Court On Its Own Motion vs State Of Delhi
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 27.04.2026
Pronounced on: 18.06.2026
+ CRL.REF. 1/2024
COURT ON ITS OWN MOTION ..…Petitioner
Through: Mr.Rahul Mehra, Sr. Adv.
( Amicus Curiae ) with
Mr.Chaitanya Gosain, and
Mr.Hanif Chimthanawala,
Advs.
versus
STATE OF DELHI .....Respondent
Through: Mr.Aman Usman, APP with
Mr.Manvendra Yadav and
Mr.Atiq Ur Rehman, Advs.
Mr.Tushar Sannu, SC with
Mr.Priyankar Tiwary and
Mr.Fajallu Rehman, Advs. for
MCD.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
J U D G M E N T
NAVIN CHAWLA, J.
1. The present petition is a Criminal Reference under Section 395(2)
of the Code of Criminal Procedure, 1973 (hereinafter referred to as
„Cr.P.C.‟) registered pursuant to the order dated 08.01.2024 passed by the
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Court of Sh. Yashdeep Chahal, learned Metropolitan Magistrate-01,
Patiala House Courts, New Delhi District, seeking determination of the
following questions of law arising in prosecutions under the Delhi
Municipal Corporation Act,1957 (hereinafter referred to as „DMC Act‟):
“(1) Whether any statutory timeline for the
completion of investigation and filing of
chargesheet in the Court is prescribed under
DMC Act, specifically in Section 471 of the
Act? If no, whether any question of
chargesheet being barred by limitation would
arise during the enquiry/trial of the offences
under DMC Act?
(2) Whether the DMC Act prescribes a bar on
taking cognizance of an offence under Section
332 of DMC Act after the expiry of six months
from the date of knowledge, as per Section 471
of the Act?
(3) What is the scope and relevance of the
requirement of sending a "complaint" to the
Magistrate within six months, as contemplated
under Section 471 of DMC Act, since no
cognizance is taken on the complaint and case
is instituted on the police report?
(4) Whether the transmission of the copy of
First Information Report (FIR) to the
concerned jurisdictional/Ilaqa Magistrate
within six months could be considered as
transmission of complaint/information, as
sufficient compliance of Section 471 read with
Section 466-A/467 of DMC Act?
(5) If no, whether non-transmission of
complaint/information to the concerned
Magistrate within six months would ipso facto
vitiate the entire prosecution or would be a
curable defect being a formal/technical
requirement, in view of the fact that the
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original complaint from Deputy Commissioner
is indeed transmitted to the Court as a part of
the chargesheet. If yes, whether the remedy
under Section 258 Cr.PC would be available
with the accused in such cases?”
2. Before we venture to answer the reference, it is appropriate to
briefly set out the background of facts.
2.1 The present reference emanates from a Case bearing No.
60082/2016, titled State v Amir Singh , arising out of an FIR
No.432/2015, registered on 02.05.2015, under Sections
332/461/466 of the DMC Act.
2.2 The above FIR was registered on a complaint of the
Deputy Commissioner, South Delhi Municipal Corporation
under Sections 332/461 read with Section 466A of the DMC
Act. It was alleged in the complaint that the accused had carried
out unauthorized construction without obtaining any prior
permission or a sanction from the Corporation as required under
the DMC Act. The complaint was based on an inspection
conducted at the site on 16.04.2015 by the concerned Junior
Engineer (Building), South Zone, who noticed the alleged
violation and reported the same to the Deputy Commissioner.
Thereafter, the Deputy Commissioner forwarded the complaint
to the concerned Station House Officer (SHO) of Police Station
Vasant Kunj (North), pursuant to which the FIR came to be
registered.
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2.3 Upon registration of the FIR, investigation was carried
out and the chargesheet came to be filed before the learned Trial
Court on 30.11.2016.
2.4 At this stage, the accused moved an application under
Section 258 of the Cr.P.C., seeking dropping of the
proceedings. The principal contention raised was that the charge
sheet had been filed beyond the period of six months, in
contravention of the limitation period prescribed under Section
471 of the DMC Act, thereby rendering the prosecution legally
unsustainable. It was further contended that Section 471 of the
DMC Act mandatorily requires a complaint to be made to the
Magistrate within six months of the date of offence or its
knowledge, for the initiation of trial, and in the absence of any
such complaint by the concerned Deputy Commissioner within
the prescribed period, the entire proceedings stood vitiated and
were liable to be dropped.
2.5 While dealing with the said application, the learned
Metropolitan Magistrate (hereinafter referred to as „Referral
Court‟) noticed that similar objections are being raised in a
large number of cases under the DMC Act by way of similar
applications under Section 258 of Cr.P.C.. It was observed that
such applications are being routinely filed before the designated
Courts in Delhi and in several instances, proceedings have also
been dropped on the premise that the chargesheet was filed
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beyond a period of six months. The issue, thus, was found to be
of one that assumes a larger public importance.
2.6 The learned Referral Court has also taken note of the
prevailing practice, wherein the complaint of the Deputy
Commissioner is ordinarily forwarded to the police, resulting in
registration of an FIR, which is then transmitted to the
jurisdictional Magistrate. No separate complaint is, in practice,
sent directly to the Court within six months, though the
information/complaint relating to the offence does reach the
Court in the form of the FIR transmitted by the police.
3. It is in the above background of facts, and in view of the
recurring nature of the issue, its impact on a large number of pending
prosecutions, and stating that there is absence of a clear and consistent
judicial position on the issue, the present reference has been made.
4. In its order dated 08.01.2024, the learned Referral Court has
given the „genesis of the issue‟ and also the „prevalent practice &
issues germane to the reference‟, which we reproduce hereunder:
“ GENESIS OF THE ISSUE
6. Section 332 of the Delhi Municipal
Corporation Act, 1957 provides for the offence
of carrying out construction without seeking
previous sanction from the concerned
Commissioner, thereby rendering it
unauthorized. The provision is reproduced as
follows:
“ 332. Prohibition of building without
sanction. — No person shall erect or
commence to erect any building, or
execute any of the works specified in
section 334 except with the previous
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sanction of the Commissioner, not
otherwise than in accordance with the
provisions of this Chapter and of the bye-
laws made under this Act in relation to the
erection of buildings or execution of
works.”
7. Notably, the provision makes it an
offence to erect a building or commence to
erect a building or to carry out any of the
works specified in Section 334 with respect to
a building. Section 334 lays down a list of
activities such as making any addition to a
building, making any alteration or repair, to
close any door or window on an external wall
permanently etc. Section 334 is reproduced for
a ready reference thus:
“ 334. Applications for additions to, or
repairs of, buildings. — (1) Every person
who intends to execute any of the
following works, that is to say—
(a) to make any addition to a
building;
(b) to make any alteration or repairs
to a building involving the removal or re-
erection of any external or partly wall
thereof or of any wall which supports the
roof thereof to an extent exceeding one-
half of such wall above the plinth level,
such half to be measured in superficial
feet;
(c) to make any alteration or repairs
to a frame building involving the removal
or re-erection of more than one-half of the
posts in any such wall thereof as
aforesaid; or involving the removal or re-
erection of any such wall thereof as
aforesaid to an extent exceeding one-half
of such wall above plinth level, such half
to be measured in superficial feet;
(d) to make any alteration in a
building involving—
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(i) the sub-division of any room in
such building so as to convert the same
into two or more separate rooms, or
(ii) the conversion of any passage or
space in such building into a room or
rooms;
(e) to repair, remove, construct,
reconstruct or make any addition to or
structural alteration in any portion of a
building abutting on a street which stands
within the regular line of such street;
(f) to close permanently any door or
window in an external wall;
(g) to remove or reconstruct the
principal staircase or to alter its position;
shall apply for sanction by giving notice
in writing of his intention to the
Commissioner in such form and
containing such information as may be
prescribed by bye-laws made in this
behalf.
(2) Every such notice shall be
accompanied by such documents and
plans as may be so prescribed.”
