Prem Pathak v. Anita Ghosh — 1991 DIGILAW 438 (CAL)

ORDER This revision petition under Ss. 397, 401 and 482 Cr. P.C. is at the instance of the defaceo-complainant, and is directed against an order dated 27th June, 1985, passed by the Second Additional Sessions Judge, Alipore, in Criminal Appeal no. 50 of 1984, acquitting the accused opposite party nos. 1 to 3.of the charge under s. 430/34 of the Indian Penal Code and reversing thereby the order of conviction and fine passed by the Judicial Magistrate, 6th Court, Alipore. 2. The petitioner's wife Smt. Lila Pathak was a tenant under the accused opposite party no. 1 at 11/A, Earle Street, Calcutta. A complaint was lodged by the tenant with the local police station against her landlady accused opposite party no. 1 for allegedly committing mischief by causing obstruction or diminution of supply of water to the said complainant's flat. According to the complainant, this was the aftermath of a suit filed by the landlady against the petitioner's wife for her ejectment from the tenanted premises. Police submitted charge sheet against the accused opposite parties and prosecution examined in all seven witnesses. In consideration of such evidence, the learned Judicial Magistrate found each of the accused persons guilty of the offence punishable under s. 34 I.P.C. and convicted and sentenced each of them to pay a fine of Rs. 1,000/- in default to suffer S.I. for three months each. 3. Being aggrieved by and dissatisfied with the same order of conviction and sentence the accused-opposite parties preferred an appeal before the Sessions Judge, Alipore, and the case was ultimately heard by the Additional District and Sessions Judge, Alipore who reversed such order of conviction and acquitted the accused thereby. 4. The only point that was urged before the learned Additional Sessions Judge and decided by him was that the case was barred under s. Cr. P. C. in as much the complainant had lodged a complaint over the self same occurrence before the Rent Controller under s.31 of the West Bengal Premises Tenancy Act, 1956, (hereinafter 'referred to as the Act) and the said case ended in acquittal up to the court of appeal. 5. P. C. in as much the complainant had lodged a complaint over the self same occurrence before the Rent Controller under s.31 of the West Bengal Premises Tenancy Act, 1956, (hereinafter 'referred to as the Act) and the said case ended in acquittal up to the court of appeal. 5. The impugned order of acquittal passed' by the learned Additional Sessions Judge has been assailed before this Court on the grounds that the learned Judge committed a gross error of Jaw in acquitting the accused persons on his finding' that the case is barred under s.300(1) Cr. P.C. It has been contended by Tapan Deb Nandy, learned Advocate for the petitioner before this Court that the provisions of s.300 Cr. P.C. are not at all applicable to the facts of this case as because either the Rent Controller or the appellate authority functioning under s. 29 of the West Bengal Premises Tenancy Act is a court under s. 6 of the Code of Criminal Procedure. The Rent Controller is a simply a persona designata and that the order passed by the Rent Controller is neither an order of conviction, nor the order of the appellate authority setting aside such order is one of acquittal. It has further been contended by Shri Nandy that in view of the statutory provisions of s.300(6) Cr. P. C. read with s. 26 of the General Clauses Act, the bar under s. 300(1) Cr. P.C. will not apply to this case. 6. To resisting such contentions as advanced by Shri Nandy on behalf of the complainant-petitioner, it has been contended on behalf of the opposite parties that the provisions of Article 20(2) of the Constitution of India and that of s. 300 (1) Cr. P.C. are squarely applicable to the facts of this case and that no second prosecution will lie against the accused-opposite parties in view of the earlier prosecution against them before the Rent controller followed by the order of acquittal passed by the appellate authority. 