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Ghaman Lal Vs. the State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous Appeal No. 185 of 1981
Judge
Reported in22(1982)DLT321
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 482
AppellantGhaman Lal
RespondentThe State and ors.
Advocates: S.C. Aggarwal and; S.T. Singh, Advs
Cases Referred(see Raj Kapoor & Others v. State.
Excerpt:
.....- police wanted to extract illegal gratification from petitioner for conniving at his squatting public place - offence of petty nature involving no moral turpitude - petitioner suffered hardship - prosecution against petitioner quashed. - - the said section incorporates the common law principle of the well-known pleas of autrefoiz acquit and autrefois convict namely, that no one shall be punished or put in peril twice for the same offence. on the other hand, he was convicted in some such like cases and was sentenced to fine. the petitioner is a poor pedlar who vends soft drinks etc. apparently, he failed in that. (delhi admin) & others, 1980crilj202 ). (10) to sum up, thereforee, i am of the considered view that the interest of justice will be better served if the prosecution of..........municipal corporation of delhi (for short the m.g.d.) he is now facing trial in five cases under delhi police act as detailed below (i)d.d. no. isa dated 9-3-1981. u/s. 83, 97, delhi police act, p.s. mehrauli. (ii) d.d. no. 57-a dated 23-3.1981. u/s. 83, 93 and 97 delhi police act, p. s. mehrauli. (iii) d.d. no. 8-a dated 13-3-1981 u/s. 83, 93 and 97 delhi police act, p.s. mehrauli. (iv) d.d. no. 11-a dated 1-4-1981. u/s. 83 and 97 delhi police act, p.s. mehrauli. (v) d.d no. 1-8-a dated 20-3-1981. u/s. 83, 92, 93 and 97 delhi police act, p.s. mehrauli.(2) the s. h. o, p.s. mehrauli, filed five separate kalandrus (complaints) against the petitioner in the court of a metropolitan magistrate and the petitioner has been summoned to stand trial. the substance of the accusation in all the.....
Judgment:

J.D. Jain, J.

(1) The petitioner is a permanent resident of Mahrauli. He has been earning his livelihood as a vendor of cold drinks etc. during summer and groundnut etc. in winter. He used to set up his stall on a rehri near the main gate of Qutab Minar at Mahraiili on the space belonging to Municipal Corporation of Delhi (for short the M.G.D.) He is now facing trial in five cases under Delhi Police Act as detailed below

(I)D.D. No. Isa dated 9-3-1981. u/s. 83, 97, Delhi Police Act, P.S. Mehrauli. (ii) D.D. No. 57-A dated 23-3.1981. U/S. 83, 93 and 97 Delhi Police Act, P. S. Mehrauli. (iii) D.D. No. 8-A dated 13-3-1981 U/S. 83, 93 and 97 Delhi Police Act, P.S. Mehrauli. (iv) D.D. No. 11-A dated 1-4-1981. U/S. 83 and 97 Delhi Police Act, P.S. Mehrauli. (v) D.D No. 1-8-A dated 20-3-1981. U/S. 83, 92, 93 and 97 Delhi Police Act, P.S. Mehrauli.

(2) The S. H. O, P.S. Mehrauli, filed five separate Kalandrus (complaints) against the petitioner in the Court of a Metropolitan Magistrate and the petitioner has been summoned to stand trial. The substance of the accusation in all the five cases is essentially the same, viz., that the petitioner had set up his stall for selling cold drinks etc. and kept his wooden crates etc. on the thorough-fare in front of the main gate of Qutab Minar and that he was eliciting custom by shouting loudly which caused an obstruction to the passers-by and members of the public. He was advised on all the above- mentioned occasions by the police official concerned to desist from doing so but in vain. Thereupon, his vendibles and other goods were seized by the police and he was arrested under Sections 83, 93 and 97 of the Delhi Police Act. In a couple of cases there is further allegation against him that he was quarrelling with another vendor of cold drinks by the name of Suresh and both of them were not only shouting loudly but they were also exchanging filthy abuses during the course of altercation which was resented by the passers by and the women-folk who happened to pass by were incansed. They were advised to desist from misbehaving but in vain.

