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2000 DIGILAW 439 (DEL)

S. A. S. PAHWA v. STATE OF DELHI

2000-05-22

S.N.KAPUR

body2000
S. N. Kapoor ( 1 class=pno> N> 1 ) IN this case, according to the petitioner, S. A. S. Pahwa, he is the managing partner of Amarpali Hotel/guest House, 2/16, East Patel Nagar, New Delhi. Since one of his sons Amarjit Singh Pahwa contested elections of the MCD from Patel Nagar Constituency and was elected, he had become controversial figure and the local police made an imaginery report for launching prosecution under Section 28/112 of the Delhi Police Act, 1978 (hereinafter called the act for short) against one Ram Charan Singh son of Sh. Purshottam Lal describing him as Night Manager of the Amarpali Hotel/guest House. According to the petitioner, no such person was ever his employee. The prosecution in respect of Amarpali Hotel/guest House was an abuse of the process of law. Ram Charan being an employee of Amarpali Hotel/guest House could not be a person liable to obtain a licence and accordingly, could not be prosecuted. According to the petitioner. Ram Charan had been set up by way of a design to make the petitioner suffer an order of closure on conviction of Ram Charan on the basis of the complaint made by one Jogi Ram. On the report of Jogi Ram, SI, a prosecution has been launched for offence under Section 112 of the Act against Ram Charan. ( 2 ) FEELING aggrieved, the applicant being interested party whose rights are vitally and adversely affected by an order of closure has moved this petition praying for quashing the prosecution based on the report (Kalandra of Jogi Ram ). ( 3 ) I have heard the learned Counsel for the parties and gone through the record. ( 4 ) BEFORE proceeding further it is desirable to reproduce Section 112 of the Act: "112. Penalty for not obtaining licence in respect of place of public entertainment or certificate of registration in respect of eating house, or for not renewing such licence or certificate within prescribed period. (1) Whoever fails to obtain a licence under this Act in respect of a place of public entertainment or a certificate of registration thereunder in respect of any eating house, or to renew the licence or the certificate, as the case may be, within the prescribed period shall, on conviction be punished with fine which may extend to fifty rupees. (1) Whoever fails to obtain a licence under this Act in respect of a place of public entertainment or a certificate of registration thereunder in respect of any eating house, or to renew the licence or the certificate, as the case may be, within the prescribed period shall, on conviction be punished with fine which may extend to fifty rupees. " (2) Any Court trying any such offence shall in addition direct that the person keeping the place of public entertainment, or the eating house, in respect of which the offence has been committed shall close such place, or eating house until he obtains a licence or fresh licence, or a certificate of registration of fresh certificate of registration as the case may be, in respect thereof and thereupon such person shall forthwith comply with such direction. (3) If the person fails to comply with any such direction, he shall, on conviction, be punished with imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees or with both. (4) Without prejudice to any action taken under Sub-section (3), on the failure of such person to comply with the direction of the Court, any police officer authorised by the Commissioner of Police, by an order in writing, may taken or cause to be taken such steps and use or cause to be used such force any may, in the opinion of such officer, be reasonably necessary for securing compliance with the Court s direction. " (Emphasis supplied) ( 5 ) IN order to properly appreciate the question of jurisdiction of learned MM, certain legal points maybe seen, for it was also submitted that the learned MM could not take cognizance without examining the complainant and his witnesses. The offence under Section 112 of the Act, at the first instance being punishable with fine of rupees fifty only, is a non-cognizable offence. Consequently, no investigation could be undertaken by any police officer under Section 55 of the Cr. P. C. without an order of a learned Metropolitan Magistrate. Moreover, the concerned SI not being an officer incharge of the police station could not undertake the investigation. Therefore, Kalandra filed by the SI, could not be a police report under Section 173 of the Cr. P. C. Consequently, it would be treated to be a complaint only. P. C. without an order of a learned Metropolitan Magistrate. Moreover, the concerned SI not being an officer incharge of the police station could not undertake the investigation. Therefore, Kalandra filed by the SI, could not be a police report under Section 173 of the Cr. P. C. Consequently, it would be treated to be a complaint only. ( 6 ) NOW, the question arises : "whether a Kalandra filed by a police official could be treated to be a complaint filed by a public servant ?" In this regard, it is notable that a Sub Inspector of Police is a public servant within the meaning of Section 21 of the Indian Penal Code. Besides, a duty has