JUDGMENT 1. -By means of this petition under section 482 of the Code of Criminal Procedure, 1973 (the "Cr.PC-.") the petitioners have not only challenged the validity and legality of the order dated 28.9.96 whereby the learned Addl. Chief Judicial Magistrate, Jaipur Development Authority (JDA) framed charge for offence under section 72 of the Jaipur Development Authority Act 1982 (the "Act") against the two petitioners but also the very competence of the learned Magistrate to have taken cognisance of the said offence upon a police report and summoned the petitioners as accused thereunder. The continuance of the proceedings initiated on the basis of a police report and not on the basis of a complaint by the JDA or a person authorised by it in that behalf, as mandated in Section 75 of the Act, is alleged to be amounting to abuse of the process of court and it is prayed that such proceedings be quashed and dropped not only in the interest of justice but also to curb usurpation of J D A's powers to launch prosecutions against the offenders under the Act by any other person or authority. 2. Briefly stated, the relevant facts are these- 3. With a view to enable the Rajasthan Housing Board to execute the Sanganer Housing Scheme by constructing residential and non-residential buildings the Govt, of Rajasthan had acquired the agricultural land of, besides others, Khasra Nos. 64, 78, 79, 70, 75 and 76 ad-measuring 19 Bighas and 1 Biswa situate at village Budh Singh Pura, Tehsil Sanganer, Distt. Jaipur vide Notification dated 7.3.1988 issued under Section 4(1)(2) of the Land Acquisition Act 1894. The acquired land was of the tenancy of one Sri. Bhola s/o Sri. Gopal R/o Village Budhsingh Pura, the late father and predecessor-in-title of the present petitioners. In an area of 2 Biswas of Khasra No. 64 certain dwelling huts were there and, therefore the concerned authorities took possession of the.acquired land on 19.8.89 leaving apart the said 'Abadi' portion of Khasra No. 64. On 30.5.1991 an Award was also passed by the Arbitrator in the matter. It was in this backdrop that on 25.2.1993 the Resident Engineer, Division III, Rajasthan Housing Board, Jaipur forwarded a written report to the Dy. Superintendent of Police, Special Police Station, Jaipur alleging therein that the said Bhola s/o Sri. On 30.5.1991 an Award was also passed by the Arbitrator in the matter. It was in this backdrop that on 25.2.1993 the Resident Engineer, Division III, Rajasthan Housing Board, Jaipur forwarded a written report to the Dy. Superintendent of Police, Special Police Station, Jaipur alleging therein that the said Bhola s/o Sri. Gopal had made authorised encroachment on the acquired land by raising boundary walls and constructing certain rooms as shown in the site map attached with the report. Prayer for prosecuting the said Bhola for offence under section 72 of the Act was made. The Station House Officer, Special Police Station, Jaipur received the report, registered Crime No. 7/93 under section 72 of the Act and entrusted the investigation of the case to Sri. Het Ram Dy.S.P During the course of the investigation of the case the Dy.S.P came to know that the said Bhola s/o Sri Gopal had already died on 3.6.91 and that the present petitioners were in unlawful and unauthorised possession of the acquired land. He accordingly completed the investigation. However, the Station House Officer, Police Station Sanganer submitted the report under section 170/173 (2) Cr.PC. in the court of the learned Magistrate on 20.7.95. The learned Magistrate took cognisance of the offence under section 72 of the Act on 20.7.95 and after hearing the parties framed charge for that offence against both the petitioner on 28.9.96. No further proceeding has been taken thereafter. 4. Mr. Ashok Sharma, the learned counsel for the petitioners urged that for an offence committed against the Act the learned Magistrate could have taken cognisance under Section 190(1) (a) on a complaint made in writing to him by the JDA or any other person duly authorised by it in that behalf which was not a position in the present case. The learned counsel submitted that since the Act was a special enactment and overrides the provisions of other laws including the Cr.PC. and Section 75 of Act clearly mandates that no court shall take cognisance of any offence punishable under the Act or any rule regulation or order made thereunder except upon a complaint in writing of the facts constituting such offence made by the JDA (the Authority), or by a person expressly authorised in that behalf by the Authority. and Section 75 of Act clearly mandates that no court shall take cognisance of any offence punishable under the Act or any rule regulation or order made thereunder except upon a complaint in writing of the facts constituting such offence made by the JDA (the Authority), or by a person expressly authorised in that behalf by the Authority. It was submitted that in the presence of a specific provision in the special enactment speaking over the mode of taking cognisance of an offence under the Act the learned Magistrate could not have acted otherwise and could have not taken cognisance of offence under section 72 in terms of Section 190 (1)(b) Cr.P C. ignoring the mandatory provisions of Section 75 of the Act. It was submitted that simply because the amended provisions of Section 72 of the Act required that the investigation of an offence punishable under that section be made by a police officer not below the rank of a Dy.S.P it cannot be inferred that provisions contained in Sections 75, 82 and 92 got impliedly amended and the Magistrate was empowered to take cognisance of an offence under the Act otherwise than upon a complaint in writing made by the Authority or by a person expressly authorised by the Authority in that behalf. It was submitted that there was absolutely no evidence on record to show that either the Resident Engineer of the Raj. Housing Board or the Dy.S.P, Special Police Station, Jaipur or the Station House Officer, Police Station Sanganer was ever expressly authorised by the Authority to make a complaint in writing of the facts constituting the offence under section 72 to the learned Magistrate against the present petitioners. It was urged by the learned counsel that the cognisance taken by the learned Magistrate under section 190 (l)(b) Cr.PC. on the police report submitted by SHO, police station Sanganer was inherently bad in law and when the foundation of the prosecution of the petitioners was basically legally bad in law all the subsequent proceedings founded on such infirm and invalid foundation would be parse illegal and would amount to abuse of the process of the court of the learned Magistrate. The learned counsel further submitted that on merits too the charges framed against the petitioners were baseless and ground-less in as much that the FIR lodged by the Resident Engineer was vague on the point of specific area of the land alleged to have been encroached upon by the petitioners and that the said FIR was lodged against a person who had died much before the commission of the offence in the present case. 5. The learned counsel for the Respondents submitted that since the State Govt, had acquired the land in question for execution of the Sanganer Housing Scheme and the said Scheme was being executed by the Raj. Housing Board, the Resident Engineer of that Board was fully competent to have lodged the First Information Report with the Special Police Station about the commission of an offence punishable under the Act. It was submitted that the JDA (Amendment) Act 1991 materially altered the position of law and since the punishment for offence under Section 72 was significantly enhanced the investigation aspect of such offence was also improved and it was mandated that the offence under Section 72 cannot be investigated by an officer below the rank of a Dy.S.P It was contended that since the offence was required to be investigated by an officer of the rank of a Dy.S.P under