Delhi District Court
Subodh Dalal vs State (Nct Of Delhi) on 28 August, 2023
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. REVISION No. 237 of 2023
CNR No. : DLST01-006136-2023
AND
CRL. REVISION No. 238 of 2023
CNR No. : DLST01-006137-2023
SUBODH DALAL
S/O Sh. J. S. DALAL
R/O 32/27, 3RD FLOOR,
EAST PATEL NAGAR,
NEW DELHI ...REVISIONIST
VERSUS
STATE (NCT OF DELHI) ....RESPONDENT
DATE OF INSTITUTION : 04.07.2023
ARGUMENTS HEARD ON : 28.08.2023
DATE OF JUDGMENT : 28.08.2023
JUDGMENT
In respect of one eating house namely Axonights North East and Chinese Food, Delhi Police found that there was no licence as required under Section 28 of Delhi Police Act and therefore, they prepared Kalandra under Section 112 of the Act twice i.e. on 21.07.2022 and 01.11.2022 and both the times different persons (Monika and Aniket) were alleged to have been running the said eating house. When the Kalandras came before Ld. Magistrates on different occasions, they disposed the same through Summary Trial register by imposing a fine of Rs. 50/- on each occasion and by directing closure of the eating house. Once Subodh Dalal felt RAKESH KUMAR aggrieved by both the orders of Ld. Magistrate because it was he SINGH who was the owner of the said eating house, whereas the Digitally signed by RAKESH KUMAR SINGH Date: 2023.08.28 17:07:14 +0530 CR REV No. 237 of 2023 & 238 of 2023 Subodh Dalal Vs. State (NCT of Delhi) Page No.1 of 6 convicted persons were simply his employees. He approached the Ld. Magistrate with application for re-opening the eating house, but the Ld. Magistrate opined that order of re-opening will amount to a review which a Magistrate cannot do and therefore, request of the said Subodh Dalal was rejected vide order dated 27.06.2023. The said Subodh Dalal has filed two revision petitions challenging the said order. Trial Court records along with Summary Trial Registers have been produced before this court and therefore, the revision petitions are considered with a view to ascertain if the procedure adopted by the Trial Court in disposing the Kalandras was correct or not.
2. Both the sides have been heard. Record perused.
3. Section 28 of Delhi Police Act requires that for running an eating house, licence from Delhi police is a necessity. Section 112 of the Act says that if a person fails to obtain licence, he will be punished with a fine of Rs. 50/- and the Court can direct closure of such eating house.
4. However, it would not be proper to say that an employee of any eating house is required to obtain the licence from Delhi Police. It is owner of the eating house who basically runs the eating house and employees only manage the day-to-day affairs on the field. As such, employees are not required to obtain any licence nor even to ask the owner to get any licence. Clearly therefore, employees cannot be charged with an offence under Section 112 of the Act because there is no corresponding duty in RAKESH them to obtain any licence. There have been series of judgments KUMAR SINGH rendered by the Hon'ble Delhi High Court saying that Kalandra Digitally signedcannot be issued against the employees under Section 112 of the by RAKESH KUMAR SINGH Date:
2023.08.28 17:07:25 +0530 CR REV No. 237 of 2023 & 238 of 2023 Subodh Dalal Vs. State (NCT of Delhi) Page No.2 of 6 Act (See S.A.S. Pahwa v. State 88 (2000) DLT 194, Avnish Sharma Vs. State, Crl.M.C. 1034/2005 dated 24.01.2008, Janak Raj Vs. State of NCT of Delhi 2012(3) JCC 2215 and Rajendra Kumar Gupta Vs. Govt. Of NCT of Delhi & Anr Crl. M.C.No. 175/2013 dated 20.11.2013, all passed by Hon'ble Delhi High Court).
5. In the present Kalandras there is nothing to show that the police officials ever tried to ascertain as to whether Monika or Aniket were the owners or not. The first Kalandra is dated 21.07.2022 and the second Kalandra is dated 01.11.2022. At least, by the time of second Kalandra the police was already aware about the first Kalandra in which name of Monika was shown. Clearly therefore, the police could not have shown Aniket as owner while preparing the second Kalandra.
6. It further appears that Subodh Dalal has applied for obtaining licence from Delhi Police. He has produced photocopy of licences obtained from different departments. He has also filed copy of report prepared by SI Yashpal Yadav of PS Safdarjang Enclave, indicating that nothing adverse was found against him. Even the status report dated 05.06.2023 filed by HC Subhash Sharma before the Ld. Trial Court shows that Subodh Dalal has filed application to obtain licence. In such circumstances, it cannot be doubted that Monika and Aniket were not the owners of the eating house, for which Kalandras were prepared by Delhi Police.
