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2007 DIGILAW 407 (CAL)

Sudesh Poddar v. STATE OF WEST BENGAL

2007-06-07

P.V.SINHA

body2007
Judgment :- (1.) This revisional application under section 401 read with section 482 of the Cr.P.C is aimed at quashing the criminal proceeding being Misc. File No. 121/ 06 now pending before the learned Municipal-cum-Metropolitan Magistrate, 3rd Court, Calcutta and is also directed against the order dated 5.3.2007 passed by the said learned Magistrate rejecting the prayer of the petitioner for dropping the proceeding against him in view of the provisions of section 620 of the Kolkata Municipal Corporation Act (hereinafter called the K.M.C. Act). (2.) Mr. Debabrata Roy, the learned Advocate for the petitioner submitted that in this matter the Misc. File No. 121/06 now pending before the learned Magistrate arose out of Hare Street P.S. Case No. 159 dated 15.3.04 under section 401A of the K.M.C. Act. In view of the provisions of section 620 of the said Act proceeding of trial of any offence punishable by or under the said Act can not be continued with except on the complaint of or upon information received from the Municipal Commissioner or any person authorised by him by general or special order in this behalf. In this matter the police submitted the final report which is submission of complaint by the police and, in view of the provisions of section 620 of the K.M.C. Act the learned Magistrate cannot proceed with the trial on the basis of complaint submitted by police. (3.) Mr. Roy further contended that the alleged complaint appearing at page 22 of the revisional application is in fact not a complaint by Municipal Commissioner. Inside of it, the designation of the Chief Minister was used to give weight to the complaint. In fact, it was not a complaint by the Municipal Commissioner. The complaint or the final report, in order to prose cute a person under any section of the K.M.C. Act must be submitted by the Municipal Commissioner and police has no jurisdiction to submit final repori. In fact, it was not a complaint by the Municipal Commissioner. The complaint or the final report, in order to prose cute a person under any section of the K.M.C. Act must be submitted by the Municipal Commissioner and police has no jurisdiction to submit final repori. Section 401A of the K.M.C. Act prescribes that if any person by himself c r on behalf of any other person constructs or attempts to construct any new building or additional floor or floors in contravention of the provisions of the Act or rules made thereunder as endangers or is likely to endanger human life or any property of the Corporation whereupon the water supply, drainage or sewerage or road traffic is disrupted or is likely to be disrupted shall be punishable with imprisonment of either description which may extend to five years and also with fine. In view of Explanation the word person includes the owner, occupier, lessee, mortgagee, promoter, finances or agent or servant of owaer, occupier, lessee, mortgagee etc. The offence under sub-section (1) shall be cognizable and non-bailable. According to Mr. Roy in the alleged complaint there was no element of requirements of Section 401A of the K.M.C. Act. Mr. Roy submitted that in this matter the provisions like Electricity Act, 2003 are applicable and under section 151 of the Electricity Act no Court can take cognizance over any offence under Electricity Act on the basis of any report submitted by police. The same principle is applicable in the K.M.C. Act and no Court can proceed with the trial on the basis of final report submitted by the police. Continuation of the criminal proceeding is accordingly illegal and it should be quashed. In support of his contention Mr. Roy cited the decision in 2006(1) C Cr LR (Cal) 334 (Ranjit Kumar Bag vs. State of West Bengal). (4.) Mr. Tirthankar Ghosh, the learned Advocate appearing for the State submitted that section 401A of the KMC Act starts with the non-obstante words "notwithstanding anything contained in this Act". The section 401A was introduced after amendment in the K.M.C. Act in 1993. Section 401A(2) is important as it lays down that the offence under sub-section (1) shall be cognizable and non-bailable, within, the meaning of the Code of Criminal Procedure, 1973. The section 401A was introduced after amendment in the K.M.C. Act in 1993. Section 401A(2) is important as it lays down that the offence under sub-section (1) shall be cognizable and non-bailable, within, the meaning of the Code of Criminal Procedure, 1973. It is thus clear that the alleged offence under section 401A of the K.M.C. Act is a cognizable offence and in every cognizable offence police has the jurisdiction to cause enquiry or investigation. (5.) Mr. Ghosh also referred to sections 589 and 619A of the K.M.C. Act and submitted that section 589 of the KMC Act was itself in the mother Act. Section 589 of the K.M.C. Act prescribes the power of police to arrest offenders. Section 619A of the K.M.C. Act lays down that certain offences are to be cognizable and in view of sub-section (1) of section 619A of the K.M.C. Act the provisions of the Code of Criminal Procedure, 1973 shall apply to offence under section 401 or section 402 along with other sections. In sub-section (3) of section 619A it has been laid down that except as otherwise provided in sub-section (1) no Court shall take cognizance of any offence punishable under this Act save on its own knowledge of the offence or police report of the facts which constitute the offence. Accordingly, the learned Magistrate can take cognizance on the basis of police report. The intention of the legislature is very clear in this matter and the legislature in its wisdom included that a Metropolitan Magistrate may take cognizance of offence on its own knowledge of the offence or on the basis of police report. (6.) Mr. Ghosh further submitted that the language of the section 620 is very clear as it starts with the words "Save as otherwise provided in this Act no Court shall proceed to the trial of any offence" and in the Act itself it has been prescribed that a Metropolitan Magistrate may take cognizance on the basis of police report. The language of section 151 of the Electricity Act is completely different from the languages mentioned or incorporated in the different sections of the K.M.C. Act. Mr. Ghosh further submitted that the K.M.C. Act has overriding effect on other laws. The language of section 151 of the