Municipal Council, Guna vs Ghasilal

Dr. T.N. Singh, J.

Seven matters were heard analogously by S. K. Dubey, J., sitting singly, and by common order passed on 23-6-1992, he has referred these matters to be decided by Larger Bench having taken the view that the law stated in Municipal Council, Shivpuri v. Radha Bai & Anr. 990 C. Cr. J. 100 =1990 II MPWN 78 : 1990 MPJR SN 42, by a learned Single Judge of this Court, required reconsideration. Thus, all these seven matters, we heard analogously and are being finally disposed of by this common Order.

In this appeal as also in the other connected matters, verdict of acquittal is challenged and the common question of law is if the verdict rendered in each case on the common ground of limitation is legal or not. Prosecution hunched by Municipal Council of Guna and Morena, against differences alleged to be committed by them under the Madhya Pradesh Municipalities; Act, 1961, for short, the ''Act'', is nullified by the verdict. The common feature of prosecution of the different accused persons in different cases is noteworthy being relevant to the controversy mooted in these matters. In all cases, the offences complained of are punishable with fine only and the prosecution is held to be time-barred, applying Section 463 (2) of the Code of Criminal Procedure. Reliance is placed in each case by the trial Court on this Court''s decision in Radha Bai (supra). In each of the cases, (he finding of trial Court is categorical that prosecution has been launched beyond six months and, therefore, as contemplated u/s 468 (2) (a), Cr. P. C., the same is time-barred and it is not saved by Section 313 of the Act. For the disposal of these matters, no other facts are to be stated as that common finding reached in each of the cases by the trial Court in rendering the verdict of acquittal is not assailed on any side.

We would extract, therefore, the core provisions competing with each other to decide the question of applicability of the appropriate provision as that is the moot question raised in all these matters :

Section 313 of the Act-

Council may prosecute --(1) The Council, the Chief Municipal Officer or any other officer authorised by the Council in this behalf in the case of Class-I Municipality and the Council or any other officer authorised by the Council in this behalf in the case of other classes of Municipality may direct--

(i) any prosecution for any offence under this Act or under any rule or bye-law made thereunder;

(ii)...

(iii)....

Provided that no prosecution for an offence under this Act or under any rule or bye-law made thereunder shall be instituted except;

(i) within 12 months next after the date of commission of such offence;

(ii) if such date is not known or the offence is a continuing one, within twelve months next after the date on which the commission or existence of such offence was first brought to notice of the Council or of any officer or servant whose duty it is to report such offence to the Council.

(2)..............

Section 468, Cr. P. C--

Bar to taking cognizance after lapse of the period of limitations (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub section (2), after the expiry of the period of limitation

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

(3)....

Although Section 2 (n), Cr. P. C. defines the term "offence" in a generic sense, in categorical terms, acts and omissions which constitute offences are specified in Chapter IX of the Act, captioned "Municipal Powers and Offences". Section 313 of Chapter XI deal obviously with the procedure, to the extent specified, to be followed for punishing the offences contemplated under the Act the Act is to be regarded as a "local law" in terms of Section 42 IPC read with Section 2 (y), Cr. P. C. for the purpose of Section 5, Cr. P. C. In virtue of the combined effect of Sections 4 and 5 Cr. P. C., the provisions of the Act with respect to the offences contemplated under the Act and punishment thereof prevail against those of Cr. P. C.

He think, Shri R. D. Jain, learned counsel, appearing for the Municipal Councils, is right in pointing out to us that when decision of this Court in Radha Bai (supra) was rendered, attention of the Court was not drawn to the provisions of Section 5, Cr. P. C. which, in express terms, saves the applicability of "any special or local law for the time being in force" and this provision also we extract :

Saving.-- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

It is true, Section 4 (2) which precedes Section 5, contemplates, "All offences under Court''s power to take cognizance of an offence after expiry of the period of limitation prescribed therein is excluded. Even if the Municipal Council decided to institute the prosecution within twelve months, the Court trying the offence in accordance with the provisions of Cr. P. C. would have no jurisdiction to take cognizance of that offence if the prosecution was instituted after the expiry of the period of six months in case the offence is punishable with fine only.