8. That the nature of activities indicated in
Section 334 points towards the changes of a
substantial character. Therefore, almost every
substantial alteration in a building is
prohibited without seeking previous sanction.
The above acts, as mentioned in Section 332
and as illustrated in Section 334 of DMC Act,
constitute the actus reus for the offence in
question.
9. That Section 461 of DMC Act is the
general penal provision and it provides for
punishment for the contravention of any of the
provisions of the Act. Section 461 of DMC Act
is reproduced as follows:
“ 461. Punishment for certain
offences .— (1) Whoever -
(a) contravenes any provision of any
of the sections, sub-sections, clauses,
provisos or other provisions of this Act
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mentioned in the first column of the Table
in the Twelfth Schedule; or
(b) fails to comply with any order or
direction lawfully given to him or any
requisition lawfully made upon him under
any of the said sections, sub-sections,
clauses, provisos or other provisions,
shall be punishable—
(i) with fine which may extend to
the amount, or with imprisonment for a
term which may extend to the period,
specified in that behalf third column of the
said Table or with both; and
(ii) in the case of a continuing
contravention or failure, with an
additional fine which may extend to the
amount specified in the fourth column of
that Table for every day during which
such contravention or failure continues
after conviction for the first such
contravention or failure.
(2) Notwithstanding anything
contained in sub-section (1), whoever
contravenes the provisions of sub-section
(1) of section 317 or sub section (1) of
section 320 or sub-section (1) of section
321 or sub section (1) of section 325 or
section 339, in relation to any street which
is a public street, shall be punishable with
simple imprisonment which may extend to
six months or with fine which may extend
to five thousand rupees or with both”.
10. That a peculiar feature of Section 461 of
DMC Act is that the extent of punishment is
contingent upon whether the offence is an
isolated offence or a continuing offence. It is
specifically provided that in case of a
continuing contravention or failure, an
additional fine (which may extend to the extent
of fine specified for the offence in the table
th
annexed with 12 schedule of the Act) may be
imposed for each day during which such
contravention or failure continues.
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11. Section 466-A of the DMC Act is
relevant and it provides for the applicability of
Cr.PC on the offences under the DMC Act.
Section 466-A of DMC Act is reproduced as
under:
“ 466A. Certain offences to be
cognizable .— The Code of Criminal
Procedure, 1973 , shall apply to,—
(a) an offence under sub-section (5)
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;
(b) an offence under sub-section (1)
of section 317 or sub-section (1) of section
320 or sub-section (1) of section 321 or
sub-section (1) of section 325 or section
339 in relation to any street which is a
public street, as if it were a cognizable
offence—
(i) for the purposes of investigation
of such offence; and
(ii) for the purposes of all matters
other than—
(1) matters referred to in section 42
of that Code, and
(2) arrest of a person, 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;
Provided that no offence of the
contravention of any condition subject of
which sanction was accorded for the
erection of any building or the execution
of any work shall be cognizable, if such
contravention relates to any deviation
from any plan of such erection or
execution sanctioned by the Commissioner
which is compoundable on payment of an
amount under the bye-laws relating to
buildings made under this Act.”
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12. Section 466-A provides that Cr.PC shall
apply to an offence, under Section 332 of
DMC Act as if it was a cognizable offence. The
applicability is further conditioned by
providing that the offence shall be deemed to
be a cognizable offence - (1) for the purpose of
investigation of such offence and (2) for the
purpose of all matters other than arrest, except
upon the complaint or information from the
concerned Deputy Commissioner. Thus
understood, Section 466-A of DMC Act puts a
caveat on the power of the investigating officer
to effect arrest without warrant in cognizable
offences under DMC Act. In this legislation,
the power of arrest could not be exercised
until and unless a complaint or information is
received from the concerned Deputy
Commissioner. Excepting this limited aspect,
the offence under Section 332 of DMC Act is
deemed to be a cognizable offence for the
purpose of “all matters” including
investigation.
13. Section 466-A also indicates that unlike
other cognizable offences, wherein the
jurisdictional police have the power to directly
register an FIR on information and start
investigation, the offences under DMC Act
cannot be investigated until and unless a
complaint or information thereof is sent by the
designated officer of MCD i.e. Deputy
Commissioner. Therefore, a limitation is
created on who could be the informant in these
cases. Put otherwise, such an FIR cannot be
registered on the complaint of any person. It
may be observed that the applicability of
Cr.PC is contemplated to ensure investigation
of the offences under DMC Act as cognizable
offences and further, cognizance of such
offences on the final report under Section 173
Cr.PC.
14. Furthermore, since the punishment
contemplated for the offence is upto 6 months,
st
by necessary implication, the 1 Schedule of
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the Cr.PC would guide that the summons trial
procedure, as per Chapter-XX of Cr.PC,
would be followed for trial of the offence
under question Section 332 of DMC Act.
15. One may also refer to Section 467 of
DMC Act which provides that no Court shall
proceed to the trial of any offence under
Section 332 of DMC Act, except on the
complaint or upon information received from
an officer not below the rank of Deputy
Commissioner of the Corporation. Therefore,
for conducting the trial of the offences under
DMC Act, the Court must be in receipt of
either a complaint or information from the
Deputy Commissioner. In light of the above
provisions, it appears that neither
investigation nor trial of an offence under
DMC Act could take place without a complaint
or information from the concerned Deputy
Commissioner of the Corporation.
THE PREVALENT PRACTICE & ISSUES
GERMANE TO THE REFERENCE
16. As a matter of practice being followed
by the investigation agencies/Police and
jurisdictional Courts in Delhi, no complaint or
information, as such, is being sent by the
concerned Deputy Commissioners directly to
the Court. The complaint (and information
implicit in the complaint) is sent by the
concerned Deputy Commissioner to the
concerned SHO, who thereafter registers an
FIR and initiates investigation. The
jurisdiction of the Court is triggered only upon
filing of the report under Section 173 of Cr.PC
(chargesheet/final report).
17. The issues raised by the accused are
two-fold in nature - failure of the Deputy
Commissioner to send a complaint to the
concerned Magistrate within 6 months; and
failure of the police/investigating agency to
complete investigation and file chargesheet
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within 6 months. Both the issues culminate in
the alleged violation of Section 471 of DMC
Act, thereby leading to an application for
dropping of proceedings under Section 258 of
DMC Act.
18. The view being taken by various Courts
of Delhi is to drop the proceedings, primarily
on the ground of chargesheet being time-
barred (beyond 6 months), by allowing the
application under Section 258 Cr.PC. It is the
humble opinion of the Referral Magistrate that
the concerned legislation does not provide an
unequivocal answer to the issue at band. As it
happens, a significant number of proceedings
have been dropped on a question which is not
settled and deserves an authoritative
pronouncement by this Hon’ble Court. In
order to properly frame the questions of law
for referral to this Hon’ble Court, it is relevant
to highlight certain aspects of this discussion:
i. As per Section-157 Cr.PC, every FIR
registered on the complaint/information of
Deputy Commissioner of MCD (or otherwise)
is transmitted to the jurisdictional Court
{Ilaqa Magistrate) immediately upon its
registration.
ii. There is no quarrel regarding the fact
that the period of six months, as contemplated
under Section 471 of DMC Act, commences
from the date of knowledge of the offence
(generally, the date of inspection by the
concerned official of MCD) or the date of
commission of offence. It is also not in
question that the inspection (date of
knowledge) is followed by a complaint by the
concerned Commissioner to the concerned
SHO followed by registration of FIR and
transmission thereof to the area/ilaqa
Magistrate. This entire exercise is invariably
done within 6 months and in the present case
as well, there is no dispute on the said count.
The dispute arises in the time taken for
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completion of investigation and filing of
chargesheet.
iii. The FIR is transmitted to the concerned
Court immediately upon registration. An FIR
is essentially a repository of first information
or complaint as given by the complainant
(Deputy Commissioner, MCD). Thus, for all
intents and purposes, it could be said that the
information/complaint is transmitted to the
Court through the SHO concerned.
iv. As a common practice, the Court does
not receive any complaint of the offence
directly from the Deputy Commissioner, MCD
within six months, as contemplated under
Section 471 of DMC Act. However,
complaint/information is indeed conveyed to
the Court within 6 months (or immediately
upon the registration of FIR) in the form of
FIR from the concerned Police Station.
