Bombay High Court
Kamalakar G. Chaudhary vs The State Of Maharashtra And Ors on 3 October, 2024
2024:BHC-AS:39453
Jyoti 2-APL-419-2012 JUDG.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 419 OF 2012
Shri. Kamlakar G. Chaudhary (Accused)
Aged about 74 years, Occupation:Retired Govt.
Servant, Indian Inhabitant, Residing at
Flat No.5, M/s. Umakant C.H.S.Ltd. (Yashodhan)
Chandavarkar Cross Road,
Ramdas Sutrale Marg, Borivali (West),
Mumbai- 400092 .. Applicant
v/s.
1) State of Maharashtra
(Through the Public Prosecutor,
Criminal Appellate Side, High Court)
2) Mumbai Municipal Corporation
Having its address at, Mahanagar Palika
Road, Mumbai 400001.
3) Mr.R.B.Desai, Legal Assistant of Mumbai
Municipal Corporation, attached to the
39th Metropolitan Magistrate's Court At
Vile Parle (West), Mumbai, having his
Address at c/o. Mumbai Municipal
Corporation, Mumbai-400001. .. Respondents
Mr. Sureshkumar J. Panicker a/w. Ms.Sucheta Panicker and
Ms. Poonam Panicker for the Applicant.
Dr. D.S. Krishnaiyar, APP for the Respondent No.1-State.
Mr. P.P.Chauhan for Respondent Nos. 2 & 3/BMC.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 11th SEPTEMBER, 2024
PRONOUNCED ON : 3rd OCTOBER, 2024.
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Jyoti 2-APL-419-2012 JUDG.doc
JUDGMENT :
-
. Present Application filed under Section 482 of Criminal
Procedure Code seeking for quashing and setting aside of the
proceedings in a complaint case bearing C.C.No.9646/SS/2009
pending before the 39th Court of learned Metropolitan Magistrate at
Vile Parle, Mumbai.
2) Heard Mr.Panicker learned Advocate for the Applicant,
Dr.Krishnaiyar learned APP for Respondent No.1-State and
Mr.Chauhan, learned counsel for Respondent Nos.2 and 3. Perused
the record.
3) Record indicates that the Application was admitted vide
Order dated 27th February 2013.
4) Facts giving rise to this Application are that, Respondent
No.3 filed the said complaint case against the Applicant under Section
200 of the Code of Criminal Procedure, alleging an offence under
Section 475A (1) (b) of the Mumbai Municipal Corporation Act ('the
Act' for short), for contravening the provision of Section 351 of the
Act. The said case has been filed and registered on 31st January 2009.
However, there was a delay in filing the said case. Therefore, on the
same day Respondent No.3 filed a separate Application bearing Misc.
Application No.01/2009, seeking to condone the delay. On the same
Jyoti 2-APL-419-2012 JUDG.doc
date, the learned Magistrate passed an Order of 'Issue Notice' on the
Application seeking to condone the delay and 'Order to Issue Process'
below Exhibit-1 in the complaint, for the alleged offence.
4.1) The Applicant resisted the Application seeking to condone
the delay by his reply (Exh.C) dated 26th June 2009. After hearing
the parties, the learned Metropolitan Magistrate allowed the delay
condonation Application by an Order dated 24 th July 2009.
According to the Applicant, there was no case to condone such delay,
however, the Application was allowed. Hence, this Application.
5) Mr. Panicker, the learned counsel for Applicant submitted
that, even though several grounds have been raised to challenge the
proceedings in the complaint, he mainly relies on the ground that
looking at the statutory restrictions stated in Section 514 of the Act,
the learned Magistrate cannot condone the delay, therefore, the Order
dated 24th July, 2009 thereby condoning the delay as well as the
'Order to Issue Process', both are illegal. As such, the entire
proceedings in the subject complaint is liable to be quashed and set
aside. To accept this submission, the learned counsel relied on a
decision in Municipal Corporation of Greater Bombay Vs.
Pankaj Arora and Others1.
1 2011 SCC OnLine Bom 2017
Jyoti 2-APL-419-2012 JUDG.doc
6) Dr. Krishnaiyar, the learned APP for Respondent No.1 and
Mr. Chauhan, learned counsel for Respondent Nos.2 and 3 submitted
that there was no huge delay. Said delay was properly explained and it
has been condoned after giving the Applicant an opportunity of filing
his reply and hearing. No advantage has been gained by Respondent
No.3 on account of the said delay, therefore, its condonation has not
caused any prejudice to the Applicant. Lastly, it is submitted that,
condonation of such delay is possible under Section 473 of Cr.P.C.,
even if it may not be possible under Section 514 of the Act. As such,
no fault can be found with the proceeding in the complaint. According
to the learned APP the Petition is devoid of merit and liable to be
dismissed. The learned APP has cited a decision in State of
Maharashtra Vs. Omprakash s/o. Parasramji Kabara 2.