Electricity Act is completely different from the languages mentioned or incorporated in the different sections of the K.M.C. Act. Mr. Ghosh further submitted that the K.M.C. Act has overriding effect on other laws. Accordingly, the Metropolitan Magistrate has every authority to proceed with the trial on the basis of the police report and initially the Hare Street P.S. Case was started on the basis of complaint made by Deputy Chief Engineer/Building, South-North. The revisional application accordingly having no merit requires dismissal. In support of his contention Mr. Ghosh placed reliance on Lt. Col. Prithi Pal Singh Bedi vs. Union of India, reported in 1982 SCC (Cri) 642 and Narcotics Control Bureau vs. Kishan Lal, reported in 1991 SCC (Cri) 265. (7.) I have duly considered the submissions made by the learned Advocates; for the respective parties and I have also perused the relevant sections of the K.M.C. Act. It is evident that complaint under section 401A of the K.M.C. Act was made by Deputy Chief Engineer/Building of South-North section Kolkata Municipal Corporation. On the basis of such complaint Hare Street P.S. Case No. 159 dated 15.3.04 was started and after necessary enquiry or investigation the police submitted the report in final form. According to Mr. Debabrata Roy, the learned Advocate for the petitioner, continuation of the criminal proceeding is bad in law in view of the provisions of section 620 of the K.M.C. Act. After going through the relevant provisions of sections, 401A, 40lA(2), 589. 619, 619A and 620 of the K.M.C. Act, I am unable to agree with the views of Mr. Debabrata Roy. On the contrary, I find that the views of Mr. Ghosh, the learned Advocate for the State are appropriate and acceptable. Section 401A prescribes how a proceeding can be initiated against any person for alleged contravention of any provisions of the Act or rules relating to construction of any building or additional floor or floors. Section 401A(2) prescribes that offence under sub-section (1) of section 401A shall be cognizable and non-bailable within the meaning of the Cr.P.C. Section 589 of the K.M.C. Act prescribes the power of police to arrest offenders. Section 401A(2) prescribes that offence under sub-section (1) of section 401A shall be cognizable and non-bailable within the meaning of the Cr.P.C. Section 589 of the K.M.C. Act prescribes the power of police to arrest offenders. This section prescribes that any police officer may arrest any person who commits in his view any offence under this Act or the rules or regulations provided, that the name and address of such person are known to him and such person declines to give on demand his name and address. Section 619 of the KMC Act prescribes that offence under section 400, section 401, section 402 and some other sections shall be cognizable and provisions of the Cr. PC, 1973 applies to such sections. Section 619A (2) and (3) prescribes that a Court of Metropolitan Magistrate or Judicial Magistrate of the first class shall try offence punishable under this Act and no Court shall take cognizance of any offence punishable under this Act or abatement of any such offence save on its own knowledge of the offence or police report of the facts constituting the offence. Section 620 starts with the words "Save as otherwise provided in this Act," and it clearly shows that in this Act there are provisions for initiation oi proceeding and taking of cognizance on the basis of police report. Beside s that, the proceeding was initiated on the basis of written complaint made by a person who was empowered under the provisions of the K.M.C. Act to lodge complaint before police. The proceeding was not vitiated. There was no inherent defect or legal bar to continue with the criminal proceeding, that is, no legs 1 hurdle for the trial and trial should be continued with. (8.) In Lt. Col Prithi Pal Singh Bedi vs. Union of India (supra) the Honble Supreme Court observed that, the dominant purpose in construing a statute is to ascertain the intention of the Parliament. It was also indicated that to ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed, the purpose for which it is enacted and the object which it is required to sub-serve and the authority by which the rule the framed. In Narcotics Control Bureau vs. Kishan Lal (supra) he Supreme Court relied on the decision of the Lt.-Col. In Narcotics Control Bureau vs. Kishan Lal (supra) he Supreme Court relied on the decision of the Lt.-Col. Prithi Pal Singh Bedi vs. Union of India (supra) while indicating the purpose and object of a section and the meaning of non-obstantc clause. (9.) Consideration of the above stated sections of the K.M C. make it significantly clear that the amendment was made to prevent unauthorised construction as such constructions were at rampant. That is why, punishment has been prescribed upto a limit of five years and the offence was made cognizable and non-bailable. It is clear that the Legislature had the desire or the intention at the time of enactment; or bringing in the amendment that in such matters of serious offence the police would have the power and jurisdiction to receive complaint and to make enquiry and investigation and also to arrest the offender. Accordingly, continuation of the criminal proceeding on the basis of police report was not bad in law and the learned Magistrate acted within his jurisdiction by placing reliance on the police report. The learned Magistrate very rightly rejected the prayer of the petitioner to drop the impugned criminal proceeding against him. (10.) In view of the discussions made above, this Court does lot find any merit in the revisional application. The order of the learned Municipal-cum-Metropolitan Magistrate, 3rd Court, Calcutta requires no interference and the said order was correct, proper and legal The revisional application accordingly having no merit fails and is dismissed. (11.) The observations made by this Court are only for the purpose of the present revisional application and this Court did not enter into the merit of the main complaint and in the trial the learned Magistrate would arrive at his own decision on the basis of evidence and. materials on record without being influenced in any way by the observations of this Court. (12.) All interim orders passed earlier stand vacated. (13.) Criminal Section is directed to forward a copy of this order to the learned Municipal-cum-Metropolitan Magistrate. 3rd Court, Calcutta for information and necessary action.