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2009 DIGILAW 675 (CAL)

Susanta Kumar Bose v. STATE OF WEST BENGAL

2009-08-27

SYAMAL KANTI CHAKRABARTI

body2009
JUDGMENT Syamal Kanti Chakrabarti, J: The present revisional application under Section 482 Cr.P.C. has been filed praying for issuing a rule for quashing impugned proceedings in Amherst Street P.S. Case No. 123 dated 23.05.2005 corresponding to G.R. Case No. 665 of 2005 pending before the Court of Learned 4th Metropolitan Magistrate, Kolkata wherein cognizance has been taken under Section 11C of the West Bengal Fire Services Act, 1950 without compliance of proviso to Section 11C read with Section 35 of the West Bengal Fire Services Act, 1950. 2. Learned Lawyer for the petitioner contended that on or about 23.05.2005 a fire broke out in the morning in the ground floor near the stair case of premises no. 10, Old Post Office Street, Kolkata – 700 001 due to the negligent act and non-maintenance of electric wearing by the tenants and occupants of the said premises but before any damage caused in respect of lives and properties, the fire was brought under control by the fire brigade. Thereafter the Sub-Inspector, Amherst Street Police Station lodged an F.I.R. against some unknown accused persons and subsequently on 26.05.2005 the caretaker of the premises was arrested in connection with the said case. Subsequently, the petitioner filed an application under Section 438 Cr.P.C. before the Learned Chief Judge, City Civil and Sessions Court, Calcutta which was allowed. His contention is that neither the petitioner nor the company is in occupation or possession of any portion of the said premises as lessee. Though the petitioner had not committed any offence, the opposite party no. 2 has submitted charge sheet / final report on 27.12.2005 alleging, inter alia, that prima facie charge under Section 11C of the West Bengal Fire Services Act, 1950 had been established against the petitioner and another person and the Learned Court below has taken cognizance under Section 11C of the West Bengal Fire Services Act, 1950 which is bad in law for breach of mandatory provisions of Section 11C of the said Act which runs on as follows: “11C. Owner or occupier of high-risk building to provide fire prevention and fire safety measures. Owner or occupier of high-risk building to provide fire prevention and fire safety measures. – (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 I 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.” 3. Thus, it is quite clear that due notice is to be served on the owner or occupier of a high risk building to provide fire prevention and fire safety measures as specified in such notice under Section 35 of the Act. 4. Learned Lawyer for the State in his usual art of fairness has submitted that in the instant case no such notice was issued to the petitioner. Service of such notice before initiation of the proceeding prescribed in the statute is mandatory and such failure is obviously a gross irregularity which vitiates the entire proceeding ab initio. 5. Learned Lawyer for the petitioner has drawn my attention to a case reported in (2009)1 C Cr LR (Cal) 424, in which this Court quashed similar proceeding for non-compliance of proviso to Section 11C of the Act. I also subscribe to the same view and hold that the same principle will be applicable in the instant case. 6. 5. Learned Lawyer for the petitioner has drawn my attention to a case reported in (2009)1 C Cr LR (Cal) 424, in which this Court quashed similar proceeding for non-compliance of proviso to Section 11C of the Act. I also subscribe to the same view and hold that the same principle will be applicable in the instant case. 6. Accordingly, it is held that since no notice was served upon the petitioner in respect of the above premises specifying the measures to be taken, question of non-compliance of the same leading to institution of instant criminal proceedings is an abuse of this process of law and the instant proceeding is bad for noncompliance of proviso to Section 11C(1) of the West Bengal Fire Services Act, 1950 and the same should be quashed to prevent abuse of the process of the Court. 7. Accordingly impugned criminal proceeding is quashed. The petitioner be released from his bail bond. 8. The Case Diary be returned. 9. The revisional application is thus disposed of. 10. Criminal Section is directed to forward a copy of the order to the Learned Court below. 11. Criminal Section is further directed to supply urgent Photostat copy of the order to the petitioners as and when applied for.