7. Undisputedly, over the selfsame occurrence a complaint was lodged before the Rent Controller by the tenant under s. 31 of the West Bengal Premises Tenancy Act and the said Controller convicted the landlady imposing a fine of Rs. 7. Undisputedly, over the selfsame occurrence a complaint was lodged before the Rent Controller by the tenant under s. 31 of the West Bengal Premises Tenancy Act and the said Controller convicted the landlady imposing a fine of Rs. 1,000/- which ultimately was set aside by the Additional District Judge, Alipore, acting as the appellate authority under s. 29 of the Act and acquitting the landlady of the charge against her. 8. The pertinent question therefore is whether in view of the earlier proceeding before the Rent Controller and the order passed by the Rent Controller imposing a sentence of fine and the order of the appellate authority setting aside the same, this criminal proceeding under s. 430 IP.C. will lie at all. 9. The principle contained in s. 300 (1) Cr, P.C. is based on the maxim nemo debet bis vexari, which means that a person cannot be tried a second time for an offence which is involved in the offence with which he was previously charged. In order to bar the trial of any person already tried, it must be shown (1) that he has been tried by a competent Court for the same offence or one for which he might have been charged or convicted at that trial, on the same facts, (2) that he has been convicted or acquitted at the trial, and (3) that such conviction or acquittal is in force. Under Artic1e 20(2) of the Constitution of India, no person shall be prosecuted and punished for the same offence more than once. 10. It has been urged on behalf of the complaint-petitioner that none of such conditions or pre-requisites of s. 300(1) Cr. P. C. has been fulfilled in this case as because the Rent Controller is not a court of competent jurisdiction and the order passed by such Controller or for the matter of that the appellate authority is neither an order of conviction nor acquittal within the meaning of Criminal Procedure Code. 11. In developing his contention as aforesaid, Mr. Nandy, the learned Advocate for the petitioner has referred to and relied upon a catena of decisions of this Court as well as Supreme Court, reported in C.H.N. 1985, Vol. I, page 73, AIR Calcutta, page 170, AIR ,1961 Calcutta page 199, A.I.R. 1967, Calcutta, page 145, A.I.R. 1951, Andhra Pradesh, page 707, A.I R. 1970, Supreme Court, page 962. 12. I, page 73, AIR Calcutta, page 170, AIR ,1961 Calcutta page 199, A.I.R. 1967, Calcutta, page 145, A.I.R. 1951, Andhra Pradesh, page 707, A.I R. 1970, Supreme Court, page 962. 12. It is the consistent view of this Court in the decisions relied upon on behalf of the petitioner that the Rent Controller functioning under the Act is not strictly speaking a court falling within any of the classes of Criminal Courts provided in s. 6 of the Cr. P.C. 13. It has been held by T. P. Mukh'erjee, J. in his decision reported in AIR 1968 Calcutta, page 170 that the Rent Controller functioning under the Act does not convict the landlord under s. 30 or s. 31 of the Act, and the appellate authority on appeal exercising his power under the Act also does not uphold the conviction in affirming the Controller's order. Nor does he acquit the landlord in setting aside the order. In view of such decision no question of conviction or acquittal is involved in such proceeding. 14. It has however not been questioned in any of such decisions that the proceeding before the Rent Controller under s. 31 of the Act is in the nature a criminal proceeding governed by the Criminal Procedure Code. This is also confirmed by Rule 10 of the Rules framed under the West Bengal Premises Tenancy Act which reads as follows: In making enquires under the Act, the Controller shall follow, as nearly as may be, the procedure laid down, (a) in the case of enquiries relating to offences, in the Code of Criminal Procedure, 1898, for the trial of cases. It may be stated here however that the question involved in this case as to whether the bar under s.300 Cr.PC. i.e. a person once convicted or acquitted is not to be tried for the same offence was not directly the question at issue or a matter for determination in any of the decisions referred to above. It may be stated here however that the question involved in this case as to whether the bar under s.300 Cr.PC. i.e. a person once convicted or acquitted is not to be tried for the same offence was not directly the question at issue or a matter for determination in any of the decisions referred to above. The question that came for determination in the decision reported in AIR 1968 Calcutta, page 170, was whether an appeal lay before the High Court from an order of appellate authority under s. 29 of the West Bengal premises Tenancy Act as that appellate authority is not a court contemplated under s. 6 of the Cr.P.C. Question was also raised regarding the propriety of the appellate authority and its jurisdiction to hear such appeals under s.29 of the Act, the same authority being not a regular appellate authority under the Criminal Procedure Code. It was observed by T. P. Mukherjee J. that though the proceeding before the Rent Controller is in the nature of a criminal proceeding the procedure for appeal would be governed by the statute, the .