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Calcutta High Court · body

2009 DIGILAW 60 (CAL)

Prem Swarup Sharma v. STATE OF WEST BENGAL

2009-02-04

ARUNABHA BASU

body2009
Judgment :- (1) The revisional application under Section 482 of the Code of Criminal Procedure is directed to quash the proceeding in connection with G.R. Case No. 630 of 2003 arising out of Park Street Police Station Case No. 66 dated 13.3.2003, whereby and whereunder the police officer after conducting investigation submitted charge sheet against the petitioners herein for commission of offence punishable under Section 11(J) of the West Bengal Fire Services Act, 1950 (hereinafter called the Act). (2) The aforementioned criminal case was registered on the basis of written information lodged by Divisional Officer, A Division, West Bengal Fire Service whereby it was reported that fire broke out in the office building situated at 62A, Mirza Ghalib Street, Calcutta-700 016 on 13.3.2003. It was intimated that no in-built fire protection system was installed in the aforesaid office building nor any No Objection Certificate from the fire services was obtained. On conclusion of investigation charge sheet was submitted against the petitioners as mentioned above. (3) The case of the petitioners as disclosed in the revisional application appears to be that the petitioners herein are in no way connected with the offence on which charge sheet is submitted by police. It is further stated that no notice in terms of Section 35 of the Act was ever issued and in the absence of such notice a criminal prosecution cannot be initiated against the petitioners. (4) It is further contended that the Company being Dunlop India Limited has been declared sick by the B.I.F.R. vide order dated 22.6.1998. By further order dated. 5.2.2003, the A.A.I.F.R. had directed the Asset Sales Committee to take appropriate steps for disposal of the property. The petitioners herein, even though, they are office bearers of the Company, are not in any way connected so far as the commission of offence is concerned and as such further continuation of the proceeding against the petitioners will be an abuse of the process of the Court. (5) Learned Advocate for the petitioners in course of his submission pointed out that so far as the present case is concerned, both the penal Sections under Section 11(J) of the Act and the alleged violation which is provided under Section 11 (C) of the Act falls under Chapter lllA of the Act. The Chapter IIIA came into force with effect from 1.11.1996. The Chapter IIIA came into force with effect from 1.11.1996. (6) Learned Advocate for the petitioners specifically drew attention of this Court to subsection (1) to Section 11 (C), which is set out below : "11 C. (1) The owner or, where the owner is not traceable, the occupier of a high-risk building or part thereof shall provide fire prevention and fire safety measures in such building or part thereof and the occupier shall maintain the fire prevention and fire safety measures in good repair and in efficient condition at all times in accordance with the provisions of this Chapter or the rules made thereunder: Provided that in the case of such building or part thereof, the construction of which has been completed on any date before the date on which this Chapter comes into force, the occupier and, in the case of such building or part thereof which is under construction on the date immediately before the date on which this Chapter comes into force, the owner shall undertake and carry out such additional fire prevention and fire safety measures as are specified in the notice served on him under section 35." (7) It is clearly provided that a notice in terms of Section 35 of the Act is required to be served to the occupier indicating such additional fire prevention or fire safety measures that is required to be taken by the occupier. The language of proviso to Section 11 (C) of the Act clearly stipulates that additional fire prevention and fire safety measures shall be taken as specified in the notice served on the occupier under Section 35 of the Act. (8) Section 35 of the Act is set out below : "35. The language of proviso to Section 11 (C) of the Act clearly stipulates that additional fire prevention and fire safety measures shall be taken as specified in the notice served on the occupier under Section 35 of the Act. (8) Section 35 of the Act is set out below : "35. Inspection of building or premises.