In our view, Section 313 of the Act and Section 468, Cr. P. C. are enacted to serve the same purpose and they have a common object of interdicting stale prosecution. Both provisions constitute a threshold requirement and they touch equally the Court''s jurisdiction to prosecute the offender. Indeed, the only difference that we read between the two provisions, is in relation to fixing a terminus a quo. In one case, it is fixed in relation to the "institution"; in other case, the starting point of limitation is the "cognizance" when taken of the offence by the Magistrate. Although the Act is not a self-contained Code in so far as prosecution of the offence committed by any person under the Act is concerned and provisions of Cr. P. C. are applicable in terms of Section 4, Cr. P. C. for trial 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". But, both as earlier pointed out, are to be read conjointly.

We have no doubt in our mind that the trial Courts in each case erred in law and acted without jurisdiction in rendering in each case a verdict of acquittal applying Section 468 (2) (a), Cr. P. C., and in doing so, ignored and overlooked the provisions of Section 5, Cr. P. C. However, it is also equally true that the Courts below were bound to follow this Court''s decision in Radha Bai''s case, but that decision, we are constitutionally obliged to overrule as law was not correctly stated in that case. At para 5 of the Report, the view expressed is that Section 313 of the Act speeks of "institution of a prosecution" while Section 468, Cr. P. C. speeks of "taking cognizance by a Court" and the purpose of two provisions is different. In one case, u/s 313 of the Act, the Municipal Council is barred from institution of any prosecution on expiry of twelve months from the date of commission of the offence, while in the other case, u/s 468, Cr. P. C., of the offenders, that does not detract from the position that in terms of Section 5, Cr. P. C., Section 313 of the Act, excludes operation of Section 468, Cr. P. C., in relation to trial of any person for any offence committed under the Act. Section 5, Cr. P. C., saves clearly and categarically operation of "any special or local law for the time being in force", in respect to any matter for which any "specific provision" is made under such law unless the operation thereof is otherwise excluded specifically by the Code. Neither Section 468, Cr P.C., nor any other provision of Cr. P. C., in the instant case, excludes operation of Section 313 of the Act. Indeed, the opening clause of Section 468 (1)-- "Except as otherwise provided elsewhere in this Code" leads weight to the saving contemplated u/s 5. We are also of the view that because of Section 5, Cr P.C., ''there is no scope for any argument that Section 468 has impliedly repealed Section 313 of the Act. However, we may note reliance of Shri Jain on the decision of Municipal Council Palai Vs. T.J. Joseph and Others, as appropriate. It stressed the legal presumption against implied repeal and absence of a repealing clause is held indicative of Legislature''s intention of not repealing existing legislation with respect to subject-matter of the provision in question.

On both sides, counsel have cited case-law and indeed in the Referring Order also, there is discussion of certain decisions Those may be now examined. At this stage, however, we may express still the view that the Act cannot be anything but a "local law" within the meaning of the term employed in Section 5, Cr. P. C. and, therefore, in terms of that provision, primacy is maintained of Section 313 of the Act excluding operation pari passu of Section 468, Cr. P. C. What also appears clear to us is that the opening clause of Section 5, "Nothing contained in this Code", is to be regarded as a non-obstante clause and it prevails against Section 468, Cr. P. C. Similarly, it is equally clear that the opening clause of Section 468 (I), by using the expression "elsewhere in this Code" in terms, sanctions operation of any provision of any other special or local law dealing with the bar of limitation in regard to prosecution of any offence thereunder notwithstanding the bar contemplated u/s 468, Cr. P. C Indeed, in terms of the provisions of Sections 4 (2) also, currency of Section 313 of the Act is maintained as it contemplates that any provision of the Code may suffer derogation in terms of the provisions of "any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences". By contemplating the bar of limitation, Section 313 of the Act is "dealing with such offences" created under the Act. We find support for our view in Ajmer Singh and Others Vs. Union of India (UOI) and Others, cited by Shri Jain The benefit of Sections 428 and 475, Cr P. C. was held not available to a person governed by the the provisions of Army Act, which was regarded as "special law" because, their Lordships pointed cut Section 5, Cr.P.C. clearly excluded applicability of those provisions to the case of such a person.

We may first refer to State of Punjab Vs. Sarwan Singh, case because from both sides that is cited. While expounding the object of Section 468, Cr. P. C., the Court observed that the innovative provision of "puting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the Court by filing vaxatiousand prosecution longafter date of the offence" (Empasis added).It subserved the Constitutional directive enshrined in Article 21 inhering the concept of fairness of trial. This decision should, in our view, remove affirmatively any doubt that may be entertained in regard to the distinction between the two terms "institution of a prosecution" and "taking cognizance by Court" of an offence on which much emphasis is placed in Radha Bai (supra). The holding also lends support to our view that the object of both provisions of Section 313 of the Act and 468 of the Cr. P.C. is the same and they cannot, therefore, stand together and operate simultaneously with respect to any prosecution as may stultify the same Article 21 of the Constitution contemplates merely reasonable procedure for trial of an offence. Such procedure as may provide a licence to any person to commit murder, rape or other heinous offence or even plunder the State or society by any deceitful means and go scot-free is not contemplated under Article 21.