Chapter XII of the Cr.PC. such investigation was to necessarily and in submission of either a negative police report under section 169 or positive report under section 170/173 Cr.PC., therefore the SHO, Police Station Sanganer was bound to submit his report to the Magistrate. It was urged that the provisions contained in Sections 75, 82 and 92 of the Act must be understood to have been impliedly amended by the amendment of Section 72(15) of the Act. The learned counsel further submitted that in any case the matter of taking cognisance of the offence under the Act was simply a formal or technical act, though judicial in nature, it should not be given undue importance at this stage when charges have already been framed against the petitioner. The learned counsel further submitted that in any case the matter of taking cognisance of the offence under the Act was simply a formal or technical act, though judicial in nature, it should not be given undue importance at this stage when charges have already been framed against the petitioner. It was pointed out that the offences under section 31, 32, 33 and 72 were continuing offences and even if the cognisance taken by the learned Magistrate on the Police Report submitted in this case be found technically or even legally bad the proceedings be not quashed and dropped as the JDA may still made a complaint in writing on same facts and that would simply be an avoidable exercise to achieve the same object which is being sought to be achieved by the police report under section 170/173 Cr.PC. The learned counsel vehemently stressed that the land vested in the JDA and encroachment upon such land constituted an offence under section 72 of the Act and if case of such unauthorised encroachments and illegal possessions by trespassers are thrown away by the criminal courts or this Court it would frustrate the very object of the Act and the dedicated endeavours of the officers of the Authority to properly and orderly develop the Jaipur Region. It was submitted that irrespective of the fact whether the Authority in its discretion, chooses to take other steps to remove encroachments and obstructions from public lands or not if a criminal court has been moved in the matter such court should punish the offender so that he may vacate his possession or remove the encroachment or obstruction, as the case may be. 6. Before I proceed to examine the points raised in this petition I would like to observe that powers of this court under Section 482 Cr.PC. are though wide enough as to cover all cases of abuse of the process of the court or miscarriage of justice yet those are exceptional powers to be sparingly exercised in rarest of rare cases to prevent the abuse of the process of a court or of law or to secure the ends of justice to a party. are though wide enough as to cover all cases of abuse of the process of the court or miscarriage of justice yet those are exceptional powers to be sparingly exercised in rarest of rare cases to prevent the abuse of the process of a court or of law or to secure the ends of justice to a party. It is true that the concept of Locus Standi is not, unless provided by a relevant statute, of much relevance in the prosecutions of criminals and is in fact foreign to criminal jurisprudence but in our effort to punish an offender for a crime the relevant provisions governing the procedure of bringing the culprit before the criminal courts cannot be given a total go-bye. Jurisdictional error, if it does not go to the root of a criminal case, may be corrected any may not be made the basis of failure of the prosecution if no prejudice is shown to have been caused to the accused. But if the accused raises such an objection at the very earliest opportunity available to him then his objection is required to be seriously examined in the light of the relevant provisions of the law applicable to his case. 7. In the instant case the foundational facts, as stated earlier, are not in dispute. It is an undisputed position that the land in question, on acquisition of the same by the State Govt., stood vested in the JDA for the purposes of proper and orderly development of the Jaipur Region and to accommodate the needy residents of Jaipur city to rest their tired bones. It is also not in dispute that the Housing Board is an authority for the purposes of the Act and it helps the JDA in the execution of its scheme and plans to progressively develop the Jaipur Region in a proper, orderly, and systematic way. In carrying out the purpose of the Act the Raj. Housing Board action concert with and, in fact, under the directions of the State Govt, and the JDA. Above all, it is also not in dispute that the FIR in this case was lodged with the police, of course in all good faith and without any malice, by the Resident Engineer of the Housing Board. Again, the investigation of the case was undoubtedly done by an officer not below the rank of Dy.S.P as required by Sub-sec. Above all, it is also not in dispute that the FIR in this case was lodged with the police, of course in all good faith and without any malice, by the Resident Engineer of the Housing Board. Again, the investigation of the case was undoubtedly done by an officer not below the rank of Dy.S.P as required by Sub-sec. (15) of Section 72 of the Act. Admittedly, the police report under section 170/173 Cr.PC. was made by yet another police officer, below the rank of the Dy.S.P and the learned Magistrate took cognisance of the said offence under section 190(1 )(b) Cr.PC. it was not denied before me that neither the Resident Engineer nor the SHO, Police Station, Sanganer was expressly authorised by the JDA to make a complaint for an offence under the Act against the petitioner. With this undisputed position of relevant facts we should now examine the object behind the Act and the scheme underlying various provisions therein. 8. The Act is a special enactment made by the Rajasthan State Legislature with the object of forming the Jaipur City and certain analogous areas into a Jaipur Region. In order to achieve the said objective the idea of establishing a powerful Authority for the purposes of planning, co-ordinating and supervising the proper, orderly and rapid development of the Region was conceived of. The present enactment was, therefore made by the State Legislature on 12.10.82 by Section 3 whereof the State Govt, was empowered to establish a powerful Authority to be called as "JAIPUR DEVELOPMENT AUTHORITY". The State Govt, issued the required notification in the Official Gazettee and the JDA came into being. The JDA is deemed to be a Local Authority within the meaning of the term defined in Raj. General Clauses Act and works through its Executive Committee, has perpetual succession, acquires and sells property has the power subject to the appointment of certain high ranking officers under section 8 by the State Govt, tc sanction creation of posts, determine the strength of its staff and to determine the condition of their appointment, service, powers, functions and duties by making its own regulations. 9. 