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Judgment
Arumugam, J.—A common question of law since emerged out of both these Revisions on the identical facts on the basis of which the
prosecution has been launched against the Respondents herein who are different in identity with the consent of the Bar I have proposed to dispose
of these revisions by means of a common judgment
Both the revision petitions filed under Sections 397 and 401 of the Code of Criminal Procedure canvassing the legality and property of the
judgments rendered by the learned Sessions Judge of Salem made in Criminal Revision Nos. 58/88 and 59/88 respectively and whereupon on
terminating the criminal prosecutions launched against the Respondents herein initiated by the Town Planning Officer, Salem Municipality, Salem
the revision Petitioners herein few an offence of violating the directions contemplated u/s 199 of the District Municipalities Act punishable u/s 317
of the Tamil Nadu District Municipalities Act, on the allegation that both the Respondents without obtaining the proper sanction and licence from
the Salem Municipality for putting up construction of their respective building within the jurisdiction of the Salem town and thereby violating the
provisions of Section 199 of the District Municipalities Act which was made punishable u/s 317 of the District Municipalities Act
The short facts of the prosecution involved in this case is called out from the records of both courts below are stated as follows:
As these Respondents put up new constructions in the residences situated within the municipal limits of Salem Town under the jurisdiction of
Salem Municipality and without obtaining the required licence and the plan approved by the authorities concerned as contemplated by the
Municipal Rules, on the claim authorisation by the Commissioner of Salem Municipality the Town Planning Officer concerned filed complaint
against both the Respondents herein separately on two cases before the Judicial Second Class Magistrate, Salem namely the trial court for
contravening Section 199 which is punishable u/s 317 of the District Municipalities Act. It appears however the Respondents appeared before the
trial court filed an application requesting the trial court to send for the written authorisation given by the Commissioner of Salem Municipality to the
complainant the Town Planning Officer the revision Petitioner herein to produce before court so as to substantiate the validity to launch the criminal
prosecution however instead of which the said request has not been complied with and the trial was commenced against the Respondents. The
complainant, the Town Planning Officer-the revision Petitioner herein was examined as P.W.1 and the building inspectors concerned were
examined as P.W.2 and both of them were cross examined on behalf of the accused. It is pertinent to note at the stage that during the cross
examination both P.W.1 and P.W.2 were not confronted with the question that the written authorisation by the Commissioner of Salem
Municipality authorising the revision Petitioner the Town Planning Officer to launch criminal proceedings inspite of the petition to produce the same
has not been produced before the trial court and that factum has been admitted by P. Ws.1 and 2. In fact, P.W.2 went one step further and has
stated that there was no authorisation of any kind given by the Commissioner of the Salem Municipality given to the complaint the Town Planning
Officer who was examine as P.W.1 to launch the criminal proceedings. Then, the evidence for the prosecution was closed and the trial was
adjourned and posted for the defense witness. During that stage a petition was filed on behalf of the complainant for the recalling of P.W.2 to
produce certain ""important documents"" as was evident from the application as well as the judgment and orders delivered by the court below. It
appears that the said application, though was resisted on behalf of the accused/Respondents, but however allowed by the learned trial Magistrate
on the ground of providing an opportunity to the complainant to produce the documents. This order by the trial Magistrate was made in C.M.P.
No. 2211/88 in STR No. 2179/88 and in C.M.P. No. 2212/88 in STR. No. 2231/86 dated 28.9.1988 and against which both the Respondents
respectively herein preferred revisions before the learned Sessions Judge, Salem and on re-assessing the entire case records and the adduced
evidence and documents, the learned Sessions Judge found that the very launching of the criminal prosecution by P.W.1 against the Respondents
have no legal basis and without any proper authorisation and that therefore, not only allowed the revision setting aside the order passed by the
learned Magistrate recalling P.W.2, but also terminated the entire proceedings launched against the Respondents in both these revision petitions in
toto, and that challenging the legality and propriety of the same, the Town Planning Officer, viz., the complainant P.W.1 has directed these
revisions before this Court.
Mr. Umapathy, the learned Counsel appearing for the revision Petitioner, in consonance with the grounds of revision attacked the legality and
property of the impugned judgment rendered by the learned Sessions Judge mainly on the ground that though the revisions preferred by the
Respondents/accused before the learned Sessions Judge, Salem was only to challenge the propriety and legality of the order passed by the learned
trial Magistrate passed on an interlocutory application and that as such it is to be deemed that such an order passed in such an interlocutory
mandatory application cannot be the final one, warranting any revision to be filed as contemplated u/s 397 Code of Criminal Procedure is a clear
bar and that therefore, the lower appellate court has clearly fell into an error and as such it is liable to be set aside. The second contention urged by
Mr. Umapathy, the learned Counsel for the revision Petitioner is that the impugned order passed by the learned Sessions Judge, Salem has no legal
sanction and propriety in the context that is so far as the revisions filed before the learned Sessions Judge is only to set aside the order passed by
the learned trial Magistrate directing the recalling of P.W.2 in order to produce certain documents but allowing the Crl.R.P. in its entirety and
thereby terminating the whole proceedings by the lower appellate court is clearly not within the legal province and that therefore, on the said
ground also the impugned order passed by the learned Sessions Judge is vitiated.
In the light of the above contentions addressed by the learned Counsel appearing for the revision Petitioners, the only question that arises for
consideration before me is that the judgment rendered by the lower appellate court is correct in maintaining the revisions filed against the order
passed by the learned trial Magistrate in an interlocutory application and that even so the impugned judgments rendering the criminal proceedings
was not proper and illegal and if so liable to be set aside?
