrest of a person, except on the complaint of, or upon information CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 13 received from, such officer or [a Corporation], not being below the rank of Deputy Commissioner, as may be appointed by the Administrator:
Provided that no offence of the contravention of any condition subject to which sanction was accorded for the erection of any building or the execution of any work shall be cognizable, if such contravention relates to any deviation from any plan of such erection or execution sanctioned by the Commissioner which is compoundable on payment of an amount under the byelaws relating to buildings made under this Act]
467. Prosecutions Save as otherwise provided in this Act, no court shall proceed to the trial of any offence -
a) under subsection(5) of section 313 or section 332 or subsection(1) of section 333 or subsection (1) of section 334 or section 343 or section 344 or section 345 or section 347 except on the complaint of or upon information received from, such officer of [a corporation], not being below the rank of a Deputy Commissioner, as may be appointed by the Administrator, CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 14
b) under subsection(1) of section 317 or sub section(1) of section 320 or subsection (1) of section 321 or sub section(1) of section 325 or section 339, if any such offence was committed in relation to any street which is a public street, except on the complaint of, or upon information received from, such officer of [a corporation], not being below the rank of a Deputy Commissioner as may be appointed by the Administrator.
c) other than those specified in clause(a) and (b), except on the complaint of , or upon information received from, [the commissioner or a person authorized by him] by a general or special order in this behalf]
16.By virtue of Section 466A Criminal Procedure Code is to apply in respect of the offences U/s 313, 313(5), 332(1) and other sections specified in Section 466A and similarly U/s 467 of the DMC Act for prosecuting any person for the offences mentioned U/s 466A a complaint from the specified officer including Deputy Commissioner is required before initiation of the prosecution. It would be relevant to state that all the offences specified U/s 466A including Section 333, 334 and CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 15 345 are the offences, which carry imprisonment as well as imposition of fine or both, that is to say that they are the offences of slightly serious variety, as the life and liberty of individual could be taken away by prosecuting him under the offences mentioned U/s 466A. Therefore considering the seriousness of the offences and the punishment which entails further safeguard has been enacted in the shape of complaint from specified officer U/s 467 of the DMC Act i.e a person can only be prosecuted on the complaint of officer specified U/s 467, who after going through the material on the record would reach to the conclusion, whether such prosecution was expedient in the interest of justice or not since life and liberty of individual could be effected thereby.
th
17. Whereas all the other offences specified in 12 schedule of the DMC Act, 461 of DMC Act prescribes only the punishment in the shape of fine and in all of them no imprisonment has been prescribed, which has been prescribed in respect of the offences U/s 466A of DMC Act, that is to say that the other th offences as specified in 12 schedule of the DMC Act as per Section 461 are in the shape of fine or that is to say that the said offences being of petty nature, therefore no punishment CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 16 has been prescribed thereto. Therefore the provisions of Cr.P.C would not be applicable to the same.
18. That being so, since the proceedings before Municipal Magistrate U/s 469 to 472 could only be taken cognizance as per Section 470 of DMC Act and the limitation for cognizance would be one as specified U/s 471 of the DMC Act. Therefore provisions of Cr.P.C i.e Section 468 to 473 would not be applicable, or will not be available to the prosecution for extension of limitation etc.
19. As per Section 471 reproduced as above, no person is liable to be punished for any offence specified under the said Act or any rule, regulation or byelaws made thereunder, unless complaint of such offence is made before the Municipal Magistrate within 6 months next after the date of commission of such offence, or the date on which the commission or existence of such offence was brought to the notice of the said complainant. On plain reading of the aforesaid provision of Section 471(a) & (b), it is clear that limitation would either start running from the date of actual commission of the offence, it may be in certain cases that Municipal Corporation would actually not know when the said offence was committed, as CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 17 the said offence may have been committed in secrecy on certain holidays or on other occasions, when the Municipal officers are not available or for various other reasons, they could not visit the area in question as they had multifarious duties to perform and they cannot be expected to be present at all the places at all the times. Therefore the second eventuality had been provided i.e the date on which the commission or existence of such offence was first brought to the notice of the complainant.
