Professional Documents
Culture Documents
J 2013 SCC OnLine Bom 2245 2013 4 AIR Bom R 75 2013
J 2013 SCC OnLine Bom 2245 2013 4 AIR Bom R 75 2013
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Greater Mumbai.
of fire, which was defective electric circuit. The fire could not be
controlled because of non-maintenance of the fire fighting measures
provided in the building. The accused have failed to pro duce the
certificates from the licenced agency for maintenance of the fire
fighting equipments in good condition to the Chief Fire Officer in
January and July, 2012. The manual call points and fire alarms were
removed by the accused without information to the authority. These
observations are mentioned in the investigation report dated
06.12.2012 which was placed before the senior officers. Accordingly, a
no tice was issued on 06.12.2012 to all the ac cused and served on
them. The petitioners/accused are identified as owners of the build ing
and office bearers of the society. That notice and reply thereto is part
and parcel of the complaint. The reply being unsatisfactory, it was
alleged that the offence punishable under the above provisions has
been committed. It has been pointed out that the accused Nos. 2 and 3
were removed from their posts by the Sub Registrar and that was
intimated to them and equally the accused No. 8 gave resignation three
months back.
4. Upon such a complaint filed on 14.12.2012, the learned
Metropolitan Magistrate perused the documents and found that there is
sufficient material to proceed further. Hence, the learned Magistrate
issued the pro cess returnable on 17th January, 2013.
5. It is this order which is under challenge in this Writ Petition.
6. Mr. Ponda, learned counsel appearing for the petitioners, has
submitted that the impugned order is ex facie erroneous and illegal. It
is vitiated by total non-application of mind. The learned Magistrate has
merely endorsed his approval on the allegations made in the com plaint
without independent application of mind. The issuance of process is a
serious matter. This is a criminal case. It concerns the life and liberty of
the petitioners, some of whom are senior citizens. In these
circumstances the learned Magistrate was obliged to carefully scrutinize
and verify the allegations in the com plaint so as to find out whether
any offence is committed by the petitioners herein. The learned
Magistrate has failed to discharge that duty in law.
7. It is next contended by Mr. Ponda that the complaint, read as a
whole, does not dis close commission of any offence by the peti tioners.
He submits that the complaint shows the accused No. 1 as Jolly Maker-
I Co-opera tive Housing Society, the accused No. 2 is Chairman, the
accused No. 3 is described as ex-Vice-Chairman, the accused No. 4 is
de scribed as ex-Secretary whereas the accused No. 5 is the Joint
Secretary. A lady, namely, accused No. 6 is aged 81 years and was a
Treasurer and equally the accused No. 7 was the Joint-Treasurer
whereas the accused No. 8 is arraigned as accused in his capacity as ex
-Joint Treasurer. Mr. Ponda submits that the complaint alleges
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be set aside.
11. In support of the above contentions, Mr. Ponda has relied upon
the following decisions:—
(1) (1989) 4 SCC 630 : AIR 1989 SC 1982 (Sha??? Sundar v. State
of Haryana).
(2) Criminal Appeal No. 488/2013 (GHCL Employees Stock Option
Trust v. India Infoline Limited) decided on 22.03.2013 by the
Honourable Supreme Court ((2013) 4 SCC 505 : AIR 2013 SC
1433).
(3) (1971) 3 SCC 189 : AIR 1971 SC 2162 (Girdhari Lal Gupta v.
D.N. Mehta).
(4) 2002 Cri LJ 4155 (Madras High Court) S.N. Bangur v. Klen &
Marshalls Mrfs. and Exporters Pvt. Ltd.
(5) (1983) 1 SCC 1 : AIR 1983 SC 67 (Municipal Corporation of
Delhi v. Ram Kishan Rohtagi).
(6) (2008) 5 SCC 668 (Maksud Saiyed v. State of Gujarat).
(7) 1998 Cri LJ 1 : ((1998) 5 SCC 749 : AIR 1998 SC 128), Pepsi
Foods Ltd. v. Special Judicial Magistrate.