7) Looking at the rival submissions said Section 514 of the
Act needs a consideration here. The said Section reads as under:-
"514. Limitation of time within which complaints of
offences punishable under this Act shall be
entertained.- No person shall be liable to punishment for
any offence made punishable by this Act, unless complaint
of such offence is made before a Presidency Magistrate
within the time hereinafter prescribed in that behalf,
namely:--
(a) if the offence be against the provisions of section 155,
2 2024(4) Mh.L.J.428
Jyoti 2-APL-419-2012 JUDG.doc
within six months next after the commission of such offence;
(b) if the offence be against the provisions of sections 223,
229A, 240, 258, 272 (1), 272 (5), 274 (1), 274 (1A), 281, 284,
287 (B) (1), 287 (B) (2) or 390, or any bye-laws framed
under section 461(b), within three months next after the
commission or discovery of such offence;
(c) if the offence be against any other provision of this Act,
within three months next after the commission of such
offence]".
8) The learned Magistrate persuaded to condone the delay
for the reasons that, the notice under Section 351 of the Act was
served to the Applicant on 2nd August, 2008 thereby the Applicant
was called upon to show cause within Seven days from the receipt of
said notice, as to why the alleged unauthorised change of user as
mentioned in the notice should not be removed and further the
Applicant was called upon to produce the relevant documentary
evidence to show that said change of user is not an unauthorised one
etc. The Applicant submitted his reply dated 11 th August 2008, to the
said notice. After considering the relevant case papers, the Assistant
Commissioner concerned held that the said change of user mentioned
in the notice under Section 351 of the M.M.C. Act, was unauthoirsed
and accordingly, he passed the reasoned/final Order on 7th October
2008. Said Order was served to the Applicant on the same day.
Jyoti 2-APL-419-2012 JUDG.doc
Hence, the learned Magistrate noted that, on 23 rd October, 2008 the
Applicant found to have failed to comply with the requisition lawfully
made upon him in the final Order and as such, since then the cause of
action to prosecute the Applicant had arisen. According to the learned
Magistrate, the complaint should have been presented within Three
months of the commission of the alleged offence i.e., from 23rd
October 2008, as provided in Section 514 (c), but the complaint could
not be filed inadvertently and ultimately, it was filed on 31st January,
2009. Thus, there was a delay of only 8 days. That, contravention of
any of the provisions of the Act is an offence against the Society.
Hence, the delay may be condoned in the interest of justice.
9) On plain reading of Section 514, it is clear that it does not
provide for condonation of delay in filing the complaint for the
alleged offence and certain other offence stated therein. In this
context it is advantageous to refer the decision in Pankaj Arora &
Ors (supra), wherein after considering the provisions of Section 514
of the Act, this Court held that, there is no provision for condonation
of delay in filing the complaint under the Act. It is further held that,
Section 514 has nothing to do with taking of cognizance by the
Magistrate or otherwise. If the compliant is filed before the concerned
Magistrate within the period prescribed by Section 514, the
Jyoti 2-APL-419-2012 JUDG.doc
Magistrate may take cognizance. The powers of the Magistrate for
taking cognizance are governed by the provisions of Cr.P.C. As such,
the provisions of Sections 468 and 473 of Cr.P.C. have nothing to do
with the provisions of Section 514 of MMC Act. If the complaint is not
made before the concerned Magistrate within the time prescribed by
Section 514, the same is required to be returned to the complainant.
That apart, Section 4 (1) of Cr.P.C. provides that, all offences under
the I.P.C. shall be investigated, inquired into, tried, and otherwise
dealt with according to the provisions hereinafter contained. Sub-
section (2) of Section 4 provides that, all offences under any other law
shall be investigated, inquired into, tried, and otherwise dealt with
according to the same provisions, but subject to any enactment for
the time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing with such
offences. Thus, in view of the provisions of said Section 514 and the
decision in the case of Pankaj Arora & Ors (supra), it was not
open for the learned Metropolitan Magistrate to condone the delay
invoking Section 473 of Cr.P.C. The facts and circumstances in the
case of Omprakash Kabara (Supra) are materially distinct because
said Section 514 was not at all under consideration in that reported
decision. The 'Order to Issue Process' has been passed without
Jyoti 2-APL-419-2012 JUDG.doc
recording any just reason. As a result, the entire proceedings in the
subject complaint case is liable to be quashed and set aside. Petition
succeeds, accordingly. Hence, following Order is passed.
ORDER :
i) The Petition is allowed in aforesaid terms.
ii) Rule is made absolute.
(SHYAM C. CHANDAK, J.)
JYOTI
RAJESH
MANE