9. A study of the scheme underlying the Act 1982 discloses that S. 16 enlists the various and varied functions of the Authority and S. 17 mandates that notwithstanding anything contained in any law for the time being in force, no authority or person shall undertake any development, within the Jaipur Region of the type as the Authority may from time to time specify, except with the previous permission of the Authority. S. 18 arms the Authority to give directions to any local authority or person with regard to the implementation of any scheme or project financed under section 16 and the local authority or other authority or person, on being given such directions by the JDA shall be bound to comply with such direction. Section 19 confers upon the Authority the power to require the local authority to assume responsibilities in certain cases for the maintenance of the amenities. Section 44 gives power to the JDA to enter into an agreement it any person for the purchase, leasing or exchange by it from such person, of any land which it is authorised to acquire or any interest in such land. On its recommendation and on her own satisfaction the State Govt, may also acquire the land under and in accordance with the provisions of the Land Acquisition Act 1894. Where the State Govt, has so acquired any land as per Section 45 and taken possession of such land it is obligatory on her to make such land available to the JDA for the purpose of performing its functions and discharging its duties and exercising its powers. In fact, the land defined in Section 103 of the Rajasthan Land Revenue Act 1956, excluding certain land referred to in Sub-clause (ii) of clause (a) of that sections and nazul land placed at the disposal of a local authority under section 102 of the the said Act, does, for all practical purposes, vest in the JDA for the purpose of the Act of 1982, and no development of any land shall be undertaken or carried out except or by or under the control and supervision of the Authority. Apart from operating the fund known as "The Jaipur Region Development Fund" through the Commissioner appointed and placed at the disposal of the JDA, by the State Govt, and having powers, with the previous approval of the State Govt., to borrow money for carrying out the purpose of the Act the JDA further enjoys the powers, subject to the over all powers of the State Govt., to prescribe the manner, to levy certain charges like a premium on second or subsequent sale of vacant land in Jaipur Region, annual levy on vacant land, and conversion charges for conversion of the use of land from residential purposes to commercial or any other purpose and also to charge fees for the issue of any license or permission which it is authorised to issue or grant under the provisions of the Act of 1982 and the regulations framed by it. 10. When in the above backdrop the questions relating to prosecutions under the Act of 1982 and the powers of the Police in relation to such prosecutions are approached it becomes quite clear that the Legislature has specifically dealt with that aspect in sufficient detail in Chapter XI of the Act. Unauthorised obstructions in the way of the officers of the Authority in the course of the discharge of their duties under the Act, removal offences etc. set up by the JDA for the purpose of carrying out any work, disobedience of requisition and furnishing false information etc, encroachment or obstruction upon public land attract penal consequences and are liable to be punished as offences. Offences committed by Companies also have been brought into such net. The power of the Criminal Court to take cognisance of such offences has also been clearly defined and the mode of taking cognisance of offences under the Act has also been laid down. 11. Here, I think, It would be worthwhile to make a study of the provisions of Chapter XI of the Act of 1982, as are relevant for our purpose. "Sec. 72. 11. Here, I think, It would be worthwhile to make a study of the provisions of Chapter XI of the Act of 1982, as are relevant for our purpose. "Sec. 72. ENCROACHMENT OR OBSTRUCTION ON PUBLIC LAND -(1) Whoever makes any encroachment in any land or space not being private property, Whether such land or space belongs to or visits in the Authority or not, except steps on drain in the public street, shall, on conviction, be punished with simple imprisonment which shall not be less than one month but which may extend to three years and with fine which may extend to twenty thousand rupees: Provided that the court may for any adequate or special reason to be mentioned in the judgment impose a sentence of imprisonment for a term of less than one month. (2) Whoever makes any obstruction in any land or space, not being private property, whether such land or space belongs to or vests in the Authority or not, except steps over drain in any public street, shall on conviction be punished with simple imprisonment which may extend to one month or with fine which may extend to two thousand rupees or with both. (3) The Authority or any officer authorised by it in this behalf shall have power to remove any such obstruction or encroachment and the expenses of such removal shall be paid by the person who had caused the said obstruction or encroachment. (4) XXXXXXXXXXXXXXXX (5) Notwithstanding anything contained in the foregoing provisions, the Authority or the officer authorised by it in this behalf shall in addition to the action taken as provided in this section, have power to seize or attach any property found on the land or space referred to in this section or, as the case may be, attached to such land or space or permanently fastened to any thing attached to such land or space. (6) Where any property is seized or attached by an officer authorised by the Authority, he shall immediately make a report of such seizure or attachment to the Authority. (7) to (12) XXXXXXXXXXXXXXXXXXXXXXXX (13) Where any person is prosecuted of an offence under sub-section (1) or sub-section (2) the burden of proving that he has not committed the offence shall be on him. (7) to (12) XXXXXXXXXXXXXXXXXXXXXXXX (13) Where any person is prosecuted of an offence under sub-section (1) or sub-section (2) the burden of proving that he has not committed the offence shall be on him. (14) Whoever, being an employee of the Authority, specifically entrusted with the duty to stop or prevent the encroachment or obstruction punishable under this section, wilfully or knowingly neglects or deliberately omits to stop or prevent such encroachment or obstruction, shall, on conviction, be punished with simple imprisonment for a term which may expend to one month or with fine which may extend to one thousand rupees or with both. Provided that no court shall take cognisance against such employee for the offence punishable under this sub-section except with the previous sanction of the Authority. (15) No investigation of an offence under this section shall be made by an officer below the rank of a Deputy Superintendent of Police. 73. GENERAL PROVISION FOR PUNISHMENT OF OFFENCE Whoever contravenes any of the provisions of this Act or of any rule or regulation made or does a anything against any plan, project or scheme sanctioned thereunder shall, if no other penalty is provided for such contravention, be punishable - (a) for the first offence, with fine which may extend to one thousand rupees and (b) for a second or any subsequent offences with fine which shall not be less than two hundred fifty rupees and not more than five thousand rupees. 75. COGNIZANCE OF OFFENCES : (1) No court shall take cognisance of any offence punishable under this Act or any rule or regulation or order made thereunder except upon a complaint in writing of the facts constituting such offence made by the Authority or by a person expressly authorised in this behalf by the Authority. Provided that any person, whose right to enjoyment of his own property is adversely affected by any unauthorised development as indicated in sub-sec. (1) of Section 31, may also file a complaint in the like manner against such person or persons who may have undertaken the said unauthorised development; Provided further that the Authority shall also be given due notice of such proceedings and if the Authority removes the cause for action within a reasonable period, the proceedings in the Court shall abate, without prejudice to any other action or proceedings that the Authority has initiated or may initiate thereafter. (2) No Court inferior to that of the Chief Judicial Magistrate shall try any offence punishable under this Act. 76. FINE WHEN REALISED TO BE PAID TO THE AUTHORITY-All fines realised in connection with prosecution under this Act shall be paid to the Authority. 77 POWER OF AUTHORITY AS TO LEGAL MATTERS The Authority may- (a) institute, defend or withdraw from any legal proceedings, (b) compound any offence against this Act; and (c) admit, compromise, or withdraw any claim made in any legal proceeding or otherwise; Provided that no withdrawal from prosecution for an offence under this Act shall be made except with the permission of the Court. 