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Municipal Committee Rampur Vs. Roop Dass - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Appeal No. 62 of 1967
Judge
Reported in4(1968)DLT464
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 247
AppellantMunicipal Committee Rampur
RespondentRoop Dass
Advocates: Kartar Chand and; Chabildas, Advs
Cases ReferredMohd. Yanun v. Zafar Mohamma.
Excerpt:
.....the magistrate had discretion either to adjourn the case or dispense with the attendance of the complaint - also, the magistrate must record the reasons for dismissing the complaint in default and acquitting the accused. - - 63 of 1967 as well. ' it quite clearly shows that the magistrate his a discretion even in the i matter of dispensing with the attendance o{ the complainant, though it goes without saying that the magistrate is also empowered in a fit case lo adjourn the hearing of the case to some toher day. is humbly submitted that in para no 5 the complainant (applicant) himself admitted his carelessness by staling that he was under the impression that the case would be taken up by the court after attending to the executive correspondence, li is, however, nto for the..........crl appeal no. 63 of 1967 as well. (2) facts of cr] appeal 62 of 1967 may alone be stated (3) the municipal committee, rampur, through its secretary presented a complaint in the court of the sub divisional magistrate, rampur under sections 172(1) and 219 of the punjab munieipal act as applied to himachal pradesh. the complanant committee averred in the complaint that the accused roop dass had made the additions and alterations in the structure of his shop and had raised the roof of the same in spit- of the fact that he had been informed on 10th march, 1967 the decision of the committee about the refusal of sanction to effect the additions and alterations in the structure of his shop. the accused had also been served with a ntoice in march, 1967 for stopping the work and was reminded.....
Judgment:

I.D. Dua, J.

(1) These two appeals (Crl. Appeal Nos. 62 and 63 of 1967) raise a common question and indeed arguments have been addressed only in Municipal Commitcfe, Rampur v. Roop Dass, Crl. Appear No. 62 of 1967. Order in this appeal would thus dispose of Crl Appeal No. 63 of 1967 as well.

(2) Facts of Cr] Appeal 62 of 1967 may alone be stated

(3) The Municipal Committee, Rampur, through its Secretary presented a complaint in the Court of the Sub Divisional Magistrate, Rampur under sections 172(1) and 219 of the Punjab Munieipal Act as applied to Himachal Pradesh. The complanant committee averred in the complaint that the accused Roop Dass had made the additions and alterations in the structure of his shop and had raised the roof of the same in spit- of the fact that he had been informed on 10th March, 1967 the decision of the committee about the refusal of sanction to effect the additions and alterations in the structure of his shop. The accused had also been served with a ntoice in March, 1967 for stopping the work and was reminded about the refused sanction. The accused had also, according to this complaint constructed stone steps to his shop from the Municipal lane without the permisson of the Municipal Committee as required under section 172(1) of the aforesaid Act. These two offences were stated to be punishable under section 219 and section 172(1) of the aforesaid Act. On 21st June, 1967, the learned Magistrate fixed 11th July, 1967 as the next date of hearing and summoned the accused for that date. Apparently, this order was made in the absence of the representative or the counsel of the complainant municipal committee because the order directs that the representative of the Municipal Committee should also be informed of this date. On 11th July, 1967, the following order was passed by Shri Surat Singh Thakar, Sub-Divisional Magistrate, Rampur Bushahar :-

'CALLEDNone present. The complaint is, thereforee, dismissed for want of prosecution and accused acquitted.'

Against this order, the present appeal has been presented. Before dealing with the submissions urged on behalf of the parties, we may dispise of a preliminary objection raised by Shri Chhabil Dass, the learned counsel for the accused respondent According to him, this appeal is incompetent because the Municipal Committee was nto the complainant and it is the complainant alone who can prefer the appeal. In support of this submission, we have been referred to a Bench decision of the Punjab High Court (sitting in Circuit at Delhi) in Municipil Corporation of Delhi v. Shri Jagdish Lal Radha Kishan. The bead ntoe of the reported decision is in the following terms : -

'under.476 Delhi Municipal Corporation Act, it is the Commissioner who can institute a complaint before a Magistrate. The Commissioner can of course delegate his functions to any toher person by an order under. 491. Where no such function were delegated to aperson by the Commissioner but the person was authorised by a resolution passed by the Corporation itself under s 20 to institute a complaint, it is that person who is competent to present the appeal against the order of acquittal of the accused. Where the complaint was instituted by such authorised person but upon the acquittal of the accused the Corporation sought special leave under s. 417, Cr.P.G. Held that the Corporation could nto be treated to be the complainant and the appeal was thereforee incompetent.'

