Kerala High Court
Municipal Commissioner, Thalasserry ... vs B. Abdurahiman on 1 November, 1995
Equivalent citations: 1996CRILJ1075
JUDGMENT K.P. Balanarayana Marar, J.
1. The short question for consideration in this appeal is whether the period of limitation prescribed under Section 468 of the Code of Criminal Procedure applies to a prosecution commenced in respect of any sum due to a Municipal Council under Section 387 of the Kerala Municipalities Act.
2. A comfort station owned by Thalassery Municipality was leased out to the accused-respondent for the period from 1-4-1989 to 31-3-1990 on a monthly rent of Rs. 2635/-. The licence fee was paid only for the months April and May and thereafter defaulted. Notice issued under Rule 31(1) of Schedule -II to the Act was served on the accused on 2-1-90. The accused having failed to pay the fees within the time allowed in the notice, a distraint warrant was issued for the recovery of the sum. The distraint warrant could not be executed since no movable property of the accused was available within the Municipality. A sum of Rs. 10,514/- was due to the Municipal Council. Hence the complaint by the Municipal Commissioner against the accused for the offence punishable under sub-rule (2) of Rule 32 of Schedule II of the Kerala Municipalities Act, 1960.
3. The accused pleaded not guilty to the charge, The Court below acquitted the accused on the ground that cognizance of the offence cannot be taken after a period of six months, the offence being one punishable with fine only. The order of acquittal is under challenge in this appeal filed after obtaining special leave.
4. Heard counsel for appellant. There was no representation for the respondent. Heard Shri P. K. Asokan who was appointed as amicus curiae.
5. Section 387 of the Municipalities Act provides a period of three years for commencing any prosecution in respect of any sum due to the Municipal Council under the Act. The section reads :
"No distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any sum due to the municipal council under this Act after the expiration of a period of three years from the date on which distraint might first have been made, a suit might first have been instituted. or prosecution might first have been commenced, as the case may be, in respect of such sum.
Provided that in the case of assessments made under Section 134, the said period of three years shall be computed from the date on which distraint might have been made, suit instituted, or prosecution commenced, after the assessment under the said section shall have been made."
Rule 32(2) of Schedule II relating to Taxation and Finance Rules enables the Commissioner to prosecute the defaulter before the Magistrate if for any reason the distraint or a sufficient distraint of the defaulter's property is impracticable. Every person who is prosecuted under sub-rule (2) of Rule 32 shall be liable, on proof to the satisfaction of the Magistrate that he wilfully omitted to pay the amount due by him or that he wilfully prevented distraint or a sufficient distraint, to pay a fine not exceeding twice the amount which may be due by him. Vide sub-rule 39(1). In addition to a direction to pay fine the Magistrate shall recover summarily and pay over to the municipal council the amounts, if any, due to the Municipality and may in his discretion also recover summarily and pay to the council such amount if any as he may fix as the costs of the prosecution. Section 468 of the Criminal Procedure Code prescribes the period of limitation for various categories of offences specified in sub-section (2) of that section. In the case of an offence punishable with fine only the period of limitation shall be fix months.
6. The Magistrate found that taking of cognizance is barred under Section 468 of the Code since the prosecution was not launched within a period of six months from the date on which the licence was cancelled. At the same time it is observed that the Municipality can institute a prosecution Within a period of three years from the date of commission of the offence. The accused was acquitted only for the reason that the Magistrate was debarred from taking cognizance of the offence by virtue of the restriction in Section 468 of the Code even though a period of three years is provided in Section 387 of the Municipalities Act in commencing a prosecution in respect of a sum due to the Municipality.
