Cr.P.C. S.4 In absence of special court the
regular court can try the offence

ATTIQ-UR-REHMAN v. THE MUNICIPAL CORPORATION OF DELHI & ANR

• OVERVIEW

IN SUPREME COURT OF INDIA

• Petitioner: Attiq-Ur-Rehman
• Respondent: Municipal Corporation of Delhi  and Another
• Date of judgment: 29/02/1996
• Bench: Annand, A.S. (J); Ahmad Saghir S. (J)
• Citation:  1996 AIR  956           
• 1996 SCC (3) 37 
• JT 1996 (2)   670       
• 1996 SCALE  (2)557

• FACTS OF THE CASE
• On June 06, 1989, a Junior Engineer of the complainant – Municipal Corporation of Delhi (respondent) filed a report against the appellant alleging unauthorized construction of roof and a stair-case on the ground floor of the appellant’s property situated at 1535-1537, Church Road, Kashmere Gate, Delhi.
• The appellant apprehending demolition of his house, filed Civil Suit in the Court of Sub-Judge, Delhi, contending inter alia – that the replacement of the roof and the alleged repairs/alterations were permissible under the building bye-laws and required no formal order of sanction and, therefore, the appellant could not be said to have carried out any unauthorized construction and sought an injunction against Respondent restraining it from demolishing the alleged ‘unauthorized construction’.
• After contest, the suit was decreed. It was found that notice for demolition had not been properly served. Respondent was restrained from demolishing the property of the appellant except in due process of law”.
• The Junior Engineer of respondent filed three more reports on 21.8.1989 and 4.9.1989 and 17.11.1989 alleging further unauthorized constructions in the said property by the appellant. On the basis of those reports, Municipal Corporation of Delhi, on 17th November, 1989 filed a criminal complaint under Section 332 r/w Section 461 of the Delhi Municipal Corporation Act, 1957 against the appellant in the Court of Sh. R.S. Khanna, Metropolitan Magistrate, Delhi.
• The appellant moved two applications before the Metropolitan Magistrate, Delhi – one for the stay of criminal proceedings during the pendency of the civil suit and the second seeking return of the complaint on the ground that the Metropolitan Magistrates had no jurisdiction to try him for the offence under Section 332 r/w Section 461 of the Act in view of the provisions of Section 469 of the Act and in the absence of any Notification conferring powers of Municipal Magistrates on the Metropolitan Magistrates.
• Both the applications were rejected on 26th February, 1991. The learned Metropolitan Magistrate held that the plea of the appellant that the court had no jurisdiction to try the offence was not maintainable and there was no justification for staying the criminal proceedings during the Pendency of the civil suit as the scope of the suit and the criminal complaint was different.
• Aggrieved, the appellant filed a criminal revision petition in the High Court of Delhi which was summarily dismissed on 26th May, 1991.
• Hence this appeal by special leave in Supreme Court.

• ISSUE:

Whether in the absence of the appointment of a Municipal Magistrate, a Metropolitan Magistrate can take cognizance and try an accused for commission of an offence punishable under the Delhi Municipal Corporation Act, 1957?

• CONTENTIONS OF APPELLANT:

It was argued that an offence under the Act can only be tried by a Municipal Magistrate appointed under the Act and a Metropolitan Magistrate exercising general jurisdiction has no authority to take cognizance of an offence under the Act and try any person accused of an offence under the Act.

It was argued that the learned Metropolitan Magistrate fell in error in rejecting the applications and the High Court also failed to appreciate the importance of the question involved and erroneously dismissed the Criminal Revision Petition in limine by a non-speaking order.

• CONTENTIONS OF RESPONDENT:

It was argued that in the absence of appointment of Municipal Magistrates under the Act, jurisdiction to try offences under other laws vested in the Metropolitan Magistrates and the appellant was rightly put on trial before the Metropolitan Magistrate.

• RELEVANT PROVISIONS OF THE ACT AND CrPC:

Section 466(a) of the Act makes CrPC applicable to the proceedings under the Act and makes an offence under Section 313 of the Act cognizable.

Section 467 deals with the prosecution of offences: Save as otherwise provided in this Act, no court shall proceed to the trial of any offence.