Whether conveyance of complaint/information
to the Court in the form of FIR would amount
to compliance of Section 471 DMC Act is a
question that is placed before this Hon’ble
Court and the same is framed along with other
questions of law in the latter part of this
reference.
v. Investigations usually take more than
six months for completion. However, it is
invariably observed that the concerned Deputy
Commissioner sends a formal complaint of the
offence to the concerned SHO within six
months from the date of knowledge of the
offence i.e. the date of inspection by the
concerned Junior Engineer and the same is
converted in an FIR which is immediately
conveyed to the Court.
vi. It is a matter of judicial notice that
investigation in these cases takes more than
six months and chargesheets are filed after six
months. Since, charge sheets are filed beyond
the period of six months from the date of
knowledge, cognizance is generally followed
by an application under Section 258 Cr.PC
seeking discharge on the ground of delay in
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filing the charge sheet. The argument is
primarily based on such reading of Section
471 DMC Act that the word “complaint” is
read as “chargesheet” to contend that the 10
was obliged to file the chargesheet within 6
months from the date of offence.
vii. It is noteworthy that the application for
dropping of proceeding/discharge is premised
on Section 471 of DMC Act. As the language
indicates, Section 471 prohibits the Court from
punishing an accused for any offence under
DMC Act unless a complaint thereof is made
before the Magistrate within six months from
the date of commission of the offence or from
the date of knowledge of the offence.
Therefore, this Hon’ble Court is requested to
practically interpret the word "complaint" in
Section-471 (as distinguishable from the word
“chargesheet”) and to examine the scope of
Section 471 in light of the fact that the Court
takes cognizance on the chargesheet and not
complaint.
viii. The interpretation of the word
“complaint” would necessarily require an
examination of the concept of complaint as
defined in the Cr.PC. Section 2(d) defines a
complaint as:
“(d) “complaint” means any allegation
made orally or in writing to a Magistrate,
with a view to his taking action under this
Code, that some person, whether known
or unknown, has committed an offence,
but does not include a police report.
Explanation.—A report made by a police
officer in a case which discloses, after
investigation, the commission of a non-
cognizable offence shall be deemed to be
a complaint; and the police officer by
whom such report is made shall be
deemed to be the complainant;”
ix. However, the concept of complaint is
limited to a summary of allegations sent to the
Magistrate. It is pertinent to mention that the
concept of complaint is co-related to the
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concept of cognizance under Section 190
Cr.PC as cognizance could be taken on a
complaint. However, in eases under the DMC
Act, cognizance is not taken on a complaint,
rather, it is taken on the chargesheet/final
report filed under Section 173 of Cr.PC.
x. It follows from the above observation
that the word “complaint”, as used in Section
471 of DMC Act, is neither used in the context
of "complaint" for the purpose of taking
cognizance or in the context of chargesheet.
There appears to be no bearing of Section 471
of DMC Act on the point of cognizance.
xi. Importantly, the concepts of complaint,
information and chargesheet are distinct
concepts. In light of various pronouncements
from the Hon’ble Supreme Court and the
Hon’ble High Courts, there is no ambiguity on
the distinct meanings of these terms for the
purpose of taking cognizance. Therefore, it is
impermissible to assign a common meaning to
the word complaint and chargesheet. Thus
understood, the word “complaint” under
Section 471 of DMC could not be understood
as chargesheet and therefore, no timeline or
limitation could be imposed for filing any
chargesheet or for completing the
investigation or for taking cognizance from
Section 471 of DMC Act.
xii. Despite so, the requirement of
conveying a complaint to the Magistrate
within 6 months, as mentioned under Section
471 of DMC Act, ought to be given a logical
meaning and certainly cannot be sidelined.
The said requirement can be read alongside
Section 467 of DMC Act which prescribes that
trial could be conducted only on complaint or
information. A harmonious reading of Section
471 with Section 467 of DMC Act would
indicate that the proceeding would be valid if
either a complaint or information is received
within 6 months, either directly from the
Deputy Commissioner or in the form of First
Information Report (FIR).
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xiii. From a contextual point of view, the
requirement could also be comparable to the
one under Section-195 Cr.PC wherein
cognizance of certain offences could only be
taken upon a complaint by a designated public
servant. If that be the case, such requirement
is complete as final report is accompanied by
the complaint of Deputy Commissioner. The
same principle is followed in cases which
require a complaint from the public servant,
for instance Section 188 of Indian Penal Code
{hereinafter referred as “IPC”), and such
requirement is deemed to be met if the
complaint is forwarded to the Court as a part
of the chargesheet, if not directly from the
public servant.
xiv. A purposive view is required to be taken
on the interpretation of Section 471 of DMC
Act as the requirement of sending a copy of
complaint to the Magistrate appears to be a
formal requirement in light of the fact that it is
a State case wherein cognizance is taken on
the chargesheet/police report under Section
190(l)(b) of Cr.PC and not on the complaint
under Section 190(l)(a) of Cr.PC. No doubt,
the copy of complaint is essential and the same
is not only a part of the chargesheet but is also
sent to the Ilaqa Magistrate within 6 months in
the form of FIR, akin to other police cases.
xv. Importantly, Section 471 of DMC Act
does not appear to be creating a bar on
cognizance and does not prescribe for any
period for completion of investigation. It has
no bearing on the timeline for investigation as
no such timeline is prescribed in DMC Act or
Cr.PC. Even from a broader perspective, no
such timeline for completion of investigation
could be imported by an interpretative
exercise, except where expressly provided such
as for sexual offences and few special offences.
xvi. Even if prescribed, such timelines are
not meant to extinguish or damage the case of
a complainant who lodged the complaint well
within time. The decision of the Hon’ble
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Supreme Court in Sarah Mathew v. Institute
of Cardio Vascular Diseases (Annexure-B)
lays down in unequivocal terms that the delay
occasioned during investigation or in taking
cognizance is not attributable to the
complainant, if the complainant had acted well
within the timeline. If the complainant filed the
complaint for registration of FIR within the
period of six months from the date of
knowledge, the delay in investigation may not
be attributable to the complainant and may not
be construed to the drop the proceedings and
effectively, dismiss the complaint without any
adjudication of guilt on merits. Such an
interpretation would be principally against the
view taken in Sarah Mathews , and may lead
to undesirable consequences from a rule of
law perspective.
xvii. It is of utmost importance to bring to the
notice of this Hon’ble Court that the
interpretation sought to be advanced in these
cases is primarily sourced from the decisions
of this Hon’ble Court in North Delhi
Municipal Corporation v. Ashok Saran
(Annexure-C), Meenakshi Rawal V. State
(Annexure-D), Municipal Corporation of
Delhi V. Ravindra Kumar Mahindra
(Annexure-E) and Municipal Corporation of
Delhi v. Sunil Sabharwal (Annexure-F). A
perusal of these decisions would unequivocally
indicate that they only hold the period of six
months to begin from the date of offence or
from the date of knowledge of the offence. The
applications for dropping of proceedings have
been allowed in these cases only on the ground
that the MCD had knowledge of the offence
even prior to the period of six months. It may
be clarified that there is no question or doubt
on the said proposition and it does not arise
before the Referral Magistrate. The aforesaid
cases do not lay down that the period of
completion of investigation or filing of
chargesheet is six months and no relief has
been ordered on the said ground in any of
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these cases. No such interpretation of Section
471 of DMC Act is laid down in any of these
cases.
xviii. The cases discussed in the preceding
para are also authorities on the point of non-
application of Cr.PC for condonation of delay,
as DMC Act is a special statute. There is no
issue pertaining to the said point of law as
well. In the above cases, the delay discussed
by the Hon’ble Courts was in filing of the first
complaint by the MCD beyond six months
from the date of knowledge, and not filing of
chargesheet or completion of investigation.