Although the bar creates a substantive right in the accused to resist prosecution, it is not a handle to pervert procedural norms and nuances, as may defeat processual justice. Legislature has deliberately, in our view, fixed the terminus a quo in Section 313 of the Act with reference to the event of institution or, in other words, filing of the complaint in Court by the Municipal Council being cognizant of manipulations to delay the eventual cognizance by the Magistrate of the offence complained of. To take care of domestic problems of the Municipal Council, an may crop up in relation to matters contemplated under sub-section (1) pertaining to the "Officer" instituting the prosecution in regard to his authorisation by the Council in that behalf, a longer period of twelve months is also, therefore, prescribed u/s 313. The prosecution agency, the Municipal Council, is not intended to be denied processual justice. It may have problems before launching of the prosecution and also during the course of trial and both are cared for by the Legislature by avoiding the expression, "taking cognizance of" by the Court; and contemplating the bar of limitation with respect to "institution of prosecution" by the Council. This position is amply manifested by clause (ii) of Proviso of Section 313 (I) wherin instead of date of commission of offence, other events are specified for the terminus a quo. It is the date of knowledge, when the commission or existence of such offence is first brought to the notice of the Council or any of its officer whose duty it is to report such offence to the Council, which is specified as the terminus a quo.

The view we have taken renders it unnecessary to chase the elusive question of difference between the concept of "institution" and "cognizance" However, support for the view, we also read in certain other decisions which Shri R.D. Jain has cited and to those, we may now refer. The term "prosecution" was construed in Thomas Dana Vs. The State of Punjab, o mean, "a proceeding either by way of indictment or information in the criminal Courts in order to put an offender upon his trial". In Jamuna Singh and Others Vs. Bhadai Sah, it is held that Cr. P.C. does not contain any definition of the words "institution of a case", but an examination (of Sections 190, 193 and 194) "makes it clear that when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence, a case is instituted in the Magistrate''s Court and such case is one instituted on a complaint ".

Reliance, Shri Jain also placed on Sholapur Municipal Corporation and Another Vs. Ramkrishna V. Relekar and Another, case where the Division Bench, speaking through Chandrachud, J. (as he then was), found the Municipal Commissioner, under the provisions of the relevant enactment, wanting in power to compound the offence of importing goods without paying octroi duty because the Act did not confer that power on him and the power could not be traced, therefore, to Cr. P. C. Provisions of Cr. P. C. concerning compounding of offences contained in Section 345 constitute a complete Code and, therefore, specific provision for vesting power in the Municipal Commissioner to compound the offence had to be found within the four corners of the special law. He also cited the decision in Suppiah Chettiar v. Chinnathurai AIR 1957 Mad 216, wherein the word "Instituted" of Section 3 (5), workmen''s Compensation Act, was construed to mean, filing of a claim under the Act holding that it meant nothing more than that.

The decision in Ajit Kumar Palit Vs. State of West Bengal, cited by Shri Jain is on the provisions of West Bengal Criminal Law Amendment (Special Courts) Act, 1949. It was held that a Judge of the Special Court appointed under the Act was not within the class of Magistrates designated by Section 190 (1) and, therefore, there was no question of such a Judge having to comply its requirements before he could "take cognizance of an offence". The Court further observed that where the statute prescribes the materials on which alone the judicial mind shall operates before any step is taken, that requirement must be fulfilled first. It is, therefore, rightly submitted indeed that when prosecution is launched for any offence committed by any person under the Act, the Court is to be satisfied that for valid prosecution, necessary steps had been taken for filing a complaint in respect of the offence or, in other words to institute the prosecution within time prescribed by Section 313. That threshold requirement is contemplated, in our view, to abviate the necessity of any cognizance being taken of the offence by the Magistrate subsequently in the course of trial if it is found that the prosecution has not been validly instituted in terms of Section 313. As obser-bed earlier, the Legislature thought it necessary to specify in clear terms the requirements which it considered necessary or reasonable for prosecuting any person for any offence committed under the Act and as such, the provisions contemplated u/s 313 (1), Proviso, are to be accorded primacy so as to exclude operation of Section 468, Cr. P.C. It may be mentioned in this connection that in case of such offences as committed under the Prevention of Food Adulteration Act, prosecution is launched by an officer of the Municipal Council and as such, for valid exercise of its power and for effective prosecution of the offender, in consollance with the requirement of fair trial, Legislature contemplated the requirement of institution of the prosecution within the prescribed period as the sole thresahold requirement to be regarded as condition precedent for a valid prosecution.

