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High Court of Judicature at Bombay
S.C. DHARMADHIKARI, J.
Pishu Mulchand Mahtani & Others
Versus
State of Maharashtra & Another
Criminal Writ Petition No.152 of 2013
Decided on : 06-05-2013
Where process was issued after issuing show-cause notice to accused members of Managing Committee of Housing Society on complaint for contravention of safety measures therefore process cannot be quashed.
Maharashtra Fire Prevention & Life Safety Measures Act, 2006 - Sections 2(ii) and 3(1) - Term Owner.
Since a Society is covered by definition of term ’Owner’ used in Act hence term ’owner’ includes registered Co-operative Housing Society.
Maharashtra Fire Prevention & Life Safety Measures Act, 2006 - Section 3, 36 and 38 - MSC Act, 1960, Section 2(7) and 73 - Contravention of Safety measures by Co-operative Housing Society.
Since offence by Co-operative Housing Society would be at par with offence by company hence impleadment of members of Managing Committee as accused not permissible by more nomenclatures.
Maharashtra Fire Prevention & Life Safety Measures Act, 2006 - Sections 3(1), 3(3), 3(4) and 36 - Issuance of process for contravention of safety measure.
Process cannot be issued against members of Managing Committee of Society on general and vague statements for contravention of safety measures by housing society. - It may be that in a given case the process will not be issued on general and vague statements and merely because a person happens to be an officer or managing committee member or director. It all depends upon the facts and circumstances in each case as to whether the occupier is to be proceeded against or owner himself. If the owner is an artificial person, then, as specified in Section 38(1) of the said Act, the Magistrate will insist at least the primary averments and essential allegations being made and scrutinize the relevant material at the prima facie stage to find out as to whether each and every officer or director should be proceeded or that the process be restricted to few of them who were directly incharge of or in control of the affairs. It is not possible for the Magistrate to express any final opinion at the initial stage about such contested and debated matters.
A prima facie satisfaction is all that is necessary. While issuing the process, however, he is not expected to render and give any final opinion. A limited scrutiny and verification to ascertain the role of persons sought to be proceeded against, will definitely be required to be undertaken so that protection is given to those who have no role to play in day to day management and affairs. If the Managing Committee in a given case has delegated some of its powers to others within them or has, with the concurrence or consent of General Body, appointed a third party or agent to undertake and complete some of its tasks and jobs including duties to provide fire prevention and life safety measures, then, the Magistrate will take into account such instances as are brought before him and substantiated with appropriate material. If the allegations in the complaint themselves are such that each and every officer and managing committee member need not be summoned to answer the charge, then, the Magistrate may limit and restrict the issuance to a few or in a given case, issue a process if he is satisfied from the allegations and statements in the complaint that those termed as managing committee members were directly responsible for taking measures envisaged by the said Act.
Maharashtra Fire Prevention & Life Safety Measures Act, 2006 - Sections 3(1), 3(3), 3(4) 36 and 38 - MCS Act, 1960, Section 2(7), 72 and 73 - Contravention of safety measures by Society.
Since day to day administration in vested in Management Committee hence only members of Management Committee can be prosecuted for contravention of Safety measure.
Maharashtra Fire Prevention & Life Safety Measures Act, 2006 - Sections 3(1), 3(3), 3(4), 36 and 38 - Maharashtra Co- operative Act, 1960, Section 2(7), 72 and 73 - Prosecution for contravention of Safety measures.
Since day to day administration in vested in Management Committee of Society hence only members of Management Committee can be presented for contravention of safety measures.
Maharashtra Fire Prevention & Life Safety Measures Act, 2006 - Section 38(2), Explanation - Definition of company.