been cast under Section 59 of the Act on every police officer to ensure compliance with the provisions of this Act or any rule, regulation or order made thereunder. In this connection, he is also authorised to arrest any person who contravenes certain specified provisions under Sub-section (2) of Section 59 of the Act. Consequently, it may not be possible to say that he is not a public servant and he had not filed Kalandra in discharge of his official duties. The moment it is accepted that the Kalandra was filed in discharge of his official duties, then the complaint in the shape of Kalandra is required to be treated under the first proviso to Section 200, Cr. P. C. This will lead to an obvious conclusion that when a Kalandra/complaint for offence under Section 112 of the Act is made in writing by a public servant, namely, a police official acting or purporting to act in the discharge of his official duties, the Magistrate need not examine the complainant and the witnesses, though such examination of witnesses is essential otherwise for taking cognizance of an offence. One need not say that the cognizance could be taken under Section 190 (l) (a) of the Cr. P. C. on the basis of a complaint. As such, it is not possible to accept the proposition that the Magistrate committed any error in taking cognizance of the matter. ( 7 ) NOW, the next point which requires consideration relates to interpretation of Section 112 of the Act. P. C. on the basis of a complaint. As such, it is not possible to accept the proposition that the Magistrate committed any error in taking cognizance of the matter. ( 7 ) NOW, the next point which requires consideration relates to interpretation of Section 112 of the Act. One need not say that the provisions of Section 112 of the Act being penal provisions are required to be interpreted strictly and if two interpretations are possible, then an interpretation which is in favour of the subject has to prevail. ( 8 ) IN relation to offence under Section 112, it is contended that a servant or agent is not supposed to obtain a licence in ordinary course, and it does not appear plausible to say that a servant or an agent would fall within the term "whoever" notwithstanding the fact that that the term "whoever" is much wider than the terms "owner" or "proprietor". The term "whoever" in Sub-section (1) of Section 112 has to be read in proper perspective. This Court would not assume that the legislature could be indulging in legislative absurdity by asking a servant or agent to obtain licence for his master or the employer or principal, for servant or agent shall always fail in obtaining a licence for lack of authority to do so from his employer or principal and fulfilling other requirements for grant of licence. Moreover, if Section 111 is read in this context with Section 112 as well as with the provisions of Section 17 of the Prevention of Food Adulteration Act alongwith similar other provisions coupled with absence of any provision excepting Section 111 in Delhi Police Act, make it evident that even a servant or agent in charge and responsible for doing business in a place of public entertainment, could not be prosecuted for offence under Section 112 of the Act ordinarily. ( 9 ) IN this connection, for the purpose of properly appreciating the term "fails" and "failure" which is a sine qua non of Sub-section (1) of Section 112 of the Act, one may refer to the Black s Law Dictionary and to two judgments in Balharshah Timber Depot v. Commissioner of Commercial Tax and Another, AIR 1958 Calcutta 246; and Pannalal Nandlal Bhandari v. Commissioner of Income-tax, AIR 1956 Bombay 557, referred to by the learned Senior Counsel Mr. K. K. Sud. K. K. Sud. ( 10 ) THE Black s Law Dictionary, 6th Edn. defines the term "fail" as "fault, negligence or refusal. . . ; to become or be found deficient or wanting; to keep or seize from an appointed, proper, expected or required action". The term "failure" in terms of Black s Law Dictionary means "failure of duty or obligation. . . Deficiency, want or lack; ineffectualness; inefficiency as measured by some legal standard. . . ". ( 11 ) ACCORDING to the Pannalal Nandlal Bhandari v. Commissioner of Income-tax (supra); "failure must connote that there is an obligation which has not been carried out and if there was no obligation upon the assessee to make a return then it would not be a failure on his part to carry out that obligation. The expression omission does not connote any obligation as the expression failure does. omission is a colourless word which merely refers to the not doing of something. . . " ( 12 ) ACCORDING to Balharshah Timber Depot v. Commissioner of Commercial Tax (supra) : "a person can be said to be failed to get himself registered when he does not take any steps whatsoever to obtain a registration certificate; but when he has applied for registration and has not thereafter done anything to prevent or obstruct registration but the Authorities concerned where unable for some reason or the other, to complete registration before a certain time, the dealer concerned cannot be said to have failed to get himself registered within the meaning of Section 112 (2) of the Act. " ( 13 ) A servant or agent is not