Uttarakhand High Court
The American Baptist Foreign ... vs Chief Judicial Magistrate Dehradun And ... on 20 September, 2016
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Miscellaneous Application No.990 of 2016
(Under Section 482 Cr.P.C.)
1. The American Baptist Foreign Missionary Society
through power of attorney holder Ms. Sharon
Machado, Survey No.100, Tabor Bungalow,
Landour Cantt. Mussoorie, District Dehradun.
2. Sanjay Narang S/o Late Manohar Lal Narang, R/o
Dahila Bank, Landour Cantt. Mussoorie, District
Dehradun through power of attorney holder Ms.
Sharon Machado.
3. Ms. Sharon Machado W/o Mr. Robort Machado,
R/o Tabor Bungalow, Survey No.100, Landour
Cantt, Mussoorie, District Dehradun.
.... Applicants
Versus
1. Chief Judicial Magistrate, Dehradun.
2. Cantonment Board, Landour Cantt, Mussoorie
through its Chief Executive Officer, Dehradun.
.... Respondents
Mr. Siddhartha Singh, Advocate for the applicants.
Mr. B.S. Adhikari, Advocate for the respondent no.2.
With
Criminal Miscellaneous Application No.989 of 2016
(Under Section 482 Cr.P.C.)
1. The American Baptist Foreign Missionary Society
through power of attorney holder Ms. Sharon
Machado, Survey No.100, Tabor Bungalow,
Landour Cantt. Mussoorie, District Dehradun.
2. Ms. Sharon Machado W/o Mr. Robort Machado,
R/o Tabor Bungalow, Survey No.100, Landour
Cantt, Mussoorie, District Dehradun.
.... Applicants
Versus
1. Chief Judicial Magistrate, Dehradun.
2. Cantonment Board, Landour Cantt, Mussoorie
through its Chief Executive Officer, Dehradun.
.... Respondents
2
Mr. Siddhartha Singh, Advocate for the applicants.
Mr. B.S. Adhikari, Advocate for the respondent no.2.
September 20, 2016
Hon'ble Servesh Kumar Gupta, J.
Both these petitions having been initiated by the same applicants and the opposite parties are also the same, hence have been heard together and are being adjudicated by this common judgment.
It is also pertinent to mention that the nature of controversy between the parties is also identical and the subject of such dispute is also the same, which is the property situated in Survey No. 100, popularly known as Tabor Bungalow in Landhora area at Mussoorie, District Dehradun.
Petition no. 989/2016 challenges filing of the complaint case no. 2191/2016 by the respondent no. 2 and the cognizance order passed therein on the same day by the learned Chief Judicial Magistrate, Dehradun, i.e. respondent no. 1. This complaint was filed mentioning Section 261/331 of the Cantonment Act, 2006 (hereinafter referred to as the 'New Act'). Complaint case no. 2190/2016 was filed mentioning Section 239(1)/331 of the New Act, whereupon the cognizance order was passed on the same day on 16.6.2016 by the Chief Judicial Magistrate, Dehradun and the same have been assailed before this Court by way of filing C482 Petition No. 990/2016. Applicants/accused persons have been asked to stand trial for the said offences, but they have challenged the initiation of both complaint cases and the cognizance orders passed thereon by way of filing the instant petitions under Section 482 CrPC invoking the powers of this Court 3 to quash such complaint cases as well as the orders of cognizance.
Learned Counsel of the applicants/petitioners has placed his erudite arguments in order to convince the Court. At the outside, he drew the attention of this Court towards the various provisions of the New Act, viz. Sections 239, 311, 314 prescribing the Schedule IV, 331, 337 and has vehemently argued that Section 331 contemplates the launching of the prosecution, while Section 239(1) wherefor the complaint case no. 2190/2016 was launched and Section 261 wherefor complaint case no. 2191/2016 was launched, both do not find place in Schedule IV of the New Act. Therefore, no offence inasmuch as launching of this prosecution is made out against the applicants.
The Court is not convinced with the aforementioned argument for the reason that the Schedule IV, as envisaged under Section 314 of the New Act, contemplates the cases in which police may arrest without warrant. Here, the controversy is not regarding the arrest, but of launching of the prosecution. Section 239(1) or Section 261, as the case may be, defines the offence and the penal provision for the same has been contemplated in Section 247 of the New Act. So, simply for the reason that Section 247 has not been mentioned by the launcher of the prosecution is hardly of any avail.
It was further argued by the learned Counsel of the accused/applicants that respondent no. 2 was not competent to set on this prosecution through the Chief Executive Officer because, as averred in the counter affidavit dated 24.8.2016, there was no Resolution No. 9 dated 22.6.2010 of making authorisation of the Chief Executive Officer for the purpose. Rather, such Resolution 4 No. 9 was passed on 19.6.2010 and that too conferring the authority upon the Chief Executive Officer to file the prosecution for the offence specified in Schedule IV of the New Act.
