Delhi District Court
Gurdeep Singh vs The State (Govt. Of Nct Of Delhi) on 2 January, 2014
IN THE COURT OF SH. R.K. GAUBA: DISTRICT & SESSIONS
JUDGE (SOUTH DISTRICT) SAKET: NEW DELHI
Criminal Revision No. 228/13
ID No.: 02406R0203782013
Gurdeep Singh
s/o S. Bakshish Singh
R/o R11, Greater KailashI
New Delhi. ... Revisionist
Versus
1.The State (Govt. of NCT of Delhi)
2. South Delhi Municipal Corporation
Through its Commissioner,
MCD Head Quarters, Civic Center,
New Delhi. ... Respondents
Instituted on: 03.08.2013
Judgment reserved on:06.12.2013
Judgment pronounced on:02.01.2014
J U D G M E N T
1. This criminal revision petition questioned the correctness, legality and propriety of order dated 12.07.2013 passed by Sh. Sandeep Garg, Metropolitan Magistrate07 (South), Saket on the file of criminal case No. 436/3 of 2012 arising out of FIR No. 123/2012 under Section 466A Delhi Municipal Crl. Rev. No. 228/2013 Gurdeep Singh Vs. State & anr. Page No. 1 of 9 Corporation Act (hereinafter referred to as "the DMC Act") of Police Station Mehrauli. Vide the impugned order, the learned Magistrate dismissed the application of the petitioner seeking dropping of proceedings against him under Section 258 Cr.P.C. Vide the same order, the learned Magistrate fixed the case for service of notice of accusations upon the petitioner under Section 251 Cr.P.C.
2. The respondentState has appeared to contest the petition on the basis of trial court record.
3. I have heard Sh. Bhupinder Singh, advocate for the petitioner and Sh. B. S. Kain, Additional Public Prosecutor for the State. I have gone through the record.
4. The background facts lie in a narrow compass. On 23.02.2012, the Deputy Commissioner of Municipal Corporation of Delhi (MCD) lodged a complaint with the SHO Police Station Mehrauli vide a formal communication, styled as complaint under Section 466A of the DMC Act. It was alleged that on 18.01.2012, it had been found by the Junior Engineer (Building) that the petitioner, the owner/builder of property bearing farm No. E24, Ansal Farm, Satbari, New Delhi, had carried out unauthorised Crl. Rev. No. 228/2013 Gurdeep Singh Vs. State & anr. Page No. 2 of 9 construction of ground floor without formal sanctions of building plans, and therefore, an offence under Section 332 read with Section 461 of the DMC Act had been committed. The complainant requested the police for investigation into the matter and for report to be made available to the municipal authority so that a regular complaint as required under Section 467 of the DMC Act could be filed.
5. The trial court record shows that, on the said complaint, FIR No. 123/2012 was registered in Police Station Mehrauli and investigation entrusted to SI Pardeep Rawat (the investigating officer). During investigation of the case, the petitioner came to be arrested, he having been found to be the owner or the person responsible for the alleged unauthorised construction.
6. The police completed its investigation in March, 2012. The final report under Section 173 Cr.P.C. was prepared by the investigating officer (I.O.) on 27.03.2012 and placed before the senior officers in the police department including SHO and ACP.
7. Meanwhile, the record clearly shows that the I.O. had made available the police report to the municipal authorities. This resulted in a complaint being submitted on 14.05.2012, under Crl. Rev. No. 228/2013 Gurdeep Singh Vs. State & anr. Page No. 3 of 9 the signatures of the Deputy Commissioner (South Zone) of MCD, accompanied by police report dated 04.04.2012. Though the said complaint dated 14.05.2012 is styled as complaint "under Section 195 Cr.P.C". against the petitioner, in the concluding para it indicates the same to be a complaint "made before the Hon'ble Court to prosecute the above said accused". The document was addressed to the SHO Police Station Mehrauli, New Delhi.
8. Nonetheless, the SHO Police Station Mehrauli, vide his endorsement dated 17.05.2012, made it over to investigating officer, who in turn submitted it before the Additional Chief Metropolitan Magistrate (ACMM), South District on 30.06.2012. The complaint bears an endorsement under the signatures of ACMM (South District) recorded on 30.06.2012 forwarding the same for filing of the charge sheet.
9. The charge sheet was presented in the court of Metropolitan Magistrate on 07.07.2012. The Magistrate considered it necessary to call for certain further report from Deputy Commissioner (South Zone) of MCD (with regard to the demolition action against the unauthorised construction). The reports in this regard came to be submitted in due course on Crl. Rev. No. 228/2013 Gurdeep Singh Vs. State & anr. Page No. 4 of 9 behalf of the municipal authority, as also the police department. Eventually, on 09.11.2012, the Magistrate took cognizance of the offences and issued summons to the petitioner vide his order dated 09.11.2012.