Pertinently, no question of condonation of
delay arises in the present case (or in
hundreds of other cases set up on the same
ground), as there is no limitation period
prescribed for investigation in the first place.
The question of condonation is contingent
upon there being a limitation or timeline for
completion of investigation.”
5. For answering the questions referred, we shall have to refer to
some of the provisions of the DMC Act, which we reproduce
hereinunder:
“ 332. Prohibition of building without
sanction. —No person shall erect or commence
to erect any building, or execute any of the
works specified in section 334 except with the
previous sanction of the Commissioner, not
otherwise than in accordance with the
provisions of this Chapter and of the bye-laws
made under this Act in relation to the erection
of buildings or execution of works.
xxx
461. Punishment for certain offences. —(1)
Whoever—
(a) contravenes any provision of any of the
sections, sub-sections, clauses, provisos or
other provisions of this Act mentioned in the
first column of the Table in the Twelfth
Schedule; or
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(b) fails to comply with any order or direction
lawfully given to him or any requisition
lawfully made upon him under any of the said
sections, sub-sections, clauses, provisos or
other provisions, shall be punishable—
(i) with fine which may extend to the amount,
or with imprisonment for a term which may
extend to the period, specified in that behalf
third column of the said Table or with both;
and
(ii) in the case of a continuing contravention
or failure, with an additional fine which may
extend to the amount specified in the fourth
column of that Table for every day during
which such contravention or failure continues
after conviction for the first such
contravention or failure.
(2) Notwithstanding anything contained in
sub-section (1), whoever contravenes the
provisions of sub-section (1) of section 317 or
sub-section (1) of section 320 or sub-section
(1) of section 321 or subsection (1) of section
325 or section 339, in relation to any street
which is a public street, shall be punishable
with simple imprisonment which may extend to
six months or with fine which may extend to
five thousand rupees or with both.
xxx
Section 466A. Certain offences to be
cognizable. —The Code of Criminal
Procedure, 1973, shall apply to,—
(a) an offence under sub-section (5) 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;
(b) an offence under sub-section (1) of section
317 or sub-section (1) of section 320 or sub-
section (1) of section 321 or sub-section (1) of
section 325 or section 339 in relation to any
street which is a public street,
as if it were a cognizable offence—
(i) for the purposes of investigation of such
offence; and
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(ii) for the purposes of all matters other than—
(1) matters referred to in section 42 of that
Code, and
(2) arrest of a person, 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:
Provided that no offence of the contravention
of any condition subject of which sanction was
accorded for the erection of any building or
the execution of any work shall be cognizable,
if such contravention relates to any deviation
from any plan of such erection or execution
sanctioned by the Commissioner which is
compoundable on payment of an amount under
the bye-laws relating to buildings made under
this Act.
Section 467 . Prosecutions. —Save as
otherwise provided in this Act, no court shall
proceed to the trial of any offence,—
(a) under sub-section (5) 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;
(b) under sub-section (1) of section 317 or
sub-section (1) of section 320 or sub-section
(1) of section 321 or sub-section (1) of section
325 or section 339, if any such offence was
committed in relation to any street which is a
public street, 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;
(c) other than those specified in clauses (a)
and (b), except on the complaint of, or upon
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information received from, the Commissioner,
or a person authorised by him by a general or
special order in this behalf.
xxx
469. Municipal magistrates. —(1) The
Government may appoint one or more
Metropolitan Magistrates 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 magistrates shall sit for the
despatch of business.
(2) Such magistrates shall be called municipal
magistrates and shall besides 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 Government.
(4) The Corporation shall, out of the
Municipal Fund, pay to the 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, 1973, all municipal magistrates
appointed under this Act shall be deemed to be
magistrates appointed under section 16 of the
said Code.
(7) Nothing in this section shall be deemed to
preclude any magistrate appointed hereunder
from trying any offence under any other law.
470. Cognizance of offences. —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
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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 benefited out of the Municipal Fund.
Section 471 . Limitation of time for
prosecution. —No person shall be liable to
punishment for any offence against this Act or
any rule, regulation or bye-law made
thereunder, unless complaint of such offence is
made before a municipal magistrate within six
months next after—
(a) the date of the commission of such offence,
or
(b) the date on which the commission or
existence of such offence was first brought to
the notice of the complainant.
xxx
474. Arrest of offenders. —(1) Any police
officer may arrest any person who commits in
his view any offence against this Act or against
any rule, regulation or bye-law made
thereunder, if—
(a) the name and address of such person be
unknown to him, and
(b) such person on demand declines to give
his name and address or gives a name and
address which such officer has reason to
believe to be false.
(2) No person so arrested shall be detained
in custody after his true name and address are
ascertained or, without the order of the
nearest magistrate, for a period longer than
twenty-four hours from the time of arrest
exclusive of the time necessary for the journey
from the place of arrest to the court of such
magistrate.
475. Duties of police officers. —It shall be the
duty of all police officers to give immediate
information to the Commissioner of the
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commission of, or the attempt to commit any
offence against this Act or any rule, regulation
or bye-law made thereunder and to assist all
municipal officers and other municipal
employees in the exercise of their lawful
authority.”
6. We may also usefully refer to some of the provisions of the
Cr.P.C., which, in our opinion, will have a bearing in answering the
questions referred:
“ 4. Trial of offences under the Indian Penal
Code and other laws. —
(1) xxx
(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
of place of investigating, inquiring into, trying
or otherwise dealing with such offences.
xxx
157. Procedure for investigation. —(1) If, from
information received or otherwise, an officer
in charge of a police station has reason to
suspect the commission of an offence which he
is empowered under section 156 to investigate,
he shall forthwith send a report of the same to
a Magistrate empowered to take cognizance of
such offence upon a police report and shall
proceed in person, or shall depute one of his
subordinate officers not being below such rank
as the State Government may, by general or
special order, prescribe in this behalf, to
proceed, to the spot, to investigate the facts
and circumstances of the case, and, if
necessary, to take measures for the discovery
and arrest of the offender: Provided that—
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(a) when information as to the commission of
any such offence is given against any person
by name and the case is not of a serious
nature, the officer in charge of a police station
need not proceed in person or depute a
subordinate officer to make an investigation
on the spot;
(b) if it appears to the officer in charge of a
police station that there is no sufficient ground
for entering on an investigation, he shall not
investigate the case.
Provided further that in relation to an offence
of rape, the recording of statement of the
victim shall be conducted at the residence of
the victim or in the place of her choice and as
far as practicable by a woman police officer in
the presence of her parents or guardian or
near relatives or social worker of the locality.
(2) In each of the cases mentioned in clauses
(a) and (b) of the proviso to sub-section (1),
the officer in charge of the police station shall
state in his report his reasons for not fully
complying with the requirements of that
subsection, and, in the case mentioned in
clause (b) of the said proviso, the officer shall
also forthwith notify to the informant, if any, in
such manner as may be prescribed by the State
Government, the fact that he will not
investigate the case or cause it to be
investigated.
xxx
468. Bar to taking cognizance after lapse of
the period of limitation. —(1) Except as
otherwise provided elsewhere in this Code, no
Court shall take cognizance of an offence of
the category specified in sub-section (2), after
the expiry of the period of limitation.
(2) The period of limitation shall be— (a) six
months, if the offence is punishable with fine
only;
(b) one year, if the offence is punishable with
imprisonment for a term not exceeding one
year;
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(c) three years, if the offence is punishable
with imprisonment for a term exceeding one
year but not exceeding three years.
[(3) For the purposes of this section, the
period of limitation, in relation to offences
which may be tried together, shall be
determined with reference to the offence which
is punishable with the more severe punishment
or, as the case may be, the most severe
punishment.]
