Prem Prakash vs Kailash Chandra

Sobhag Mal Jain, J.—This petition for revision u/s 379, Cr.PC is directed against the order dated November 22, 1983, of the Addl. Chief Judicial Magistrate No. 2, Udaipur and involves the question as to whether the complaint filed against the petitioner u/s 23(5) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (here in after referred to as ''the Act'') was within limitation.

Non-petitioner Kailash Chandra was the tenant of the petitioner in respect of the premises consisting of two rooms, bath room, kitchen and a latrine. The rent of the premises was Rs. 35/- per month which included water and electricity charges. An application u/s 12(1) of the Act was filed in the Court of City Magistrate, Udaipur, on June 10, 1982, alleging that the petitioner had cut of the amenities; i.e., supply of water to the bath room and kitchen had also dis-connected the supply of electricity to the premises. The non-petitioner prayed that the said amenities be restored to him. By the order dated June 14, 1982, the learned Magistrate directed the petitioner to file his reply and in the meanwhile, to restore the amenities. The petitioner filed his reply on June 19, 1982 and prayed that the interim order may be vacated. The non-petitioner, on the other hand, filed an application that the landlord had not restord the amenities despite the court''s order. The City Magistrate on June 25, 1982, passed an order under Sub-section (6) of the Act imposing a penalty of Rs. 5/- per day against the petitioner till he restores the amenities. On June 29, 1922, the petitioner''s application for vacating the order for restoring the amenities was dismissed. Subsequently, on June 30, 1982. the learned Magistrate passed an order that the non-petitioner may himself restore the amenities and pursuant thereto, the non-petitioner got the amenities restored.

The petitioner filed an appeal before the District Magistrete against the order dated June 29,1982, but the same was dismissed on January 18, 1983, on the ground that the said appeal was not maintainable as the petitioner had not challenged the main order dated June 14, 1982.

By the order dated January 18, 1983, the Additional District Magistrate accorded permission u/s 23(5) of the Act for the prosecution of the petitioner for contravening the order made u/s 12 of the Act. The non-petitioner, then, filed a complaint in the Court of Addl. Chief Judicial Magistrate No. 2, Udaipur against the petitioner on April 16, 1983. An application was moved by the petitioner on September 27, 1983, that the complaint filed by the non-petitioner was barred by limitation u/s 23 (5) of the Act. By order dated November 22, 1983, the learned Addl. Chief Judicial Magistrate dismissed the said application holding that it was not barred by limitation. Aggrieved by this, the petitioner has filed the present revision.

I have heard Mr. N.N. Mathur, learned counsel for the petitioner and Mr. D.S. Shishodia, learned counsel for the non-petitioner.

The question which arises for consideration in this revision is whether the complaint filed by the non-petitioner in the Court of Addl. Chief Judicial Magistrate on April 16, 1983, was within limitation ? Section 23(5) of the Act prescribes the period of three months for filing a complaint from the date of the commission of the offence. The precise question for determination, therefore, is when was the offence committed within the meaning of Section 23 (1) of the Act. Section 23 of the Act reads as follows:

Section 23. Penalties--(1) Any person who contravenes any of the provisions of this Act, or any order made in pursuance thereof, shall be punishable on conviction with simple imprisonment for a term which may extend to six months, of with fine upto Rs. 1,000/- or with both;

(2) Any person who attempts to contravene, or abates a contravention of, any order made or deemed to be made under this Act, shall be deemed to have contravened that order;

(3) If the person contravening an order made or to be made under this Act is a company, partnership firm or other body corporate every director, partner, manager, secretary or other officer or agent or the managing agent thereof, shall unless he proves that the contravention took place without his knowledge or that he exercised with all due diligence to prevent such contravention, be deemed to be guilty of such contravention;

(4) All offences under this Act shall be triable by a Judicial Magistrate of the first class;

(5) No Court shall try any offence under this Act except on a complaint made by or with the sanction of the District Magistrate within three months from the date of the commission of such offence.

The complaint and the order dated January 18, 1983, relate to the offence for contravening the order of the Magistrate dated June 14, 1982. The complaint was filed on April 16, 1983 and obviously it was much beyond the period of three months. The contention of the non-petitioner however, is that the offence was a continuing offence and as the disobedience continued even after the passing of the order dated June 14, 1982, the complaint was within time.

It will be useful here to quote the relevant part of the order dated January 18, 1983:

fo}ku uxj n.M+uk;d] mn;iqj us bls iqu% pkyw fd;s tkus dk vkns''k foi{kh dks fnukad 14&6&82 dsk fn;k ysfdu foi{kh us bldk ikyu ugh dh vkSj izkFkhZ dks vius [kpZ ls ikuh dusDlu ysuk iM+k foi{kh }kjk U;k;ky; ds vkns''k dh ikyuk ugh djus ij mlds f[kykQ U;kf;d vnkyr es bLrxklk is''k fd;s tkus dh izkFkhZ dsk Lohd`r fn;s tkus es dksbZ vkifRr ugh A

In the complaint dated April 16, 1983, averments are to the effect:

fd mDr uxj n.M+ uk;d ds vkns''k dh mDr vihy [kkfjt dh tkus ds Ik''pkr vfHk;qDr dks uxj n.M uk;d] mn;iqj ds vkns''k fnukad 14&5&1982 o 25&6&82 dh ikyu djuk pkfg, Fkk AfdUrq mDr vkns''k dk ikyu ugh djds vogsyuk dh gS rFkk izfrfnu vogsyuk dj jgk gS A

In this connection reference is made to the order dated June 30, 1982 passed by the City Magistrate u/s 12(7) of the Act, the operative part of which is to the following effect:

vr% izkFkhZ dsk /kkjk 12�7� jsUV dUV�ksy ,DV ds rgr vkns''k fn;k tkrk gS fd rkjr] fctyh] ikuh] rFkk ckFk:e dh lqfo/kk iwoZ dh rjg vki Loa; vius [kpkZ ls IkzkIr dj gksus okys O;; dk fglkc foi{kh dks nsdj jkf''k fdjk;s ls dkV ldsxk A Ik=koyh okLrs is''k izkFkhZ fnukad 6&7&82 dks izLrqr gks A

Subsequent to this order, the non-petitioner got the amenities restored. It would thus appear that the amenities having already been restored by the non-petitioner himself pursuant to the order dated June 30, 1982, nothing remained for the petitioner any more to comply with the order of the City Magistrate dated June 14, 1982. Thus, there was no question of any disobedience of the said order after the learned City Magistrate directed the non-petitioner himself to get the amenities restored. The complaint was obviously filed much after three months from the date of this order.

The result is that the revision petition is accordingly allowed, the order dated November 22, 1983, passed by the Addl. Chief Judicial Magistrate No. 2, Udaipur, is set aside and the complaint filed against the petitioner on April 16, 1985, is dismissed.