10.It is against the above backdrop that the petitioner moved an application under Section 258 Cr.P.C. seeking stopping of proceedings, which was dismissed by the Magistrate vide the impugned order.
11. The basic contention raised by the petitioner is that the offence under Section 332 read with Section 461 of the DMC Act cannot result in a prosecution before the criminal court in absence of a proper complaint under Section 195 Cr.P.C. addressed to, and presented before, the Metropolitan Magistrate. At the hearing on the petition, reliance has been placed on the requirements of Section 467 of the DMC Act and on the law laid down in Daulat Ram Vs. State of Punjab [1962(SCR) Supp. 812] and Chandra Prasad Pillai Vs. State & anr. [2010(1) JCC 129 Delhi].
12.In my considered view, Section 195 Cr.P.C. does not come into play in any manner in the proceedings at hand. The criminal case here concerns offence under Section 332 read Crl. Rev. No. 228/2013 Gurdeep Singh Vs. State & anr. Page No. 5 of 9 with Section 461 of the DMC Act. The said special law for purposes of such prosecutions is a complete code in itself. The said offence under the special law is not included in any of the clauses of Section 195 Cr.P.C. For these reasons, the cases of Daulat Ram (supra) and Chandra Prasad Pillai (supra) do not strictly apply here.
13.Section 466A renders the offence allegedly committed by the petitioner to be a "cognizable offence" for the purposes of "investigation" as also for the purposes of matters other than Section 42 (arrest on refusal to give name and residence) and "arrest of a person". Section 466A has to be read with Section 467 of the DMC Act. Clause (a) of Section 467 needs to be noted in extenso. It reads as under: "467. Prosecution. Save as otherwise provided in this Act, no court shall proceed to 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 the Corporation, not being below the rank of a Deputy Commissioner, as may be appointed by the Administrator;
Crl. Rev. No. 228/2013 Gurdeep Singh Vs. State & anr. Page No. 6 of 9
(b) X X X
(c) X X X "
14. It is clear from the bare reading of Section 467(a) of the DMC Act that a case of this nature cannot result in "trial"
unless there is a complaint made by or "information received from" the municipal officer of the specified rank (Deputy Commissioner). The provision is, thus, slightly differently worded as compared to Section 195 Cr.P.C. A formal complaint is not always, or invariably, necessary. Even if there is "information" lodged by the Deputy Commissioner of Municipal Corporation of Delhi regarding such an offence, it can result in prosecution before the criminal court within the permissibility of Section 467 of the DMC Act.
15.The learned Magistrate, in the impugned order, did get confused as to the requirement of Section 467 of the DMC Act by referring to Section 195 Cr.P.C. Similar confusion seems to have prevailed in the police department and also with the municipal authorities when reference was made to the complaint dated 14.05.2012 as a complaint made under Section 195 Cr. P.C. In a case of this nature, the information having been lodged by the Deputy Commissioner of Crl. Rev. No. 228/2013 Gurdeep Singh Vs. State & anr. Page No. 7 of 9 Municipal Corporation of Delhi, the prosecution under Section 467 of the DMC Act could very well be proceeded further.
16.Be that as it may, even if the provision of Section 467 of the DMC Act were to be construed as requiring a formal "complaint" to be made to the Metropolitan Magistrate, the said requirement stood complied with upon the complaint dated 14.05.2012 having been submitted.
17. Undoubtedly, the complaint dated 24.05.2012, styled as one under Section 195 Cr.P.C., was addressed by Deputy Commissioner (South Zone) to the SHO Police Station Mehrauli. But the label given appears to be more of a clerical error. The body of the complaint makes it clear that the prayer made therein is addressed to the criminal court; i.e. the forum where the complaint was actually presented on 30.06.2012, when the Additional Chief Metropolitan Magistrate made his endorsement, which has already been taken note of.
18.Thus, when the Magistrate took cognizance of the offence on 09.11.2012, he had before him not only the report of police under Section 173 Cr.P.C. presented on 07.07.2012 but also the complaint of Deputy Commissioner of Municipal Corporation Crl. Rev. No. 228/2013 Gurdeep Singh Vs. State & anr. Page No. 8 of 9 of Delhi submitted on 30.06.2012. Against this backdrop, the view taken by the learned Magistrate with regard to the prayer under Section 258 Cr.P.C. is correct and proper.
19.The result in the impugned order, thus, cannot be faulted. The revision petition is devoid of substance and is dismissed.
20.The trial court record along with a copy of this judgment be sent back.
21. The file of the criminal revision petition be consigned to record room.
Announced in open Court today on this 2nd day of January, 2014. (R.K. GAUBA) District & Sessions Judge (South) Saket/New Delhi.
Crl. Rev. No. 228/2013 Gurdeep Singh Vs. State & anr. Page No. 9 of 9