Although Shri Lahoti wanted us to read Sections 312 and 313 of the Act conjointly, we do not think it shall be permissible because they operate in different fields. Section 312 deals with "power to institute legal proceedings and obtain legal advice" and not with the question of "prosecution" of any person for an offence under the Act for which provision is made in Section 313. To be more candid and categorical, we observe that the words "legal proceedings" which occur in Section 312, are used in generic sense, while Section 313 deals with "prosecution" specifically which is a particular species of a legal proceeding and it is, therefore, a special provision and it is not controlled by Section 312.

However, we may refer to the decisions which Shri Lahoti has cited on the connotation of the term "cognizance" though, for reasons earlier stated, that exercise has not carried much weight with us. The leading case is R.R. Chari Vs. The State of Uttar Pradesh, case and in that case, it was held that if it was a case of cognizable offence, the Magistrate takes cognizance when the police have completed their investigation and they have come to the Magistrate for the issue of a process. If this test is applied, commonality of the purpose of the two provisions, Section 313 of the Act and 468, Cr. P. C. would become self evident Evidently, when prosecution is instituted, that is done as a result of investigation already made by the Officer of the Municipal Council and, therefore, the filing of the complaint for the offence before a Court could be equated to the requirement of the Magistrate taking cognizance which is contemplated u/s 468, Cr. P.C. From that decision, we do not think if Shri Lahoti can derive any support or even consolation. The rationale of the holding supports the view we have taken Gopal Das Sindhi AIR 1961 SC 986 is another case of ancient lineage. The word, "may" used in Section 190, Cr. P, C., 1898, was construed and it was held that the Magistrate may, instead of taking cognizance of the offence himself, send the complaint u/s 156 to the Police for investigation because the time of the Magistrate should not be wasted when primarily the duty to investigate in a case involving a cognizable offence is of the Police. To the same effect is the decision in Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, That refers, however, to discretion of the Magistrate exercisable u/s 202, Cr. P. C., for taking cognizance.

Having surveyed authorities cited and given our anxious consideration to the provisions of Cr. P. C. and the Act, we have reached the conclusion that Radha Bai (supra) was not correctly decided. We hold that in case of any prosecution launched by the Municipal Council in recpect of any offence committed under the Act by any person, the trial Court is not required to look at Section 468, Cr. P. C. to scuttle the prosecution and it is required rather to adjudge the validity of institution of the prosecution in terms of Section 313 of the Act. Only when it is found by the trial Court that the prosecution was time barred in terms of Section 313 of the Act for a person being prosecuted for an offence under the Act, the trial Court shall have jurisdiction not to proceed with the trial and act rather a verdict in terms of Section 203 by dismissing the complaint made by the officer authorised in that behalf by the Municipal Council. Section 202 contemplates postponement of issue of process and the Megistrate is required to decide "whether or not there is sufficient ground for proceeding". Evidently, when he finds that the prosecution not instituted validly and that was barred by Section 313 of the Act, there will be no ground for him for proceeding and it would be incumbent on him to dismiss the complaint recording reasons in that regard as contemplated u/s 203, Cr. P. C.

We accordingly hold that in each case the verdict of acquittal rendered by the trial court is without jurisdiction. The complaints of the appellents Municipal Councils of Guna and Morena, filed by their authorised officers, in different cases, for prosecution of different persons, for different offences allegedly committed under the Act, Could not have been dismissed on the ground that cognizance could not be taken of the offence complained of because of the bar contemplated u/s 468, Cr. P. C., In each of these cases, the prosecution having been instituted within the period of twelve months, it was not barred by Section 313 of the Act and the Magistrate had a duty to proceed with the trial of the offence. We accordingly set aside order of acquittal passed in each case and direct trial to proceed in each case.

This Order shall govern disposal also of Cr. Appeal Nos. 164,165, 204 to 206 and Cr. Misc. Case No. 2258, all of 1991.