Since definition of company is elastic in nature hence cannot be confined to a company defined under Companies Act. - In the context of a cooperative housing society it would be necessary for the Court to satisfy itself as to how all those who are arraigned as accused were in charge and responsible for the conduct of business of the society. They together with the society have to be, therefore, convicted and held guilty of the offences. That duty and obligation of the Court is in no way dispensed with. Therefore, the complainant will have to specify as to how all the Managing Committee members are incharge and responsible to the society for the conduct of business of the society.
The complainant will have to ascertain the basic position regarding the constitution of the Managing Committee, the officers of the Society in whom the powers are delegated and particularly about policy matters and day to day affairs. It will not be permissible to arraign or implead the Managing Committee members or officers by mere nomenclature. The complainant must state as to how he has termed them as accused and with reference t o the information derived from the records of the Society including its bye-laws.
1. Rule.
2. The Respondents waive service.
3. By consent, Rule made returnable forthwith.
4. By this Writ Petition under Article 227 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure, 1973, the Petitioners are challenging the order dated 14.12.2012 passed by the learned Metropolitan Magistrate, 41st Court, Shindewadi, Dadar (East), Mumbai-14 in Case No.4100087/SW/2012 whereby he issued the process for the offences punishable under Sections 3(1), 3(3), 3(4) r/w 36 of the Maharashtra Fire Prevention and Life Safety Measures Act, 2006 (for short “the said Act”). This process was issued on a complaint which was lodged by the Respondent No.2 /Municipal Corporation for Greater Mumbai.
5. The complaint alleges that on 02.12.2012 at about 3:33 a.m., the officer concerned of Watch Room of Colaba Fire Station received a message from the Control Room to attend the Fire Call at Jolly Maker-I Cooperative Housing Society as fire broke out therein. The officer concerned had attended the call and found that the flat on 19th floor being Flat No.191-B of the building caught fire. The teams from Colaba and Nariman Point Fire Stations were preparing to fight the fire and at that time, the officer concerned was told that the fire equipment system was not in operative condition. The officer concerned came to know that the said system was not in usable condition. The officer, thereafter, prepared the fire investigation report to find out the cause of fire, which was defective electric circuit. The fire could not be controlled because of non-maintenance of the fire fighting measures provided in the building. The accused have failed to produce the certificates from the licenced agency for maintenance of the fire fighting equipments in good condition to the Chief Fire Officer in January and July, 2012. The manual call points and fire alarms were removed by the accused without information to the authority. These observations are mentioned in the investigation report dated 06.12.2012 which was placed before the senior officers. Accordingly, a notice was issued on 06.12.2012 to all the accused and served on them. The Petitioners/ accused are identified as owners of the building and office bearers of the society. That notice and reply thereto is part and parcel of the complaint. The reply being unsatisfactory, it was alleged that the offence punishable under the above provisions has been committed. It has been pointed out that the accused No.2 and 3 were removed from their posts by the Sub Registrar and that was intimated to them and equally the accused No.8 gave resignation three months back.
6. Upon such a complaint filed on 14.12.2012, the learned Metropolitan Magistrate perused the documents and found that there is sufficient material to proceed further. Hence, the learned Magistrate issued the process returnable on 17th January, 2013.
7. It is this order which is under challenge in this Writ Petition.
8. Mr.Ponda, learned counsel appearing for the Petitioners, has submitted that the impugned order is ex-facie erroneous and illegal. It is vitiated by total non application of mind. The learned Magistrate has merely endorsed his approval on the allegations made in the complaint without independent application of mind. The issuance of process is a serious matter. This is a criminal case. It concerns the life and liberty of the Petitioners, some of whom are senior citizens. In these circumstances the learned Magistrate was obliged to carefully scrutinize and verify the allegations in the complaint so as to find out whether any offence is committed by the Petitioners herein. The learned Magistrate has failed to discharge that duty in law.
9. It is next contended by Mr.Ponda that the complaint, read as a whole, does not disclose commission of any offence by the Petitioners. He submits that the complaint shows the accused No.1 as Jolly Maker-I Co-operative Housing Society, the accused No.2 is Chairman, the accused
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