(8) (2010) 3 SCC 330 : (AIR 2010 Supp SC 569), National Small
Industries Corporation limited v. Harmeet Singh Paintal.
(9) (2009) 10 SCC 48 : (AIR 2011 SC (Cri) 2259), K.K. Ahuja v.
V.K. Vora.
(10) (2002) 7 SCC 655, Katta Sujatha v. Fertilizers & Chemicals
Travancore Ltd.
(11) (2006) 10 SCC 581 : (AIR 2006 SC 3086), Sabitha
Ramamurthy v. R.B.S. Channabasavaradhya.
12. On the other hand, Mr. Naik, learned counsel appearing for the
Respondent No. 2, submitted that the order under challenge is merely
issuance of process. Such an order does not decide any issue or the
controversy conclusively. It is not as if the defences raised are
foreclosed. The order issuing process is based on reading of the
complaint and sup porting materials. There is clearly a case made out
for issuing the process. The learned Mag istrate has passed an order
issuing process on perusal of the complaint and accompanying
documents. He has indicated that there being sufficient material to
proceed further, the process has been issued for the offences that have
been alleged. This is just a prima facie conclusion. Once it is in
consonance with the material produced at that stage, then, this Court
cannot reappreciate and reappraise the same and interfere in its writ
jurisdiction and particularly under Article 227 of the Constitution of
India. It cannot also interfere in its inherent jurisdiction.
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Fire Officer;
(f) under Section 10, sub-section (1),—
(i) carrying out the work of providing fire prevention and life
safety measures, or performing such other related
activities by a person other than the Licensed Agency;
(ii) giving a certificate under sub-section (3) of Section 3
without there being actual compliance or maintenance of
fire prevention and life safety measures and equipment;
(g) under Section 14, sub-sections (1) and (2), construction of
a building without applying for permission of the Authority
or without such permission and thereby avoiding to apply for
assessment of fee payable under this Act; shall, without
prejudice to any other action taken or which may be taken
under any of the provisions of this Act, be punished with
rigorous imprisonment for a term which shall not be less
than six months but which may extend to three years and
with fine which shall not be less than Rupees 20,000 but
which may extend to Rupees 50,000; and where the offence
is continuing one with a further fine which may extend to
Rupees 3000 for every day during which such offence
continues after the conviction for the first such offence:
Provided that, in the absence of any special and adequate
reasons to the contrary to be mentioned in the judgment of
the Court, such punishment shall not be less than three
months and such fine shall not be less than ten thousand
rupees or such daily fine shall not be less than one thousand
rupees per day for a continuing offence.
Explanation. — The expressions used in Clauses (a) to (g)
are not intended as the definitions of offences described in
the sections mentioned in each of these Clauses or even as
abstracts of those sections but are mentioned merely as
references to the subject-matter of the offences under those
sections.
(2) Whoever—
(a) willingly attempts, in any manner whatsoever, to
evade any fee leviable under this Act, or
(b) willingly attempts, in any manner whatsoever, any
payment of any fee or interest or both under this Act,
or
(c) contravenes any of the provisions of this Act or the
rules for which no specific penalty has been provided
by this Act, or
(d) fails to comply with the requirements of any order or
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there can be at all any doubt about the intention, we must, where
penalties are involved, require that the intention shall clearly appear
from the words of the enactment construed in the light of those
matters. But if we can say that those matters show that a particular
result must certainly have been intended, we would, I think, be
stultifying the underlying principle if we required more than that the
statutory provisions are reasonably capable of an interpretation carrying
out that intention.” In an earlier case, LORD REID explained that the
rule of restrictive interpretation of penal provisions “only applies where
after full enquiry and consideration one is left in real doubt. It is not
enough that the provision is ambiguous in the sense that it is capable
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29. This view has been followed in the case of Chairman, SEBI v.
