Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
PETITIONER:
ATTIQ-UR-REHMAN
Vs.
RESPONDENT:
MUNICIPAL CORPORATION OF DELHIAND ANOTHER
DATE OF JUDGMENT: 29/02/1996
BENCH:
ANAND, A.S. (J)
BENCH:
ANAND, A.S. (J)
AHMAD SAGHIR S. (J)
CITATION:
1996 AIR 956 1996 SCC (3) 37
JT 1996 (2) 670 1996 SCALE (2)557
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
DR. A.S. ANAND,J.
Special leave granted.
The only question involved in this case is 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 ?
The circumstances in which this question has arisen
need a brief notice at the thresh-hold.
On 6.6.1989, a Junior Engineer of the complainant -
Municipal Corporation of Delhi (respondent No.1 herein)
filed a report against the appellant alleging unauthorized
construction of roof and a stair-case on the ground floor of
the appellant’s property situate at 1535-1537, Church Road,
Kashmere Gate, Delhi. The appellant apprehending demolition
of his house, filed Civil Suit No.616 of 1989 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 No.
1 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 No.1 was restrained from demolishing the
property of the appellant except in due process of law". The
Junior Engineer of respondent No.1 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, respondent No.1, on 17th November,
1989 filed a criminal complaint (Case No. 533 of 1989) under
Section 332 read with Section 461 of the Delhi Municipal ,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
Corporation Act, 1957 (hereinafter ’the Act’) 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 read with
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.
Learned counsel for the appellant submitted 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.
Learned counsel for the respondent argued with equal
vehemence 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.
We do find some substance in the submission of learned
counsel for the appellant that the High Court ought not to
have dismissed the criminal revision petition by a non-
speaking order in limine, in view of the importance of the
question raised in the revision petition but we are of the
opinion that instead of remanding the case back to the High
Court, we need to decide the question of law ourselves since
on facts there is no dispute and the appeal has remained
pending in this Court for about five years.
With a view to answer the question noted in the opening
part of our judgment, it is necessary to notice some of the
relevant provisions of the Act and the Code of Criminal
Procedure 1973 (hereinaftar Cr.P.C.).
Section 466(a) of the Act makes Cr.P.C. 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 and
reads as under:
"467. Prosecutions - Save as
otherwise provided in this Act, no
court shall proceed to the trial of
any offence .
(a) 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
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 ;
xxx xxx xxx
Section 469 of the Act reads as
follows:
"469. Municipal Magistrate
"(1) 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 despatch of
business.
(2) 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.
(3) 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.
(4) 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.(
5) Each such magistrate shall have
jurisdiction over the whole of
Delhi.
(6) 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.
(7) 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
follows :
"470. All offences against this Act
or any rule, regulation or bye-law
made thereunder, whether committed
within or without the limits of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
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 Cr.P.C. deals with the Constitution of
Criminal Courts and offices.
Section 4 Cr.P.C. reads as follows:
"4. 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 Cr.P.C provides as
follows :
5. Saving. - 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 Cr.P.C. reads as follows:
"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-
(i) Courts of Session ;
(ii) Judicial Magistrates of the
first class and, in any
metropolitan area, Metropolitan
Magistrates ;
(iii) Judicial Magistrates of the
second class : and
(iv) Executive Magistrates.
Sections 8 and 16 of Cr.P.C 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
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 Cr.P.C. deals with the establishment of
the courts of the Judicial Magistrates while Section 13
deals with the appointments of Special Judicial Magistrates.
Section 14 Cr.P.C. deals with the local Jurisdiction of
Judicial Magistrates and inter-alia provides :-
"14. Local jurisdiction of Judicial
Magistrates.-(1) 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.
(2) .......................
(3) .......................
It is in the light of the aforesaid provisions that we
have to resolve the question formulated above.
Facts are not in dispute insofar as the question of
jurisdiction is concerned. Admittedly at the relevant time
no Municipal Magistrate had been appointed in accordance
with the provisions of Section 469 of the Act and the
complaint was filed by respondent No. 1 in the Court of
Metropolitan Magistrate, Delhi, for trial of an offence
punishable under Section 332 of the Act. The learned
Metropolitan Magistrate is a Judicial Magistrate of the
First Class but there was no notification by which the
powers of Municipal Magistrates were conferred on him.
From a plain reading of Section 4 Cr.P.C. (supra) it
emerges that the provisions of Criminal Procedure Code are
applicable where an offence under the Indian Penal Code or
under any other law is being investigated, inquired into,
tried or otherwise dealt with.
