Municipal Corporation Of Delhi vs Bhajni And Anr.
1988 Latest Caselaw 26 Del

JUDGMENT

Charangit Talwar, J.

(1) This appeal on behalf of the Municipal Corporation of Delhi (for short the Corporation') challenging the acquittal of respondent No. 1 herein for the offence punishable under Section 7 read . with Section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act') was filed on 25th May, 1978 by the counsel in whose favor a power of attorney had been executed by the Law Officer of the Corporation. This was returned to the counsel as certain objections had been raised vide endorsement dated the 27th May, 1978. The appellant was given one week's time to remove the objections and re-file the same. The learned counsel, however, after removing the objections re-filed it on 14th July, 1978.

(2) This appeal was heard Along with a number of other appeals filed. by the Municipal Corporation of Delhi wherein a preliminary objection had been raised on behalf of the respondents that those appeals were barred by limitation as the applications seeking special leave to appeal were filed after the expiry of sixty days computed from the dates of the orders of acquittal. The impugned order of the Addl. Sessions Judge in the present case was passed on February 4, 1978. The application seeking certified copy of it was filed on 8th February, 1978. The certified copy, however, was ready on 18th April, 1978, Thus the filing of application seeking special leave to appeal under Section 378(4) of the Code of Criminal Procedure on 25th May, 1978 was within time as it was filed within sixty days of the impugned order. In all the other cases the applications were filed beyond the period of sixty days.

(3) We may note that the application seeking special leave to appeal in the present case not having been filed within a week as permitted by the endorsement of 27th May, 1978 but filed, as we have noticed above, on 14th July, 1978 without accompanied by an application for seeking condensation of delay, can be held to be barred by limitation.

(4) We may note that in this appeal and in other cases a number of questions were raised regarding the competency of the Corporation to file the application seeking special leave to appeal. The complaint was filed by the State and the Municipal Corporation of Delhi against the respondent herein for the offence which was alleged to have been committed on 2nd September, 1976, i.e., after the amendment of the Act. By then the local authority, i.e., the Corporation had no jurisdiction to file an independent complaint. We have dealt with this aspect in our earlier judgment decided on 7th January, 1988 in Cr. Appeals 2/79,112/79,155/79,196/79,203/79, 168/79,41/80 and 42/80. Shri R.N. Gujral, the Assistant Municipal Prosecutor of the Corporation signed the complaint in question on behalf of the State and the Corporation. The Director of Health Services, Delhi Administration, who had been authorised under Section 20 of the Act as amended dedbyActNo.34of 1976 to institute or to give written consent to Institute and conduct prosecution under the Act, had given consent to the Municipal Prosecutor/Assistant Municipal Prosecutor of the Corporation to institute and conduct prosecution and other legal proceedings. The consent has been proved as Ex. Public Witness . 2/B. We have held in our said judgment that shri R.N. Gujral was acting as an agent of the State and was not a complainant in his personal capacity. The present complaint also is not by a public servant. The allegation against the respondent that he was carrying about t4 litres of Cow's milk for sale, sample of which was found to be adulterated, was held to have been proved by the learned Magistrate. Shri shajni, the respondent No. I filed appeal challenging the said order in the Sessions Court. The appeal was directed against the Municipal Corporation of Delhi and the State. The appeal was allowed. Thereafter the present application seeking special leave to appeal under Section 378(4) of the Code was filed. The title of the case is as follows : "MUNICIPAL Corporation of Delhi Through Shri R.N. Gujral, Assistant Municipal Prosecutor, Town Hall, Chandni Chowk, Delhi ...Petitioner Versus 1. Bhajni, S/o Shri Amar Singh, Resident of Village Harola, P.O. Barola, P.S. Bishrak, Tehsil Sikandarabad, Distt. Bulandshahar, U.P. 2. The State ...Respondents"

(5) The power of attorney in favor of the counsel who had signed the application as well as the grounds of appeal has been executed by Shri O.P. Chhabra, Law Officer of the Corporation and Sbri R.N. Gujral, whose name has been added in the printed power of attorney. At the end of this power of attorney, the officers concerned have signed it "for and on behalf of Municipal Corporation of Delhi". Underneath the name of Mr. Chhabra, it is written, "Law Officer, Municipal Corporation of Delhi". On the right hand side Mr. Gujral has signed and given his designation as "A.M.P.".

(6) A close scrutiny of this power of attorney in favor of Shri Randhir Jain, Advocate shows that this has been executed by the Corporation and not by the State. Therefore, in that power of attorney, the respondents have been shown as 'Bhajni & State'. As noticed above, in the title of the case also, the State has been made a respondent. In our view only State could have filed the application under Section 378(4) of the Code of Criminal Procedure seeking special leave to appeal and not the Corporation. The application is not only barred by time but also appears to be not maintainable. The appeal is thus dismissed.