82. POWER OF POLICE OFFICER (1) Any police officer, not below the rank of a sub- Inspector, authorised by the Authority in this behalf, may arrest any person committed in his view any offence relating to encroachment or unauthorised development on the lands vested in the Authority or on public street, as provided under Section 72 of the Act or of any order or rule or regulation thereunder, if the name and address of such person be unknown to him and he declines to give his name and address, or if the police officer has reason to doubt the accuracy of such name and address if given, and such person may be detained at the station house until his name and address shall be correctly ascertained; Provided that no person arrested shall be detained without the order of the Judicial Magistrate longer than is necessary to bring him before a Judicial Magistrate or twenty four hours at the utmost; (2) It shall also be the duty of ail police officers to give immediate information to the Authority of the commission of any offence against the provisions of this Act or of any order, rule or regulation made thereunder and to assist all members, officers, and servants to the Authority or any body thereof in the exercise of their lawful duty." 12. Section 87 occurring in Chapter XII of the Act declares every officer and other employees of the Authority to be public servants within the meaning of Section 21 of the Indian Penal Code 1860. Section 92, over-ridding other laws, says "S.92 ACT TO OVERRIDE OTHER LAWS The provisions of this Act shall have effect notwithstanding anything nccnsistant therewith in any other law for the time being in force." 13. Section 92, over-ridding other laws, says "S.92 ACT TO OVERRIDE OTHER LAWS The provisions of this Act shall have effect notwithstanding anything nccnsistant therewith in any other law for the time being in force." 13. A combined reading of the above provisions of the Act of 1982, in the scheme underlying the Act, makes it clear that to enable the Authority to carry out the object of the enactment and to discharge the functions entrusted to it by the State Govt, effectively for making development of the Jaipur Region for the benefit and comfort of the residents in such Region all possibles powers including the power of launching prosecutions for offences committed against the Act against not only person committing such offences but also its own employees, who have been specifically entrusted with the duty to stop or prevent the encroachment or obstruction punishable under section 72 but who wilfully or knowingly neglect or deliberately omit to stop or prevent such encroachment or obstruction, have been conferred Upton it. Therefore, for the purposes of the Act the Legislature has, in its wisdom, made appropriate provisions to enable the Authority to carry out its functions in a way that helps it to achieve its object and does not, at the same time, cause unnecessary harassment to the persons concerned. It is evident that in order to perform its duties efficiently the Authority has been given power not only to give directions to any local authority or person (S.18) and/or require a local authority or any other authority to assume responsibilities in certain cases (S. 19) but also to authorise any of its officers or officers of the Police Deptt. to do certain specified acts for the achievement of the object of the Act. The Act makes specific provisions with regard to the mode and manner of taking cognisance of the offences under the Act by the criminal Courts and specifies the forum for the redressal of the wrong done to it. Powers of the Police Officer, in relation to the offences committed against the Act, have also been specifically provided in Section 82. It is thus evident that for all pratcial purposes the Act of 1982 is a code in itself for the subject covered by it. 14. Powers of the Police Officer, in relation to the offences committed against the Act, have also been specifically provided in Section 82. It is thus evident that for all pratcial purposes the Act of 1982 is a code in itself for the subject covered by it. 14. It may be noted that the offence under section 72 of the Act was punishable, initially, with fine of Rs.1000/- only and in case of continuing encroachment of public land or open space the fine was to extend to Rs.100- for every day during the period the encroachment continued. Section 72 was drastically substituted by JDA (Amendment) Act of 1991 w.e.f. 27.8.91 and sentence of simple imprisonment upto three years and fine of Rs.20,000/- maximum was provided with the rider of imposition of one month minimum imprisonment compulsorily unless there were adequate and special reasons for recording" departure from the mandate contained therein. As per Schedule II of the Code of Criminal Procedure 1973 the offences under the Act were non-cognisable. The main distinction between a "cognisable" and a "non-cognisable" offence is that whereas for commission of a cognisable offence a police officer may arrest the accused without an order from a Magistrate or without a warrant (Sec. 41(a)) and investigate the case without the order of the Magistrate (Sec. 156), he cannot investigate into a non-cognisable offence without the order of the Magistrate. (S. 155 Cr.PC.). In view of the provision relating to the mandatory imposition of one month imprisonment minimum under section 72(1), necessity was felt that such offence be got investigated by a police officer not below the rank of a Deputy of police, and accordingly provisions were made in sub-section (15) of Section 72. But the requirement of getting an offence investigated by an officer not below the rank of Deputy Superintendent of police does neither make all the provisions contained in Chapter XII of the Code applicable to the launching of prosecutions under the Act of 1982 in view of the specific provisions contained in Sections 82 and 92 of the Act nor does cause any harm to the mandate contained in Section 75. Under the Scheme of the Act the powers of the Police Officers, including the police officer mentioned in Sub-section (15) of Section 72, have been clearly specified in Section 82 and stand controlled and restricted by Section 92. Under the Scheme of the Act the powers of the Police Officers, including the police officer mentioned in Sub-section (15) of Section 72, have been clearly specified in Section 82 and stand controlled and restricted by Section 92. Had that been not so there was no necessity of conferring authorisation of power by the Authority upon a police officer to do certain specified acts which such police officer was already empowered to do in exercise of his powers under Chapter XII of the Code. There was no occasion for providing in the Act that no person arrested shall be detained without the order of the Judicial Magistrate longer than is necessary for braining him before the Judicial Magistrate of twenty four hours at the utmost when Section 167 in Chapter XII of the Code clearly made a suitable provision in that respect. It should, therefore, necessarily follow that since the Act is a special enactment, contains specific provision for launching persecutions against the offenders of the Act, over-rides the inconsistent provisions in any other law, the mode or manner of getting the evidence collected through inquiries either by its own officers or through investigation by such police officers who are authorised by it to investigate a particular offence would not restrict or enlarge the scope of Section 75. In other words, the investigation of an offence under section 72 by a police officer not below the rank of Dy. S.P would not entitle or empower the Officer-in-Charge of a Police Station to file a police report under section 169 or 170/173 Cr.PC. in disregard of the provisions contained 75 of the Act. It is true that, as