Full Judgment Text
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PETITIONER:
MUNICIPAL CORPORATION OF DELHI
Vs.
RESPONDENT:
JAGDISH LAL SON OF RADHAKISHAN & ANR.
DATE OF JUDGMENT:
27/05/1969
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
SHAH, J.C.
SIKRI, S.M.
CITATION:
1970 AIR 7 1970 SCR (1) 579
1969 SCC (3) 389
CITATOR INFO :
D 1972 SC1407 (20)
ACT:
Prevention of Food Adulteration Act 1964 (37 of 1964), s.
20--Municipality authorizing Municipal Prosecutor to file
complaint on its behalf-Accused acquitted-Municipality
whether ’complainant’ within meaning of s. 417(3) of Code of
Civil Procedure-Whether competent to file application for
special leave to appeal.
HEADNOTE:
A complaint under s. 7 read with s. 16 of the Prevention of
Food Adulteration Act, 1964 was filed against the
respondent. It was filed by the Municipal Prosecutor who
had been authorised to file such complaints by a resolution
passed by the appellant corporation under s. 20 of the
aforesaid Act. On the respondent being acquitted the
appellant corporation filed an application in the High Court
for special leave to appeal under s. 417 of the Code of
Criminal Procedure. The application was allowed. When the
appeal came up for hearing a preliminary objection was
raised by the respondent that the complaint having been
filed by the Municipal Prosecutor the corporation was not a
’complainant’ within the meaning of s. 417(3) of the Code of
Criminal Procedure and therefore special leave to appeal
should not have been granted. The High Court upheld the
preliminary objection and dismissed the appeal. By special
leave the corporation appealed to this Court.
HELD : (i) Under s. 476(1)(h) of the Delhi Municipal
Corporation Act the person competent to institute legal
proceedings is the Commissioner. However the present case
was governed not by that provision but by s. 20 of the
Prevention of Food Adulteration Act, 1964 which provides
that a prosecution under that Act may be instituted "by the
Central Government or the State Government or a local
authority or a person authorised in this behalf, by general
or special order by the Central Government or the State
Government or a local authority". Section 2(vii) of the
Prevention of Food Adulteration Act defines a "local autho-
rity" to mean "in the case of a local area which is a
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municipality, the municipal board or municipal corporation".
The Delhi Municipal Corporation was a local authority within
the meaning of s. 20, [581 H; 582 C, G-H; 584 A]
(ii)The Municipal Prosecutor had filed the complaint
against the respondent under authority given to him by the
resolution of the Delhi Municipal Corporation under s. 20 of
the Prevention of Food Adulteration Act. in filing the
complaint the said prosecutor was not acting on his own
personal behalf but was acting as an agent authorised by the
Delhi Municipal Corporation to file the complaint. It must
therefore be deemed in law that the Delhi Municipal
Corporation was the ’complainant’ in the case, for according
to the Latin maxim. "One who does an act through another is
deemed in law to do it himself." [583 H; 584 C-D]
Being thus the complainant in the case the appellant
Corporation could properly file the application under s. 417
of the Code of Criminal Procedure. [Case remanded to High
Court for disposal according to law.] [584 E]
580
Ballavdas Agarwala v. J. C. Chakravarty, [1962] 3 S.C.R.
739 and Nazir Ahmad v. King Emperor, 63 I.A. 372 as 381,
referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 8 of
1966.
Appeal by special leave from the judgment and order dated
April 29, 1965 of the Punjab High Court, Circuit Bench at
Delhi in Criminal Appeal No. 164-D of 1962.
Bishan Narain, K. K. Raizada and A. G. Ratnaparkhi, for the
appellant.
Sardar Bahadur and Yougindra Khushalani, for respondent No.
1.
R. N. Sachthey, for respondent No. 2.
The Judgment of the Court was delivered by
Ramaswami, J. On August 29, 1960 Shri Sham Sundar Mathur,
Municipal Prosecutor of the Delhi Municipal Corporation
filed a complaint in the court of Magistrate First Class
against the respondent, Jagdishlal under S. 7 read with S.
16 of the Prevention of Food Adulteration Act, 1954 (37 of
1954). In the said complain Shri Sham Sundar Mathur said
that lie was competent to file the complaint under S. 20 of
the aforesaid Act in accordance with a resolution passed by
the Corporation in its meeting held on December 23, 1968.
