Delhi District Court
State vs . Bharat Bhusan on 26 October, 2013
IN THE COURT OF METROPOLITAN MAGISTRATE04, PATIALA
HOUSE COURTS, NEW DELHI.
Presided by: Ms. Vijeta Singh Rawat
State Vs. Bharat Bhusan
DD No. 38B dated 25.10.2007
Police Station Mandir. Marg.
U/s 28/112 Delhi Police Act.
JUDGMENT
1. Case ID No. of the case. :02403R0816212007
2. The date of commission :26.10.2007 of the offence.
3. Name of the complainant. : HC Beg Raj, No. 153/N.D, Police Station Mandir Marg.
4. Name, parentage & address :Bharat Bhusan S/o Sh. Munshi Ram, R/o V16, West Patel Nagar, Delhi.
5. Offence complained :U/s 28/112 Delhi Police Act.
6. The plea of the accused and :Not guilty.
his examination.
7. The final order. :Acquitted.
8. The date of such order. :26.10.2013
9. Date of institution. :23.11.2007
10. Date on which the judgment :26.10.2013 has been reserved.
State Vs. Bharat Bhusan Page 1/7 DD No. 38B dated 25.10.07 BRIEF FACTS/ STATEMENTS OF THE REASONS FOR THE DECISION.
1. The present criminal complaint against accused has been filed alleging that on 26.10.2007, the accused was found to have been running an eating house by the name and style of "Gulshan Dhaba"
at 39 Baird Lane, Gole Market falling within the jurisdiction of Police Station Mandir Marg without certificate of registration and thus committed offence punishable u/s 28 read with Section 112, The Delhi Police Act, 1978 (hereafter referred to as "the Act").
2. The complaint was filed on 23.11.2007. Cognizance was taken on that day itself. The accused was admitted on bail on the same day and copies were supplied to him.
3. Since, Ld. Predecessor of this Court was of prima facie view that offence punishable u/s 112 of the Act was made out, notice under aforesaid section was framed on 19.12.2011. The accused did not plead guilty and claimed trial.
4. Thereafter, prosecution examined the following witnesses: I. PW1 Ct. Raj Kamal who inter alia stated that on 26.10.2007, he was on duty as a Beat Constable and during patrolling reached shop no. 39 where some persons were eating; that HC Beg Raj and State Vs. Bharat Bhusan Page 2/7 DD No. 38B dated 25.10.07 Ct. Manoj were also with him; that HC Beg Raj asked the Shopkeeper to produce the licence but he failed to do so. He was hence, challaned. He identified the accused. He also stated that the photographs of the spot were taken. He was duly cross examined. II. PW2 ASI Beg Raj/Investigating Officer who stated that on 26.10.2007, he was on patrol duty alongwith Ct. Raj Kamal; that while patrolling at about 07.40 pm, they reached shop no. 34, Baird Lane where eatery by the name and style of "Dayal Dhaba" was being run but the man standing at the counter failed to show the licence on demand; that at about 07.50 pm, they reached shop no. 39 where "Gulshan Dhaba" was being run; that man at the counter identified as accused also failed to show the licence on demand. Thereafter, at about 07.55 pm, shop no. 70, Baird Lane having name and style of "Gopal Ji Choley Bhature" was also found to be running without any license. All the aforesaid accused persons were challan. The witness was duly cross examined.
5. Prosecution evidence was closed on 01.08.2013.
6. Statement of accused was recorded on 10.09.2013 where he denied that he was the owner of the shop. He stated that he had only gone to visit the shop and was falsely implicated in this case.
7. In defence evidence, the accused examined Sh. Som Nath as DW1 State Vs. Bharat Bhusan Page 3/7 DD No. 38B dated 25.10.07 who stated that he knew the accused since last 2425 years; that since last 15 years accused was running an auto parts workshops by the name and style of "M/s Good Year Automobile" and "Miglani Auto Store" at Karol Bagh; that on 26.10.2007, he alongwith the accused had gone to Baird Lane at about 07.007.30 pm and were having tea at "Gulshan Dhaba" when 02 police officials came and got some written documents signed by accused. He also stated that accused was asked as to on whose name the shop was. The accused was thereafter, challaned.