Reliance for this view was placed on a Supreme Court decision in Ballabhdas Agarwala v. J. C. Chakravarly. The facts of the reported Punjab case aie, in our view, quite different from those which concern us because, indisputabiy, in the case in band, the Municipal Committee is the complainant, though it was the Secretary who appeared for the Municipal Committee in Court. Corporation, it must b: remembered, alway acts through human agency. Section 228 of the Punjab Municipal Act, which concerns us, is in the following terms :-

'228.Unless toherwise expressly provided, no court shall take cognizance of any offence punishable under this Act or any rule or any bye law there under, except on the complaint of, or upon information received from the committee (or its Executive Officer) or some person authorised by the committee (or by the Executive Officer) in this behalf. Explanationn. -The committee (or its Executive Officer) may authorise any person and shall be deemed to have authorised any person appointed to this end by the State Government, to make complaints or give information, without previous reference to the committee, either generally in regard to all offences against this Act and the rules or the bye laws there under, or particularly in regard only to.specified offences or offences of a specified class. The person authorised may be authorised by office, if he is president, vice-president. Medical Officer of Health or secretary of the committe, or officer in charge of a police station ; in toher cases the authority must be personal. The authority must in all cases be in writing, and may at any time be cancelled by the committee.'

It is quite clear that this section does nto disentitle the Municipal Committee either to file the complaint, as it did in the present case, or to present the appeal or application for special leave to appeal in this Court from an order dismissing its complaint The preliminary objection is thus devoid of merit and is disallowed.

(4) On the merits, the learned counsel for the Municipal Committee has submitted that the impugned order was passed at about 10. 30 A.M. and the case was dismissed under section 247, Criminal Procedure Code because of the absence of the complainant. This order, it is argued, is contrary to the instructions issued by this Court as contained in Chapter I-F, High Court Rules & Orders, Vol. Iii and is also highly unjust. Our attention has in support of the argument been drawn to a Bench decision of this Court in Mohd. Yanun v. Zafar Mohamma.

(5) We are inclined to agree with the contention raised on behalf of the appellant. Section 247 of the Code of Criminal Procedure dealing with the consequences of nonappearance of the complainant, reads as under :-

'247.If the summons has been issued on complaint and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned the complainant does nto appear, the Magistrate shall, ntowithstanding anything hereinbefore contained acquit the accused, unless for some reason he thinks proper to adjourn the healing of the case to some toher day : Provided that where the Magistrate is of opinion that the personal attendance of the complainant is nto necessary, the Magistrate may dispense with his attendance, and proceed with the case.'

It quite clearly shows that the Magistrate his a discretion even in the I matter of dispensing with the attendance o{ the complainant, though it goes without saying that the Magistrate is also empowered in a fit case lo adjourn the hearing of the case to some toher day. The instractions contained in Chapter 1 F, Vol. Iii of the High Court Rules and Orders start with the observation that some Magistrates are inclined to dismiss cases in default hastily and it enjoins on the Magistrate before dismissing a case, by reason of the absence of the complainant, to carefully consider:- (a) whether such an order is legal, and (b) whether it is justified by the circumstances. It is also provided in clear terms that reasons should always be recorded where a case is dismissed in default. It is suggested that ordinarily, if a complainant is absent when his case is first called on, his case should be called on again latter and the time of dismissal should always bs ntoed on the record. In Mohd Yamin's case, the argument that under section 247, Cr P.O., the Magistrate had no option under the law but to acquit the accused, when the complainant did nto appear, on the case being called, was repelled with the following observations : -

'THEproviso seems to us to negative the respondents' contention that the trial Magistrate is enjoined by premptory mandate to acquit the accased if the complainant does nto happen to be present in Court when the case is called. The word 'shall', it may be remembered, does nto always necessarily conntoe a mandatory intent on the part of the law-maker. The purpose for which the provision is made and its nature, considered in its setting, the connected provisions and toher similar matters, the serious general inconvenience or injustice to persons resulting from reading the provision as directory or mandatory, whether the cause of justice is promtoed or retarded as a consequence of construing the provision one way or the toher, have all to be taken into account by the judicial mind for the purpose of construing the word 'shall' which, normally, may of course be considered to suggest an imperative tendency. No general rule running in fixed grooves is either possible or desirable to be prescribed, and indeed each case depends on the objects sought to be achieved by the legislature. Nto being rigid and fixed the comstruction of the word 'shall' in a given statute must be adapted to the fitness of the matter of the statutory provision, Realizing that punishment of crimes by the State Courts of law and justice serve as a check on the tendency by the private aggrieved parties themselves to take revenge by acts of violence and lawlessness for the actual or supposed wrong considered to have been done to then), and in view of the (act, that, in the trials of criminal cases according to our Code, normally there is neither a general provision for a review nor for setting aside dismissal in default, we are disinclined to impate to the Legislature a rigid mandatory intent in enacting section 247 such as is suggested on behalf of the respondents. The fact that the order of acquittal would be final, is also nto unimportant in discovering the legislative intent.'

