Vishwaveer and Another vs State of M.P.

D.K. Paliwal, J.—The petitioners herein/accused preferred this petition u/s 482 of the Code of Criminal Procedure, 1973 for quashing the FIR registered at Crime No. 466/2010 at Police Station Kotwali, Guna District Guna for the offence punishable u/s 339(c) of the Municipalities Act, 1961 (for short, the Act, 1961) and the consequent criminal proceedings being Criminal Case No. 1258/11 pending before the Chief Judicial Magistrate, Guna. The learned counsel for the petitioners submits that the present case is squarely covered by the order dated 07/11/2012 passed in Mis. Cr. Case No. 8316/2012 (Atul Jaggi Vs. State of M.P.,) therefore, this petition may be disposed of in terms of the order passed by this Court.

Learned Panel Lawyer fairly conceded the submissions of the learned counsel for the petitioners.

This Court in Mis. Cr. Case No. 8316/2012 (supra) passed the following order:

Petitioner has filed this petition u/s 482 of Cr.P.C., for quashing the FIR registered at crime No. 109/2011 at police station Cantt., District Guna for the offence punishable u/s 339(c) of Municipalities Act, 1961.

Learned counsel for the petitioner has submitted that FIR (Annexure A/1) has been registered on the written complaint made by the Sub Divisional Officer, Guna for illegal colonization on the basis of enquiry conducted by him.

Learned counsel for the petitioner has drawn attention of this Court towards the provisions of Section 313 of the Municipalities Act, 1961 according to which, the competent authority for lodging the report for offence punishable u/s 339(c) of the Municipalities Act is the Chief Municipal Officer and FIR cannot be registered on the report of any other authority or person.

Section 313 of Municipalities Act is reproduced as under:-

313-Council may prosecute:-(1) The Council, the Chief Municipal Officer or any other officer authorized by the council in this behalf in the case of (Municipal Council) and the council or any other officer authorized by the Council in this behalf in the case of Nagar Parishad, Nagar Panchayat may direct:- (i) any prosecution for any offence under this Act or under any rule or bye-law made thereunder; (ii) proceedings to be taken for the recovery of any penalties and for the punishment of any persons offending against the provisions of this Act or of any rule or bye-law made thereunder; and (iii) that the expenses of such prosecutions or other proceedings be paid out of the Municipal Fund: 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; or (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 existence of such offence was first brought to notice of the Council or of any officer of servant whose duty it is to report such offence to the council.

(2) Any prosecution under this Act or under any rule or bye-law made thereunder may, save as therein otherwise provided by, instituted before any Magistrate; and every fine or penalty imposed under or by virtue of this Act or any rule or bye-law made thereunder, and any compensation, expenses, charges or damages for the recovery of which no special provision is otherwise made in this Act may be recovered on application to any Magistrate by the distress or sale of any movable property within the limits of his jurisdiction belonging to the persons from whom the money is claimed.

On perusal of provision of Section 313 of the Municipalities Act, 1961, it is clear that SDO is not empowered to lodge FIR or prosecution for the offence under the Municipalities Act, 1961.

Learned counsel for the petitioner has cited the judgment of Hon. Apex Court in the matter of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, in which certain conditions have been prescribed under which the process against the accused can be quashed or set aside. Condition No. 4 of the aforesaid conditions, reads as under:-

(4) where the complaint suffer from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

In the present case, the complaint filed by the learned SDO is without authority, therefore, the FIR (Annexure A/1) registered on the report of SDO for offence punishable u/s 3(c) of Municipalities Act is not maintainable and same is hereby quashed.

With the aforesaid petition stands allowed and disposed of.

Considering the submissions of the learned counsel for the parties and facts of the case in the light of the order passed by this Court in Mis. Cr. Case No. 8316/2012 (supra), the FIR No. 466/2010 registered on the basis of the report of the Sub Divisional Officer, Guna for the offence punishable u/s 339(c) of the Act, 1961 and the consequent criminal proceedings in Criminal Case No. 1258/11 pending before the Chief Judicial Magistrate, Guna being not maintainable are hereby quashed.

With the aforesaid petition stands allowed and disposed of. Certified copy as per rules.