7. Assailing the finding of the Magistrate learned counsel for the appellant pointed out that the Court below has not adverted to the provisions contained in Sections 4 and 5 of the Code. Section 4(1) provides that all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions thereinafter contained. Sub-section (2) of that section regulates the manner or place of investigation, inquiry, trial etc. in respect of all offences under any other law. All such offences 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, inquiring into, trying or otherwise dealing with such offences. It therefore follows that where an enactment provides for a special procedure for the trial of certain offences it is that procedure that must be followed and not the procedure prescribed by the Code. The inquiry, trial and otherwise dealing of all offences under any other law shall also be done according to the provisions of the Code of Criminal Procedure but subject to the enactment regulating the manner or place of investigating, inquiring into, trying or ' otherwise dealing with such offences.
8. Section 5 of the Code saves any special law 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. A "special law' is defined in Section 41 of the Indian Penal Code as a law applicable to a particular subject. A local law is a law applicable only to a particular part of India. There cannot be any doubt that the Kerala Municipalities Act is a special law coming with the definition of Section 41 of the Indian Penal Code and Local law as defined in Section 42 of that Code. It is the general rule that where specific punishment is provided in a special enactment it takes precedence of general punishment under the Indian Penal Code. The provisions of the Indian Penal Code come into operation only if no specific provision is made in the special law on that subject. Section 5 of the Juvenile Justice Act and Section 27 of the Code of Criminal Procedure enable the Magistrate designated under those provisions to try a juvenile who has been found to have committed an offence. The period of limitation prescribed under Section 387 of the Municipalities Act will therefore take precedence over the period provided for in Section 468 of the Code.
9. In this connection my attention is drawn to the decision of the Madhya Pradesh High Court reported in Municipal Council, Shivpuri v. Radha Bai, 1990 Cri LJ, 2361. Interpreting identical provision contained in the Madhya Pradesh Municipalities Act it was held that Section 468, Criminal Procedure Code puts an embargo on the jurisdiction of the Court in taking cognizance of an offence after expiry of the period of limitation prescribed therefor by that section. It is observed that though a council may institute a prosecution within a period of 12 months next after the date of commission of such offence as prescribed by Section 313 of M.P. Municipalities Act, the Court shall be debarred from taking cognizance of the offence on expiry of the period of six months if the offence be punishable with fine only unless the case be covered by any of the exceptions contemplated by Section 469 to 473, Cr. P. C. Section 313 of the Madhya Pradesh Municipalities Act is more or less akin to Section 389 of the Kerala Municipalities Act. The relevant provision with which we are concerned in the present case is Section 387 of that Act. The distinction between Section 387 and 389 has to be taken note of. This Court had occasion to consider that distinction in Sreenivasan Nair v. Priyasanan, (1989 (1) KLT 361). In that case also the prosecution was for non-payment of the amounts due to the municipal council under Section 387 of the Act. The question arose whether the prosecution has become barred by limitation the period of three years prescribed under Section 387 of the Act having expired. Pointing out the difference between the phraseology in the two sections this Court held that prosecution" for any offence against the provisions of the Act, or of Rules, or of Bye-laws made under it" made mention of in Section 389 and "prosecution in respect of any sum due to the municipal council" made mention of in Section 387 will have to be understood as dealing with entirely different situations. It is observed that Section 387 is more in the nature of an enforcing provision than of a penalising provision. The penal provision contained in Rule 39 of Schedule II provides for an order by the Magistrate directing recovery of amounts due to the Municipality in addition to the fine imposed thereunder, in Health Inspector, Badagara Municipality v. Kelappan, 1965 KLT 409, the prosecution was launched for commission of an offence against the municipality by refusing to compy with the direction to demolish a building which was in a dangerous condition. That prosecution directly comes within the scope of Section 389 of the Act and the complaint has to be made by a person expressly authorised in that behalf by the council or the Commissioner within three months of the commission of the offence. As observed by this Court in Sreenivasan Nair's case that decision cannot have any bearing on the facts of this case since the offence involved is only refusal to pay the amount within the time prescribed by law. It is also pertinent to note that the Kerala Municipal Corporations Act also contains identical provisions in Section 417 and 419 of the Act. Provision is made in Section 417 that no prosecution shall be commenced in respect of any sum due to the corporation under the Act after the expiry of period of three years from the date on which distraint might first have been made or prosecution might first have been commenced in respect of such sum. On the other hand, Section 419 prescribes the period of limitation for making complaints alleging commission of any offence against any of the provisions of the Act or any rule, bye-law or regulation or order made under it. It therefore follows that the period of limitation for a prosecution launched by the municipal council in respect of a sum due to it is three years as stipulated in Section 387 of the Act.
