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Shriram and anr. Vs. Thakurdas and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1978CriLJ715; 1977MhLJ581
AppellantShriram and anr.
RespondentThakurdas and anr.
Excerpt:
- - deshpande for the accused frankly stated during the course of arguments that these materials have been shifted to the municipal premises for safe custody so as to enable the complainant to get them. that section lays down that nothing is an offence which is done by a person, in good faith believes himself to be bound by law to do it. in the present case the matter is not within the limited scope of belief and good faith inasmuch as accused no......was running a hotel in a tin-shed in municipal house no. 231/8 at amravati. accused no. 1 is the chief officer of the amravati municipal council, while accused no. 2 is the sub-overseer working in the municipal council. the complainant further alleges that accused no. 1 prosecuted the complainant in criminal case no. 519/1972 for constructing the said hotel without municipal permission. the complainant admitted that he was fined in that case. thereafter accused no. 1 issued two notices on feb. 3, 1976 and march 17, 1976, asking the complainant to demolish the building. in the first notice it was stated that the demolition was necessary as the construction was without municipal permission, while in the latter notice it is stated that the construction was an encroachment. the notice was.....
Judgment:
ORDER

Gadgil, J.

1. The applicants in this Criminal Application, (hereinafter referred to as accused Nos. 1 and 2) in Criminal Case No. 12275/1976/V. O. on the file of the Judicial Magistrate First Class, Second Court, Amravati, have filed this application Under Section 397 read with Section 40i as also Under Section 482 of the Cr.PC praying that the proceedings in the above-mentioned criminal case be quashed.

2. Non-applicant No. 1 in this application (hereinafter referred to as the 'complainant'), has filed the criminal case in question against the two accused alleging that offences Under Sections 380, 425 and 441 as also Under Section 109 of the I P. C. have been committed. The allegations in the complaint are that the complainant was running a hotel in a tin-shed in Municipal House No. 231/8 at Amravati. Accused No. 1 is the Chief Officer of the Amravati Municipal Council, while accused No. 2 is the sub-overseer working in the Municipal Council. The complainant further alleges that accused No. 1 prosecuted the complainant in Criminal Case No. 519/1972 for constructing the said hotel without municipal permission. The complainant admitted that he was fined in that case. Thereafter accused No. 1 issued two notices on Feb. 3, 1976 and March 17, 1976, asking the complainant to demolish the building. In the first notice it was stated that the demolition was necessary as the construction was without municipal permission, while in the latter notice it is stated that the construction was an encroachment. The notice was not complied with. Accused No. 1, therefore, ordered the demolition of the structure on April 39, 1976. This order was carried out by the accused No. 2 on May 10, 1976 with the help of labourers. The material of the demolished structure had been removed to the Municipal Council premises. The complainant alleges that he has suffered a loss to the extent of Rs. 8,000/-. After making these averments, he has alleged in para 2 of the complaint as follows:

Thus, accused No. 1 illegally ordered on 30-4-76 the accused No. 2 contravention of the provisions of Municipal Act, to commit theft, mischief and criminal misappropriation and accused No. 2 accordingly committed these offences.

This complaint was placed before the Magistrate, who passed an order on Nov. SO, 1976, that the case be registered Under Sections 109, 425 and 380 of the IPC end that the summons be issued to the accused. Thus, the Magistrate took cogni-2ance on the basis of this complaint and it is this order that is being challenged in the present application.

3. Mr. Ghare for the complainant contended that the impugned order is only an interlocutory order as contemplated by Section 397 (2) of the Cr.PC and, as such, a revision is not tenable. There seems to be much substance in this contention and I do not think that the accused can come in revision against that order.