Shriram Mutual Fund reported in (2006) 5 SCC 361 : (AIR 2006 SC
2287). In paragraphs 33 and 35 of this decision, the Honourable
Supreme Court refers to the same principles and holds as under:—
“33. This Court in a catena of decisions have held that mens rea is
not an essential element for imposing penalty for breach of civil
obligations:
(a) Director of Enforcement v. MCTM Corpn. (P) Ltd., (1996) 2
SCC 471 : (AIR 1996 SC 1100) : (SCC pp. 478 & 480-81,
paras 8 and 12-13) (pp. 1104 and 1105-1106, paras 8 and 12-
13 of AIR).
8. It is thus the breach of a “civil obligation” which attracts
“penalty” under Section 23(1)(a), FERA, 1947 and a finding that the
delinquent has contravened the provisions of Section 10, FERA, 1947
that would immediately attract the levy of “penalty” under Section
23, irrespective of the fact whether the contravention was made by
the defaulter with any “guilty intention” or not. Therefore, unlike in a
criminal case, where it is essential for the ‘prosecution’ to establish
that the ‘accused’ had the necessary guilty intention or in other
words the requisite ‘mens rea’ to commit the alleged offence with
which he is charged before recording his conviction, the obligation on
the part of the Directorate of Enforcement, in cases of contravention
of the provisions of Section 10 of FERA, would be discharged where
it is shown that the “blameworthy conduct” of the delinquent had
been established by wilful contravention by him of the provisions of
Section 10, FERA 1947. It is the delinquency of the defaulter itself
which establishes his ‘blameworthy’ conduct, attracting the
provisions of Section 23(1)(a) of FERA, 1947, without any further
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absolute or strict liability without proof of any mens rea. The offences
are strict statutory offences for which establishment of mens rea is not
an essential ingredient. The omission or commission of the statutory
breach is itself the offence. Similar type of offences based on the
principle of strict liability, which means liability without fault or mens
rea, exist in many statutes relating to economic crimes as well as in
laws concerning the industry, food adulteration, prevention of pollution
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etc. in India and abroad. “Absolute offences” are not criminal offences
in any real sense but acts which are prohibited in the interest of welfare
of the public and the prohibition is backed by sanction of penalty.
(c) R.S. Joshi Sales Tax Officer, Gujarat v. Ajit Mills Ltd., (1977) 4
SCC 98 : (AIR 1977 SC 2279).
Even here we may reject the notion that a penalty or a
punishment cannot be cast in the form of an absolute or nofault
liability but must be preceded by mens rea. The classical view
that ‘no mens rea, no crime’ has long ago been eroded and
several laws in India and abroad, especially regarding economic
crimes and departmental penalties, have created severe
punishments even where the offences have been defined to
exclude mens rea. Therefore, the contention that Section 37(1)
fastens a heavy liability regardless of fault has no force in
depriving the forfeiture of the character of penalty.”
(d) Gujarat Travancore Agency v. CIT, (1989) 3 SCC 52 : (AIR
1989 SC 1671).
It is sufficient for us to refer to Section 271(1)(a), which
provides that a penalty may be imposed if the Income-tax Officer
is satisfied that any person has without reasonable cause failed to
furnish the return of total income, and to Section 276-C which
provides that if a person wilfully fails to furnish in due time the
return of income required under Section 139(1), he shall be
punishable with rigorous imprisonment for a term which may
extend to one year or with fine. It is clear that in the former case
what is intended is a civil obligation while in the later what is
imposed is a criminal sentence. There can be no dispute that
having regard to the provisions of Section 276-C, which speaks of
wilful failure on the part of the defaulter and taking into
consideration the nature of the penalty, which is punitive, no
sentence can be imposed under that provision unless the element
of mens rea is established. In most cases of criminal liability, the
intention of the legislature is that the penalty should serve as a
deterrent. The creation of an offence by statute proceeds on the
assumption that society suffers injury by the act or omission of
the defaulter and that a deterrent must be imposed to discourage
the repetition of the, offence. In the case of a proceeding under
Section 271(1)(a), however, it seems that the intention of the
legislature is to emphasise the fact of loss of revenue and to
provide a remedy for such loss, although no doubt an element of
coercion is present in the penalty. In this connection, the terms in
which the penalty falls to be measured is significant. Unless there
is something in the language of the statute indicating the need to
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a given case.