The above argument has been refuted by the learned Counsel of the Cantonment Board by drawing attention of this Court towards the letter dated 9.12.1990, written by the Director, Cantonment Board, Central Command, to all the Chief Executive Officers (In Central Command). In this letter, reference has been made to another letter no. 96659/Vol.V/LC2 dated 18.9.1989, wherein it has been observed that the construction in violation of the provisions of the Cantonment Act, 1924 (Old Act) are on the increase, and one of the reasons is that apart from lack of vigilance and ineffective measures, provisions of the Act are not being enforced strictly. In all the cases relating to unauthorized constructions, prosecution should be launched under Section 184 and notices under Section 185 be issued promptly, followed by notices under Section 256 of the Act. It has been further depicted in the letter referred to above that the launching of prosecution under Section 184 will strengthen the action under Section 185 and deter illegal constructions. It is expected that the penalty of a deterrent amount of fine, as envisaged in the Section 184 of the Cantonment Act, (which clearly states that whoever begins, continues or completes the erection or re-erection of the building illegally is punishable with fine which may extent upto Rs.5, 000/-) will have salutary effect.
In this reference, Section 360 of the New Act is relevant which makes the provisions about the repeals and savings. Although New Act repeals the Old Act, but with the savings, as have been contemplated in sub-section (2) of 5 Section 360 and such sub provision saves any appointment, notification, order, scheme, rule, form, notice or bye-law made or issued and any license or permission granted under the Act ..........
Learned Counsel of the petitioners submitted that all these words do not contain the word "resolution", whereby the Chief Executive Officer had derived the powers for initiating the prosecution. This contention is also not substantial because the word "resolution" is of the like nature and akin to the words, as have been aforestated. So, if he was vested with the powers to launch the prosecution by way of the letter dated 18.9.1989, issued under the Old Act, then it is identical, in nature, to what has been demonstrated in Section 360(2)(a) of the New Act.
It was further argued that both these complaints were time barred because Section 337 of the New Act adumbrates only six months for launching the prosecution from the date of commission of offence and in this regard, the petitioners had already sent a letter dated 3.11.2015 to the Cantonment Board authorities informing them regarding the completion of their minor repairs. Therefore, these complaints are time barred and, being as such, should be nipped in the bud.
I think that this contention also does not hold water for the reason that in the letter dated 3.11.2015, there was information regarding the minor repairs only, while the present controversy arose when the Junior Engineer of the Cantonment Board informed the Chief Executive Officer that unauthorised construction is going on in the said property. He requested to pass the 'stop construction' orders for the same. Chief Executive Officer promptly passed such orders on 4.5.2016 under Section 6 239 of the New Act. Further, a letter was written by the Junior Engineer Mr. Prem Singh Rawat on 10.5.2016 informing that huge construction materials including the storage of stones, iron rods, guarders, cements, wooden planks, etc. are lying there and the petitioners had erected tin sheets of 15 feet height in order to conceal such materials and the ongoing construction on the property and this temporary wall of tin sheets was against the permitted standards of 2.5 metres. An inspection was made by a committee of officials including the Junior Engineer of the Cantonment Board, during which, in addition to above facts, 10-15 labourers were also found working at the spot. So, the Chief Executive Officer by the order dated 31.5.2016 asked the petitioners to remove all such materials from the spot and on their failure to do so, some of the materials were seized on 8.6.2016.
Learned Counsel of the petitioners has also drew the attention of the Court towards Section 308 and submitted that it empowers the competent persons in this regard to enter into the land, but wherefor 3 days notice is required to be given to the occupier/owner and if due to some exigency, it is not possible, then under Section 311, at least 3 hours notice is mandatory.
After perusing all these correspondences between the parties, I do not think that the petitioners failed to have taken any notice of the prospective entry and the actions on the part of Cantonment Board against them.
Apart from the above facts and the legal provisions, it is the settled proposition, which has been observed by the Hon'ble Apex Court time and again, that in the jurisdiction under Section 482 CrPC, High Court is not supposed to enter into every scrupulous details and 7 analysis of each and every fact converting it into a pre-trial before the actual trial.
The powers possessed by the High Court under Section 482 CrPC are very wide, but the plentitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.
The scope of Section 482 CrPC has been clarified by the Hon'ble Apex Court time and again. A Constitution Bench of the Hon'ble Apex Court in that regard has elaborately discussed such scope in the case of Inder Mohan Goswami & Another v. State of Uttaranchal & others, (2008) 1 SCC (Cri) 259, and has held that inherent power under Section 482 CrPC can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in the section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. However, the inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy, more so, when the evidence has not been collected and produced 8 before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material.
The above view has further been reiterated by the Hon'ble Apex Court in Central Bureau of Investigation v. K.M. Sharan, 2008 (2) CCSC 815.
In view of what has been set forth above, I do not find any force in these petitions. These are hereby dismissed at the very threshold.
(Servesh Kumar Gupta, J.) Prabodh