observed by their Lordships of the Supreme Court in the case of Union of India v. Sushil Kumar Modi & Ors. (J.T. 1997 (1) S.C. 679) , according to the Code of Criminal Procedure, the formation of the opinion as to whether or not there is a case to place the accused for trial is that of the police officer making the investigation and the final step in the investigation is to be taken only by the police and by no other authority. But this principle applies to the cases of offences under the Indian Penal Code as mandated in sub-section (1) of Section 4 Cr.PC. But this principle applies to the cases of offences under the Indian Penal Code as mandated in sub-section (1) of Section 4 Cr.PC. But where an act or omission has been made punishable as an offence under a special enactment and such enactment further provides for the mode or manner of taking cognisance of such offence by a court then the general principle laid down in sub-sec (1) of Section 4 Cr.PC. would not apply, instead that principle laid down in Section 4(2) Cr.PC. would apply. In other words, the procedure laid down in the special enactment shall override the provisions in the Cr.PC. to the extent they are inconsistent to the provisions contained in the special enactment.In the case of M.R. Patil & Anr. v. The Member, Industrial Court & Anr. JT 1997 (4) 428 Section 39 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act 1971 provided that no Labour Court shall take cognisance of any offence except on a complaint of facts constituting such offence made by the person affected thereby a recognised union or on report in writing by the Investigating Officer. 'In that case some demands had been made by the members of two recognised unions of workers of Maharashtra State Road Transport Corporation (the Corporation). Their demands having not been met and satisfied by the Corporation the workers threatened to go on strike, However, on intervention by the Chief Minister of Maharashtra, an interim relief of Rs.25 Crores was sanction and the modalities of payment thereof were to be worked out. After obtaining sanction and approval of the State Govt, the Corporation commenced making payments, the circular issued by the Corporation in that behalf was assailed by the General Secretary of a Union, which was not registered. The Industrial Court though issued stay orders in the matter on 29.6.93 yet payment in terms of the circular appear to have been made by the Corporation even thereafter. It was under such circumstances and on such facts that the unrecognised union filed a complaint in the labour court Akola for offences under the Act, referred to above, against the Corporation and its officers. The labour Court took cognisance of certain offences and dismissed the objections raised by the accused against their prosecutions, though for different reasons. It was under such circumstances and on such facts that the unrecognised union filed a complaint in the labour court Akola for offences under the Act, referred to above, against the Corporation and its officers. The labour Court took cognisance of certain offences and dismissed the objections raised by the accused against their prosecutions, though for different reasons. Quashing the prosecutions of the accused in that case on the basis of the complaint filed by a union which was nor recognised, their Lordships observed in para 15 as under- " Cognisance of such offence, besides other offences under the Act, cannot, however, be taken by the Labour Court unless a complaint disclosing facts constituting the offence is filed by the person affected thereby or a recognised union (emphasis supplied). The only other mode left upon to the Labour Court to take such cognisance is on the basis of a report in writing by the Investigating Officer. Once cognisance of offence is taken on such complaint or report, as the case may be, the labour court would have to follow the procedure laid down by the Code of Criminal Procedure, 1973 (which now replaces the Code of Criminal Procedure 1898)". 15. It is true that the concept of Locus standi is foreign to criminal jurisprudence and where an act or omission has been made an offence by an enactment every aggrieved person may put the machinery of law into motion as protection of the citizen and prosecution of the offender is primarily the duty and the responsibility of the state. But if the enactment making certain act of omission as offence makes provisions for the mode and manner for redressal of the wrong done under the special enactment, such a prescribed course shall have to be adopted for prosecutions of the offenders, (see A.R. Antulay's case) 16. To sum up the discussion now, it is held that investigation of the offence under section 72 of the Act by a police officer not below the rank of a Dy.S.P is not to affect the provisions contained in Section 75 in any way. To sum up the discussion now, it is held that investigation of the offence under section 72 of the Act by a police officer not below the rank of a Dy.S.P is not to affect the provisions contained in Section 75 in any way. Whether an offence under section 72 is inquired into by an officer of the JDA or is investigated by a police officer not below the rank of Dy.S.P the court can take cognisance of the offence, whether punishable under section 72 or some other provision of the Act, only upon a complaint in writing of the facts constituting such offence made by the Authority or by a person expressly authorised in this behalf by the Authority. The power of the Magistrate under Section 190 Cr.P.C. which power enables him to take cognisance of an offence either on a complaint of the aggrieved party, or on police report or even suo moto shall have to be read in the context of Section 75 of the Act when the question to taking cognisance of an offence under the Act arises before him. The mandate contained in Section 75 cannot be overlooked as that is based on public policy. Once the JDA has been entrusted with the responsibility of proper, orderly and rapid development of the Jaipur Region and in order to discharge the onerous duty and responsibility it has been armed with power to prosecute and punish the offenders, the same subject of prosecution and punishment was not left open for action to the discretion of other agencies including police. In the instant case the FIRs Information Report with the Special Police Station, Jaipur city was lodged by the Resident Engineer, Rajasthan Housing Board, Dn. Ill, Sanganer, Jaipur and after investigation of the case the report under section 173 (2) Cr.PC. was submitted by the Station House Officer, Police Station Sanganer, Jaipur. The learned Magistrate had taken cognisance under section 190(1 )(b) on the basis of the police report file by the said Station House Officer. No complaint, as contemplated by and under section 75 of the Act, was ever filed either by the Authority (JDA) or a person expressly authorised in that behalf by the Authority. No evidence showing such express authorisation either on the Resident Engineer, Raj. No complaint, as contemplated by and under section 75 of the Act, was ever filed either by the Authority (JDA) or a person expressly authorised in that behalf by the Authority. No evidence showing such express authorisation either on the Resident Engineer, Raj. Housing Board, the Station House Officer of the Special Police Station of the Station House Officer, Police Station, Sanganer was pointed out to me on the record of the lower court. It was also not brought to my notice that the Authority had ever authorised the SHO, Police Station Sanganer, Jaipur to file a complaint on its behalf or the State Govt, had ever issued any notification in that behalf or the State Legislature has amended the provisions contained in section 75 so as to permit the Magistrate to take cognisance of an offence under section 72 on the basis of a police report under section 173 (2) Cr.PC., where the offences has been investigated by an officer not below the rank of the Dy. S.R