(3) The contention of the petitioner is that he had been selling soft drinks and groundnuts etc. for the last 20 years at the same site and he had been requesting the M.C.D. for grant of a license for parking his rehri at the aforesaid place. Consequently, the Chairman, Zonal Area Committee, New Delhi South Zone, M.G.D., granted permission on 12th January, 1978, temporarily till some permanent arrangement was made and he was allotted a permanent site for a stall. The Chairman of the Zonal Area Committee in a letter dated 12thJanuary, 1978, even directed the employees of the Mcd not to disturb him. It seems to have had a salutary effect, in that the employees of the Mcd did not object to the petitioner's carrying on his trade at that place. It is the further case of the petitioner that the S.H.O., P.S. Mehrauli respondent No. 3 herein had demanded illegal gratification from the petitioner at the rate of Rs. 15.00 per day for parking his rehri at the said place. He did so through his subordinates but the petitioner refused to pay illegal gratification to the S.H.O./police officials and, thereforee, the police had been involving him in similar cases from time to time. He has specifically adverted to five cases of 1979 in which he was sought to be prosecuted under Section 83, read with Section 97, Delhi Police Act but he was discharged in all those cases by the Metropolitan Magistrate with the observation, 'no case is made out'. Thus, an allegation of malafides has been leveled against the police officials concerned and it is pointed out that the other vendors of cold drinks etc. had also been parking their rehris near the rehri of the petitioner and he has placed a couple of photographs to substantiate this allegation.

(4) The respondents have filed an affidavit of Shri Bhim Singh, S.H.O. Police Station Mehrauli, refuting these allegations. He has asserted that the petitioner has been illegally occupying the land belonging to the Archeologi- cal Department and has been running his trade without any legal and valid authority or license. It is pointed out that Shri Narinder Kumar Pandey, Chairman, Zonal Area Committee, had no power or authority whatsoever to grant such a permission as the Qutab Minar Area fell within the area of Archeological Department and the M. C. D. had no right or jurisdiction to issue any kind of license in respect of the user of land or building belonging to an other department. Further, it is contended that the petitioner wag never allotted any place by the Mcd or New Delhi Municipal Committee and his conduct in running the aforesaid trade in the public thorough-fare being in violation of the aforesaid provisions of the Delhi Police Act, the police was duty bound to prosecute him for violation of the same, it being punishable under Section 97 of the Delhi Police Act. They have sited certain cases of 1979 in which the petitioner was found guilty of the aforesaid offences and was sentenced to fine.

(5) Since there was a serious controversy with regard to the ownership of the place where the petitioner used to set up his stall, M.L. Jain, J., directed the Chief Metropolitan Magistrate to make an inquiry and report as to whether the place where the petitioner used to park his rehri was a road or a public place. The report submitted by the Chief Metropolitan Magistrate reveals that the petitioner used to set up his stall on pavement/footpath/ berm of the road belonging to the M.G.D. Pertinently the Chief Metropolitan Magistrate contacted not only the municipal officials but also the officials concerned of the Archeological Survey of India and the latter conceded unequivocal terms that the said land was not owned by the Archeological Survey of India. The Chief Metropolitan Magistrate has also submitted a site-plan prepared by him which shows that the width of the road barm on the rightside of the road leading to the gate of Qutab Minar is between 12'-8'to 13'-8' and there is a grill-railing at the back. The report further discloses that the stall of the petitioner was set up on a takhatposh and it was 5'-2' away from the gate of the Gar Park and was adjacent to the grill- railing.

(6) In view of this report which is based on the records of the Municipal Corporation and the Archeological Survey of India, there can be little doubt that the petitioner was parking his rehri/takhatposh on the road berm which obviously constituted apart and parcel of the road. Of course, it was quite adjacent to the boundry railing of Qutab Minar. The whole picture becomes quite vivid at a glance upon the couple of photographs which have been placed on record by the petitioner. Section 83 of the Delhi Police Act reads as under :-

'NOperson shall cause obstruction in any street or public place- (a) 3/4, 3/4-------------- (e) -------by exposing anything for sale or setting out anything for sale in or upon any stall booth, board, cask basket or in any other way whatsoever.'

(7) On a bare reading of this Section, it is manifestly clear that causing of obstruction in any street or public place by exposing anything for a sale etc. is the gist of the offence. In Section 2 clause (o) 'public place,' has been defined to mean 'any place to which the public have access, whether as of right or not' and the expression 'street' has been defined in clause (r) thereof as 'including anyway, bridge, way over a cause way viaduct or arch or any road) lane, footway, square, court, alley or passage accessible to the public, whether or not it is a thoroughrare'. Looking at the wide ambit of the definitions of both these terms as given in the Act itself there can be little doubt that the petitioner was setting up his stall for sale of cold drinks etc., in a part of the street. Further by virtue of the said definition it was also a 'public place'. Hence, the allegation of the respondents that he was causing obstruction in the street/public place by setting up his stall cannot be rejected unceremoniously as being ill-founded. In other words, ex-facie there is substance ie the contention of the respondents that parking of rehri/placing of takhatposh by the petitioner constituted contravention of Section 83. In this view of the matter, there is hardly any necessity to refer to the other Section, viz., 93 which too has been invoked by the respondents in a couple of complaints (kalandran). The said Section pertains to misbehavior with intent to provoke a breach of peace.