(C) If, from the scheme, object and words used in the statute, it
appeals that the proceedings for imposition of the penalty are
adjudicatory in nature, in contra-distinction to criminal or quasi
criminal proceedings, the determination is of the breach of the
civil obligation by the offender. The word “penalty” by itself will
not be determinative to conclude the nature of proceedings
being criminal or quasi criminal. The relevant considerations
being the nature of the functions being discharged by the
authority and the determination of the liability of the
contravenor and the delinquency.
(D) Mens rea is not essential element for imposing penalty for
breach of civil obligations or liabilities.
(E) There can be two distinct liabilities, civil and criminal under
the same Act.
52. The SEBI Act and the Regulations are intended to regulate the
Security Market and related aspects, the imposition of penalty, in the
given facts and circumstances of the case, cannot be tested on the
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33. In this context, Mr. Ponda relies upon the Maharashtra Co-
operative Societies Act, 1960 (for short MCS Act) and submits that the
same will be the applicable law to the owner in this case. The accused
No. 1 is a registered co-operative society under the MCS Act. The term
“officer” is defined in Section 2(20) of the MCS Act. Then it is
submitted that Section 72 of the MCS Act appearing in Chapter-VII,
says in unequivocal terms that the final authority of every society shall
vest in General Body of members in General Meeting summoned in
such manner as may be specified in bye-laws. True it is that this is
subject to the provisions in the MCS Act and Rules, but Mr. Ponda
submits that if the final authority vests in general body of members,
then, picking and choosing only those elected by the General Body as
representatives, namely, Chairman, Secretary, Treasurer, etc. is
impermissible in law. Mr. Ponda submits that the Managing Committee
cannot be hauled up for any dereliction of duty or act of omission and
commission.
34. Mr. Ponda's argument overlooks the distinction between the final
authority of every society and management of every society. Section 73
(1) of the MCS Act in clearest terms states that the management of
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why the prosecution should not be launched against him. Such notice
was issued to the Vice Chairman, Secretary, Treasurer, Joint Treasurer
and then the replies thereto have been referred to. Based on all this
that the complaint containing the above allegations has been filed. In
the complaint itself it has been stated that the accused Nos. 2 and 3
were removed from their posts by the Registrar and by intimation to
them on 27.11.2012. The accused No. 8 had given resignation few
months back as per the inquiry with the Society office bearers. This
means that the complaint contains relevant material and it may be the
stand of accused that some of them have resigned or were no longer
committee members. However, as has been rightly pointed out by Mr.
Naik, the complaint is not filed alleging offences punishable under the
said Act because of the incident of fire, but the complaint takes that
into account and alleges that it was because of non-compliance with
Sections 3(1), 3(3) and 3(4) of the said Act which is an offence, that
the fire occurred. Thus, fire prevention and life safety measures were
not provided and they were not maintained in good and effective
condition at all times as required by the statute. That obligation and
duty has to be performed at all times and it may be that a given office
bearer was not holding office on the date of such incident or calamity,
but his liability is absolute and he must then, as a part of defence,
substantiate and prove that there was no failure to provide and
maintain fire prevention and life safety equipments in good repair and
condition. Apart therefrom, the person who is arraigned as an accused
can prove that the offence was committed without his knowledge or
that he has exercised due diligence to prevent such offence. In these
circumstances to urge that the complaint does not disclose commission
of any offence by the petitioner Nos. 1 to 7 is not proper to say the
least. Reliance placed on the model bye-laws, at this stage, will not
carry the case any further. Once it is understood that the offence under
the said Act is contravention of and non-compliance with the provisions
enumerated in Section 36, then, coupled with the legislative intent it
will have to be held that any technical pleas of the nature raised cannot
be entertained at this stage. The distinction in law has to be borne in
mind. The Law makes default in compliance and contravention of the
provision obliging maintenance of fire and life safety measures, an
offence and enables imposing penalty therefor. That is a public duty.
