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2007 DIGILAW 2531 (MAD)

R. Chandramohan v. Chenrayan & Another

2007-08-10

R.REGUPATHI

body2007
Judgment :- The petitioner is the second accused in S.T.C.No.13680 of 2003 on the file of the learned Judicial Magistrate No. 2, Salem. A private complaint has been filed against him and the first accused/second respondent herein by the complainant/first respondent, before the learned Magistrate for the offence punishable under Sections 401 to 410 of Salem City Municipal Corporation Act No.29 of 1994, which deals with unlawful burial. As per Section 404(4) of the said Act, the act done by the first accused/second respondent is a clear violation of the said Act and hence, he is liable to be punished under the penal provision of Section 441 of the said Act. 2. The case of the complainant is that the first accused/second respondent alleged to have buried the dead body of his daughter on 24.03.2003 in his house situated in Plot Nos.3, 4 and 5, Survey No.90/7, Mottur Road, Jagir Reddipatti, Salem. The complainant is a neighbour and he has objected for the burial of the dead body. It is further alleged that the burial is in violation of the Salem City Municipal Corporation Act. It is the further case of the complainant that the petitioner, being the Sanitary Inspector, in collusion and conspiracy with the second respondent, though a complaint has been given to him, failed to take any action and on his failure of duty, the petitioner is also equally responsible and liable for prosecution and punishment. 3. The learned Magistrate, on receipt of the complaint dated 11. 2003, recorded the sworn statement of the complainant and issued process to the petitioner and other accused. 4. Questioning the legality of the proceedings initiated against the petitioner, the present petition to quash the said proceedings has been filed before this Court. 5. The learned counsel for the petitioner submits that Coimbatore City Municipal Corporation Act 1981 is applicable to Salem Municipal Corporation and there is no separate Act for Salem Municipal Corporation. The said Act provides Sections 401 to 410 under the Chapter "Disposal of the dead". Under Section 404(4) of the said Act, no person shall bury, burn or otherwise dispose of any corpse except in a place, which has been registered, licensed or provided as aforesaid. The said Act provides Sections 401 to 410 under the Chapter "Disposal of the dead". Under Section 404(4) of the said Act, no person shall bury, burn or otherwise dispose of any corpse except in a place, which has been registered, licensed or provided as aforesaid. For violation of this Section, the Penal Provision for punishing the accused is Under Section 441 of the said Act, wherein it has been stated that whoever contravenes any of the provisions of any Sections or Rules of this Act specified in the first and second columns of Schedule V, continues to contravene the said provision or to neglect to comply with the said direction or requisition, as the case may be, shall, on conviction, be punished, for each day after the previous date of conviction during which he continues so to offend with fine specified in the fourth column of the said Schedule. Accordingly, the petitioner is liable for a fine of Rs.200/- every day. However, Section 484 of the said Act deals with Period of Limitation for making complaints, which reads as follows:- "Save as otherwise expressly provided in this Act, no court shall take cognizance of any offence against any of the provision of this Act, or of any rule, by-law, regulation or order made under it, unless complaint is made within six months from the commission of the offence, by the police or the commissioner or by a person authorised in this behalf by the council or the standing committee or the commissioner: It is contended that the complainant in the instant case is not a competent person. The competent persons are mentioned in the section, viz., the complaint must be given (a) by a police; (b) by the Commissioner of the Municipality, (c) by a person authorised in this behalf by the Council or (d) the Standing committee and further, it is submitted that such complaint must be given within six months from the commission of the offence. The occurrence alleged to have taken place on 24.03.2003 and the private complaint has been lodged before the learned Magistrate on 11. 2003, which is beyond six months period. On both the grounds, it is contended that the complaint pending before the learned Magistrate against the petitioner is liable to be quashed.” 6. The occurrence alleged to have taken place on 24.03.2003 and the private complaint has been lodged before the learned Magistrate on 11. 2003, which is beyond six months period. On both the grounds, it is contended that the complaint pending before the learned Magistrate against the petitioner is liable to be quashed.” 6. Per contra, learned counsel for the complainant/first respondent submits that he was under the misapprehension that it is the petitioner, in his capacity as a Sanitary Inspector, is responsible for taking action against the second accused and with that view, has repeatedly approached the petitioner. In spite of issuance of Advocates notice, the petitioner has not taken any action and that is the reason why the present complaint has been filed before the learned Magistrate. 7. I have perused the materials available on record. The complainant is aware of the provisions and as per the Act, invoking Sections 401 to 410 of the Salem City Municipal Corporation Act, the complainant prayed for action against the petitioner and the co-accused. Under such circumstances, the complainant must be aware of the limitation as prescribed under Section 484 of the said Act. Section 484 is mandatory in nature and unless such conditions are complied with, the learned Magistrate cannot take cognizance at all of the offence alleged. Under such circumstances, the very cognizance taken by the learned Magistrate appears to be illegal and the proceedings initiated against the petitioner is erroneous and I am of the considered view that the complaint pending before the learned Magistrate against the petitioner is liable to be quashed and it is, accordingly, quashed. The criminal original petition is allowed. Consequently, connected Crl.M.Ps. are closed.