in terms of Sub-section (15) of Section 72 of the Act. Therefore in view of the factual as well as legal matrix of this case there is no escapes from the conclusion that the learned Magistrate could not have taken cognisance of the offence under section 72 of the Act and summoned the present petitioners as accused thereunder on the basis of the police report submitted under section 173(2) Cr.P.C. by the SHO, Police Station Sanganer, Jaipur after completion of the investigation of the offence by a police officer not below the rank of a Dy.S.P Even if it be assumed that the Dy.S.P was attached to the Special Police Station which was created the Dy.S.P was attached to the Special Police Station which was created for the purposes of dealing with the criminal cases arising under the Act and the Dy.S.P was a police officer duly authorised by the Authority under section 82 or some other provision of the Act to investigate an offence under section 72 (though neither any argument was advanced in that behalf nor any material on the record of the lower court was referred to for raising such an assumption or supposition). Then the Dy.S.P was required, in view of the clear mandate of section 75, to place the result of the investigation carried on by him before the Authority and the Authority itself or through a person expressly authorised by it in that behalf could have filed a complaint in writing of the facts constituting an offence under section 72 of the Act. In any case the Police could have filed no report under section 173 (2) in the present matter and the learned Magistrate had no jurisdiction to entertain such a police report and take cognisance of offence under section 72 of the Act in exercise of his powers under section 190 (1 )(b) Cr.PC. The Act in its section 75 clearly and specifically restricted his powers under section 190 Cr.RC. and he could have taken cognisance of an offence under the Act only under section 190"l)(a) Cr.PC. on a complaint in writing made by the JDA or by a person express authorised in this behalf by the JDA. The cognisance taken by the learned Magistrate on the basis of the police report under section 173 Cr.PC. being inherently bad in law, all orders made and proceedings taken subsequent to the order of taking cognisance in this case are invalid and ineffective and deserve to be set- aside as such. 17. It was urged on behalf of the Respondents that the land in question stood settled with the Rajasthan Housing Board and therefore the Resident Engineer of the said Board was justified in lodging the FIR in the case and the police was competent to investigate the cognisable offence and submit their report in accordance with the provisions contained in Chapter XII of the Code of Criminal Procedure 1973. This argument is misconceived. 18. As pointed out above, S. 45 empowers the State Govt, to acquire land in order to enable the Authority to perform any of its functions or to discharge any of its duties or to exercise any of its powers, or to carry out any of its projects or schemes or development programmes and to make the land acquired available to the JDA for the purpose of performing its functions, discharging its duties and exercising its powers (Sec. 46). The land so acquired and placed at the disposal of the JDA is to vest in it for the purpose of use of the same for the purposes of the Act. Development of such vested land by any other person or Authority without the permission of the JDA is prohibited by Section 17 of the Act. However, other authorities may contribute to the overall development of the Jaipur Region on direction from the JDA (Secs. 18, 19, 20). But such empowered contribution to the overall development of the Jaipur Region by other authorities including the Rajasthan Housing Board does not further empower such ether authorities to assume such other powers like prosecutions, composition of offences, filing suits or defending suits spoken of in Chapter XI of the Act. For the subjects dealt with in Chapter XI of the Act authorities other than the AUTFIORITY (JDA) or persons, officers authorised by it have no power. Such other authorities cannot file complaints under section 75 for prosecution of the offenders. In the cases of obstructions in their work, the other authorities shall have to approach the JDA for the prosecution of the offenders for offences under the Act. The argument advanced thus has no force and is accordingly rejected. 19. It was next urged by the learned counsel for the Respondent that the offences under the Act are continuing offences and therefor even if the present proceedings are terminated on the basis of the legal point canvassed by the petitioners a fresh complaint may still be filed against them and that would simply result in avoidable duplecacy of proceedings, therefore the present proceedings may be allowed to continue. This argument too does not appeal to me. 20. It is trite law that where a statute mandates an act to be done in a particular way, such act should be done in that way. S. 75 empowers the Authority (JDA) to make complaints against the offender under the Act and further empowers to authorise any other person expressly in that behalf. In view of such clear provision in the Act there remains, to my mind, no more necessity of reading more in that provision. The JDA could have authorised the Raj. HOUSING BOARD or the In charge of a Police Station to file a COMPLAINT under section 75 of the Act against the petitions. But that was not done. In view of such clear provision in the Act there remains, to my mind, no more necessity of reading more in that provision. The JDA could have authorised the Raj. HOUSING BOARD or the In charge of a Police Station to file a COMPLAINT under section 75 of the Act against the petitions. But that was not done. When conferment of the authority to file a complaint in writing is to be made by the JDA in express words this court would not be, I thin, justified in inferring the conferment of an implied authority by the JDA in favour of the Housing Board or the In-charge Police Station Sanganer. Adoption of such an approach by this Court is likely to disturb the very scheme of the Act and would lay down a wrong precedent. 21. in so far as the question of the offences under the Act being continuing offences is concerned there is, I think, no necessity of entering into a detailed discussion on that point in view of the conclusions arrived at by me above. In the cases of Niyazuddin and Ors v. State of Rajasthan & Ors. (S.B.Cr.Misc. Petition Nos. 974/90, 792/90, 798/92, 794/92, 796/92 decided on 3.9.97) and JDA v. Banwari Lal RLR 1993 (1) 351 two learned Single Judges of this court have taken the view that the offences punishable under sections 31(1), (2), (7), 32(2), 33(2) and 72 are continuing offences since I do not intend to enter into any debate or that point I would confine myself to simply referring, to the following exposition of law on the subject made by the Apex Court in the case of Bal Krishna Sawai Ram Pujari v. Shree Dhyaneshwar Maharaj Sansthan (A.I.R. 1959 SC 796) - "It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury, which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing injury. If the wrongful act causes an injury, which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing injury. