The Commissioner, Tambaram Municipality vs Kothandaraman

Ratnavel Pandian, J.—The complainant in C.C. No. 3479 of 1976 on the file of the Court of the Judicial II Class Magistrate, Saidapet, has

directed this revision petition challenging the order passed by the said Magistrate dismissing his complaint under S.468(2), Crl. P.C. on the ground

that it is barred by limitation.

The facts of the case as alleged in the complaint lie in a very short compass, viz., that the respondent-accused committed an offence punishable

under S. 199 read with S.317 of the Tamil Nadu District Municipalities Act, 1920 (hereinafter referred to as the Act), in that on 23rd September,

1975 at S. No. 353/Part, Thambaram Village, he commenced the construction of a building without obtaining prior permission from the executive

authority of the Municipality. The Court below, taking into consideration the fact that the offence complained of is punishable with fine only and that

the said complaint has been filed before the Court on 5th August, 1976 beyond the period of six months from the date of the commission of the

offence, dismissed the complaint under the erroneous view that S.468(2)(a) is attracted.

The only question for consideration in this revision petition is whether a prosecution under the Act which itself prescribes a period of limitation

for launching prosecution for infringement of any of its provisions, is governed by S.468, Crl. P.C. (Act II of 1974), whereunder a specific period

of limitation for institution of criminal proceedings is prescribed.

At the outset, it may be stated that the Act is a special law within the meaning of Ss. 41 and 42 of the Indian Penal Code. There is a special

provision under the Act, viz., under the proviso to S.347. S.347 reads thus:

No person shall be tried for any offence against the provisions of this Act, or of any rule or bye-law, made under it unless complaint is made by the

police, or the executive authority or by a person expressly authorized in this behalf by the council or the executive authority within three months of

the commission of the offence But nothing herein shall affect the provisions of the Code of Criminal Procedure, 1898 in regard to the power of

certain Magistrates to take cognizance of offences upon information received or upon their own knowledge or suspicion:

Provided that failure to take out a licence, obtain permission or secure registration under this Act shall, for the purposes of this section, be deemed

a continuing offence until the expiration of the period, if any, for which the licence, permission or registration is required and if no period is

specified, complaint may be made at any time within twelve months from the commencement of the offence.

The offence complained of is that the petitioner commenced the construction of a building without obtaining the requisite permission from the

executive authority, viz., the Commissioner of the Thambaram Municipality as contemplated under S.199 of the Act, punishable under S.317 of the

Act, which act of infringement of the provisions becomes an offence in respect of which a prosecution has to be launched subject to the provisions

of S.347 of the Act. The relevant portion of the said section applicable to the present prosecution is the proviso extracted above, which prescribes

a period of 12 months from the date of commencement of the offence, for making a complaint for failure in obtaining permission from the

Municipality as required under the Act, The penalty for such an offence, as per S.317 of the Act, is that the owner of the building becomes liable

on conviction to a fine which may extend to Rs. 500/- and to a further fine which may extend to Rs. 100/- for each day during which the offence is

proved to have continued after the first day. Thus, it is shown that the offence complained of in the present case is punishable with fine only.

By the newly introduced Ss. 467 to 473, coming under Chapter XXXVI of the Code of Criminal Procedure, 1973, limitation has been

prescribed for the first time for launching criminal prosecution in regard to offences not punishable for a period exceeding three years, which

provisions, of course, are not applicable to the offence punishable under the twenty enactments mentioned in the schedule to the Economic

Offences (Inapplicability of the Limitation) Act, 1974 (Act 12 of 1974) as mentioned in Appendix I to the Code. Of these sections, the relevant

portion of S.468 of the Code, which bars taking cognizance after the lapse of the period of limitation, runs thus:

(1) Except as otherwise provided elsewhere in this code, no Court shall take cognizance of an offence of the category specified in sub-S. (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;............

A plain reading of sub-S.(2)(a) shows that the prosecution should be launched within a period of six months if the offence is punishable with fine

only. S.469 of the Code deals with the commencement of the period of limitation with which we are not now concerned.

So, when the special Act prescribes twelve months'' period for making a complaint, contrary to the provision in the present Code prescribing a

period of six months, for offences of the nature involved in the instant case, the question is which provision has to prevail and which period of

limitation has to be applied. S.5 of the new Code, which is a saving provision, corresponds to S.1(2) of the old Criminal Procedure Code and it

gives a positive answer to the above question. That section reads as follows:-

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.

