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IN THE HIGH COURT OF JUDICATURE AT PATNA
Ashwani Kumar Singh, J.
Pratik Sinha - Petitioner
Versus
The State of Bihar & Ors. - Respondents
Criminal Writ Jurisdiction Case No. 1109 of 2015
Decided On : 04-07-2016
FIR Quashing - Municipal Act Violation - 323, 324, 429, 435 - The court discussed the provisions of Sections 323, 324, 429, and 435 of the Bihar Municipal Act, 2007, and their interpretation. It highlighted that the contraventions alleged in the FIR are in the nature of civil infractions and do not amount to criminal offences. The court also emphasized that the provisions under Section 429 of the Act are sweeping and vague, making it difficult to comprehend their applicability to the alleged contraventions under Sections 323 and 324. The court further clarified that the alleged offences under Sections 323 and 324 are empowering and remedial provisions, not punishable offences. It also discussed the legal principles related to disobedience of orders and the bar on private prosecution for certain offences.
Fact of the Case:
The petitioner sought to quash an FIR registered under Sections 188 and 120-B of the IPC and Sections 323, 429, and 435 of the Bihar Municipal Act, 2007. The FIR was based on a written report submitted by a Tax Collector, alleging that the petitioner and others continued construction work in violation of a prohibitory order issued by the Municipal Commissioner.
Finding of the Court:
The court found that the alleged contraventions did not amount to criminal offences and were civil infractions. It also ruled that the provisions under Section 429 of the Act were sweeping and vague, making it difficult to apply them to the alleged contraventions under Sections 323 and 324. The court further held that the alleged offences under Sections 323 and 324 were empowering and remedial provisions, not punishable offences. It also clarified that the alleged disobedience of orders did not constitute an offence under Section 188 of the IPC. Additionally, the court emphasized the bar on private prosecution for certain offences.
Issues: The issues involved the interpretation of the provisions of the Bihar Municipal Act, 2007, and the Indian Penal Code, particularly Sections 188, 323, 324, 429, and 435, and the applicability of these provisions to the alleged contraventions in the case.
Ratio Decidendi: The court's decision was based on the interpretation of the relevant provisions of the Bihar Municipal Act, 2007, and the Indian Penal Code. It emphasized that the alleged contraventions did not amount to criminal offences and were civil infractions. The court also highlighted the bar on private prosecution for certain offences and the requirement of a written complaint by the public servant concerned for contempt of a lawful order.
Final Decision: The court quashed the FIR and all proceedings arising from it, as allowing the investigation to continue would cause extreme injustice and result in an abuse of the court's process.
Ashwani Kumar Singh, J.
The petitioner preferred a writ application for quashing of the first information report (For short "FIR") giving rise to Kadam Kuan P.S. Case No. 348 of 2015 registered under Sections 188 and 120-B of the Indian Penal Code (For short "IPC") and Sections 323, 429, 435 of the Bihar Municipal Act, 2007 (for short "the Act").
2. The FIR has been instituted on the basis of a written report dated 29.07.2015 submitted by one Kedar Prasad, Tax Collector, Bankipore Circle of the Patna Municipal Corporation, Patna (for short "PMC") to the Officer-in-charge of Kadam Kuan Police Station. The gist of the allegation in the written report submitted by the informant is that though the construction work of the building in question was restrained by an order passed by the Municipal Commissioner of the PMC in Vigilance Case No. 203-A of 2013 pursuant to a complaint having been received when the informant along with other officials of the PMC and police personnel jointly visited the site for inquiry on 29th July, 2015, they found that the construction work of the building was continuing defying the prohibitory order.
3. On the basis of the aforesaid information, Kadam Kuan P.S. Case No. 348 of 2015, was registered on 29th July, 2015 under Sections 188 and 120-B of the Indian Penal Code and Sections 323, 429 and 435 of the Act against the petitioner and others and investigation was taken up.
4. I have heard Mr. Rajiv Kumar Verma, learned Senior Advocate appearing on behalf of the petitioner, Mr. Prasoon Sinha, learned Advocate appearing on behalf of the respondents No. 5 & 6 and Mr. Bhaskar Shankar, learned Assistant Counsel to the Government Pleader No. 16 appearing on behalf of the State.
5. Mr. Rajiv Kumar Verma, learned Senior Advocate appearing on behalf of the petitioner has submitted that the petitioner is one of the partners of M/s. Balaji Infra Projects (for short "the firm") which is a registered partnership firm involved in construction business. The firm entered into a development agreement on 21.11.2011 with an old lady, namely, Smt. Usha Prasad, a co-accused, for development of 24 decimals of her land bearing Khata No. 71, Tauzi No. 244, Khewat No. 2/25, Ward No. 11 (Old), 43(New), Municipal Plot No. 1410, Thana No. 5, Circle-C-9, Sheet No. 72, Holding No. 699/1 (Old) and 1443/957 (New) situated at Branch of Road of Mauza - Prithiwipur, Mohalla - East Lohanipur, P.S.-Kadam Kuan, District-Patna within the limit of PMC. While the petitioner started construction over the land and completed construction to some extent, he came to know that the Municipal Commissioner, PMC has issued an order stopping construction over the land in Vigilance Case No. 203A of 2013. Upon coming to know about the prohibitory orders issued by the Municipal Commissioner, PMC, the petitioner stopped construction over his site.
6. He has submitted that on 29th July, 2015, while some aluminium windows were being prepared at the site and the plumber was trying to stop seepage in the down slab of the 1st floor of the apartment due to problem being faced by the caretaker and guard, who were employed to look after the goods and property at the site and were residing at the ground floor of the site, the informant along with the police authorities came at the site and lodged the FIR against the petitioner, the old lady with whom the petitioner had entered into a development agreement and the other employees of the firm.
7. It is the contention of the petitioner that the allegations made in the FIR do not attract ingredients of any cognisable offence. Hence, the institution of FIR and investigation by the police, as provided under Sections 156 and 157 of the Code of Criminal Procedure, 1973 (for short "CrPC") are bad in the eyes of law.
8. It is the thrust of the argument of the petitioner that breaches or contraventions alleged in the FIR are in the nature of civil infraction and Chapter XXXVI of the Act simply provides for the procedure for pr
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