469. Commencement of the period of
limitation .—(1) The period of limitation, in
relation to an offender, shall commence,—
(a) on the date of the offence; or
(b) where the commission of the offence was
not known to the person aggrieved by the
offence or to any police officer, the first day on
which such offence comes to the knowledge of
such person or to any police officer, whichever
is earlier; or
(c) where it is not known by whom the offence
was committed, the first day on which the
identity of the offender is known to the person
aggrieved by the offence or to the police
officer making investigation into the offence,
whichever is earlier.
(2) In computing the said period, the day from
which such period is to be computed shall be
excluded.
xxx
471. Exclusion of date on which Court is
closed. —Where the period of limitation
expires on a day when the Court is closed, the
Court may take cognizance on the day on
which the Court reopens.
Explanation.—A Court shall be deemed to be
closed on any day within the meaning of this
section, if, during its normal working hours, it
remains closed on that day.”
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SUBMISSIONS OF THE LEARNED AMICUS CURIAE
7. Mr. Rahul Mehra, the learned Senior Counsel appointed by us
as Amicus Curiae , submits that though the DMC Act contains certain
provisions to deal with offences under the Act, such as power of entry
and inspection, cognizance, limitation, recovery, etc., however, the
said Act cannot be termed as a complete Code in itself for the trial of
such offences. He submits that, therefore, Section 4(2) of the Cr.P.C.
would be applicable for the purposes of investigation, inquiry, trial,
etc., subject to the specific provisions to the contrary contained in the
DMC Act.
8. The learned Amicus Curiae draws our attention to a judgment of
this Court in Deepa Singh v. State , (1998) SCC OnLine Del 162, to
submit that a learned Single Judge of this Court has held that, in view
of Section 4(2) of the Cr.P.C. and Section 466A of the DMC Act,
there is no bar on an FIR being registered on a complaint for offence
under Section 332 of the DMC Act being filed by the competent
officer of the MCD.
9. In this regard, he also draws our attention to the judgments of
this Court in Smt.Bimla Gupta v. State & Anr. , 2006:DHC:17539 and
Abhay Tyagi v. State NCT of Delhi & Anr. , 2009:DHC:978-DB. He
submits that the Judgment in Abhay Tyagi (supra) has also been
approved by the Supreme Court in Vishal Agrawal & Anr. v.
Chhattisgarh State Electricity Board & Anr. , (2014) 3 SCC 696.
10. To buttress his above submission, he also places reliance on the
judgments of the Supreme Court in State of Bihar v. Murad Ali Khan
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& Ors. , (1988) 4 SCC 655; Moti Lal v. Central Bureau of
Investigation & Anr. , (2002) 4 SCC 713; State of Punjab v. Raj
Singh & Anr. , 1998 (2) SCC 391 ; Sarah Mathew v. The Institute of
Cardio Vascular Diseases by its Director , (2014) 2 SCC 62 and
Jeewan Kumar Raut & Anr. v. Central Bureau of Investigation ,
(2009) 7 SCC 526.
11. He submits that as far as the Question No. 1 referred to this
Court is concerned, under Section 471 of the DMC Act, no timeline
for completion of the investigation and filing of the chargesheet is
prescribed. However, Section 471 of the DMC Act specifies time limit
of 6 months for filing of a complaint of the offence before the
Municipal Magistrate. He submits that the limitation for taking
cognizance of an offence shall be governed by the provisions of the
Cr.P.C. and, therefore, the question of chargesheet being barred by
limitation during inquiry/trial of offence under DMC Act, is not
relevant.
12. On Question No. 2, he submits that the DMC Act does not
contain any bar on taking cognizance of an offence under Section 332
of the DMC Act after the expiry of 6 months from the date of the
knowledge of the offence. Section 471 of the DMC Act provides for
limitation for launch of prosecution, which is distinct from taking
cognizance of the offence. It is only where the complaint itself is filed
beyond 6 months of the knowledge of the offence, that no prosecution
shall be maintainable due to the limitation prescribed under Section
471 of the DMC Act.
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13. On Question No. 3, he submits that as Section 471 refers to the
„complaint‟, there is no occasion for applying it to the „police report‟.
He submits that the „complaint‟ referred to in Section 471 of the DMC
Act, is not the police report under Section 173 of the Cr.P.C.
14. On Question No. 4, he submits that the transmission of the FIR
to the jurisdictional or ilaqa Magistrate cannot be regarded as
sufficient compliance of Section 471 read with Section 466A/467 of
the DMC Act.
15. In the same light, for Question No. 5, he submits that non-
transmission of the complaint to the Municipal Magistrate within 6
months, would vitiate the prosecution and, therefore, the remedy
under Section 258 of the Cr.P.C. would be available to the accused.
SUBMISSIONS OF THE LEARNED STANDING COUNSEL FOR
MCD
16. Mr. Tushar Sannu, the learned Standing Counsel appearing for
MCD, submits that there is no timeline for completion of investigation
and filing of chargesheet prescribed under Section 471 of the DMC
Act. The same shall be governed by the general principles of Cr.P.C.
In this regard, he also draws our attention to Section 4(2) of the
Cr.P.C. and Section 466A of the DMC Act along with the judgment of
this Court in Abhay Tyagi (supra).
17. Placing reliance on the Judgment of this Court in North Delhi
Municipal Corporation v. Ashok Saran , 2018 SCC OnLine Del 7225,
he submits that the limitation prescribed under Section 471 of the
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DMC Act is qua the launch of prosecution and not qua the taking of
cognizance of the offence by the Magistrate concerned.
18. He also places reliance on Meenakshi Rawal v. State & Ors. ,
(2008) SCC OnLine Del 528; Municipal Corporation of Delhi v.
Ravindra Kumar Mahindra , (1990) SCC OnLine Del 124 and
Municipal Corporation of Delhi v. Sunil Sabharwal , (1995) SCC
OnLine Del 264, to submit that the period of six months for filing of
complaint would begin from the date of offence or its knowledge,
whichever is later, and Section 471 of the DMC Act does not lay
down the period of completion of investigation or filing of
chargesheet.
19. He further submits that if the complaint of the Deputy
Commissioner is against an unknown owner/occupier/builder or a
request has been made to the police officials by the Deputy
Commissioner concerned to locate the unknown
owner/occupier/builder, the limitation under Section 467 of the DMC
Act shall commence when the matter is referred by the SHO to the
Deputy Commissioner after completion of investigation for
prosecution under Section 467 of the DMC Act.
20. He further submits that under Section 157 of the Cr.P.C., every
FIR registered on the complaint/information of the Deputy
Commissioner is transmitted to the jurisdictional Court/ ilaqa
Magistrate immediately upon registration. He submits that this, for all
intents and purposes, would be a due compliance of Section 471 of the
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DMC Act. In support, he places reliance on the judgment of Supreme
Court in Amritlal v. Shantilal Soni & Ors. , (2022) 13 SCC 128.
SUBMISSIONS OF THE LEARNED APP FOR THE STATE
21. Mr. Aman Usman, the learned APP appearing for the State,
submits that there is no statutory timeline mentioned in the DMC Act
for completion of the investigation and filing of charge sheet in the
Court, and the same is governed by the general principles of Cr.P.C.
In support, he places reliance on the judgment of this Court in
Ravindra Kumar Mahindra (supra), Sunil Sabharwal , (supra) and
the judgment dated 07.07.2021 of the Kerala High Court in Crl.A
1190 of 2016, titled Johnny v. State of Kerala .
22. He submits that in view of Section 471 of the DMC Act, the
limitation for filing of the complaint is sacrosanct and shall apply for
offence under Section 332 of the DMC Act as well. He submits that,
at the same time, filing of a complaint is more procedural than
substantive, and the actual initiation of proceedings and cognizance of
the offence by the Magistrate is typically based on the police report
filed.
23. He submits that if the FIR containing sufficient information
about the offence is transmitted to the concerned Magistrate/ ilaqa
Magistrate within six months, the mandate of Section 471 of the DMC
Act is fulfilled. However, in case it is not so done, the Court will have
to consider whether the same was a formal or a technical defect,
especially as the original complaint from the Deputy Commissioner is
eventually transmitted to the Court as a part of the charge sheet or
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during subsequent proceedings. In support, he places reliance on a
judgment of the Kerala High Court in Suo Moto v. State of Kerala ,
2019 SCC Online Ker 2239.
ANALYSIS AND FINDINGS
24. We have considered the submissions made by the learned
Amicus Curiae , learned Standing Counsel of MCD and the learned
APP for the State.