40. In India as well abroad, as has been emphasized by me
hereinabove, a distinction has been made as to what would amount to
commission of offence or infact punishment for commission of an
offence. If the blameworthy conduct is the foundation or premise upon
which the provision has been made, then, it is not permissible to ignore
it. Even decisions of the Courts abroad and particularly of the House of
Lords in Tesco Supermarkets Limited and Nattrass decided on February
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3, 4, 8 and 9 and March 31, 1971 reported in [1972] App. Cas. 153
(HL), recognizes the above distinction. The lack of due diligence, lack of
care, are the principles on which the criminal liability is based. Then,
bearing in mind the object and purpose sought to be achieved and in
larger public interest, an interpretation will have to be placed on the
provision which would advance that purpose and suppress the mischief.
But, that it would be difficult and in
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the act which the legislature is dealing with has to be referred to. In
this context, the learned Author has referred to the leading judgments
of the English Courts and held that the contravention must be seen in
the context of the nature of duty. If the nature of duty is such that
public safety and public health is at stake, then, even default in
complying with the provisions enshrining that duty would be an offence
and that is made punishable. If that is made punishable, then, the
provision cannot be ignored. Thus, one goes back to the settled
principle that in construing criminal statute, the principle of strict
construction is capable of being relaxed. That is relaxed bearing in mind
the provision in each statute. As has been emphasized by the very
learned Author and relying on several judgments, the guiding principle
is that the penal statutes have also to be interpreted having regard to
the subject-matter of the offence and the object of the law it seeks to
achieve. The purpose of law is not to allow the offender to sneak out of
the meshes of law. As has been enshrined above, the considerations of
public policy are not foreign in interpreting and applying a criminal
statute.
42. For the above reasons, it is not possible to agree with Mr. Ponda
that the order issuing process is bad in law or perverse.
43. True it is, as emphasized by Mr. Ponda, that being summoned
upon to answer a criminal charge is a serious matter. The learned
Magistrate should not act mechanically while issuing the process, but
should apply his mind. If the criminal proceedings are serious matters,
then, it is expected, as rightly emphasized by Mr. Ponda, that the
learned Magistrate must apply its mind to the allegations in each
individual complaint and find out as to whether essential ingredients
are satisfied or not. It is not possible to lay down an abstract or general
principle as has been requested by Mr. Ponda in this case. Ultimately,
the principles which have been applied in interpreting Sections 138,
141 and 142 of the Negotiable Instruments Act, 1881 cannot be
straightway applied, read and imported in the said Act. Mr. Ponda
submits that in this case the petitioners are held to be vicariously liable
and that is impermissible. That it is not so is clear from what has been
held by me hereinabove. Now the argument based on the provisions of
the Negotiable Instruments Act, 1881 is that there is no essential
pleading. To my mind, the criminal law cannot be set in motion as a
matter of
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44. Once the above view is taken, then, it is not necessary to refer to
each of the judgments relied upon by Mr. Ponda.
45. However, in the facts and circumstances of the present case, the
learned Magistrate has not exceeded his limits or powers in summoning
the petitioners and merely because they are senior citizens, they cannot
escape the criminal liability. I have no doubt in mind that the learned
Magistrate will not insist on their attendance in person on every day on
which the trial is being held by him. He will
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46. I am satisfied that the order issuing the process does not suffer
from any illegality or perversity warranting interference in writ
jurisdiction. In such circumstances I proceed to dismiss the Writ
Petition. Rule is discharged. The Writ Petition is dismissed. However, all
contentions of both sides on merits are kept open. This order will not
prevent the petitioners from raising appropriate pleas and equally
requesting the learned Magistrate that the charge may not be framed
against them or any one of them and contentions in that behalf are also
kept open.
47. Petition dismissed.
———
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