(1) The Director or the superior nominated authority, as the case may be, shall, after completion of the inspection of the building or part thereof or the premises referred to in section 34, record his or its views on the deviations from, or contravention of, the requirements with regard to the fire prevention and fire safety measures or the inadequacy of, or non-compliance with, such measures provided or to be provided therein with reference to the structure of the building or the premises or the nature of activities carried on in such building or part thereof or premises and issue a notice to the owner or occupier of such building or part thereof or premises directing him to Undertake such measures, and within such time, as may be specified in the notice. Where the owner is not available, the occupier shall undertake such measures in the interest of public safety, notwithstanding anything contained in any other law for the time being in force." (9) The language of Section 35 of the Act pre-supposes inspection of the building by the Director or the superior nominated authority and such inspection is conducted in terms of Section 34 of the Act. Section 35 of the Act further stipulates service of notice to the owner or occupier of such building directing him to undertake such measures, and within such time, as may be specified in the notice. (10) Section 11 (J) of the Act prescribes the penalty for contravention of provisions of Chapter IIIA. (11) So far as the present case is concerned, the learned Advocate for the State even after perusal of the Case Diary could not show whether such notice was ever served either upon the owner or upon the occupier by the authority. In the absence of service of such notice, the contention of the prosecution about violation of the provisions of Chapter IIIA would not be maintainable particularly when the Chapter IIIA of the Act came into force consequent to West Bengal Act VII of 1996 with effect from 1.11.1996. In the absence of service of such notice, the contention of the prosecution about violation of the provisions of Chapter IIIA would not be maintainable particularly when the Chapter IIIA of the Act came into force consequent to West Bengal Act VII of 1996 with effect from 1.11.1996. The purpose of service of notice as required under law which is to intimate the owner or the occupier about the legal necessity to comply the direction and unless such notice is served, the question of complying the direction does not arise. I have already pointed out that such additional measures or safety measures are required to be taken which are specified in the notice. When no notice is served specifying such measures to be taken, question of noncompliance of the same leading to institution of criminal prosecution does not arise. (12) In addition to what has been stated above, the materials available in the case diary vis-a-vis the documents produced along with the revisional application clearly indicates that the building in which the fire broke out was more or less non-functional. In terms of the order passed by the Appellate Authority for Industrial and Financial Reconstruction (AAIFR), it is evident that number of properties of the company inclusive of properties at Calcutta was sought to be sold. From the materials available in the Case Diary and also from the various communication effected on behalf of the company inclusive of communication to the police officers clearly indicate that there was no electricity connection in the office building. The place was in charge of private security guards. No office bearers of the company are in occupation of the said company. (13) Learned Advocate for the petitioners in support of his contention has referred to the following decisions : 1. Harishchandra Prasad Mani and Ors. v State of Jharkhand and Anr. reported in (2007)1 C Cr LR (SC) 728. 2. Inder Mohan Goswami and Anr. v State of Uttaranchal and Ors. reported in JT (2007)11 SC 499. 3. S. R. Batra and Anr. v. Taruna Batra (Smt) reported in (2007)2 SCC (Cr) 56 : (2007)2 WBLR (SC) 575. (14) It is the contention of the learned Advocate for the petitioners that in order to fasten criminal liability of a person even in cases under Section 302,I.P.C. as decided by Supreme Court in the case of Harishchandra Prasad Mani and Ors. v. Taruna Batra (Smt) reported in (2007)2 SCC (Cr) 56 : (2007)2 WBLR (SC) 575. (14) It is the contention of the learned Advocate for the petitioners that in order to fasten criminal liability of a person even in cases under Section 302,I.P.C. as decided by Supreme Court in the case of Harishchandra Prasad Mani and Ors. v State of Jharkhand and Anr. (supra), there must be some material even prima face to show the involvement of the persons with the commission of the offence. (15) Save and except that the petitioners herein are attached to the company as Senior Vice President and Company Secretary, their designation by itself does not make them either owner or occupier of the building, which is the place of occurrence in connection with this particular case. (16) On consideration of entire materials, I do not find any evidence collected during investigation to indicate even prima facie as to how the petitioners herein can be stated either the owner of the building or the occupier of the building. (17) In this view of the matter, further continuation of the proceeding shall be an abuse of the process of the Court and as such the aforesaid proceeding, now pending before the learned Metropolitan Magistrate, 9th Court, Calcutta stands quashed. (18) Revisional application is disposed of accordingly. (19) There shall be no order as to costs. (20) Criminal Section is directed to forward a copy of the order to the learned Court below. (21) Criminal Section is further directed to supply urgent Photostat copy of the order to the petitioners as and when applied for. (22) Case Diary be returned.