25. The interplay between Section 4(2) of the Cr.P.C. and Section
466A of the DMC Act, was considered by a learned Single Judge of
this Court in Deepa Singh (supra), and it was held as under:
“5. It is apparent from the reading of this
Section that the provisions of the Code of
Criminal Procedure are applicable where an
offence under the Penal Code, 1860 or under
any other law is being investigated, inquired
into, tried or otherwise dealt with. This
position is clear from sub-section (2) of
Section 4 of the Code of Criminal
Procedure which provides that all offences,
whether under the Penal Code, 1860 or under
any other law, are required to be investigated,
inquired into or tried according to the
provisions of the Code of Criminal
Procedure except in case of an offence where
the procedure prescribed thereunder is
different than the procedure prescribed under
the Code of Criminal Procedure. At this stage
it needs to be noted that Section 466-A of the
Delhi Municipal Corporation Act specifically
lays down that the Code of Criminal
Procedure shall apply to an offence under sub-
Section (5) of Section 313 or Section 332 or
sub-section (1) of Section 334 or Section 343
or Section 344 or Section 345 or Section 347
and an offence under sub-section (1) of
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Section 317 or sub-section (1) of Section 320
or sub-section (1) or Section 321 or sub-
section (1) of Section 325 or Section 339 in
relation to any street which is a public street;
as if it were a cognizable offence for the
purpose of investigation of such offence; and
for the purpose of all matters other than
matters referred to in Section 42 of the Code,
and arrest of a person, except on the
complaint of, or upon information received
from such officer of the Corporation not being
below the rank of Deputy Commissioner, as
may be appointed by the Commissioner.
Therefore, the procedure to be followed for
the purpose of investigation of the offences
under Section 332 of the Delhi Municipal
Corporation Act is the one which is laid down
in the Code of Criminal Procedure, 1973.
Much stress was laid by the learned counsel
for the petitioner on the provisions of Section
467 of the Delhi Municipal Corporation Act
which lays down that save as otherwise
provided in the instant Act, no court shall
proceed to the trial of any offence under
certain sections of the Act including Section
332 unless a complaint on or upon receiving
information from the Commissioner or a
person authorised by him is filed.
6. Learned counsel for the petitioner
submitted that since the complaint was not
filed by the Commissioner or any person
authorised by him, therefore, the Court could
not proceed to the trial of the offence under
Section 332 of the Act. In making the
submission, learned counsel for the petitioner
has not given due consideration to the fact that
the prosecution could be initiated upon
information received by the Court from an
officer of the Corporation. Such an
information can be received by the court from
the Officer of the Corporation either directly
or through the agency of the police. Where the
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police starts investigation into the matter on
the information furnished by the authorised
officer of the Corporation, who is competent to
file a complaint, and the police on the basis of
the said information investigates the matter
and finally files a report under Section 173 of
the Code of Criminal Procedure, it cannot be
said that the Court to which such a report is
filed is not acting on the information received
from the authorised officer of the Corporation.
Section 467 does not lay down as to how the
information should be received by the Court
from the Commissioner or the person
authorised by him in this behalf. It nowhere
says that the information should be directly
filed in the Court by the Commissioner or the
person authorised by him in this behalf.
Therefore, the information could also be
received by the Metropolitan Magistrate
through the report filed by the police under
Section 173 of the Code which in turn is based
on the complaint of the Commissioner or the
person authorised by him. Therefore, the
submission of learned counsel for the
petitioner that the Court could not proceed to
the trial of the offence as the complaint was
not filed by the Commissioner or the person
authorised by him in this behalf, is of no avail
to him. Accordingly, the submission of the
learned counsel for the petitioner is
rejected...”
26. In Bimla Gupta (supra), a learned Single Judge of this Court,
while considering a similar plea in relation to the Electricity Act,
2003, has held as under:
“14. Thus, the clear principle which emerges
from the aforesaid discussion is that even
when a Magistrate is to take cognizance when
a complaint is filed before it, that would not
mean that the police cannot take cognizance
thereof.
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15. It is stated at the cost of repetition that
the offences under the Electricity Act are also
to be tried by applying the procedure
contained in Cr.P.C. Thus, it cannot be said
that a complete machinery is provided under
the Electricity Act as to how such offences are
to be dealt with. In view thereof, I am of the
opinion that learned counsel for the NDPL, is
right in his submission that if the offence under
the Cr. P.C. is cognizable, provisions of
Chapter XII containing Section 154 Cr.P.C.
and onward would become applicable and it
would be the duty of the police to register the
FIR and investigate into the same. Maxim
generalibus specialia derogant shall have no
application when the provisions are read in the
aforesaid manner. Sections 135 and 138 only
prescribe that certain acts relating to theft of
electricity etc. would also be offences. It also
enables certain persons/parties, as mentioned
in Section 151, to become complainant in such
cases and file complaint before a Court in
writing. When such a complaint is filed, the
Court would be competent to take cognizance
straightway. However, that would not mean
that other avenues for investigation into the
offence which are available would be
excluded. It is more so when no such special
procedure for trying the offences under the
Electricity Act is formulated and the cases
under this Act are also to be governed by the
Code of Criminal Procedure.”
27. Further, a Division Bench of this Court in Abhay Tyagi
(supra), while relying upon the decision rendered in Deepa Singh
(supra) and while considering the provisions of the Electricity Act,
reiterated as under:
“9. Section 151 of the Electricity Act as it
stood at the relevant time provided the manner
of taking cognizance of an offence and the
cognizance has to be taken on the basis of a
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complaint filed by the officers/authorities
mentioned therein. It does not mean that the
police cannot investigate a cognizable offence
under the Cr.P.C. Section 151 of the Act
comes into operation at the stage when the
court intends to take cognizance of offences
under Sections 135 to 139 of the Act, and it
has nothing to do with the statutory power of
the police to investigate into a FIR, which
discloses a cognizable offence, in accordance
with Chapter XII of the Cr.P.C. In other
words, the statutory power of the police to
investigate under the Code is not in any way
controlled or circumscribed by Section 151 of
the Act. An offence of theft of electricity is
punishable with three years of imprisonment
besides fine and is a cognizable offence. As a
cognizable offence had been committed, it was
permissible for the respondent to lodge a FIR
and for the police authorities to investigate the
same in accordance with law. Section 151 of
the Electricity Act enables certain
authorities/officers to become complainants
before the court in such cases and file
complaint before the court in writing.
However, that does not mean that other
avenues for investigation which are available
are excluded, since no such special procedure
for trying the offences under the Electricity Act
is provided and cases under Electricity Act are
also governed by the Cr.P.C. Therefore, the
submission of the learned counsel appearing
for the petitioner that the police cannot
investigate into the FIR filed by the officer
authorized by the electricity company has to
be rejected.”
28. This view was further approved and upheld in the judgment of
Supreme Court in Vishal Aggarwal (supra), which held as under:
“23. Thus, the clear principle which emerges
from the aforesaid discussion is that even
when a Magistrate is to take cognizance when
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a complaint is filed before it, that would not
mean that no other avenue is opened and the
complaint/FIR cannot be lodged with the
police. It is stated at the cost of repetition that
the offences under the Electricity Act are also
to be tried by applying the procedure
contained in the Code. Thus, it cannot be said
that a complete machinery is provided under
the Electricity Act as to how such offences are
to be dealt with. In view thereof, we are of the
opinion that the respondent's Counsel is right
in his submission that if the offence under the
Code is cognizable, provisions of Chapter XII
containing Section 154 Cr.P.C. and onward
would become applicable and it would be the
duty of the police to register the FIR and
investigate into the same. Sections 135 and
138 only prescribe that certain acts relating to
theft of electricity etc. would also be offences.