-appellate authority being a creature of the statute itself. It was also observed that the Rent Controller is a Magistrate for a limited purpose and is required to try a statutory offence as contemplated under s. 31 of the Act as a criminal proceeding governed by the Criminal Procedure Code. The order passed by the Rent Controller however according to this decision cannot be said to be an order of conviction or acquittal under the Code. Following such decision, it was held in a later decision reported in 1985 CHN Vol. 1, page 73, that the Rent Controller is not strictly speaking a Magistrate and as such has not the magisterial powers and is not required to follow the procedure under Ss. 200 and 204 Cr. P.C. It was also decided that the Rent Controller is neither a Court nor a Magistrate, he is simply a persona designata. In coming to the above decision, it was observed that an application under s. 31 of the West Bengal Premises Tenancy Act, is not a "complaint" within the meaning of the Code, nor does the provision contemplate strictly speaking an "offence" and the imposition of fine as prescribed therein may be treated as a "penalty" rather than a "punishment". In coming to the above decision, it was observed that an application under s. 31 of the West Bengal Premises Tenancy Act, is not a "complaint" within the meaning of the Code, nor does the provision contemplate strictly speaking an "offence" and the imposition of fine as prescribed therein may be treated as a "penalty" rather than a "punishment". Relying upon such decisions it has been argued by Mr. Nandy on behalf of the petitioner that the earlier proceeding before the Rent Controller for the selfsame occurrence and even on the same facts cannot stand as a bar to the prosecution of the accused-opposite parties in the second proceeding, inasmuch as, Rent Controller is not a Court of competent jurisdiction, and the accused-opposite parties were not strictly speaking "prosecuted" for any "offence" ending either in "conviction" or "acquittal" as contemplated under the Code. 15. We have already seen, and there is no dispute over this, that the proceeding before the Rent Controller is in the nature of the Criminal Proceeding and will be governed by the Criminal Procedure Code save and except to the extent where there is a special enactment as envisaged under s. 5 of the Cr.P.C., to regulate such procedure. Section 5 of the Cr.P.C. lays down that the Code will govern the procedure for trial of all criminal cases except "any special form of procedure prescribed by any other law for the time being in force". Such special procedures have been prescribed by many of' such special enactments as the Customs Act, 1962, which confers special powers on the Customs Officer to confiscate goods and a special form of procedure therefor. Similarly, under the Official Secrets Act, a special provision been has made for trial in camera. In other words, the general law under the Criminal Procedure Code will apply to such matters of criminal trial save and except to the extent where the special enactment has made other provisions or where such special law is silent. 16. "Offence" as defined in s.2 of the Criminal Procedure Code means act or omission made punishable by any law for the time being in force obviously implying thereby any act or omission punishable under general or special law. 16. "Offence" as defined in s.2 of the Criminal Procedure Code means act or omission made punishable by any law for the time being in force obviously implying thereby any act or omission punishable under general or special law. It may also be observed in this connection that the word "offence" is used in s.64 to 67 of the I.P.C. to indicate "a thing punishable under the Penal Code or under any special or local law as hereinafter defined". This would also be evident from s. 40 of the I.P.C. Section 64 of the Indian Penal Code speaks of an offence punishable with imprisonment or fine, or with fine only. 17. "Special law" as defined in the Penal Code is a law applicable only to a particular subject. A "local law" is a law applicable to a particular part of India as in the instant case 1he West Bengal Premises Tenancy Act. As we have already seen s. 5 of the Criminal Procedure Code 1973 engrafts a clear exception to the provisions of the trial of an offence triable under any special or local law for the time being in force, or any special jurisdiction power conferred, 'or any special form of procedure prescribed by any other law for the time being in force. 