• Under sub-section (54 of section 313 or section 332 or sub- section (1) of section 333 or sub- section (1) of section 334 or section 343 or section 344 or section 345 or section 347 except on the complaint of or upon information received from such officer of the Corporation, not being below the rank of a Deputy Commissioner, as may be appointed by the Administrator.

Section 469 deals with the Municipal Magistrate

• The Central Government may appoint one or more magistrates of the first class for the trial of offences against this Act and against any rule, regulation or bye-law made thereunder and may prescribe the time and place at which such magistrate or magistrate shall sit for the dispatch of business.
  • Such magistrates shall be called municipal magistrate and shall beside the trial of offences as aforesaid, exercise all other powers and discharge all other functions of a magistrate as provided in this Act or any rule, regulation or bye-law made thereunder.
  • Such magistrates and the members of their staff shall be paid such salary, pension, leave and other allowances as may, from time to time, be fixed by the Central Government.
  • The Corporation shall, out of the Municipal Fund, pay to the Central Government the amounts of the salary, pension, leave and other allowances as fixed under sub-section (3) together with all other incidental charges in connection with the establishments of the said magistrates.
  • Each such magistrate shall have jurisdiction over the whole of Delhi.
  • For the purposes of the Code of Criminal Procedure, 1898, all municipal magistrates appointed under this Act shall be deemed to be magistrates appointed under Section 12 of the said Code.
  • Nothing in this shall be deemed to preclude any magistrate appointed hereunder from trying any offence under any other law.

Section 470 of the Act provides as all offences against this Act or any rule, regulation or bye-law made thereunder, whether committed within or without the limits of Delhi, shall be cognizable by a municipal magistrate and such magistrate shall not be deemed to be incapable of taking cognizance of any such offence or of any offence under any enactment which is repealed by, or which ceases to have effect under this Act by reason only of his being liable to pay any municipal tax or rate or benefitted out of the Municipal Fund.

Chapter II of CrPC deals with the Constitution of Criminal Courts and offices.

Section 4 deals with the trial of offences under the Indian Penal Code and other laws

1. All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
2. All offences under 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.

Section 5 CrPC  states that 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.

Section 6 CrPC deals with the classes of Criminal Courts. Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State the following classes of Criminal Courts, namely-

1. Courts of Session ;
2. Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates ;
3. Judicial Magistrates of the second class : and
4. Executive Magistrates.

Sections 8 and 16 of CrPC deal with the courts of Metropolitan Magistrates and inter alia provide that in every metropolitan area, the State Government may, after consultation with the High Court establish courts of Metropolitan Magistrates at such places and in such number as it may specify.

The presiding officers of such courts shall be appointed by the High Court and the jurisdiction and powers of every such Magistrate shall extend throughout the metropolitan area.

The High Court shall appoint a Metropolitan Magistrate as Chief Metropolitan Magistrate in every metropolitan area and may also appoint Additional Chief Metropolitan Magistrates and such other Metropolitan Magistrates as it may deemed necessary.

Section 11 of CrPC deals with the establishment of the courts of the Judicial Magistrates while Section 13 deals with the appointments of Special Judicial Magistrates.

Section 14 CrPC deals with the local Jurisdiction of Judicial Magistrates and inter-alia provides:

• Subject to the control of the High Court, the Chief Judicial Magistrate may, from time to time, define the local limits of the areas within which the Magistrates appointed under Section 11 or under Section 13 may exercise all or any of the powers with which they may respectively be invested under this Code : Provided that the Court of a Special Judicial Magistrate may hold its sitting at any place within the local area for which it is established.

• JUDGEMENT/ CONCLUSION:
• The Supreme Court held that in the absence of establishment of the courts of a municipal Magistrate under Section 469 of the Act, the Magistrates of the First Class including Metropolitan Magistrates are competent to try offences punishable under the Act, rules, regulations or bye-laws made thereunder.
• No error have been committed by the Metropolitan Magistrate in taking cognizance of the complaint filed by respondent under Section 332 r/w Section 461 of the Act against the appellant since it is not disputed that the complaint had been filed in the manner prescribed by the Act. Respondent could not have filed the complaint before a Municipal Magistrate, since no such Municipal Magistrate had been appointed.
• The legal maxim ‘Tex non cojit ad impossibility’ which means “the law does not compel a man to do that which he cannot possibly do” is squarely attracted to the fact situation in this case.
• This appeal, therefore, must fail and is hereby dismissed.