It also enables certain persons/parties, as
mentioned in Section 151, to become
complainant in such cases and file complaint
before a Court in writing. When such a
complaint is filed, the Court would be
competent to take cognizance straightway.
However, that would not mean that other
avenues for investigation into the offence
which are available would be excluded. It is
more so when no such special procedure for
trying the offences under the Electricity Act is
formulated and the cases under this Act are
also to be governed by the Code of Criminal
Procedure.
xxx
25. In view of the aforesaid discussion, we
hold that the decisions of Kerala High Court
as well as Calcutta High Court and Madras
High Court in Chacko, A.K. & Anr. Vs.
Assistant Executive Engineer, K.S.E.B. (2010)
2 KLJ 569; Biswanath G Patra Vs. Divisional
Engineer AIR 2007 Cal 189; Ranjeet Kr.Bag
Vs. State of West Bengal (2006) 1 C CrlJ (Cal)
334; Paramasivan vs. Union of India (2007) 2
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KLT 733; Kumaran Chemicals (P) Ltd. Rep.
By its Managing Partner D. Thillairaj and
Ors. vs. Government of Pondicherry rep. by
the Inspector of Police MANU/TN/0584/2010
do not lay down correct law and the view
taken by the High Court of Delhi in Abhay
Tyagi v. State NCT of Delhi & Anr. and Asish
Kumar Jain vs. State of Jharkhand (2010)
CriLJ 271 is hereby approved.”
29. From the above judgments, it clear that the DMC Act and the
Electricity Act, which contain almost para materia provisions, do not
bar the registration of an FIR on a complaint filed by the Deputy
Commissioner, MCD (by the appropriate government/
commission/officer authorised by them, in case of the Electricity
Act). The above conclusion is also supported by the fact that Section
466A of the DMC Act expressly makes the provisions of the Cr.P.C.
applicable to the offence inter alia under Section 332 of the DMC
Act, as if it was a cognizable offence.
30. Further, Section 467 of the DMC Act, which provides that no
court shall proceed to the trial of any offence, inter alia , under
Section 332 of the DMC Act has a “subject to” clause when it starts
with the words except on the complaint of or upon information
received from such officer of the corporation, not below the rank of
Deputy Commissioner, as may be appointed by the administrator.
Therefore, Section 467 of the DMC Act is subject to the other
provisions of the Act, which inter alia would include Section 466A
of the DMC Act.
31. Therefore, from the above, it would be evident that for an
offence committed under Section 332 of the DMC Act, the criminal
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procedure can be set in motion either by a direct complaint filed by
the officer of the Corporation, not below the rank of a Deputy
Commissioner, with the Municipal Magistrate appointed under
Section 469 of the DMC Act, or by a complaint filed by such officer
with the police setting in motion the investigative procedure
prescribed in Chapter XII of the Cr.P.C. and culminating in a police
report filed by the police on completion of the investigation.
32. Proceeding further with the reference, what is still to be
determined is the effect of Section 471 of the DMC Act, which states
that no person shall be liable to punishment for any offence under the
said Act, unless complaint of such offence is made before a
Municipal Magistrate within six months next after the date of
commission of such offence or the date on which the commission or
existence of such offence was first brought to the notice of the
complainant.
33. In Ravinder Kumar Mahindra (supra), the Division Bench of
this Court held that Section 471 of the DMC Act clearly lays down
the period of limitation within which action for offences under the
DMC Act shall be initiated. It was further observed that Section 468
of the Cr.P.C. is not applicable. The relevant extracts from the
judgment are as under:
“4. The provision clearly sets out the scope.
Even though section 466A does not make
certain offences under the DMC Act
cognizable and has permitted their
investigation to be done as if these offences
were cognizable the offences do not cease to
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be offences under the DMC Act and section
471 clearly lays down the period of limitation
within which action for offences under the
DMC Act shall be initiated. It, therefore,
clearly bars prosecution beyond a period of
six months from the date of the commission
of the offence or from the date when the
existence of such offence was brought to the
notice of the complainant. In our view,
therefore, section 468 of the Code of
Criminal Procedure is not applicable as the
offences under the DMC Act will be covered
by the provision regarding limitation made in
the Act itself.
xxx
6. In conclusion we want to make it clear
that for the purpose of limitation section 471
of the DMC Act alone will be applicable to
all the offences under the said Act and not
section 468 Cr. P.C.”
34. In Sunil Sabharwal (supra), a Division Bench of this Court
held that while it is true that six months‟ period is prescribed for
filing the complaint for commission of offences punishable under
Section 471 of the DMC Act, but the limitation would start running
only from the date the knowledge of the offence is gained by the
complainant, that is, the authorized officer of the Corporation. The
Corporation is not a natural person and thus, unless and until the
factum of commission of offence comes to the notice of the officer
concerned, who is entitled to act as a complainant on behalf of the
Corporation, the limitation shall not commence.
35. From the above, what would also be evident is that Section
471 of the DMC Act provides for a special period of limitation for
filing of the complaint of any offence against the Act or Rule,
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Regulation or Bye-Law made thereunder. It does not provide for any
limitation for taking cognizance of the offence by the Magistrate.
Therefore, Section 468 of the Cr.P.C. and other provisions regulating
period of limitation for taking cognizance of offences contained
in Chapter XXXVI of the Cr.P.C., would not extend the period of
limitation as far as the filing of the complaint under Section 471 of
the DMC Act is concerned. Equally, Section 471 of the DMC Act
does not prescribe the limitation period for the Magistrate to take
cognizance of the offences mentioned in Section 466A of the DMC
Act; the same shall continue to be governed by Chapter XXXVI of
the Cr.P.C.. The only prescription of the limitation period in Section
471 of the DMC Act is to the filing of the complaint and not to the
filing of the chargesheet or the taking of cognizance on either a
complaint or the chargesheet.
36. It has been contended by the learned Standing Counsel for
MCD as also by the learned APP, that when an FIR is filed, a copy
thereof is transmitted to the concerned Magistrate/ ilaqa Magistrate in
due compliance with Section 157 of the Cr.P.C. They have submitted
that this should be considered as a due compliance with Section 471
of the DMC Act for making the period of limitation stop. The learned
Amicus Curiae has, however, submitted that the definition of
„complaint‟ under Section 2(d) of the Cr.P.C. does not include a
police report. He further submits that, as the offence under the DMC
Act is cognizable only by a Municipal Magistrate appointed under
Section 469 of the DMC Act, a report sent to the Area
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Magistrate/ ilaqa Magistrate would not make the limitation stop
under Section 471 of the DMC Act.
37. For answering the above submissions, we note that Section
469 of the DMC Act empowers the government to appoint one or
more Metropolitan Magistrate for the trial of offences against the
DMC Act and against any Rule, Regulation or Bye-Law made
thereunder. Section 469(5) of the DMC Act provides that each such
Magistrate shall have jurisdiction over the whole of Delhi, and in
terms of Section 469(6) of the DMC Act, for the purposes of the
Cr.P.C., all Municipal Magistrates shall be deemed to be Magistrates
appointed under Section 16 of the said Code. Section 470 of the
DMC Act further provides that all offences against the DMC 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.
38. On reading the above provisions together, it is apparent that
once the Municipal Magistrates are appointed, the exclusive
jurisdiction to try any offence under the DMC Act shall vest only
with the Municipal Magistrates, Sections 469 and 470 of the DMC
Act being special provisions for the same and therefore, shall prevail
over the general provisions of the Cr.P.C. as far as the jurisdiction
issue is concerned.
39. We are cognizant of the judgment of this Court in Deepa
Singh (supra), where the Court was faced with a situation where the
Municipal Magistrate had not been appointed by the government.
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The Court held that in such a situation, the bar under Section 470 of
the DMC Act shall become operative only when a Municipal
Magistrate has been appointed for trial of offences under the said
Act. The said judgment therefore, shall have no application once the
Municipal Magistrates have been appointed by the Government.