18. Section 25 of the General Clauses Act relates to the recovery of fines and provides Ss. 63 to 70 of the Indian Penal Code and the provisions of the Code of Criminal Procedure for the time being in force in relation to the issue and shall apply to all fines imposed under any Act, regulation of byelaw, unless the Act, Regulation, Rule or Bye-law contains an express provision, to the contrary. Offence under s. 3(38) of the General Clauses Act, 1897 means any act or omission made punishable for any law for the time being in force. 19. The Privy Council in its decision reported as early as in AIR 1931 PC 94 (32 Cr. LJ. 899) held that it is the fundamental principle of criminal jurisprudence that what constitutes crime is essentially matter of statute law. 19. The Privy Council in its decision reported as early as in AIR 1931 PC 94 (32 Cr. LJ. 899) held that it is the fundamental principle of criminal jurisprudence that what constitutes crime is essentially matter of statute law. Even if an act may be 'prohibited or commanded by a statute in such way that a person contravening the statute is liable to pecuniary penalty recoverable as a debt by a civil process; in such a case contravention is an offence against the statute but is not a crime. In view of this position of law as stated above, an act or omission as contemplated under s. 31 of the West Bengal Premises Tenancy Act, and punishable with fine only, is also an offence, and may be said to be a "statutory offence" within the meaning of such word as given in the Criminal Procedure Code and Indian Penal Code and the General Clauses Act. 20. The next question is if the trial before the Rent Controller is a criminal proceeding for an offence contemplated under s. 31 of the said Act. Section 5 of the Cr. P. C. makes provisions for the trial of an offence triable under any special or local law for the time being in force. The special enactment i.e. West Bengal Premises Tenancy Act and the rules framed thereunder provides for trial of such cases according to the Cr.P.C. and as we have already seen there is no question that such a proceeding is in the nature of a criminal proceeding governed by the Criminal Procedure Code. 21. The question that follows automatically from this is whether the order passed by the Rent Controller, or for the matter of that, the appellate authority sitting in appeal over such order of Rent Controller as provided in s. 29 of the Act, will stand as a bar for the subsequent prosecution of the accused in a second criminal proceeding. In other words, the question is if a person is tried for the selfsame occurrence and on the same facts in a proceeding before the Rent Controller, or by the appellate authority sitting in appeal over such order under s. 29 of the Act, can be an actual defence to the charge in second regular criminal proceeding against the same person. The answer was given in the affirmative by Chief Justice Harris in his decision reported in 56 CWN page 585, Pulin Krishna Paul vs.. Sishupari Chakraborty (AIR 1953 Cal. page 185), It was observed that the proceeding before the Rent Controller and an order by him to pay a fine is really a prosecution for an offence against the statute and is a criminal offence, because it is punishable by a fine which is punishment of a criminal nature, and that a man cannot be punished twice precisely for the same offence. This view has also been followed in some other later decisions of this Court reported in 81 CWN page 1032 (Kalabati Devi v. K. K. Kutty), 84 CWN ,page 451, (Mrinalini Ghosh v. Shibnath Bhadra). The' position of law as enunciated by the Supreme Court in, different decisions offers only 'the guidelines but throws much light on the scope and extent of the bar that can be invoked under s. 300 Cr. P.C. or Article 20(2) of the Constitution. To get the benefit of s. 300 Cr. P.C. (Old s. 403 & Article 20(2) as held by the Court in its decision reported in AIR 1970 SC page 962,- it is necessary for an accused person to establish that he had been tried by a Court of competent jurisdiction for an offence and he is convicted or acquitted of that offence and the said conviction or acquittal is in force. What is important to note in this connection is, whether having been prosecuted once, on a certain set of facts, a man can be prosecuted again depends entirely on whether', at the earlier trial, he was in jeopardy of being convicted of the offence for which he is tried or sought to be flied at the later trial. It has been observed by the Supreme Court that adjudication before a Collector of Customs is not a 'prosecution', nor the Collector of Customs is a 'Court'. It has been observed by the Supreme Court that adjudication before a Collector of Customs is not a 'prosecution', nor the