IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NOS.3880, 3881, 3882 OF 1999. APPLICATION NOS.3880, 3881, 3882 OF 1999. APPLICATION NOS.3880, 3881, 3882 OF 1999. T.M.M. Nambiar. ..Applicant. (in all the Applications) versus 1. Senior Legal Assistant, Zone-II F/Ward, Municipal Corporation of Greater Mumbai. 2. The State of Maharashtra. ..Respondents. (in all the Applications) .... Mr.Shirish Gupte, Senior Counsel, Mr.Amol Doijode, Mr.Levi Rubens, Mr.Sujit Suryavanshi, Manju Sharma, Ms. Manisha Virkhare, Mr. Sakil Indranil & Madhuri Sakpal, i/b. Vigil Juris, for the Applicant. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 13TH AUGUST,2008. : 13TH AUGUST,2008. : 13TH AUGUST,2008. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. The submissions of the learned Senior Counsel appearing for the Applicant were heard on 11th August 2008 and 12th August 2008. Though the learned APP was present, none appeared for the first Respondent on both the dates. Today when the Applications are called out, none appears for the first Respondent. 2. The prayer in these Applications under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code") is for quashing the order dated 5th November 1999 passed by the learned Magistrate issuing process against the - 2 - Applicant for an offence punishable under section 394(1) (b) and section 471 of Bombay Municipal Corporation Act, 1888 (hereinafter referred to as "the said Act of 1888"). In the normal course, this Court would have relegated the Applicant to a remedy of filing a Revision Application under section 397 of the said Code. However, I find that on 17th January 2000, rule was issued by this Court and interim relief was granted. After the lapse of more than 8 years, it will be unjust to the parties to relegate them to another remedy. 3. The Applicant in these three Applications was arraigned as one of the accused in the three private complaints filed at the instance of the first Respondent. The Applicant was the Managing Director of a Company by the name Associated Cement Company Limited. In the complaint subject matter of the Criminal Application No.3880/1999, the allegation is of keeping or suffering to be kept or allowing to be kept wooden articles on area of 40’ X 40’ for the purposes of sale or for a use other than domestic use without possessing a licence. In the complaint, the first Respondent alleged non-compliance of clause (b) of sub-section (1) of section 394 of the said Act of 1888. - 3 - 4. In the complaint which is subject matter of Criminal Application No.3881/1999, it is alleged that the Applicant has committed an offence of keeping or suffering to be kept or allowing to be kept iron scrap on area of 10’X 10’ for sale or for use other than domestic use without obtaining a licence. 5. In the complaint which is subject matter of Criminal Application No.3882/1999, the allegation is of committing an offence by keeping or suffering to be kept or allowing to be kept paper and old waste on area of 10’ X 10’ for sale or for use other than domestic use without obtaining a licence. In this case also the allegation is of violation of clause (b) of sub-section (1) of section 394 of the said Act. 6. According to the case of the first Respondent, the officers of the Municipal Corporation visited a godown admeasuring 120’ X 40’ of the Associated Cement Company Limited and found the aforesaid articles in the godown. In the report of inspection, it is stated that the party concerned was directed to produce a licence under section 394 of the said Act within a period of 4 days. According to - 4 - the case of the Applicant, on 29th July 1999, the said Company forwarded a xerox copy of licence issued under the Bombay Shops and Establishment Act, 1948 to the Commissioner of the said Corporation. 7. The submission of the learned Senior Counsel appearing for the Applicant is that after visit of the officer of the said Corporation to the godown, no communication was issued either to the Applicant or to the Company. He invited my attention to provisions of section 394 of the said Act and submitted that no licence was required under section 394 for keeping a scrap or unused articles. Inviting my attention to clause (b) of sub-section (1) of section 394 of the said Act of 1888, he submitted that the said clause (b) has no application as the articles allegedly kept by the Applicant do no find place in part-III of Schedule-M to the said Act of 1888. Apart from all this, he submitted that the Company which was holding the godown is not prosecuted and without attributing any specific role to the Applicant, he has been prosecuted only because that at the relevant time he happened to be the Managing Director of the Company. He submitted that no offence was made out as against the Applicant. There is not even an allegation that the Applicant - 5 - played any role in the commission of alleged offences. He, therefore, submitted that this is a fit case for exercising power under section 482 of the said Code. 8. Though the first Respondent has not appeared, written submissions have been filed by the Advocate for the first Respondent. Perusal of the written submissions shows that even therein it is not disclosed in what capacity the Applicant was arraigned as an accused. 9. I have carefully considered the submissions. The Applicant in his capacity as the Managing Director of the Company and one Shri R.M. Bhuttar were arraigned as accused. The said R.M.Bhuttar is said to be the Owner of the godown. Though in the complaint it is not disclosed that the said Mr. Bhuttar was the Owner, in the written submissions filed by the first Respondent, the said Shri Bhuttar has been described as the Owner of the premises. As stated earlier, an allegation of commission of offence is that the Applicant is guilty of keeping or suffering to be kept or allowing to be kept wooden articles, iron scrap, paper and old waste. The complaints specifically allege the violation of - 6 - clause (b) of sub-section (1) of section 394 of the said Act of 1888. Clause (b) of sub-section (1) of section 394 provides that except under and in accordance with the terms and conditions of the licence granted by the Commissioner no person shall keep, or suffer or allow to be kept in or upon any premises for sale or for other than domestic use, any articles specified in Part-III of the Schedule-M. Perusal of the Part-III of Schedule ‘M’ shows that it does include wooden articles, paper old or waste, articles made of timber, iron scrap. The articles which were allegedly found in the godown form part of Part-III of Schedule-M. 10. As stated earlier, the Applicant who was the then Managing Director of the said Company has been arraigned as an accused. Even the inspection report of the first Respondent refers to the fact that the said Company was the Conductor and the said Shri R.M.Bhuttar was the Owner of the godown. The complaints are totally silent as to how the Applicant can be held liable or as to how a criminal liability can be fastened against the Applicant. There are no material averments in the complaint specifying or attributing any role to the Applicant. In absence of any averment or specific allegation made against the - 7 - Applicant, it is obvious that process could not have been issued against the Applicant only because he happened to be the Managing Director of the said Company. Only on this ground, a case is made out for invoking power of this Court under section 482 of the said Code. 11. Accordingly, rule is made absolute in terms of prayer clause (a). 12. Parties and concerned Court to act upon an authenticated copy of this order. 13. Warrant, if any, issued against the Applicant in the said case stands cancelled. Bail bond, if any, furnished by the Applicant also stands cancelled. [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]