10. The observations of the Supreme Court in S.P. Vaithianathan v. K. Shanmuganathan, (1994 SCC (Cri) 1311), lends support to such a conclusion. In that case the complaint was against police officers alleging illtreatment. A question arose before the Madras High Court whether the prosecution was barred by limitation in view of the provision in Section 53 of the T. N. District Police Act, 1869. That section reads:
"Limitation of action - All actions nad prosecutions against any persons which may be lawfully brought for anything done or intended to be done, under the provisions of this Act, or under the provisions of any other law for the time being in force conferring powers on the police shall be commenced within three months after the act complained of shall have been committed and not otherwise...."
The High Court held the proceedings to be untenable as barred by Section 53. While considering the appeal against that decision the Supreme Court has referred to the decision of the Andhra Pradesh High Court in R. Meeriah v. State of A.P., 1977 Cri LJ (NOC) 258. The following passage contained in that decision is seen extracted at page 1314 of the judgment.
"...Whereas Section 53 of the Act does not provide for limitation in relation to particular categories of offences unlike Section 468 of the Cr. P. C, which provides for limitation in respect of prosecution, irrespective of their nature instituted against police officers. As such Section 468, Cr. P. C. and Section 53 of the Act operate in different fields. Section 53 of the Act is a special provision in regard to police officers while Section 468 of the Cr. P.C. is a general provision in regard to offenders in general. Therefore, these two sections do not operate in the same field or area and do not overlap and that apart, the provision of Section 53 of the Act, which is a special provision, must prevail over the general law enacted in Section 468 of the Cr. P. C."
11. The Supreme Court did not decide that Section 53 of the Act will prevail over Section 468 of the Code but it was assumed to be so. The order of the High Court was interfered with following the decision of the Supreme Court in State of A.P. v. N. Venugopal, AIR 1964 SC 33, where it was held :
"The Court has to remember in this connection that an act is not 'under' a provision of law merely because the point of time at which it is done coincides with the point of time when some act in the exercise of the powers granted by the provision or in performance of the duty imposed by it. To be able to say that an act is done 'under' a provision of law, one must discover the existence of a reasonable relationship between the provisions and the act. In the absence of such a relation the act cannot be said to be done 'under' the particular provision of law."
12. Though the decision as such may not be of any assistance to the appellant it has to be noted that the Supreme Court did not disagree with the observations in Meeriah's case which were relied on by the Madras High Court in the order impugned before the Supreme Court. It was therefore to be held that Section 468. Cr. P.C. and Section 387 of the Kerala Municipalities Act operate in different fields. Section 387 of the Municipalities Act is a special provision in regard to prosecutions for realisation of sum due to the Municipality while Section 468, Cr. P.C. is a special provision in regard to offenders in general. As observed in Meeriah's case these two sections did not operate in the same field or area and do not overlap. Moreover Section 387 of the Act being a special provision has to prevail over the general law enacted in Section 468 of Cr. P. C. which is applicable only in case there is no exception provided elsewhere in the Act. That exception is contained in Sections 4 and 5 of the Code.
13. For the aforesaid reasons the complaint is found to be not barred by limitation and the order of acquittal is set aside. Since the order of acquittal was entered only on the question of limitation and since the other aspects involved in the case were not considered by the Magistrate the matter has to go back for consideration of those aspects. The Magistrate shall restore the case to file and proceed with the trial in accordance with law.