In the light of the above contentions, I may straight away observe that while this Court in exercising its revisional jurisdiction has given a
concurrence that any impropriety or illegality committed by any courts subordinate to the High Court in launching criminal processing, which would
result in the total failure of justice, then the revisional court namely the High Court or the District Court namely the lower appellate court while
exercising the revisionary jurisdiction can exercise its power and to set aside the same. That would mean the revisional court would be competent
perfectly within the province of the procedural law to interfere with the said order and provide legal redress from such injustice being
contemplated. While observing so it has become necessary for me to point out that the Respondents in both the revision cases had filed
applications before the learned trial Magistrate at the initial point itself and filed application for the production of the written authorisation for the
complainant to launch criminal prosecution as warranted by Section 347 of District Municipalities Act which is one mandatory in nature. S. 347 of
the District Municipalities Act read as follows:
No court shall take cognisance of any offence against the provisions of this act or of any rule, on bye-law made under it unless a 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.
A cursory reading of this section clinches the fact that three categories of persons are competent to launch criminal prosecution against anybody for
violation of this rule under the District Municipalities Act within three months of the commission of the offence who are 1) The Police, 2) The
Executive Authority and 3) such persons who was expressly authorised on behalf by the council or the Executive Authority. In the instant case, the
Police and the Executive Authority have no place. The complaint was undoubtedly launched by P.W.1 namely the Town Planning Officer, It
cannot be said or argued that the Town Planning Officer examined as P.W.1 is the Executive Authority so as to launch the criminal proceeding. But
it has to be noticed that the Town Planning Officer has launched criminal proceeding, then for the said purpose he must come within the three
categories above referred to. It would mean further that he should be authorised specifically by the Council to the Salem Municipality or by its
Commissioner as contemplated specifically by the said section. But, significantly this authorisation is conspicuously absent. The mandatory
procedure, in other words the sine-qua-non, required for launching criminal prosecution is manifestly absent in this case. Further P.W.1 the
complainant has failed to produce the same before the trial court. In fact, P.W. 2 the building Inspector of Salem Municipality has categorically
admitted in his evidence that the Commissioner of Salem Municipality namely the Executive Authority had not given any authorisation to the
complainant namely the Town Planning Officer examined as P.W.1 to launch criminal proceedings against the Respondents in both the revisions
and after their evidence being closed the trial was adjourned for the defence. Even so, a petition was filed, it appears from the record that P.W.2
was sought to be recalled for production of certain important documents. It is not known from the petition as stated what are that documents which
assumes the so called importance as per the Town Planning Officer. It is rather surprising to note the observation of the learned trial Magistrate that
he had allowed the petition itself with a view to provide an opportunity. But such an opportunity has to be provided either before or after the
prosecution witnesses were examined. But, however, in the context of the specific and categorical admission of P.W.2, the production of some
''important document'' does not come into picture at all. Therefore, in my firm view, the learned trial Magistrate has committed a serious error in
allowing the petition to recall P.W.2 without assigning any good reason or for no reasons provided in the same. Therefore, that order if any for its
impropriety or illegality has to be interfered with.
It is the common case of the respective parties that no written authorisation was given by the Executive Authority viz. the Commissioner of
Salem Municipality to the compliant, the revision Petitioner herein to launch criminal proceedings against the Respondent as contemplated u/s 347
of the District Municipalities Act. But, however, the plea taken on behalf of the revision Petitioner under the pretext of Section 18 A of the Act
pertaining to the delegation of powers by the executive authority to the Town Planning Officer has been elaborately discussed and considered by
lower appellate court and consequently a finding has been given by the learned Sessions Judge that the contentions cased on Section 18A of the
District Municipalities Act cannot be countenanced for any purpose in these revisions. As no other points were argued contravening the said finding
in this revision, there exists no need for me to get into the said matter. One another legal lapse pointed out by the learned Sessions Judge was the
mandatory provisions of Section 205 C1.III of the District Municipalities Act has not been complied with by the prosecution to launch any criminal
proceedings. It appears, a show cause notice as provided u/s 205 has been given to the accused in both the cases under Ex. Pl and for which a
reply was given by the Respondent under Ex. Pl giving explanation for the non-compliance of Section 199 of the District Municipalities Act. But, it
seems however, that on the receipt of the said reply or explanation either the Town Planning Officer namely the Revision Petitioners herein or the
Municipal Authorities concerned has not acted by complying this on the basis of the said reply as provided by the above section of law. However,
it was neither accepted their explanation nor rejected it. But, however, consequently, rather curiously, indulged in launching a criminal prosecution
under the pretext of Section 199 which is punishable u/s 317 of the District Municipalities Act.. In this regard I have to hold at this juncture that the
Respondents have deliberately failed to act as correctly provided by the provisions of the District Municipalities Act. He has no sanction or
authority to launch criminal prosecution against the Respondents herein nor any legal sanctity in the context that he has not used his mind even
though they have issued a notice u/s 205 of the Act. The learned Sessions Judge had elaborately discussed every one of the aspects referred to
having gone through the case records, keeping in juxtaposition with the provisions of law available in the District Municipalities Act, I am rather,
but feel satisfied to hold that the Revision Petitioner has no authority at all to launch the criminal prosecution against the Respondents herein and
that the launching of the proceeding involved in the instant case are without any legal sanction which if allowed, would in my firm view result in total
failure of justice and in such circumstances, while exercising my revisional jurisdiction, I am fully satisfied to hold that the findings of the lower
appellate authority is perfectly valid in law and within his legal competency. No other points were argued before me. Hence both these revisions
lapse any merits.
In the result, both these revision petitions fail and accordingly they are dismissed.