supposed to apply for licence in own name for running a place of public entertainment, belonging to his employer or principal. The business in a place of public entertainment does not belong to him but to his employer or principal. He has not authority to apply for licence. Nor, he can fulfil the requirements of a licence for lack of control over such business. He shall always fail to apply and to comply the terms of licence. Law cannot expect any person to perform an impossible act. It is not possible to accept that the term "whoever" would include servant or agent. Nor, there could be any obligation on him to apply for licence for running a place of public entertainment. He shall always fail to apply and to comply the terms of licence. Law cannot expect any person to perform an impossible act. It is not possible to accept that the term "whoever" would include servant or agent. Nor, there could be any obligation on him to apply for licence for running a place of public entertainment. In absence of obligation to apply for licence, he could not "fail". This takes servant or agent out of the scope of Section 112. ( 14 ) THERE is no doubt that Section 112 (2) incorporates a phrase "any Court trying", which may lead to an erroneous conclusion that this order could be passed at any stage during trial, but that will amount to ignoring another phrase in Sub-section (2) "in addition to". If the word "in addition to" is read in context of Sub-section (1), then this direction to close could mean only one thing that such a direction could be given only after conviction. Besides, a close perusal of Sub-section (3) and (4) makes it abundantly clear that the police action is not contemplated even after conviction under Sub-section (1 ). Otherwise, in Sub-section (4), legislature in place of phrase "without prejudice to any action under Sub-section (3)" would have used the phrase "without prejudice to any action under Sub-sections (1), (2) and (3)". This indicates an intention that police action could be taken only after first conviction and non-compliance of the direction leading to conviction under Sub-section (3) of Section 112 of the Act. ( 15 ) THESE provisions cannot be equated with provisions under Section 125, Cr. P. C. as was submitted by learned Counsel for the State. The purpose of Section 125, Cr. P. C. is to protect a person who is on the verge of starvation and there is apparent moral obligation on the part of the spouse or other relation to maintain that person who is likely to turn into a vagrant. In other words, purpose of Section 125 is to minimise vagrancy. But here in this case no such purpose could be assumed excepting some real or imaginary inconvenience. Here, by not allowing a person to engage in a gainful employment would lead to vagrancy and that too without being heard. Therefore, it does not appear possible to accept the plea that interim order could be passed even before conviction. But here in this case no such purpose could be assumed excepting some real or imaginary inconvenience. Here, by not allowing a person to engage in a gainful employment would lead to vagrancy and that too without being heard. Therefore, it does not appear possible to accept the plea that interim order could be passed even before conviction. ( 16 ) AS direction for closure of the place of public entertainment of the petitioner is bound to follow in view of mandatory nature of provisions under Section 112 (2), on conviction of Ram Charan, if proposition that servant could be prosecuted, is accepted, the petitioner being apprehensive of such order is challenging the prosecution of Ram Charan. In this regard, it may be mentioned that Ram Charan could not be prosecuted and no order could be passed to close the establishment belonging to a third person, namely, the owner or proprietor or a licence holder of a place of public entertainment. The manager or servant, who is not supposed to be a holder of a licence and who could not obtain licence and consequently, could not produce the same, could not represent the owner or proprietor of a place of public entertainment insofar as the closure of the establishment is concerned. In case of direction of closure of an establishment, the most adversely affected party would be the person who is supposed to have a licence, i. e. , owner or proprietor of the establishment, for the manager or the agent may be interested in their pay packet or commission only. "would it not amount to negation of the principles of natural justice if any order of closure is passed without hearing the owner or proprietor of the establishment ?" If so, in absence of a proprietor or owner passing such an order would be violative of the principles of natural justice. ( 17 ) FOR the aforesaid reasons, the proceedings lodged by the State with respect to Amarpali Hotel /guest House in the Court of Mr. R. K. Yadav, the then MM, Delhi in the case of State v. Ram Charan under Section 28/112 of the Act are hereby quashed. The proceedings against Ram Charan Singh being beyond the scope of Section 112 of the Act are illegal. Accordingly, the proceedings relating to prosecution of Ram Charan Singh are hereby quashed. Petition stands disposed of accordingly. Petition disposed of.