20. Now it is to be seen, when the commission or the existence of the said offence was brought to the notice of Municipal Corporation of Delhi in the present case. As per affidavit of the Factory Inspector Kanhaiya Lal CW1/2 as per annexure B vide which they obtained the list from HPCL, who are the licencor(s) with respect to the petrol pump in question more specially page 7. It is clear that the said petrol pump is being run by the said Saran Motors Limited since 1961 i.e at the time the present challan which took place on 29.06.2004. The petrol pump had already been run for almost 43 years prior to that. The accused has also proved one document ExCW1/D2 which is the licence issued by the Licencing department of the CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 18 MCD U/s 460/417 of DMC Act, which licence has been issued for storage of non dangerous filter petroleum products at M.M. Road petrol pump i.e petrol pump in question. The said licence had been renewed since 1980 on various occasions and lastly the said licence seems to have been renewed from 18.04.1990 to 31.03.1998. Since the said petrol pump is being run since 1961 and the said licence was renewed for storing the petroleum products since 1980 and lastly it was renewed from 1990 to 1991, As per Section 416, 417 under DMC Act, it is not clear, how it can be said in these circumstances that the date of commission of offence was brought to the notice of the MCD on 29.06.2004.
21. Regarding this incongruency Ld. Counsel for the MCD has argued that the said licence relied upon by the accused Ex CW1/D2 was only the licence issued by the General Branch of Sadar Paharganj Zone for storage of petroleum products and the same was not in respect of running the factory as was required U/s 416 & 417 of the DMC Act. Therefore he has argued relying upon Section 416 & 417 of DMC Act, since petrol pump was being run with the electricity and mechanical power, therefore the factory licence was needed and the CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 19 earlier licence relied upon by the accused ExCW1/D2 is not a valid licence and it was a different licence. Therefore for the purposes of factory licence the said came to the notice of the MCD only on 29.06.04. The relevant provision of Section 416 of is reproduced as under:
416. Factory, etc., not be established without permission of the Commissioner:
(1) No person shall, without the previous permission in writing of the Commissioner, establish in any premises, or materially alter, enlarge or extend, any factory, workshop or trade premises in which it is intended to employ steam, electricity, water or other mechanical power.
22.The said argument of Ld. Counsel for the MCD is totally preposterous, as it is hard to imagine that any petrol pump can be run without the use of electricity, one is yet to see a petrol pump being operated by bullock carts. It is not the case of the MCD that the said petrol pump was being run by generator, or CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 20 any other mode of mechanical power. As per the documents of the MCD itself, the said petrol pump is in existence since 1961. Therefore it can be imagined that the electricity must have been used to run the petrol pump even at that time, as the electricity supply in Delhi can be said to be quite ancient in time and the accused himself had been getting renewing his licence ExCW1/D2 U/s 416/417 of DMC Act relied upon by counsel for MCD since the year 1980. Even iff, as per the arguments of Ld. Counsel for MCD any other licence which he has argued was required from the factory licencing department by the petitioner, then the same can be said to be in the knowledge of Municipal Authorities atleast from the year 1980, when for the first time licence ExCW1/D2 was issued to the accused. Though it is the case of the accused that he is running petrol pump since 1961, which appears to be so, from the documents of MCD(respondent) itself.
23.It is hard to imagine that for such a long period of 43 years no municipal officer would have visited the petrol pump site of the accused observing that the petrol pump was being run by the use of electricity and specially when he was already having licence issued by MCD u/s 416 and 417 of DMC Act, which CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 21 had also been issued to him by the licencing department of MCD and that too U/s 416 and 417 of MCD Act. Therefore MCD could be said to have the knowledge regarding the commission of offence that any other licence other than the licence ExCW1/D2 was required U/s 416 and 417 of DMC Act prior to 1980 or it can be safely said after 1980 till 2004 for 24 years, they cannot just say that they were not having the knowledge or they can just feign ignorance that the said petrol pump was simply not existing or was not within their knowledge, rather DW1 witness Ashok Saran has stated that since 1961 MCD has been fully aware about the petrol pump and infact they had a credit account with the said petrol pump and had been regularly drawing supplies on credit for which they had also regularly made payment and since 1961 numerous persons of MCD had been regularly visited the said petrol pump site and at no point of time prior to that any question was raised about lack of MPL.