40. On reading Sections 469, 470 and 471 of the DMC Act
together, therefore, it is evident that for the limitation under Section
471 of the DMC Act to stop, the complaint of the offence under the
Act is to be made before a Municipal Magistrate. Mere transmission
of a complaint in form of the FIR to the area
Magistrate/ ilaqa Magistrate will, therefore, not suffice. There can,
however, be a situation where the FIR is transmitted under Section
157 of the Cr.P.C. to the Municipal Magistrate, in such a situation,
the requirement of Section 471 of the Cr.P.C. would be met and in
case transmission is made within six months from the date of
commission of the offence or the date on which the commission or
existence of such offence was first brought to the notice of the
complainant/authorised officer of the Corporation, the prosecution
shall not be barred by time. In this regard, the words “ 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 ” in Section 467 of the DMC
Act would gain importance. The cognizance can be taken by the
Municipal Magistrate, not only on the „complaint‟ of the competent
officer of the Corporation, but also upon the information received
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from such officer. The information can be transmitted to the
Municipal Magistrate either directly by such officer or through the
police. In either of these cases, the requirement of Section 467 read
with Section 471 of the DMC Act shall be met and fulfilled.
41. Therefore, we hold that while Section 471 of the DMC Act, in
no uncertain terms, provides that no person shall be liable to
punishment for any offence against the DMC Act or any Rule,
Regulation or Bye-Law made thereunder, unless complaint of such
offence is made before a Municipal Magistrate within six months
from the date of commission of such offence or the date on which the
commission or existence of such offence was first brought to the
notice of the complainant/officer of the Corporation, at the same
time, the transmission of such complaint in form of an FIR by the
police officer to the Municipal Magistrate under Section 157 of the
Cr.P.C., would also suffice and shall stop the period of limitation
under Section 471 of the DMC Act. At the same time, transmission
of such complaint by the police officer to the area
Magistrate/ ilaqa Magistrate, who is not the designated Municipal
Magistrate, would not suffice for purposes of stopping the period of
limitation under Section 471 of the DMC Act.
42. The learned Standing Counsel for MCD has submitted that
there can be cases where the name and particulars of the offender are
not available with the concerned officer of the Corporation and,
therefore, for the said purpose, a complaint is made to the police
officer. We have already held that there are two alternate modes of
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putting the criminal machinery in motion; one, by directly filing the
complaint before the Municipal Magistrate, and second, by filing of
an FIR, as it is a cognizable offence. However, in either of the cases,
the complaint must reach the Municipal Magistrate within six months
after the date of the commission of such offence or the date on which
the commission or existence of such offence was first brought to the
notice of the complainant. The complaint is of the violation of the
relevant provision of the DMC Act and can also be against an
unknown offender. For the said purpose, the Corporation can also
invoke Section 475 of the DMC Act and seek the assistance of the
police in tracking the offender or file the complaint against an
unknown offender on which, the Municipal Magistrate can act.
43. A submission has also been made on the applicability of
Section 468 of the Cr.P.C. to submit that the same relates to the
cognizance of the offence being taken by the Court and not to the
filing of the complaint. We find merit in the said submission.
44. As it is evident from a bare reading of Section 468 of the
Cr.P.C., it relates to the period of limitation for taking cognizance of
an offence. Section 471 of the DMC Act, on the other hand, does not
provide a period for taking cognizance of the offence. It states that
the complaint must be filed within six months next after the
commission of the offence or the date on which the commission or
existence of such offence was first brought to the notice of the
complainant. Therefore, once the requirement under Section 471 of
the DMC Act is met, that is, the complaint is filed within the six-
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month period, the cognizance of such offence by the Municipal
Magistrate would then be governed by the general principles
contained in Section 468 of the Cr.P.C. and other provisions
connected therewith.
ANSWER TO THE QUESTIONS REFERRED:
45. In view of the above discussion, we answer the questions
referred to us as under:
Q1. Whether any statutory timeline for the completion of
investigation and filing of chargesheet in the Court is prescribed
under DMC Act, specifically in Section 471 of the Act? If no,
whether any question of chargesheet being barred by limitation
would arise during the enquiry/trial of the offences under DMC
Act?
A. There is no statutory timeline for completion of investigation
and filing of chargesheet in the Court prescribed under the DMC Act,
specifically in Section 471 of the Act. In case the criminal machinery
is set in motion by the Corporation by filing of a direct complaint by
the competent officer of the Corporation or through the transmission
of such complaint by the police officer under Section 157 of the
Cr.P.C. to the Municipal Magistrate, it is only the date of filing of
such complaint or transmission thereof by the police officer, that is
relevant for the purposes of determining the period of limitation
prescribed in Section 471 of the DMC Act. The period of limitation
for taking cognizance of the offence thereafter, shall be governed by
Section 468 and other connected provisions of the Cr.P.C.
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Q2. Whether the DMC Act prescribes a bar on taking
cognizance of an offence under Section 332 of DMC Act after the
expiry of six months from the date of knowledge, as per Section
471 of the Act?
A. Section 471 of the DMC Act does not contain any bar on the
Municipal Magistrate taking cognizance of an offence under Section
332 of the DMC Act after the expiry of six months from the date of
knowledge of the commission of the offence by the Corporation,
however, the complaint must be filed before the Metropolitan
Magistrate, if so appointed, or the information of the offence
transmitted to the Municipal Magistrate, within the period of six
months prescribed under Section 471 of the DMC Act.
Q3. What is the scope and relevance of the requirement of
sending a "complaint" to the Magistrate within six months, as
contemplated under Section 471 of DMC Act, since no
cognizance is taken on the complaint and case is instituted on the
police report?
A. The complaint under Section 471 of the DMC Act, can be
directly filed by the competent officer of the Corporation or be
transmitted to the Magistrate by the police in compliance with
Section 157 of the Cr.P.C., for purposes of reckoning of the period
of limitation under Section 471 of the DMC Act.
Q4. Whether the transmission of the copy of First Information
Report (FIR) to the concerned jurisdictional/ Ilaqa Magistrate
within six months could be considered as transmission of
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complaint/information, as sufficient compliance of Section 471
read with Section 466-A/467 of DMC Act?
A. The transmission of the copy of the FIR to the concerned
jurisdictional/ ilaqa Magistrate, unless such
jurisdictional/ ilaqa Magistrate is also the appointed Metropolitan
Magistrate, where such Metropolitan Magistrates have already been
appointed by the government, shall not suffice for purposes of Section
471 read with Sections 466A/467 of the DMC Act. However, if such
report is transmitted to the Metropolitan Magistrate, the same would
duly comply and be sufficient for the purposes of Section 471 of the
DMC Act.
Q5. If no, whether non-transmission of complaint/information to
the concerned Magistrate within six months would ipso facto
vitiate the entire prosecution or would be a curable defect being a
formal/technical requirement, in view of the fact that the original
complaint from Deputy Commissioner is indeed transmitted to the
Court as a part of the chargesheet. If yes, whether the remedy
under Section 258 Cr.PC would be available with the accused in
such cases?
A. The non-transmission of complaint/information to the
concerned Magistrate within six months, either in form of a complaint
filed by the officer of the Corporation or by way of transmission of
information of the offence, would ipso facto vitiate the entire
prosecution and shall not be a curable defect. Section 471 of the DMC
Act contains a complete bar on any person being made liable to
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punishment for an offence against the DMC Act or any Rule,
Regulation or Bye-Law made thereunder, unless the complaint is filed
within the period prescribed. The period of limitation is not
procedural, but substantial and mandatory. It also does not provide for
any condonation.
46. With the above answers to the questions, the criminal
reference is disposed of.
47. A copy of this judgment be communicated to the learned
Referral Court and other Municipal Magistrates for necessary
information.
48. We express our gratitude to the learned Amicus Curiae as also
to the learned Standing Counsel for the MCD and the learned APP
for the State for rendering assistance to us in answering the questions
referred.
NAVIN CHAWLA, J.
RAVINDER DUDEJA, J.
JUNE 18, 2026/sg/Pb
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