4. Mr. Deshpande, however, urged that the accused have filed the present application also Under Section 482 Cr.PC praying that the inherent powers of this Court should be exercised for preventing the abuse of the process and also for securing the ends of justice. Mr. Ghare replied that the powers Under Section 482 Cr.PC cannot be invoked when there l.'s a specific provision which prevents a party from filing a revision application against the impugned order. He relied upon the decision of the Delhi High Court in Sant Lai v. Krishan Lai : 1975RLR468 , wherein it is laid down that as no revision is maintainable against the order Under Section 204, Cr.PC an aggrieved party cannot try to circumvent the procedure by applying to the Court Under Section 482, Cr.PC Similar view has been taken by the Andhra Pradesh in Budaraju Seshagiri Rao v. T. V. Sarma . There is, however, the decision of the Allahabad High Court in Sarjoo v. Babadin . The relevant Head note is as follows) (at p. 1565):

Sections 397 and 399 only bar the revisional jurisdiction of the High Court, if that jurisdiction has already been invoked by a party before a Sessions Judge but it does not and cannot bar any other jurisdiction of the High Court which is inherent and not revisional. These are two different jurisdictions and it cannot be said that the inherent jurisdiction is the same as the appellate or the revisional. The use of the words 'no further application' occurring in Section 397 (3) has the effect of restricting the revisional power because the words 'no further application' can have reference only to an application in revision. Similarly, what is barred by Section 399 (3) 'further proceeding by way of revision'' and not an independent proceeding Under Section 482. In short, the power Under Section 482 stands intact and unaffected by Sub-section (3) of Sections 397 and 399.

5. I think that the inherent powers as mentioned in Section 482 of the Cr.PC cannot be controlled by the provisions of Section 397 and thus the view taken by the Allahabad High Court in appears to be more acceptable than the views of the Delhi and Andhra Pradesh High Courts. It will not, therefore, be open for the complainant to urge that the accused have no right to invoke the exercise of the powers under the inherent jurisdiction of this Court.

6. Of course, the accused will have to make out a case that the inherent powers of this Court should be exercised in their favour. The question as to the circumstances in which such powers are usually exercised is considered by the Supreme Court in R. P. Kapur v. State of Punjab : 1960CriLJ1239 . The relevant head note is in following words (at p. 1241 of Cri LJ):.The inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction.' Some of the categories of cases where the inherent jurisdiction to quash proceedings can and should be exercised are:

(i) Where it manifestly appears that there is a legal bar against the institution or continuance of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category.

(ii) Where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in the entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not,

(iii)...

7. Mr. Deshpande for the accused initially wanted to submit that accused No. 1 being a Chief Officer under the new Maharashtra Municipalities Act, is a State Government servant and as such no prosecution against him can be lodged without following the procedure laid down in Section 107 of the Cr.PC It is true that to-day accused No. 1 is a State Government servant but his absorption in that cadre has taken place after the date of the incident in question. In view of this position, Mr. Deshpande did not pursue this submission based on the provisions of Section 197, Cr.PC

8. The main contention of Mr. Deshpande, however, is that the present case would fall under category No. 2 as mentioned in : 1960CriLJ1239 . According to him, the allegations in. the complaint filed by the complainant even if accepted to be true, would not constitute any offence, Shri Ghare for the complainant urged that the question as to whether the accused have committed offences or not will have to be gone into by the Magistrate after recording the evidence and that it would be premature to decide upon that aspect without there being any evidence on record. I do not think that the procedure suggested by Mr. Ghare requires to be adopted particularly when the contention is that the allegations in the complaint even if assumed to be true, do not constitute any offence.