(8) Faced with this situation, the learned counsel for the petitioner has sought to invoke the doctrine of autrefois acquit as embodied in Section 300, Code of Criminal Procedure. The said Section incorporates the common law principle of the well-known pleas of autrefoiz acquit and autrefois convict namely, that no one shall be punished or put in peril twice for the same offence. Evidently, this principle is not attracted to the facts of the instant case because every fresh infringement of the provisions contained in Section 83 of the Act shall constitute a fresh offence and the offender can be tried and punished for every repetition of the offence separately. That apart the said principle can be invoked only in the event of there being an acquittal/ conviction in the former prosecution. In the instant case, the petitioner was never acquitted but he was simply discharged in some of the cases. On the other hand, he was convicted in some such like cases and was sentenced to fine. So, the decisions in earlier cases either way are of little consequence so far as the present prosecutions pending against him are concerned. Apparently, there is no formidable bar to the same.

(9) The matter, however, does not rest there. Surely, in the view I have taken above, this petition merits dismissal. However, there is always a silver lining in the dark clouds and in the instant case too there arc circumstances which would warrant quashing of the proceedings in the broader interest of justice. The petitioner is a poor pedlar who vends soft drinks etc. to eke out his livelihood by setting up a stall on the roadside obviously because he has no accommodation of his own either rented or otherwise. He has been knocking at the door of the M.C.D. for allotment of some suitable site to enable him to earn his livelihood by setting up a stall there permanently but his feeble voice was not heard for long. He had, thereforee, to face prosecution under Section 83/97 etc of the Delhi Police Act day in and day out. Obviously he was at the mercy of the police/municipal officials and he would avoid harassment at their hands only by greasing their palms or otherwise approaching them to avoid any legal action or prosecution. Apparently, he failed in that. Perhaps he did not have the necessary where- with-all. Of course, he got a complaint made to the Superintendent of Police (South District) through a Member of Parliament vide letter dated 7th April, 1978 Its contention that the police wanted to extract illegal gratification from him for conniving at his squatting in the public place cannot be brushed aside lightly in view of the fact that he has been arrested time and again and produced in handcuffs before the Court even though the offence is of petty nature and the maximum sentence which can be imposed is a fine of Rs. 100.00 . In one of his orders the Metropolitan Magistrate even highlighted this aspect and observed that, 'the accused has been produced in handcuffs for such a trivial alleged offence.' Not only that his articles and goods including the wooden crates etc, and the bottles of soft drinks used to be seized by the police on each occasion he was arrested. This is projected in the complaints themselves. However, the petitioner has braved all hardship. His suffering cannot be under-rate. It would appear that it was on compassionate grounds and human attitude that Shri Narinder Kumar Pandey issued the chit dated 12th January, 1978, in his capacity as Chairman, Zonal Area Committee and permitted the petitioner to carry on his business at the site in question. Evidently, he had no such authority under the provisions of the Municipal Corporation Act. Sections 416 to 423 specifically deal with grant of licenses for carrying on trade etc. and empower the Commissioner to grant/withhold requisite license. Indeed, this plea was raised by the Municipal Corporation itself in the written statement filed in the suit which had been instituted by the petitioner against them for grant of a license being Suit No. 56 p 78. At long last, he has now succeeded in his mission and a permanent tahbazari site has been allotted to him by the M.C.D. vide letter dated 5th January, 1982. Hence, this sordid chapter has come to a close and that is hardly any likelihood of his committing bieach of Section 83 of the Delhi Police Act again. Having regard to the hardships and suffering which the petitioner has undergone all these years and the pecuniary constraints which compelled him to carry on his trade on the roadside against all odds, I consider it to be a fit case where prosecution of the petitioner for the past offences should be quashed. He must after all heave a sigh of relief. So even if Section 300, Code of Criminal Procedure, is not applicable to the facts of the instant case, it appears necessary in the interest of justice to quash the proceedings now pending against him in the exercise of the inherent powers of this Court. Needless to say that in exercising the inherent power the scope is much wider than under revisional powers, in that the High Court can quash a proceeding for the ends of justice or to prevent any abuse of the process of court. In other words while exercising its inherent powers, the Court need not confine itself to the propriety, legality or correctness of the order of the Magistrate and for that matter the materials on which such order was passed. In the words of Krishna Iyer,J. (as his lordship then was) :-

'INour constitutional order, fragrant with social justice, broader, considerations of final relief must govern the judicial process save where legislative interdict plainly forbids that course.'

(see Raj Kapoor & Others v. State. (Delhi Admin) & Others, : 1980CriLJ202 ).

(10) To sum up, thereforee, I am of the considered view that the interest of justice will be better served if the prosecution of the petitioner for the aforesaid offences which are trivial in nature and involve no moral turpitude is quashed rather than prolong his agony and suffering by directing him to face the prosecution. This petition is, thereforee, allowed and the prosecution of the petitioner is quashed in all the five cases mentioned above.


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