Delhi District Court
Ravinder Tulani vs The State (Nct Of Delhi) on 24 October, 2011
IN THE COURT OF SH. RAVINDER DUDEJA : ADDL.
SESSIONS JUDGE03 : NW : ROHINI : DELHI
Criminal Revision No. 41/11
Ravinder Tulani,
S/o late Sh. Nand Lal Tulani,
Prop. Of M/s. He & She Coffee Bar,
Shop No. 1, Ground Floor,
Rithala Metro Station,
Rohini, Delhi. ..... Petitioner
Versus
The State (NCT of Delhi) ..... Respondent
J U D G M E N T
1. By this judgment, I propose to decide Criminal Revision filed by petitioner Ravinder Tulani against order dated 29.09.2011 passed by Sh. Manish Khurana, Judge, Evening Court No. 2, Rohini Courts, Delhi. Notice of the revision was given to the State through APP. Trial Court Record has been summoned and perused. Arguments have been heard from the learned counsel of petitioner and from the learned APP.
2. Police filed a Kalandra under Section 28/112 D.P. Act Ravinder Tulani Vs. State ; Criminal Revision No. 41/11 Page 1 of 7 against the petitioner stating that on 09.09.2011 at about 2.55 pm while patrolling, HC Ved Prakash and Constable Pradeep Kumar reached "HE & SHE COFFEE BAR FOR COUPLES ONLY" under Rithala Metro Station. Petitioner Ravinder Tulani is stated to be the owner of the coffee bar. He was asked to produce the license but he could not produce the same. He was arrested under Section 28/112 D.P. Act. DD No. 12A was recorded and later Kalandra under Section 28/112 D.P. Act was filed in court. While forwarding the Kalandra, SHO prayed for closure orders stating that intention of the petitioner is suspicious as he is providing lonely space to young people and to criminally motivated criminals. Petitioner was summoned by the court. On 29.09.2011, petitioner appeared before the court and was granted bail. On being asked by the court, he informed that he was not having the authorized license from the DCP concerned for running the outlet but had applied for the same. The learned trial court relying on Section 112 (2) D.P. Act directed the petitioner to close the outlet in respect of which Kalandra was filed until he obtains the requisite license from the concerned authority. It is this order, which has been challenged in revision before this court.
Ravinder Tulani Vs. State ; Criminal Revision No. 41/11 Page 2 of 7
3. The learned counsel of petitioner has made two fold arguments, firstly that the petitioner had not pleaded guilty but the learned trial court passed the impugned order of closure without holding him guilty and secondly the learned trial court had failed to take into consideration the fact that the application of petitioner for issuance of license before DCP Licensing was under
consideration.
4. Section 28 (x) of the D.P. Act provides that the Commissioner of Police may by notification in the official Gazette make regulations to provide for licensing or controlling places of public amusement or public entertainment. Section 112 (1) provides that whoever fails to obtain a licence under this Act in respect of a place of public entertainment or a certificate of registration thereunder in respect of any eating house, shall on conviction, be punished with fine which may extend to fifty rupees. Sub Section (2) of Section 112 provides that any court trying any such offence shall in addition direct that the person keeping the place of public entertainment, or the eating house, in respect of Ravinder Tulani Vs. State ; Criminal Revision No. 41/11 Page 3 of 7 which the offence has been committed shall close such place, or eating house until he obtains a licence or fresh licence, or a certificate of registration or fresh certificate of registration, as the case may be, in respect thereof and thereupon such person shall forthwith comply with such direction.
5. On a combined reading of Sub Section (1) and Sub Section (2) of Section 112 of the D.P. Act it becomes clear that the fine of Rs. 50/ and the closure order can be passed by the court only on conviction. In the present case, the learned trial court did not return any finding of guilt of petitioner. The petitioner had not pleaded guilty and in fact he contested the Kalandra by stating that he has already applied for the grant of license. The petitioner has placed on record the copy of his application dated 03.08.2011 addressed to DCP Licensing for grant of registration of eating house and also letter dated 08.08.2011 addressed to DCP Crime & Railways by Additional Commissioner (Licensing) for verification. In the case of Dinesh Khanna Vs. Govt. of NCT of Delhi 2010 (1) JCC 265, in Para No. 15, the Hon'ble High Court held that although the regulations for grant of licences are in place but despite this, Ravinder Tulani Vs. State ; Criminal Revision No. 41/11 Page 4 of 7 licences are not given by the DCP (Licensing) as is apparent from the letter dated 11.05.2000 issued by Commissioner of Police to all his subordinates that they should maintain status quo and should not go overboard to prosecute the owners of the Guest House for violation of Section 28 read with Section 112 of the Delhi Police Act for not possessing the licence as the police itself is yet to formulate the policy/guidelines for the purpose of grant of such licence. In Para No. 16, the Hon'ble High Court observed as under: " This also finds support from the judgment of the learned Single Judge of this Court in Crl.
M.M. No. 3033/1998 in which vide order dated 19.08.2008 the Kalandras under Section 28 read with Section 112 of the Delhi Police Act were quashed on account of the fact that the DCP (Licensing) had not issued the license although the same was applied by the parties before initiation of Kalandra. The observation was also made that quashing of the said Kalandra should be Ravinder Tulani Vs. State ; Criminal Revision No. 41/11 Page 5 of 7 taken as a wakeup call to the local police to formulate the guidelines as early as possible because the absence of such a policy was becoming a source of harassment to the Guest House owners and seeking their repeated prosecution was in violation of the order dated 11.05.2002 by the Commissioner of Police. The local police does not seem to have woken up from the slumber as yet because although more than seven years have passed but the policy/guidelines are still not finalized. This fact is also not disputed by the learned APP. In such event, the only thing which the petitioner is required to show is that whether he had applied to the DCP (Licensing) for grant of licence before the date of filing of Kalandra in question. If this is shown either by way of a letter placed on record or even by an averment then obviously the Kalandra in such a case Ravinder Tulani Vs. State ; Criminal Revision No. 41/11 Page 6 of 7 deserves to be quashed however in a case where neither such an averment is made nor the details of the application are given then in such a contingency, the Kalandra cannot be quashed. "
6. In the present case also, petitioner has taken the plea that he had applied for grant of licence prior to the date of filing Kalandra in question and therefore without giving an opportunity to the petitioner to prove this fact and without returning the finding of guilt, the court could not have passed the orders for closure of the coffee bar. The order of closure dated 29.09.2011 passed by the learned trial court is therefore set aside. The revision is accordingly allowed. Trial court record be sent back with the copy of this order. Revision file be consigned to Record Room.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI. ANNOUNCED IN THE OPEN COURT ON 24.10.2011.
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