Collector of Customs is a 'Court'. The Supreme Court in another decision reported in AIR 1953 SC page 325 (Moquebul Hossain v. State of Bombay) held that the proceedings contemplated therein are in the nature of a criminal proceeding before court of law or a judicial tribunal and prosecution' in this context would mean an initiation or starting of proceeding of a criminal nature before a court of law or a judicial tribunal in accordance with such procedure prescribed in the statute which creates the offence and regulates the procedure. In clarifying the position by way of illustration, the court held in this connection that prosecution under s. 23 of the Foreign Exchange Regulation Act in a proceeding before the customs authorities was not a 'persecution' and the order for confiscation was Dot a punishment inflicted by a Court or a judicial tribunal within the meaning of Article 20(2) of the Constitution of India and hence the subsequent prosecution was not barred. The same view was also reiterated in the decision Tomas Dana v. State of Punjab reported in AIR 1959 SC page 375 and in several other cases. It is significant to note that the Supreme court in all such decisions has never held that to invoke the bar under s. 300 Cr.P.C. or Art. 20(2), an offence or a proceeding must be coming strictly within the meaning of Indian Penal Code or the Criminal Procedure Code but the proceeding must be of a criminal nature before a court of lawor judicial tribunal and not before a tribunal which entertains a departmental or administrative enquiry even though set-up by a statute or created by the state, but which is not required by la w to try a matter judicially and on legal evidence. The words 'prosecution' and 'punishment' have no fixed connotation and they are susceptible of both the wider and narrower meanings. But it must be with reference to an offence in the sense as used in the General Clauses Act meaning thereby an act or omission made punishable by any law for the time being in force. The words 'prosecution' and 'punishment' have no fixed connotation and they are susceptible of both the wider and narrower meanings. But it must be with reference to an offence in the sense as used in the General Clauses Act meaning thereby an act or omission made punishable by any law for the time being in force. It follows therefore that the prosecution must be with reference to the law which creates an offence meaning thereby a statutory offence and the punishment must also be in accordance with what that law prescribes (AIR 1954 SC page 375). The Rent Controller is a creature of statute and a judicial tribunal at that, being vested with judicial as distinguished from purely administrative or executive function and as such is not merely a tribunal entertaining a departmental or administrative problems and enquiries. It is true the expression 'tribunal' as used in Article 136 of the Constitution of India, is not the same thing as Court but includes, within Its ambit, all adjudicating bodies, created by statute and vested with judicial as distinguished from an administrative or executive functions. As already stated judged by this standard as also on the' authority of the decisions of the. Supreme Court reported in AIR 1954 SC 375 & 520, the Rent Controller, if not a court, is undoubtedly a judicial tribunal functioning under the superintendence of the High Court discharging judicial functions and in that sense is a judicial tribunal having competent jurisdiction to entertain proceedings in the nature of criminal proceeding as contemplated under Ss. 30 and 31 of the West Bengal Premises Tenancy Act. This view that Rent Controller is a tribunal and the proceeding under s. 31 of the Act, being in the nature of a criminal proceeding also finds support in the single Bench decision of this Court reported in AIR 1968 page 170 and later decisions. The appellate authorities hearing the appeals from the order of the Rent Controller are also Tribunals of competent jurisdiction following the procedure as prescribed in s. 29 of the West Bengal Premises Tenancy Act. So, not only Controller but also the appellate authorities are judicial tribunals discharging judicial functions while heating the complaints and adjudicating the proceeding of criminal nature as contemplated under Ss. 30 and 31 of the West Bengal Premises Tenancy Act. So, not only Controller but also the appellate authorities are judicial tribunals discharging judicial functions while heating the complaints and adjudicating the proceeding of criminal nature as contemplated under Ss. 30 and 31 of the West Bengal Premises Tenancy Act. The orders passed by such tribunals in respect of the