Teja Singh vs State of Punjab and anr.

S.K. Jain, J.

Teja Singh, petitioner herein, alongwith his five coowners, through their special attorney Tara Chand, made the following seven sales of agricultural land :

Sr. No. Name of the Purchaser Area Date of Registry

Rajinder Parsad son of Tara Chand 272 sq. yds. 111285

RAm Dayal son of Jagat Ram 127 sq. yds. 7 sq. ft. 271285

Darshan Kumar son of Sohan Lal & Smt. Krishana wife of Darshan Kumar 127 sq. yds. 7 sq. ft. 4286

Smt. Harbhaja Kaur wife of Nirankar Singh Chawla 62 sq. yds. 18286

Bibi Gurdarshan daughter of Sewa Singh 111 sq. ft. 10386

Smt. Rupinder wife of Gurjit Singh 90 sq. yds. 4 sq. yds. 10386

Smt. Raminder Kaur wife of Varinder Singh 150 sq. yds. 11786

The State of Punjab, through Shri Satwinder Singh, Junior Engineer, Housing and Urban Development Department, Punjab filed a criminal complaint under section 11(1) read with section 3(1) and section 8(1) of the Punjab Regulation of Colonies Act, 1975 (hereinafter referred to as the Act), on June 29, 1989, in the Court of Chief Judicial Magistrate, Amritsar, who vide his order of July 5, 1989 Annexure P4 summoned them.

The petitioner Teja Singh has brought this petition under Section 482 of the Criminal Procedure Code seeking quashment of the criminal complaint Annexure P3, summoning order Annexure P4 also the proceedings arising out of the complaint.

On being served the petition was contested on behalf of the State. Reply was filed.

I have heard the learned counsel for the petitioner and Mr. Mann, AAG, Punjab for the State. It is not denied that Tara Chand, so called special attorney of Teja Singh and his five other coowners, had made the above said alienation. The plea of the petitioner is that he and his coowners had not appointed Tara Chand as their special attorney. He had made the above said illegal alienations unauthorisedly. They had lodged F.I.R., Annexure P1 against him and are prosecuting the same.

On merits, the learned counsel for the petitioner has argued firstly, that the complaint is barred by limitation in as much as punishment under section 11 of the Act is 3 years and, therefore, the complaint could have been brought within a period of 3 years as provided under section 468 Cr.P.C.

His second submission is that under Section 200 Cr.P.C., the Chief Judicial Magistrate could summon the accused only after examining the complainant and his witnesses, if any, and then reducing the substance of their examination into writing. But perusal of the summoning order Annexure P4 shows that he had not examined even the complainant, what to say of his witnesses, in preliminary evidence. Since no documents or list of witnesses had been attached with the complaint, the learned Magistrate had no occasion even to go through the documents relied upon and, therefore order Annexure P4 was not passed in accordance with the provisions of Section 200 Cr.P.C. and was not sustainable.

I have carefully gone through the complaint, copy whereof is Annexure P3, and the summoning order Annexure P4. I have also carefully examined the provisions of sections 3(1) and 8(1) and 11(1) of the Act as also those of section 468 of the Cr.P.C.

Section 468 Cr.P.C. reads as under :

"(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in subsection (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) For the purpose of this section, the period of limitation, in relation of offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment."

Section 11 of the Act reads as under :

"11(1) Any person who contravenes any provision of this Act or rules framed thereunder, or any of the conditions of the licence granted under section 4 shall be punishable with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.

(2) Without prejudice to the provisions of subsection (1), the Director may by notice, call upon any person who has committed a breach of the provisions of subsection (2) or subsection (3) of the section 8 to show cause why the building should not be demolished and if such person fails to show cause to the satisfaction of the Director within a period of 15 days, the Director may pass an order requiring him to demolish the building within 30 days, from the date of the order.

(3) If the order made under subsection (2) is not complied with the Director may himself take such measures as he may deem fit to give effect to the order and the cost of such measures shall, if not paid on demand being made to him, be recoverable from such person as arrears of land revenue."

Analytical examination of the above provisions would show that the punishment of 3 years'' RI is provided under Section 11 of the Act. Therefore, the case of the P5 complainant squarely falls within the provisions of Section 468 and Section 3(1) and 8(1) of the Act. The offence is alleged to have been committed on the execution of the above seven sale deeds on 111285, 271285, 4286, 18286, 10386, 10386, 11786. The complaint was instituted on 2961989. Therefore the complaint with regard to the offence when alleged to have been committed under Section 11 with regard to the first six sale deeds is barred by limitation. However, the complaint under Section 11 with ragard to the last sale dated 11786 is certainly within limitation. Otherwise also in view of the definition of the term `colony'' as provided under Section 11(2)(c) of the Act, two sales in the year 1985 would not fall within the ambit of section 11 of the Act.

Now on the second argument. Summoning order Annexure P4 reads as under :

"Complaint be registered. From the facts as mentioned in the complaint there are sufficient grounds to proceed against the accused under Section 11(1) read with Sections 3(1) & 8(1) of Punjab Regulation of Colonies Act. 1975. The accused by summoned accordingly for 2281985.

Perusal of the abovesaid order shows that the learned trial Court had not applied his judicial mind to the facts and circumstances of the case and had passed the said order mechanically. He did not record either the statement of the complainant or of his witnesses. He also had no opportunity to examine the documents which were relied upon by P6 complainant as none of them were attached to it. Therefore, there was no material before the learned trial Court on the basis of which he could come to a conclusion that a prima facie case under Section 11 of the Act was made out. Under these circumstances, the impugned order cannot be sustained.

In view of the above discussion, the complaint Annexure P1, summoning order Annexure P4, and all the proceedings arising out of the complaint are quashed only qua the petitioner.