BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13/07/2007 CORAM THE HONOURABLE MR. JUSTICE T.SUDANTHIRAM CRL.OP.(MD) No.15330 of 2004 and Crl.M.P.No.5396 of 2004 1.Santhanapitchai Fernando 2.Johnson Fernando 3.Jackson Fernando 4.Jonison Fernando .. petitioners Vs The Commissioner, Tuticorin Municipality, Tuticorin. .. Respondent Petition filed under section 482 of Cr.P.C., to call for the records relating to the proceedings in S.T.C.No.1604 of 2003 now pending on the file of the learned Judicial Magistrate No.I, Tuticorin, and quash the same. !For petitioners ... Mr.S.Subbiah, Advocate ^For Respondent ... Mr.S.Srimathi,Advocate :ORDER
The petitioners have filed this petition seeking to quash the proceedings
in S.t.C.No.1604 of 2005 on the file of the learned Judicial Magistrate No.1,
Tuticorin.
2.The respondent herein has filed a complaint against the petitioners
herein for the offence under section 216(3) and 317(b) of the District
Municipalities Act, (V of 1920). (Herein after referred as Act).
3.Mr.S.Subbiah, learned counsel appearing for the petitioners contended
that that the complaint is barred by limitation under section 347 of the Act.
The learned counsel pointed out section 347 of the Act which reads as follows:
“Persons empowered to prosecute:
[..][Save as otherwise expressly provided in this Act, no Court shall take
cognizance of any offence] against the provisions of this Act, or of any rule,
or by-law made under it unless complaint is made by the police, or the
[executive authority] or by a person expressly authorised in this behalf by the
council or the ]executive authority] within three months of the commission of
the offence. But nothing herein shall affect the provisions of the code of
Criminal Procedure [1898] in regard to the power of certain magistrates to take
cognizance of offences upon information received or upon their own knowledge or
suspicion.
Provided that failure to take out a licence, obtain permission or secure
registration under this act shall, for the purposes of this section, be deemed
continuing offence until the expiration of the period, if any, for which the
licence, permission or registration is required and if no period is specified,
complaint may be made at any time within twelve months from the commencement of
the offence.”
4.The learned counsel for the petitioners submitted that the offence was
allegedly committed on 22.01.2002 and the alleged report was given to the Office
of the respondent on 26.04.2002. As such, the complaint ought to have been
filed and the cognizance ought to have been taken on or before 25.04.2003. But,
the present complaint is filed only on 20.06.2003 and therefore, it is barred by
limitation.
5.The learned counsel for the respondent submitted that though the notice
was given on 26.04.2003, it was only a show cause notice as contemplated under
section 216 of the Act. Section 216(2) & 216(3) reads as follows:
“216(2):The Executive Authority shall serve a copy of the provisional order made
under sub-section(1) on the owner of the building or well together with a notice
requiring him to show cause within a reasonable time to be named in such notice
why the order should not be confirmed.
216(3): If the owner fails to show cause to the satisfaction of the executive
authority, the executive authority may confirm the order with any modifications
he may think fit to make, and such order shall then be binding on the owner.”
6.The learned counsel submitted that the notice under section 216(2) dated
26.04.2002 of the Act was served on the petitioners and as the petitioners did
not comply with the conditions, the confirmation order under section 216(3) of
the Act, dated 04.06.2002 was served on the petitioners only on 19.12.2002 and
therefore, the limitation period has to be calculated only from 19.12.2002, the
date on which the confirmation order was served on the petitioners.
7.The learned counsel for the petitioners submitted that even as per the
confirmation order dated 04.06.2002, the complaint ought to have been filed
either on or before 03.06.2003. The learned counsel for the respondent
submitted that in the complaint filed, in column 7 which is for mentioning the
nature of the offence and the date, the date is mentioned only as 22.12.2002.
The learned counsel for the respondent also submitted that the file contains
particulars with regard to the date of confirmation order being served on the
petitioners.
8.This Court has gone through the copy of the complaint filed against the
petitioners and also the typed set of papers filed by the petitioners which
contains the copy of the show cause notice issued by the respondent dated
04.06.2002. As per section 347 of the Act, the offence in this case is deemed
as the continuing offence. The complaint ought to have been made within twelve
months from the commencement of the offence. As per section 216(3) of the Act,
the confirmation order is dated 04.06.2002. But, the date mentioned in column 7
of the complaint is only 22.12.2002. It can be definitely said that the period
of limitation does not commence from the date 26.04.2002 which is mentioned in
the provisional order made under section 216(2) of the Act.
9.The next question is whether the date 04.06.2002 is to be taken into
account or 19.12.2002 is to be taken into account for the commencement of the
period of limitation is to be analysed. The confirmation order dated 04.06.2002
gives three days time for complying the condition as per section 338(a) of the
Act. Section 338 and 338(a) of the Act reads as follows:
“338:-Consequence of failure to obtain licences, etc, or of breach of the same:-
If, under this Act, or any rule, by-law or regulation made under it, the
licence or permission of the council or executive authority or registration in
the municipal office is necessary for the doing of any act, and if such act is
done without such licence or permission or registration, or in a manner
inconsistent with the terms of any such licence or permission, then-
(a)the executive authority may by notice require the persons so doing such
act to alter, remove, or, as far as practicable, restore to its original state
the whole or any part of any property, respondent immovable, public or private,
affected thereby within a time to be specified in the notice and further.”
Therefore, this three days time would come into effect only after the order is
served on the person and definitely not from the date of the order passed.
While so, on the failure to comply the final order, the date of commencement of
the offence is only three days after serving the order under section 216(3) of
the Act. Though no material is furnished along with the complaint to show the
order passed under section 216(3) of the Act dated 04.06.2002 was served on the
petitioner on 19.12.2002, an opportunity has to be given to the
complainant/respondent herein. It is for the Trial Court to decide the date on
which the order under section 216(3) of the Act was served to the petitioners
and thereby, to calculate the period of limitation. It is not possible at this
pre-mature stage to reject the submissions made by the learned counsel for the
respondent that the order passed under section 216(3) of the Act dated
04.06.2002 was served on the petitioner only on 19.12.2002.
10.In view of the above said observations, the contention of the learned
counsel for the petitioners that the complaint is barred by limitation is not
acceptable. Anyhow, it is open to the petitioner during the trial on the basis
of the evidence to contend that the complaint is barred by limitation.
11.In the result, the criminal original petition is dismissed.
Consequently, connected miscellaneous petition is also dismissed.
To
1.The Judicial Magistrate No.I,
Tuticorin.
2.The Commissioner,
Tuticorin Municipality,
Tuticorin.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.