offence contained in the complaints before them and imposil1g a penalty of fine is nothing. but a punishment for a statutory offence, though it may not be termed strictly speaking as a "conviction" in the ordinary sense as contemplated in the Criminal Procedure Code. Such tribunals holding innocence of the person prosecuted before it, does not amount strictly speaking to an order of "acquittal" within the meaning and sense of the Criminal Procedure Code, though in fact this is so. 22. In view of what has been stated above, it so appears that the accused opposite parties were prosecuted before the Rent Controller on the complaint of the petitioner on the self-same occurrence as early as 1975, and they were initially convicted by the Rent Controller after a comprehensive trial for such offence, imposing a penalty of fine of Rs. 1,000/- each .which ultimately ended in acquittal by an order of the appellate authority i.e. the Additional District Judge, Alipore. So, it can be said that the matter was fully heard and adjudicated by competent judicial tribunals and ended up in acquittal of the accused-opposite parties after full hearing. Therefore, all the conditions and requisites of s. 300 Cr. P.C. are there as appearing from the facts of this case to attract the bar or mischief of the said section for a fresh prosecution or trial of the accused opposite parties in a regular second criminal proceeding against them. 23. Again, looked at from a different angle, the provisions of s. 300 cannot be taken to be exhaustive in character. This court in exercise of its inherent power in suitable cases can also quash a second trial If any authority is needed we may refer to the decisions reported in AIR 1970 SC 1381 ; 1970 Cr. LJ. 1270; 1978 Cr. L J. 863; AIR 1960 SC P. 866. This court in exercise of its inherent power in suitable cases can also quash a second trial If any authority is needed we may refer to the decisions reported in AIR 1970 SC 1381 ; 1970 Cr. LJ. 1270; 1978 Cr. L J. 863; AIR 1960 SC P. 866. In view of the facts and circumstances of this case and the nature of the offence, for an incident occurring in 1975, and the accused opposite parties already enjoying two orders of acquittal-one in the earlier proceeding' by the appellate authority and another by the impugned order! in the later regular criminal proceeding before the Sessions Judge, and the lapse of so many years since 1975, it is high time that inherent power of •this Court should be exercised to quash the second trial. Strictly speaking sub• clause (2) of Article 20 of the Constitution of India, has no application to this case as there was no punishment for the offence alleged as a result of the earlier prosecution. There must be prosecution as well as punishment to attract such bar under the said provisions. 24. Nextly, with regard to the argument advanced by Mr. Nandy with reference to the provisions of s. 300(6) Cr. P.C. read with s. 26 of the General Clauses Act, that offences •under s. 430 I. P.C. and s. 31 of the West Bengal Premises Tenancy Act are 'distinct and separate and 50 the bar under s. 300 Cr. PC. is not attracted to this case - it may be said the ingredients which' constitute the offences under both the sections are the same and in fact make one and single offence, the bar aforesaid and the bar under s. 26 can be invoked as well to this case. 25. Last but not the least, even on merit, in this second regular trial the prosecution has failed to prove its case beyond all reasonable doubt. To prove the charge against the accused person under s. 430 I.P.C, it must be proved that the mischief in question was done wilfully and deliberately by the accused person. In other words, the deprivation of the essential service must be done by direct, indirect or negative act of the landlord opposite parties i.e., by failing to do what he was bound to do and what was within his power and control to do. In other words, the deprivation of the essential service must be done by direct, indirect or negative act of the landlord opposite parties i.e., by failing to do what he was bound to do and what was within his power and control to do. There is no conclusive proof or finding by the learned trying Magistrate that the accused person did so wilfully and deliberately. Only an indirect inference was drawn when direct finding by the learned trying Magistrate, was an imperative necessity that the disturbance caused was a wilful act of the accused opposite parties. 26. In view of what has been stated above, the revision petition fails. The order passed by the learned Additional Sessions Judge acquitting the accused opposite parties is hereby upheld. Petition rejected.