By his order dated April 30, 1962 the learned Magistrate
acquitted the respondent. The Delhi Municipal Corporation
made an application to the High Court asking for special
leave under s. 417 of the Code of Criminal Procedure to
appeal against the order of acquittal. The application was
-ranted on September 3, 1962. When the appeal came up for
hearing a preliminary objection was raised on of the
respondent that the only person competent to file the appeal
was the complainant, Shri Sham Sundar Mathur. But the leave
application was not filed by him and, therefore, the
Municipal Corporation was not competent to prosecute the
appeal. It was contended that only the complainant was
competent to present an application for special leave under
S. 417(3) of the Code of Criminal Procedure. As the
complainant in this case was Shri Sham Sundar Mathur the
appeal could not be filed by the Delhi Municipal
Corporation. The High Court upheld the preliminary objec-
tion of the respondent and dismissed the appeal by its order
dated April 29, 1965. This appeal is brought by special
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leave on behalf of the Delhi Municipal Corporation against
the judgment of the High Court dated April 29, 1965 in Cr.
Ar. No. 163-D of 1962.
Section 20 of the Prevention of Food Adulteration Act, 1954
states :
581
" (1) No prosecution for an offence under this
Act shall be instituted except by, or with the
written consent of, the Central Government or
the State Government or a local authority or a
person authorised in this behalf, by general
or special order, by the Central Government or
the State Government or a local authority :
Provided that a prosecution for an offence
under this Act may be instituted by a
purchaser referred to in section 12, if he
produces in court a copy of the report of the
public analyst along with the complaint.
Section 417, sub-ss. (1), (2) and (3) of the
Code of Criminal Procedure after its amendment
by Act 26 of 1955 provide :
" (1) Subject to the provisions of sub-section
(5), the State Government may, in any case,
direct the Public Prosecutor to present an
appeal to the High Court from an original or
appellate order of acquittal passed by any
Court other than a High Court.
(2)If such an order of acquittal is passed
in any case in which the offence has been
investigated by the Delhi Special Police
Establishment constituted under the Delhi
Special Police Establishment Act, 1946 (XXXV
of 1946), the Central Government may also
direct the Public Prosecutor to present an
appeal to the High Court from the order of
acquittal.
(3)If such an order of acquittal is passed
in any case instituted upon complaint and the
High Court, on an application made to it by
the complainant in this behalf, grants special
leave to appeal from the order of acquittal,
the complainant may present such an appeal to
the High Court.
The principal question to be determined is whether the com-
plaint dated August 29, 1960 was instituted by the Delhi
Municipal Corporation. It is argued on behalf of the
respondent that the complaint petition was not made and
signed by the person competent under the Delhi Municipal
Corporation Act, 1957 to exercise powers of the, Corporation
in the matter of institution of legal proceedings. In our
opinion there is substance in this contention. The only
provision under the Delhi Municipal Corporation Act, 1965
which confers power to institute legal proceedings is s.
476(1) (h) which states
582
"(1) The Commissioner may-
(h)institute and prosecute any suit or
other legal proceeding, or with the approval
of the Standing Committee withdraw from or
compromise any suit or any claim for any sum
not exceeding five hundred rupees which has
been instituted or made in the name of the
Corporation or of the Commissioner;
It is clear that the phrase "other legal
proceedings" includes the power to institute a
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complaint before a Magistrate and hence it is
the Commissioner alone who could exercise the
power as there is no other provision in the
Act which confers such power on anyone else.
This view is supported by the decision of this
Court in Bailavdas Agarwala v. J. C.
Chakravarty(1) in which it was pointed out
that a complaint under The Calcutta Municipal
Act, 1923 as applied to the Municipality of
Howrah, would only be filed by the au
thorities
mentioned therein and not by an ordinary
citizen. Section 537 of that Act provided
that the Commissioners may institute, defend
or withdraw from legal proceedings under the
Act; under s. 12 the Commissioners can
delegate their functions to the Chairman, and
the Chairman may in his turn delegate the same
to the Vice-Chairman or to any municipal
officer. It was observed in that case that
the machinery provided in the Act must be
followed in enforcing its provisions, and it
was against the tenor and scheme of the Act to
hold that s. 537 was merely enabling in
nature. The principle invoked in that case
was that adopted by the Privy Council in Nazir
Ahmad v. King Emperor (2) viz. : that where a
power is given to do a certain thing in a
certain way, the thing must be done in that
way or not at all. It was, therefore, held
that if a legal proceeding was instituted
under the Municipal Act in question, it must
be done in accordance with the provisions of
the Act and not otherwise.