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury." (Emphasis supplied) 22. Elaborating the same principle in the case of the Commissioner of Wealth Tax, Amritsar v. Suresh Seth ( 1981 (2) SCC 790 ) their Lordships of the Apex Court observed that: "A liability in law ordinarily arises-out of an act of commission or an act of omission. Ordinarily a wrongful act or failure to perform an act required by law to be done becomes a completed act of commission or of commission, as the case may be, as soon as the wrongful act is committed in the former case and when the time prescribed by law to perform an act expires in the later case and the liability arising therefrom gets fastened as soon as the act of commission or commission is completed. The extent of that liability is ordinarily measured according to the law in force at the time of such completion. In the case of act amounting to crimes the punishment to be imposed cannot be enhanced at all under the Constitution by any subsequent legislation by reason of Article 20(1) of the Constitution. In other cases, however even though the liability may be enhanced it can only be done by a subsequent law (of course subject to Constitution) which either by express word or by necessary implication provides for such enhancement. The distinctive nature of a continuing wrong is that the law that is violated makes the wrongdoer continuously for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion, is however, not a continuing wrong or default. The court should not be eager to hold that an fact or commission is a continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the Legislature. The court should not be eager to hold that an fact or commission is a continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the Legislature. Where the wrong complained of is the omission to perform a positive duty requiring a person to do a certain act the test to determine whether such wrong is a continuing one is whether the duty in question is one which require him to continue to do that act." (Emphasis supplied) 23. In view of the law laid down on the subject by their Lordships of the Apex Court there may be scope for the argument that in the presence of the conferment of power upon the JDA to demolish and remove unauthorised constructions on private and public properties, after following the procedure prescribed by law in that behalf, irrespective of the fact whether the offender is or is not prosecuted, to file suits and enter into compromise in such suits, to prosecute the offenders and to compound the offences, to authorise its officers and police officers to keep a vigilant eye on authorised and unauthorised constructions an private and public lands and check prevent unauthorised encroachment, possessions, obstructions, constructions on public lands, to punish its own officers for negligent discharge of duties by them and prosecute them for wilfully or knowingly neglecting or deliberately omitting to stop or prevent encroachments and obstructions, the Legislature might have not intended to make certain offences under the Act, particularly those of completed unauthorised constructions on private properties which when the act of unauthorised construction on such properties was continuing, may be an offence but after the expiry of the period of limitation prescribed for launching prosecution or removing unauthorised constructions, ceased to be offence or resulted in acquisition of rights by the owners of the private property, as continuing offences. The Legislature, to my mind, never intended that huge buildings, palatial mansions, commercial complexes be allowed by the JDA to be constructed and built on public lands public roads and public pathways by wilful and intentional acts of neglects or deliberate acts of omissions to stop or prevent encroachments, obstructions, constructions at the relevant time by its own officers and unauthorised constructions or acts of developments by owners of private properties be either not at all allowed or permitted or be demolished either in the middle of the construction activity or thereafter and in the former cases either no action, civil or criminal in nature, be at all taken or the removal, demolition of unauthorised construction be so buried under the cover of so-called prosecutions under Chapter XI of the Act that time perfects the title of the wrongdoers and bars and mars civil remedy. Prosecution for a wrong, which is civil as well as criminal in nature and give rise to both types of actions for redressal, is not a substitute to the other remedies under the Act or under other relevant law. Mere launching prosecutions in Courts affords no excuse for not exercising powers or. do not dis empower the Authority of its powers, under sub-section (6)(b) of Section 32 or sub-section (3) of Section 72 or other similar provisions. The real mischief of unauthorised encroachments and obstruction on public lands may be curbed by the J.D.A. at its own level by exercising powers of removal of encroachments and obstruction and the forum of Criminal Courts should not be utilised for bestowing concession and protection upon the erring officials for their collective inertia and wilful and knowing neglects of their duties and to pay premiums to the wrong doers for the breach of laws by them. The sword of those powers must cut both ways, in main in cases of unauthorised encroachments, obstructions, constructions on public roads, pathways, parks, pavements, lands etc. if really Jaipur Region is intended to be properly and orderly developed in accordance with the intention of the State Legislature as exhibited through the enactment of the Act. Any way, since the petition is bound to succeed on the legal point, as discussed above, I would not like to examine as to which offence in general or the offence under Section 72 in particular is required to be considered as a continuing offence. 24. Any way, since the petition is bound to succeed on the legal point, as discussed above, I would not like to examine as to which offence in general or the offence under Section 72 in particular is required to be considered as a continuing offence. 24. It had also been urged by the petitioners that the allegations made in the police report were quite vague in as much the averments made in the F.I.R. did not point out as to on which land the petitioners had made encroachment or they had entered into unauthorised possession and, therefore, the police report be dismissed. It was also submitted that due to the above reason the charge framed against the petitioner were baseless and groundless. 25. On examination of the record of the lower Court I feel satisfied that there was prima-facie good evidence on the record before the learned Magistrate to have framed the charge for the offence under Section 72 of the Act against the petitioners had the J.D.A. made a complaint as per Section 75 in this case. The facts found by the Dy.S.P on investigation of the case clarifies the position which is also shown in the site map prepared by him. There is prima-facie evidence on record that the land in question had been acquired by the State Government and possession of the same had been taken from the owners there of and delivered to the J.D.A. but the petitioners' father and after his death the present petitioners had re-entered the land. Whether no actual possession was ever taken from them, as was urged on their behalf, was a question to be decided at the trial and not at this initial stage of the proceedings. 26. The view which I have taken on the maintainability of prosecutions under the Act requires the learned Magistrate to examine the cases pending before him for hearing/decision. In case he finds that prosecutions under the Act are founded on police reports, submitted before him without the express authority of the J.D.A., and the accused are being prosecuted on such reports he shall proceed to dispose off such cases in terms of this order. 27. In case he finds that prosecutions under the Act are founded on police reports, submitted before him without the express authority of the J.D.A., and the accused are being prosecuted on such reports he shall proceed to dispose off such cases in terms of this order. 