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2006 DIGILAW 2265 (RAJ)

Jamil Ahemad v. Municipal Board, Kuchaman City

2006-07-19

GOPAL KRISHAN VYAS

body2006
Judgment Gopal Krishan Vyas, J.-In this revision petition, the petitioner has challenged the Judgment dated 31.03.1993 passed by learned Judicial Magistrate, Kuchaman City in Complaint Case No. 48/92 whereby the petitioner has been convicted for offences under Sections 203 and 251, Rajasthan Municipalities Act, 1959 (for short, "the Act" hereinafter) and sentenced to pay fine of Rs. 25/-on each count. Learned Counsel for the petitioner states that the impugned Judgment is challenged by way of instant revision petition because appeal does not lie in view of Section 376 (C) of the Code of Criminal Procedure. 2. The challenge to the validity of the impugned Judgment in this revision petition is grounded on the argument that any prosecution under the Act may be launched by the municipality and under Section 265 of the Act only the Municipal Board concerned is empowered to initiate the proceedings for prosecution for any public nuisance. It is the case that a complaint was filed by the Chairman, Municipal Board, Kuchaman City against the petitioner for allegedly committing offences under Sections 203 and 251 of the Act and bylaw 19 (read with byelaw 3) of the Municipal Board, Kuchaman City Bylaws, 1977. 3. Learned Counsel for the petitioner argued that conviction of the petitioner in the present case is vitiated on the ground that the complaint was incompetent in view of the specific provision of Section 265 of the Act. Adverting to the language of Section 265, he contended that only the Board is empowered to resolve for prosecution of any person and, therefore, the complaint filed against the petitioner by the Chairman of the Municipal Board is in contravention of the provision of law. It is contended by him that vide Exhibit-P/3 the Municipal Board only took decision to remove the stall from the place and no resolution for launching prosecution against the petitioner was passed by the Municipal Board. He further contended that there is no averment in the complaint that any decision was taken by the Municipal Board, Kuchaman City for prosecuting the petitioner in accordance with Section 265 of the Act. He further contended that there is no averment in the complaint that any decision was taken by the Municipal Board, Kuchaman City for prosecuting the petitioner in accordance with Section 265 of the Act. Learned Counsel for the petitioner invited my attention to the Judgment reported in 1994 CrLJ 2344, wherein this Court, while observing that since the matter can be decided only on the point regarding the maintainability of the complaint filed by stranger it is not necessary to consider and decide other points raised by the learned Counsel for the parties, held as follows:- "Section 265 of the Act authorises the Municipal Board to direct any prosecution for any public nuisance and for the punishment of any person offending the provisions of the Act or of any rule or the Bye-laws made thereunder. Thus, according to Section 265 of the Act, the power to prosecute vests in the Municipal Board and not with any of the private individual. It is only the Municipal Board which can file a complaint for the contravention of any of the provisions of the Rajasthan Municipalities Act, Rules or the Bye-laws." 4. In the case on hand, the only resolution of the Municipal Board is Exhibit-P/3 dated 20.07.1984 whereby the Board resolved to have the stall in question removed with police aid. There is no resolution adopted by the Municipal Board, Kuchaman City for launching prosecution against the petitioner. The complaint has been filed by the Chairman, Municipal Board without there being any actual resolution passed by the Municipal Board for launching prosecution against the petitioner for offences punishable under Sections 203 and 251 of the Act in consonance with Section 265 of the Act and, therefore, the complaint itself is not competent. The proceedings of the criminal Court having not been initiated in accordance with law deserves to be quashed being nullity in the eye of law. 5. Consequently, the revision petition is allowed. The criminal proceedings initiated against the petitioner by the Chairman, Municipal Board, Kuchaman City is quashed and, as a result, the impugned Judgment dated 31.03.1993 passed by Judl. Magistrate Ist class, Kuchaman City in Complaint Case No. 48/92 stands set aside.