Section 469 of the Act empowers the central Government
to appoint one or more Magistrates of the First Class to try
offences under the Act. All such Magistrates are called
Municipal Magistrates and shall besides the trial of
offences under the Act, rules, regulations or bye-laws
framed thereunder, exercise all other functions of a
Magistrate as provided in the Act and are not precluded
from trying offences under any other law as well. Every
Municipal Magistrate appointed under Section 469 of the Act
by the Central Government is a Judicial Magistrate of the
First Class and shall be deemed to be a Magistrate appointed
under Section 12 Cr.P.C. Thus, no person who is not a
Judicial Magistrate of the first Class can be conferred
powers of a Municipal Magistrate to try offences under the
Act, rules, regulations or bye-laws made under the Act.
The bar of jurisdiction of ordinary criminal courts to
try of offences under the Act is brought about by Section
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
470 of the Act which inter alia provides that all offences
under the Act, whether committed within or without the
limits of Delhi shall be cognizable by a Municipal
Megistrate. Vide Section 467 of the Act no Court shall
proceed to the trial of any offence specified in the
section, including an offence under Section 332 of the Act
except on a complaint of or information received from an
officer, not below the rank of Deputy Commissioner,
appointed by the Administrator of the Corporation.
Keeping in view the scheme of the Act and the relevant
provisions of the Code of Criminal Procedure it emerges that
the Government has an obligation under Section 469 of the
Act to appoint Municipal Magistrates for trial of offences
under the Act, rules, regulations or bye-laws made
thereunder. The use of the word "may" in Section 469 of the
Act only indicates that the Government has the discretion to
appoint one or more Municipal Magistrates but it certainly
does not relieve the Government of its obligation to appoint
Municipal Magistrates and once such Municipal Magistrates
are appointed, they alone would have the jurisdiction to try
offences under the Act as per the mandate of Section 470 of
the Act. The bar under Section 470 of the Act becomes
operative only when a Municipal Magistrate has been
appointed for trial of offences under the Act. The Cr.P.C.
is comprehensive and exhaustive. To the extent that no valid
machinery is set up under any other law for trial of any
particular case, the jurisdiction of the ordinary criminal
court cannot be said to have been excluded. Exclusion of
jurisdiction of a court of general jurisdiction can be
brought about only by setting up of a court of limited
jurisdiction in respect of the limited field provided that
the vesting and the exercise of that limited jurisdiction is
clear and operative. Thus, where there is no valid machinery
for the exercise of jurisdiction in a specific case the
exercise of jurisdiction by the Judicial Magistrates or the
Metropolitan Magistrates, as the case may, is not excluded.
The law and procedure for trial of cases under the Indian
Penal Code and those under other statutes, according to
Section 4 Cr.P.C. is not different except that in the cases
of offences under other laws, the procedures laid down by
the Cr.P.C. is subject to the provisions of the relevant
enactment for the time being in force for regulating the
manner of trial of offences under that enactment.
A conjoint reading of the provisions of Cr.P C. and the
Act, therefore, unambiguously suggests that in the absence
of courts of special jurisdiction i.e. Municipal Magistrates
to be appointed under Section 469 of the Act, a Judicial
Magistrate of the First Class or a Metropolitan Magistrate,
as the case may be, shall have the jurisdiction and powers
to try the offences under the Act in accordance with the
procedure envisaged by Section 467 of the Act and in
accordance with the limitation the time prescribed for
initiation of the criminal proceedings under Section 471 of
the Act. This interpretation is in accord with the position
that every offence committed under the Indian Penal Code or
under any other law for the time being in force must be
tried and an accused cannot be permitted to raise any
objection with regard to the forum for trial of the offence,
where the specific forum has not been constituted under the
Act because the law does not contemplate an offence, to go
untried. Where, no court of a Municipal Magistrate has been
constituted under Section 469 of the Act and no Notification
has also been issued conferring the powers of a Municipal
Magistrate on a Particular Judicial Magistrate of the First
Class or a Metropolitan Magistrate, as the case may be, the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
jurisdiction of an ordinary criminal court to take
cognizance of the offences committed under the Act, rules,
regulations or bye-laws made thereunder is exercisable by
the courts of general jurisdiction established to try
offences under the Indian Penal Code as well as the offences
under any other law.
We, therefore, unhesitatingly come to the conclusion
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. Our
answer to the question posed in the opening part of the
judgment, therefore, is in the affirmative.
In view of the aforesaid discussion, we do not find any
error to have been committed by the learned Metropolitan
Magistrate in taking conginance of the complaint filed by
respondent No. 1 under Section 332 read with 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 No. 1 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. The trial
court is directed to expeditiously conduct the trial of the
criminal complaint No.533 of 1989 for the offence under
Sections 332/461 of the Delhi Municipal Corporation Act,
1957. We need not emphasis that if in the meanwhile a court
of Municipal Magistrate has been established under Section
469 of the Act, the trial of the complaint shall be
conducted by that Court and the complaint shall be deemed to
have been transferred to that court for its trial in
accordance with law from the court of the Metropolitan
Magistrate. Nothing said hereinabove shall, however, be
construed as any expression of opinion on the merits of the
cases