Janak Raj vs State Nct Of Delhi & Ors.
2012 Latest Caselaw 4598 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CRL.M.C. 312/2012 & CRL.M.A. 1125/2012

      JANAK RAJ                              ..... Petitioner
                             Through         Mr. Ganesh Kumar, Advocate
                    versus

      STATE NCT OF DELHI & ORS.              ..... Respondents
                    Through                  Ms. Jasbir Kaur, APP for State
                                             SI Gyan Prakash, PS Connaught
                                             Place.

%                                      Date of Decision : 3rd August, 2012

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN

                             JUDGMENT

MANMOHAN, J : (ORAL)

1. Present petition has been filed under Section 482 Cr. P.C.

seeking quashing of DD No. 57B dated 7 th January, 2011 under

Section 28/112 of Delhi Police Act, 1978 (for short 'Act').

2. The relevant facts of the present case are that the petitioner

whose prosecution is sought to be initiated under Sections 28/112 of

the Act was working only as a manager of Indian Coffee House,

Mohan Singh Palace Branch, Connaught Place, New Delhi. It is

pertinent to mention that Indian Coffee House, Mohan Singh Palace

Branch, Connaught Place is run under the aegis of Indian Coffee

Workers Cooperative Society having its Head Office at 38, Banglow

Road, Delhi-07.

3. The allegation against the petitioner is that on 7 th January, 2011

he failed to produce a licence for running an eating house and

accordingly, a Kalandara under Sections 28 and 112 of the Act was

lodged against him.

4. Learned counsel for the petitioner states that the police officials

have registered the aforesaid case against the petitioner despite

knowing that the petitioner was working only in the capacity of a

manager and it was well established law that ordinarily a servant or

agent or in-charge of a place of the public entertainment could not be

prosecuted under Section 112 of the Act.

5. This Court in S.A.S Pahwa Vs. State, 2000(3) CC Cases HC

323 has held as under:-

"8. In relation to offence under Section 112, it is contended that a servant or agent is not supposed to obtain a licence in ordinary course, and it does not appear plausible to say that a servant or an agent would fall within the term "whoever" notwithstanding the fact that the term "whoever" is much wider than the terms "owner" or "proprietor". The term "whoever" in Sub-section

(1) of Section 112 has to be read in proper perspective. This Court would not assume that the legislature could be indulging in legislative absurdity by asking a servant or agent to obtain licence for his master or the employer or principal, for servant or agent shall always in obtaining a licence for lack of authority to do so from his employer or principal and fulfilling other requirements for grant of licence......"

6. In Avnish Sharma Vs. State, Crl.M.C. 1034/2005 decided on

24th January, 2008 another learned Single Judge of this Court has

held as under:-

" 4. The principal contention of the Petitioner is that the prosecution under Sections 28/112 of the DP Act can be maintained only against the owner/license holder in respect of the premises in question and not an employee of such owner. Reliance has been placed in the judgment of this Court in S.A.S. Pahwa v. State 88 (2000) DLT 194 where under the similar circumstances the proceedings were quashed.

xxxx xxxx xxxx xxxx

6. This Court in S.A.S. Pahwa held as under: (DLT, Pg.198). In relation to offence under Section 112, it is contended that a servant or agent is not supposed to obtain a licence in ordinary course, and it does not appear plausible to say that a servant or an agent would fall within the term whoever notwithstanding the fact that the term whoever is much wider than the terms owner or proprietor. The term whoever in Sub-section (1) of Section 112 has to be read in proper prospective. This Court would not assume that the legislature could be indulging in legislative absurdity by asking a servant or agent to obtain licence for his master or the employer or principal, for servant or agent shall always fail in obtaining a licence for lack of authority to do so from his employer or principal and fulfilling other requirements for grant of licence. Moreover, if Section 111 is read in this context with Section 112 as well as with the provisions of Section

17 of the Prevention of Food Adulteration Act along with similar other provisions coupled with absence of any provision excepting Section 111 in Delhi Police Act, make it evident that even a servant or agent in charge and responsible for doing business in a place of public entertainment, could not be prosecuted for offence under Section 112 of the Act ordinarily."

7. Having heard the parties and having perused the paper book it

transpires that the petitioner was only a manager and he was neither

owner nor proprietor of the premises in question. Consequently,

keeping in view the aforesaid law, DD No. 57B dated 7th November,

2011 under Sections 28 and 112 of the Act as well as any other

proceedings arising therefrom against the petitioner are quashed.

8. Accordingly, the petition and applications are disposed of.

Order dasti.

MANMOHAN, J AUGUST 03, 2012 rn