But the question presented for determination
in the present appeal is somewhat different.
Under s. 20 of Act 37 of 1954 the prosecution
for the offence may be instituted either (a)
by the Central Government or the State
Government or a local authority or (b) a
person authorised in that behalf by general or
special order by the Central Government or the
State Government or a local authority.
Section 2(vii) of Act 37 of 1954 defines a
"local authority" to mean "in the case of a
local area which is a
(1) [1962] 3 S.C.R. 739.
(2) 63 I.A. 372 at 381.
583
pality, the municipal board or municipal corporation." A
complaint under s. 20 of the Act may, therefore, be
instituted either by the Municipal Corporation or by a
person authorised in its behalf by general or special order
by the Municipal Corporation. The Resolution of the Delhi
Municipal Corporation dated December 23, 1958 reads as
follows
"Subject : Authorising the Municipal Prosecutor and the
Assistant Municipal Prosecutor to launch Prosecutions under
section 20 of the Prevention of Food Adulteration Act, 1954.
The area under the jurisdiction of the Delhi Municipal
Corporation has been declared a "local area" under s. 2(vii)
of the Prevention of Food Adulteration Act vide Chief
Commissioner’s Notification No, F.32(30) 58-M and PH(i)
dated 13th June, 1958 published in the Delhi Gazette (Part
IV) dated 26th June, 1959 and consequently the Municipal
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Corporation of Delhi is the Local Authority for that area
within the meaning of section 2(vii) of the said Act.
Section 20 of the Prevention of Food Adulteration Act, 1954
contemplates the appointment of persons who shall be
authorised to institute prosecutions under this Act by the
Local Authority concerned.
Shri Sham Sundar Mathur, M.A., LL.B., Municipal Prosecutor
and Shri Bankey Behari Tawkley, Assistant Municipal
Prosecutor were authorised by the erstwhile Delhi Municipal
Committee tinder the above section."
"Shri Vijay Kumar Malhotra moved the following resolution,
which was seconded by Shri Prem Sagar Gupta
Resolved that the recommendations of the Commissioner vide
letter No. 139/Legal/58 dated 1-12-58 regarding authorising
the Municipal prosecutor and the Assistant Municipal
Prosecutor to launch prosecutions under section 20 of the
Prevention of Food Adulteration Act, 1954 be approved.
The resolution was carried."
In the present case Shri Sham Sundar Mathur, Municipal
Prosecutor filed the complaint under s. 20 of Act 37 of 1954
under
L14Sup.C.I/69-8
584
the authority given to him by the resolution of the
Municipal Corporation. Since the Municipal Corporation,
Delhi, is a local authority within the meaning of S. 20 of
Act 37 of 1954 and since it conferred authority on the
Municipal Prosecutor the complaint was properly filed by
Sham Sundar Mathur. The question is whether the Delhi
Municipal Corporation or Shri Mathur was the complainant
within the -meaning of S. 417(3) of the Code of Criminal
Procedure. It was argued on behalf of the respondent that
the complainant was Shri Sham Sundar Mathur, the Municipal
Prosecutor and the Delhi Municipal Corporation was not
competent to make an application for special leave under s.
417(3), Cr. P.C. We are unable to accept this argument as
correct. It is true that Shri Sham Sundar Mathur filed the
complaint petition on August 29, 1960. But in filing the
complaint Shri Mathur was not acting on his own personal
behalf but was acting as an agent authorised by the Delhi
Municipal Corporation to file the complaint. It must,
therefore, be deemed in the contemplation of law that the
Delhi Municipal Corporation was the complainant in the case.
The maxim qui per alium facit per seipsum facere videtur
(he who does an act through another is Jeemed in law to do
it himself) illustrates the general doctrine on which the
law relating to the rights and liabilities of principal and
agent depends. We are, therefore, of opinion that Shri
Mathur was only acting in a representative capacity and
that the Delhi Municipal Corporation was the complainant
within the meaning of S. 417(3) of the Code of Criminal
Procedure and the petition for special leave and the appeal
petition were properly instituted by the Delhi Municipal
Corporation. For these reasons we allow the appeal, set
aside the judgment of the High Court dated April 9, 1965 and
direct that the appeal should be remanded to the High Court
for being heard afresh and disposed of according to law.
G.C. Appeal allowed.
585