9. I have already given the gist of the allegations made in the complaint. The complainant admits that in Criminal Case No. 51S of 1972 he was prosecuted for constructing hotel shed without the municipal permission and was also fined. Thus, here is a case of the construction either on municipal property or on one's own property but without securing municipal permission in that respect. Section 179 of the Maharashtra Municipalities Act, lays down that no person shall make any encroachment or obstruction as contemplated by that section and that such action is made penal under Sub-section (2). Sub-section (3) provides that the Chief Officer shall have power to remove, without notice, an obstruction an encroachment. Section 189 has made a provision that nobody is entitled to make any construction without securing permission from the Chief Officer. For that purpose he has to make an application in writing giving all the necessary details of the intended construction. Sub-section (8) says that if any person makes a construction without such permission, the Chief Officer can ask that person to demolish the construction by giving a notice. The Chief Officer is also empowered to cause such construction to be demolished if the concerned person does not comply with the notice. It is needless to say that a non-compliance of the municipal notice is made punishable under Sub-section (9), These provisions have to be borne in mind while appreciating the allegations made in the complaint. The complainant has admitted his conviction and sentence, He has also admitted that the Chief Officer has issued notices to him for demolition of the construction and that thereafter the Chief Officer through his subordinate, viz., the sub-overseer (accused No. 2) demolished the construction and has removed the construction material to the municipal premises.

10. The contention of the complainant is that both the accused have committed offences Under Sections 38o and 425 of the IPC For constituting an offence of theft, there must be an intention to take dishonestly some moveable property from the possession of another. Section 24 of the IPC defines the term 'dishonestly' to mean that there must be a wrongful gain to one person or a wrongful loss to another. The complaint has nowhere alleged that the removal of the building material (after demolition work was over) has been done by accused Nos. 1 and 2 with a view to cause any wrongful gain or wrongful loss to the complainant. In fact Mr. Deshpande for the accused frankly stated during the course of arguments that these materials have been shifted to the municipal premises for safe custody so as to enable the complainant to get them. It is thus clear that the complainant has not alleged facts which constitute an important ingredient of dishonest removal. The same is the position if the ingredients of the offence of 'mischief are taken into account. The gravamen of that offence is that there must be an intention to cause or there must be a knowledge that the accused person is likely to cause a wrongful loss or damage to another, on account of any destruction. The word 'wrongful' loss' is denned Under Section 23 of the IPC and according to that definition, loss would be wrongful if it is done by wrongful means, In the present case, the complainant has not even alleged that the accused had the requisite intention or knowledge or causing wrongful loss or damages. On the contrary, the allegations in the complaint themselves show that the accused No. 1 has acted not wrongfully but legally and in accordance with the powers vested in Mm Under Sections 179 and 189 of the Maharashtra Municipalities Act. There is thus no scope for the complainant to urge that the demolition of the building in pursuance of these powers would be a mischief.

11. As far as accused No. 2 is concerned, the complainant has alleged that he has acted as per the orders of the Chief Officer. Sections 179 and 189 empower the Chief Officer to get the encroachment or the construction (without permission) removed. For obvious reasons the Chief Officer is not expected to do all these things personally but he has to direct his subordinate staff members to get the lawful things done. As a matter of fact, the complaint does give an indication that accused No. 2 acted in pursuance of the orders issued by the Chief Officer, accused No. 1, Thus, there is no allegation to suggest that the action of accused No. 2 would constitute any offence Under Sections 380 or 425 of the I.P.C. Shri Deshpande drew my attention to the provisions of Section 76 of the I.P.C. That section lays down that nothing is an offence which is done by a person, in good faith believes himself to be bound by law to do it. In the present case the matter is not within the limited scope of belief and good faith inasmuch as accused No. 2 is bound by the lawful orders of accused No. 1.

12. In view of the above discussion, it Is clear that the complaint has not made out any prima facie case of any offence at the hands of accused Nos. 1 and 2. All the allegations, even if accepted to be true, would not make the action of accused Nos. l and 2 as penal or as an offence. There is much substance in the contention of Mr. Deshpande that the present proceeding is not bona fide and it appears to be mischievous and frivolous particularly when both the accused have acted lawfully in exercise of their powers and duties. The necessary result is that the continuation of such a complaint would tantamount to abuse of process of law and it would be in the fitness oil things to put an end to that abuse.

13. The result is that the application is allowed. The proceedings in Criminal Case No. 12275 of 1976 are quashed and the said criminal case shall stand terminated on account of this quashing.


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