It was further clarified in that case that the object of section 247 is to ensure that private complainants are nto dialatory in prosecuting the criminal proceedings.

(6) In the case in band, while admitting the appeal, the Mtoion Bench required the learned Magistrate to explain the position with reference to paragraphs Nos 5 and 6 of the application for leave to appeal. In paragraph 5, it was averred that the non appearance of the Secretary of the Committee when the case was called on 11th July, 1917, was nto willful, but was due to the impression that the case would be taken up by the learned Court after after ding to the executive correspondence etc., and usually it did nto start till 11 A.M. each day, and in paragraph 6, it was averred that on 11th July, 1967, the learned Court had toher work on its file which continued till late in the afternoon and as such it was nto just to dispose of the same in the early hours of the day when even the accused was nto present. In his reply, the learned Magistrate has submitted his Explanationn in the following words :-

'THATthe case was taken up for hearing in Its turn in the court during the court hours on 11th July, 1967, and the complainant was given full opportunity by calling him twice to appear in the case. The case was dismissed in default and the accased was acquired, This order was passed after taking the circumstances into consideration particularly the fact that the. case was nto properly filed by the Committee as under section 33 of the Punjab Municipal Act as applied to Himachal Pradesb,guch powers for the prosecution of the defaulters committing offences within the Municipal Committee limits, Rampur, have nto been vested neither in the President nor in the Secretary. No order or resolution of the Municipal Committee, Rampur was attached with the complaint authorising the Secretary to prosecute the defaulters. Further, it: is humbly submitted that in para No 5 the complainant (applicant) himself admitted his carelessness by staling that he was under the impression that the case would be taken up by the court after attending to the Executive correspondence, li is, however, nto for the complainant to have such misconception but should have been .attentive and punctual to appear in the court during the fixed court-hours asand when the court starts functioning and the cases are called on '

This Explanationn is hardly, satisfactory, and indeed it does nto throw any light as to whether or nto the Court had toher work like the executive correspondence etc., on its file which was attended to later in the afternoon and whether or nto it was the practice of the Court nto to start Judicial work till about Ii A.M. on each day. The omission on the part of the learned Magistrate to categorically and frankly state the correct position has nto created a happy impression in this Court. Subordinate Courts are expected to be fair and frank when explaining to this Court the factual position in regard to .their functioning We need hardly point out that Courts exist for the litigants and nto that the litigants exit for the Courts. This aspect has been emphasised in paragraph 2 ofthecannone,of judicial ethics contained in Vol Iv of the High Court Rules & Orders,to which cannone we again draw the attention of all judicial officers i(r) the Union territory of Himachal Pradesh. It is true that the .litigants should be present in Court when their rases are called, but the Courts are also expected to pay due.regard to the reasonable convenience, of the parties and a reasonable. uniformity and certainty in the matter of hearing:of cases on the part of the Courts can legitinnately be expected by the litigants. The effort made by the learned Magistrate to justify his order, of dismissal on grounds' which are nto contained in the order itself, is also difficult to appreciate. It has a tendency to refect more than the objective detached judicial interest a fudicial officer is expected to take in the controversy he is called upon to adjudicate. Judicial orders, we may also point out, have to be self- contained and the reasons nto contained therein cannto be supplied later in support thereof by the Presiding Officers. Their orders have also to be self-contained because they are subject to scrutiny by the appellate and revisional Courts which are nto expected always to call from the lower Courts further or additional reasons in support of the impugned orders, and indeed this Court did nto require the learned Magistrate to supplement the reasons in the impugned order. And then. such a course is scarcely conducive to the healthy growth of our judicial process, for, always to call for further reasons would be suggestive of the Presiding Officers of the lower Courts being a paity to the appellate or revisionalproceedings,whichis a wholly unsupportable position. We need nto say anything more on this aspect on the present occassion. The impugned order is clearly unsupportable and is hereby quashed and set aside.

(7) In Criminal Appeal No. 63 of 1967, the respondent's learned counsel has urged that the Courts are nto to wait for the convenience of the parties. This abstract contention is wholly inapplicable to the facts of the present case. The lower Court seems to us to have been unreasonably hasty in dismissing in default the cases before it and we can only point out that the Courts have to adopt a practical judicial approach in accordance with law, including the instructions issued by the High Court. The Courts, as a general rule, must nto only do justice but they must also take care that justice is seen to be done. This appeal also succeeds and the impugned order is set aside Btoh the cases would now go back to the Court below turn further proceedings in accordance with law and in the light of the observations made above. We are informed that the Presiding Officer of the Court below has since been transferred We hope the new Presiding Officer wo.uld deal with the case with the proper judicial objectivity. Our order is nto to be construed to be an expression of opinion on the merits of the case.

(8) Parties are directed to appear in the Court below on 20th April, 1968 when a short date would be given for further proceedings in accordance with law.


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