24.The said assertion made by said witness DW1 has nowhere been rebutted in the cross examination of above witness.
Therefore it appears that MCD people were themselves having credit account with the petrol pump, they cannot be allowed to CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 22 turn around now to say that they were not aware that the petrol pump was being run without any factory licence and a special factory licence was required U/s 416/417 of DMC Act. Therefore it appears that they were clearly having knowledge about the commission of offence much prior to 1980 and may be even prior to that as discussed.
25. Since the period of limitation prescribed U/s 471 for taking cognizance is 6 months from the date, when the offence was first brought to the notice of the complainant, which in case was 24 years prior to challan in question, as already discussed the provisions of 468 to 473 are not applicable. Therefore cognizance of challan ExCW1/1 is explicitly barred by limitation and there is no provision under DMC Act for extension of time, as is there U/s 473 of Cr.P.C. Since DMC Act is a Special Act, consequently as per Section 4 & 5 of the Act the provisions of DMC Act will prevail over the Criminal Procedure Code. The extension of time will not to be available to the Municipal Magistrate, as there is no corresponding provision under DMC Act which is a special Act, for extension of limitation for taking cognizance. As a resultant Ld. Trial Court had clearly felled in error in dismissing the application of CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 23 the petitioner U/s 471 of DMC Act, whereby he had questioned the limitation for taking the cognizance of offence(s) against him, since the same goes to the root of the controversy same can be agitated at any stage. Further as per Article 21 of the Constitution of India nobody can be deprived of his life and liberty except by process established by law, as the congnizance was barred by limitation,therefore very taking of cognizance and subsequent summoning of accused/trial is not tenable in law.
26.The challan/prosecution initiated in this case appears to be gross abuse of process of law for which a cost of Rs. 30000/ is imposed upon the respondent(MCD), out of which Rs. 10,000/ be paid to the petitioner as compensation for unnecessarily dragging him into prosecution all these years, remaining Rs. 20,000/ be deposited by the respondent in the State Exchequer positively within six weeks from the date of this order.
27.Consequently order dated 10.03.2015 of Ld. Trial Court is not legally sustainable. Same is set aside. Revision petition CR No. 18/15 is allowed. Accused stands discharged in the present case i.e CC No. 03/12/04(119/06), Challan No. CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 24 119575 titled as MCD Vs. Ashok Saran pending before the Ld. Trial Court.
28.However for launching a frivolous prosecution against the petitioner and making him face trial all these years, the Commissioner MCD(North) shall make an inquiry into the matter and shall fix the responsibility of the erring MCD officials for initiating motivated prosecution against the petitioner, so that this amount of Rs. 20,000/ could be recovered from their salaries. Copy of this order be sent to Commissioner (MCD) North for information and necessary compliance. Compliance report be submitted before this court positively within six weeks without fail. Ahlmad is directed to prepare a miscellaneous file for this purpose and matter be fixed for Action Taken Report in this regard.
29. Regarding the question raised in other connected CR no.
17/05, whether the Municipal magistrate had the power to issue B/w's against the petitioner/accused to procure his presence U/s 472 of the Act is concerned, since the very cognizance taken by Ld. MM is held to be bad in law and is to be treated as non est, therefore the question, whether he had CR NO. 17/15 and CR no. 18/15 Ashok Saran Vs. MCD 25 power to issue B/w to procure the attendance of petitioner or not, does not survive for consideration, as a resultant needs no further discussion. In these circumstances, CR No. 17/15 also does not survive. Same is dismissed as infructous, in view of the outcome of the first, CR No. 18/15. TCR be sent back alongwith copie(s) of this order.
30. Revision file(s) be consigned to Record Room.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 09.03.2016 Special Judge,
CBI03 (PC Act)
Delhi/09.03.2016
CR NO. 17/15 and CR no. 18/15
Ashok Saran Vs. MCD