27. In view of the fact that cases pending since 1980 and onward before the learned Magistrate have repeatedly come up before this court at the instance of either of the parties, the learned Magistrate is further directed to examine the position of the cases pending in his court and to sort out the cases involving offences under section 31 or 32 or 33 of the Act. He shall prepare a list of all such cases year wise and send a copy thereof to this court. He shall simultaneously send a copy of such list to the Commissioner and Secretary, JDA, and the Secretary, Urban Housing Development, Govt of Rajasthan, Jaipur with the request to apprise him whether in those cases steps for demolition of unauthorised development/construction, according & requisite sanction or permission approving the unauthorised construction or development and regularising the development made had or had not been ever taken. This is to be done by the learned Magistrate within 15 days of the receipt of this order under intimation to the Registry at Jaipur. The Authorities/functionaries, named above, shall cause the desired information furnished to the Learned Magistrate by 15.2.1998, the latest. The Magistrate shall ensure that the requisition is promptly made from his office and delivered in the offices of the officers named above by 23.1.98 positively. The Authorities/functionaries, named above, shall cause the desired information furnished to the Learned Magistrate by 15.2.1998, the latest. The Magistrate shall ensure that the requisition is promptly made from his office and delivered in the offices of the officers named above by 23.1.98 positively. This court requests the said officers/authorities to cause the required and desired information furnished to the Magistrate latest by 15.2.98 and extend their assistance and co-operation in the effort of this organ of the State to dispose of old cases as expeditiously as possible and relieve the parties concerned of avoidable consumption of precious time and money over such matters which can be and, possibly, could have been settled by the JDA Authority itself at its own level either by causing removal/destruction of unauthorised developments of or construction on private properties or by regularising such developments/ construction according to relevant rules thus necessitating no prosecutions at all or by compounding the offences if prosecution had been launched in such cases of involvement of private properties On receipt of the required information from the aforementioned authorities the learned Magistrate shall pass appropriate orders in relevant case taking into consideration the steps taken by the JDA for removal/destruction of the unauthorised developments/constructions in or over private properties. In case the requisite information is not furnished to him by the concerned authorities within the period mentioned above the learned Magistrate shall report the non- compliance by them to this court and proceed to dispose of the cases on their merits according to law. The request to be made by him to the above mentioned authorities shall be no excuse for not proceeding with the disposal of the cases, particularly the old cases. In making effort to dispose of the old cases expeditiously the learned Magistrate shall see that old cases be not unnecessarily or unjustifiably adjourned to enable the prosecution to produce their evidence which is to come from their own possession. The learned Magistrate shall not issue summons in a routine way to such .witnesses as are in the employment of the JDA-Prosecutor itself and upon whom it has full and complete control, unless an application in writing specifically mentioning the specific reasons of its inability to produce its own employees is made by the in charge of the prosecution and the learned Magistrate feels satisfied of the truth in the submissions made. In case he issues the summons to the witnesses such summons shall be delivered for service to the officer in charge of the prosecution appointed by the JDA in his court and the JDA-Prosecutor, which is empowered under Section 82 of the Act to authorise a police officer to do such acts as go to achieve the object of the Act, shall be responsible for producing the witnesses/accused before the Magistrate on the date fixed in a case. In case assistance to him in this behalf by the officers of the JDA is seen wanting the Magistrate may consider of not issuing same process again, close prosecution evidence and decide the case before him on merits according to law. It is expected that the authorities concerned shall take due note of the anxiety of this court to see that criminal cases, particularly those pending for the last several years only for procuring either the attendance of the accused or of the prosecution witnesses be disposed of expeditiously. This court requests them to get all such cases examined at their level which may be terminated by entering into composition with the other party by according the requisite permission or regularising the contravention of any provisions of the Act or any rule, regulation or order made thereunder. 28. The directions given hereinabove shall also apply to the position of the pendency of the cases involving offence under Section 72 of the Act with this further direction that in all such cases the authorities concerned, as named above, shall further inform the Magistrate of the names of such employees of the JDA who had been, at the relevant time, specifically entrusted with the duty to stop or prevent the encroachment or obstruction punishable under section 72 and had wilfully or knowingly neglected or deliberately omitted to stop such encroachment or obstruction. The authorities shall further report to the Magistrate whether the JDA ever exercised its power under section 72(3) in such cases or any of such cases and if so, with what result. Such information may held the trial court to decide a case justly taking into account the relevant conduct of the parties to a case before him, as also this court, in case of a matter coming before it, to examine the constitutional validity and legality of the Proviso the sub-section (14) of Section 72, if need be. 29. Such information may held the trial court to decide a case justly taking into account the relevant conduct of the parties to a case before him, as also this court, in case of a matter coming before it, to examine the constitutional validity and legality of the Proviso the sub-section (14) of Section 72, if need be. 29. The reports directed to be called for from the authorities concerned shall be placed on each and every pending case and shall form part of the record of such cases. The requisite number of copies of the two reports shall be furnished by the officer in charge of the prosecution case to the Maistrate. The present incumbents of the three offices, as mentioned above are requested to see that this direction is taken quite seriously and in right earnest and non-compliance or disobedience there of is avoided. 30. Apart from reporting the disposal of old cases to his superior officers as per rules, the Magistrate shall report such disposal to the Registry at Jaipur on 31.3.98. He may be held responsible and accountable for having not disposed of the old cases upto 1995 by that date. Prayer for extension of time may be considered by this Court in suitable cases only. 31. In the result it is held that since the prosecution of the petitioners is founded on invalid initiation of the proceeding in this case the continuation of such proceedings amount to abuse of the process of the court of the learned Magistrate. Therefore, it is a fit case for exercise of the powers under Section 482 Cr.PC. The impugned order is therefore set-aside, the criminal proceedings pending in the court of the learned Magistrate against the petitioners quashed and dropped and the petition allowed. Consequently both the petitioners are discharged of the offence under section 72 of the Act and therein bail-bonds are hereby cancelled. It is, however, made clear that this order shall not debar either of the parties from their rights to other remedies, if any, available to them under the Act or under the relevant provisions of any other law. 32. A copy of this order shall forthwith be sent/forwarded to the Commissioner, JDA, the Secretary, JDA and the Secretary Urban Housing Development, Govt, of Rajasthan, Jaipur for information and compliance of the directions contained therein.Petition allowed. *******