The essence of the above saving provision is that unless there is anything specific to the contrary, no provision contained in this Code of Criminal

Procedure will 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 which is, for the time being in force. Thus, S. 5 of the Code saves special or local laws or special

jurisdictions or powers from the purview of the Code and declares that they remain unaffected by the Code unless there is any specific provision to

the contrary which may be either in the Code of Criminal Procedure itself or in the special or local law. To put it in a nut-shell, nothing in the

Criminal Procedure Code shall affect any special or local law, which principle reflects the maxim ""Generalia specialibus non derogant."" The

conjoint effect of S.4(2) corresponding to S.5(2) of the old Code, and S.5 of the new Code is that all offences, whether under the Penal Code or

under any other law, have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Criminal Procedure

Code, unless there be an enactment regulating the manner or place of investigation, inquiry, trial or dealing otherwise with such offences, in which

case such enactment would prevail over the Criminal Procedure Code. As such, the provisions of a special or local law will prevail over those of

the Criminal Procedure Code, unless there is a specific provision to the contrary.

In Kuppusvrami, in re AIR 1923 Mad. 339 = 17 L.W. 308 the question was whether an offence under the Abkari Act could be proceeded

against by the Police under the Criminal Procedure Code, and it was held therein that the Police have no right to file a charge-sheet or otherwise

proceed under Chapter XIV of the Code (old Code) in respect of an offence under the Abkari Act, that Chapter XIV is controlled by S. 5(2) of

the Code and that it was an offence under a Special Law, which could be investigated and tried only according to the provisions of the law.

Reference can be made in this connection to Krishna, in re ILR 1955 Mad. 1887 = AIR 1954 Mad. 993 wherein the contention was that S.

4(2) of the Prohibition Act (X of 1937), as amended by Madras Act 31 of 1951, contravened Art. 21 of the Constitution which declares that no

person shall be deprived of his life or personal liberty except according to procedure established by law, that is, the procedure laid down in the

Code of Criminal Procedure. Therein, a Bench of this Court consisting of Rajamannar, C.J., and Umamaheswaram, J., found that S.4(2) of the

Prohibition Act was inconsistent with the procedure laid down in the Code since it had not empowered the Magistrate to act in accordance with

the provisions of S. 253(1) of the Code (old), if the Magistrate found that no case against the accused had been made out which, if unrebutted,

would warrant his conviction. Accordingly, the learned Judges dismissed the above contention, holding that S. 4(2) of the Act did not prevent the

Magistrate in an appropriate case to discharge the accused if he found that the prosecution had not established what they had to establish under the

provisions relating to the offence with which the accused had been charged. Then after having adverted to S. 53 of the abovesaid Act X of 1937,

which said that nothing contained shall affect the operation of the Code of Criminal Procedure, observed as follows:-

Even if, for any reason, it is possible to hold that the Prohibition Act prescribed a procedure slightly different from the procedure laid down in the

Code of Criminal Procedure, such procedure would not be on that account invalid. S. 1(2) of the Code of Criminal Procedure (old) provides that

nothing contained in the Code shall affect any special form of procedure prescribed by any other law for the time being in force.

Then, referring to S.5(2) of the old Code, which corresponds to S.4(2) of the present Code, the Bench held that there was substance in the above

agreement.

Reference can also be made to the decision rendered in Mst. Dhoopo Vs. State and Another, ; wherein it has been observed as follows (as

per head-note):-

The Rajasthan Municipalities Act, 1959 is a special law as well as local law within the definition of Ss. 41 and 42 of the Penal Code arid as such

the application of S. 64, I.P.C. cannot ordinarily be ruled out to the offences under the Rajasthan Municipalities Act. But in view of the special

provision of S. 265(2), which prescribes a mode for the realisation of fine by issuing distress warrant and sale of movable property of the convict

within the municipal limits and which provision is different from the procedure prescribed by the Criminal Procedure Code, the provision relating to

it in the general law, i.e., in the Indian Penal Code and Criminal Procedure Code cannot be made applicable for the recovery of fine imposed

under this special enactment.

Thus, a conjoint reading of Ss. 4(2) and 5 of the new Code and the principles laid down in the above decisions would go to show that the

period of limitation prescribed under the Special Act, viz., the Tamil Nadu District Municipalities Act, which remains unaffected by the saving

provisions of the Code, would prevail over the period prescribed under the new Code, and hence the Proviso to S. 347 of the Act alone would be

applicable to the facts of the present case, as there is no specific provision to the contrary.

Now on facts, the offence, in this case is stated to have been committed on 23rd September, 1975 and the complaint was filed on 5th August

1976, viz., within 12 months from the date of commission of the offence. Therefore, the order of the court below on dismissing the complaint as

time-barred is illegal and as such cannot be sustained.

Accordingly, I allow the petition and set aside the said order and restore the complaint to the file of the Magistrate and he is directed to

dispose of it afresh on its merits and in accordance with law.