8. Defence evidence was closed vide order dated 05.10.2013.
9. Final arguments have been heard today.
10. The Court has considered the submissions and material on record.
11. Section 28 (1) of the Act stipulates as under:
"The Commissioner of Police may, by notification in Official Gazette, make regulation to provide for all or any of the following matters, namely: (za) registration of eating houses including, including granting a certificate of registration in each case, which shall be deemed to be a written permission required and obtained under this Act for keeping the eating house, and annual renewal of such registration within a specified period;..."State Vs. Bharat Bhusan Page 4/7
DD No. 38B dated 25.10.07
12. Further Section 112 of the Act stipulates as under:
"(1) Whoever fails to obtain...a certificate of registration there under in respect of any eating house, or to renew...the certificate,...,within the prescribed period shall, on conviction, we punished with fine which may extend to fifty rupees. (2) 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 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..."
13. Further Section 2 (h) of the Act defines "eating house"
as under:
"means any place to which the public are admitted and where any kind of food or drink is supplied or consumption on the premises by any person owning, or having any interest in, or managing, such place and includes..."
14. The primary defence raised is that the Investigating Officer did not seek to inquire into the ownership of the eating house and that the accused is not the owner. It has been claimed by PW1 that accused is the owner and he pleaded ignorance on whether the Investigating Officer sought production of ownership documents of the eating house. PW2 has stated in examination in chief that accused was standing at the counter and he was asked to show the State Vs. Bharat Bhusan Page 5/7 DD No. 38B dated 25.10.07 licence. He during cross examination stated that accused was dealing with finance at the Counter. The Investigating Officer has therefore, not investigated regarding the ownership rights of the eating house. The law has not provided for a presumption against the accused and hence, the prosecution has the bounden duty to show that the accused was the owner. But it was not done so.
15. Furher, in Janak Raj Vs. State NCT of Delhi, Crl. M.C. 312/2012 D.O.D 03.08.2012 and Crl. M.A. 1125/12, the High Court of Delhi has held as under:
"...This Court in S.A.S. Pahwa held as under: (DLT, Pg.198). In relation to offence under Section 112, it is contended that a servant or agent is not supposed to obtain a licence in ordinary course, and it does not appear plausible to say that a servant or an agent would fall within the term whoever notwithstanding the fact that the term whoever is much wider than the terms owner or proprietor. The term whoever in Subsection (1) of Section 112 has to be read in proper prospective. This Court would not assume that the legislature could be indulging in legislative absurdity by asking a servant or agent to obtain licence for his master or the employer or principal, for servant or agent shall always fail in obtaining a licence for lack of authority to do so from his employer or principal and fulfilling other requirements for grant of licence. Moreover, if Section 111 is read in this context with Section 112 as well as with the provisions of Section.State Vs. Bharat Bhusan Page 6/7
DD No. 38B dated 25.10.07 Crl. M.C. 312/2012 Page 3 of 417 of the Prevention of Food Adulteration Act along with similar other provisions coupled with absence of any provision excepting Section 111 in Delhi Police Act, make it evident that even a servant or agent in charge and responsible for doing business in a place of public entertainment, could not be prosecuted for offence under Section 112 of the Act ordinarily..."
Reliance was placed upon Avnish Sharma Vs. State, Crl. M.C. 1034/2005 decided on 24th January, 2008.
16. Keeping in view the above enunciation that the legislature did not envisage that a servant or agent to seek Registration Certificate and as such they would not fall within the purview of term owner or proprietor, the accused is acquitted of offence charged with.
17. After compliance with Section 437A Cr.P.C on furnishing of bail bond for a sum of Rs. 2000/ alongwith one surety,file be consigned to records.
Announced in the open Court (Ms. VIJETA SINGH RAWAT) on 28.10.2013 MM04/Patiala House Courts New Delhi.
State Vs. Bharat Bhusan Page 7/7 DD No. 38B dated 25.10.07