RAKESH 7. From the aforesaid, it is clear that Monika and Aniket KUMAR SINGH could not have been prosecuted for violation of Section 112 of Digitally signed by RAKESH KUMAR SINGH Delhi Police Act, being employees in the eating house. Ld. APP Date: 2023.08.28 17:07:33 +0530 CR REV No. 237 of 2023 & 238 of 2023 Subodh Dalal Vs. State (NCT of Delhi) Page No.3 of 6 howerver, with the help of Section 141 Delhi Police Act submits that employees are also liable. A bare perusal of the said Section shows that it comes into picture only when the licence is issued and someone including an employee violates the conditions of the said licence. In the present case, the prosecution is not for violation of conditions but for the absence of the licence. In terms of the judgments cited above, employees cannot be prosecuted and therefore, the initial order of conviction was completely bad in law.
8. The Ld. Magistrates have also committed certain mistakes while dealing with the Kalandras, some of which may be enlisted as under:-
• A Kalandra filed by Delhi Police for action is simply a complaint requesting the Magistrate to take cognizance through Section 190/200 Cr. P.C. (See S.A.S. Pahwa v. State 88 (2000) DLT 194 and Gautam Ram Vs. State 98 (2002) DLT 348). The Magistrate ought to have complied with Section 204 of Cr.P.C. and ought to have provided the copy of Kalandra to the accused which has not been done in this case.
• Even for a Summary Trial for petty offence, Article 21 of the Constitution still applies and therefore, liberty of accused could not be curtailed without following a fair RAKESH procedure. As such the accused ought to have been KUMAR SINGH informed about the allegations against them. Neither the Digitally signed by RAKESH KUMAR Trial Court Record nor the Summary Trial Register shows SINGH Date: 2023.08.28 that any allegation was communicated to the accused 17:09:34 +0530 CR REV No. 237 of 2023 & 238 of 2023 Subodh Dalal Vs. State (NCT of Delhi) Page No.4 of 6 persons. This is a clear violation of Section 251 Cr.P.C. which equally applies to Summary Trial.
• A fair trial procedure always envisages that accused should be properly represented in court. The conviction order passed in both the cases clearly indicate that no counsel was available for the accused. It is therefore, not clear whether the accused was even asked by the Ld. Magistrate about proper legal representation or not. Simply because an offence attracts a fine, the concept of fair procedure enshrined in Article 21 cannot be done away with.
• Summary Trial Register of both the Kalandras shows that the Ld. Magistrates have used rubber stamp to convict the accused persons. This is clear violation of Section 264 and 265 of Cr.P.C.
9. In the aforesaid circumstances, the conviction of Monika ordered by Ld. Magistrate vide order dated 22.03.2023 in DD no. 1 PS Safdarjang Enclave and of Aniket ordered by Ld. Magistrate vide order dated 25.05.2023 in DD no. 103 PS Safdarjang Enclave are liable to be set-aside. Ordered accordingly.
10. Since initial conviction orders are set-aside, all subsequent orders passed by the Ld. Magistrates in respective Kalandras have to be treated as non-est. The direction issued by the Ld. Magistrate for closure of eating house also goes.
11. However, this judgment shall not be treated as allowing any person to run any eating house without obtaining proper RAKESH licences under respective laws. It is for the owner of any eating KUMAR SINGH house to follow his application and it is for the Delhi Police to Digitally signed by RAKESH KUMAR SINGH take a decision on the application to grant licence or not.
Date: 2023.08.28 17:15:32 +0530CR REV No. 237 of 2023 & 238 of 2023 Subodh Dalal Vs. State (NCT of Delhi) Page No.5 of 6 However, it is clarified that no closure order from this court or the court of Magistrate shall be there in respect of the eating house in question, so far as DD No. 1 and DD no. 103 PS Safdarjang Enclave are concerned.
12. With the aforesaid observations, the revision petitions are disposed of in aforesaid terms.
13. STR and TCR along with a copy of this judgment be sent to the Trial Court.
14. File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT
TODAY ON THIS 28th DAY OF AUGUST, 2023
Digitally signed
RAKESH by RAKESH
KUMAR KUMAR SINGH
Date: 2023.08.28
SINGH 17:15:41 +0530
(RAKESH KUMAR SINGH)
ADDITIONAL SESSIONS JUDGE (SOUTH)
SAKET COURTS : NEW DELHI
CR REV No. 237 of 2023 & 238 of 2023 Subodh Dalal Vs. State (NCT of Delhi) Page No.6 of 6