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.

¶11

CORAM : A.S. OKA, J. DATE : 13TH AUGUST,2008.

¶12

ORAL JUDGMENT :

¶13

1.		The sub	missions of the learned Sen	ior Counse	l
appearing	for	the	Applicant were	heard	on	11th	August
2008	and	12th	August 2008.	Though	the	learned	APP
was	present,	no	ne appeared for	the	first		Respondent

¶14

on both the dates. Today when the Applications are

¶15

called out, none appears for the first Respondent.

¶16

2.	T	he prayer in	these A	pplicatio	ns under
section	482	of the	Code	of	Criminal	Procedu	re,	1973
(hereinafter	re	ferred to	as	"the	said C	ode")	is	for
quashing	the	order d	ated	5th	November	1999	pass	ed by
the	learned	Magis	trate	issuin	g process	agai	nst	the

¶17

¶18

Applicant		for an	offen	ce punishable	under		section
394(1)	(b)	and s	ection	471 of	Bombay	M	unicipal
Corporation		Act,	1888	(hereinafter referred		to	as
"the	said	Act of	1888").	In the n	ormal	course,	this
Court	wo	uld have	relegate	d the Applicant	to	a	remedy
of filin	g	a Revision	App	lication under	section	397	of
the	said	Code.	However,	I find that	on	17th	January
2000,	rule	was	issued	by this Court	a	nd	interim
relief	was	granted.	After	the lapse of	more	than	8

¶19

years, it will be unjust to the parties to relegate

¶20

them to another remedy.

¶21

3.		The Applicant in these thre	e Appl	ications	was
arraigned		as one of the	accu	sed	in	the	three	private
complaints		filed at the		instance		of	the	first
Respondent	.	The Applicant	w	as	the	Ma	naging	Director
of a		Company by the na	me	Associ	ated	Cem	ent	Company
Limited.		In the compla	int	subjec	t	matter	of	the
Criminal		Application No.38	80/19	99,	th	e	allegation	is
of	keep	ing or suffering to	be	kept	o	r al	lowing	to be
kept	woo	den articles on area	of	40’	X	40’	for	the
purposes	of	sale or for a	use	oth	er	than	domesti	c use
without		possessing a licence.		In		the	complain	t, the
first	Resp	ondent alleged non	-comp	liance		of	clause	(b)

¶22

of sub-section (1) of section 394 of the said Act of

¶23

¶24

¶25

In the complaint which is subject matter of

¶26

Criminal	Applicat	ion	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

¶27

scrap on area of 10’X 10’ for sale or for use other

¶28

than domestic use without obtaining a licence.

¶29

In the complaint which is subject matter of

¶30

Criminal	A	pplicati	on	No.	3882/19	99,	t	he	allegation	is
of	committing	an	offen	ce	by	keepi	ng	or	suffering	to
be kept	or allo	wing	to	be	kept	pap	er	and	old waste	on
area	of 10’	X	10’	for	sale	or	for	use	other	than
domestic	use	wi	thout	obt	aining	a	lice	nce.	In	this
case	also	the	alleg	ation	is	of	vio	lation	of	clause

¶31

(b) of sub-section (1) of section 394 of the said

¶32

Act.

¶33

According to the case of the first

¶34

Respondent,	the	officers	of	t	he	Municipal	Corpo	ration
visited a		godown adm	easuring	1	20’	X 40’	of	the
Associated	Ce	ment Comp	any	Limit	ed	and	found	the
aforesaid	arti	cles in the	godo	wn.		In the	report	of
inspection,	it	is stated	that	th	e	party c	oncerned	was
directed	to	produce	a lice	nce	und	er section	394	of
the said	Act	within a	period	of	4	days.	According	to

¶35

¶36

the case of the Applicant, on 29th July 1999, the said Company forwarded a xerox copy of licence issued

¶37

under the Bombay Shops and Establishment Act, 1948 to

¶38

the Commissioner of the said Corporation.

¶39

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	godow	n, no
communication was issued either to the App	licant	or
to the Company. He invited my at	tention	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, h	e	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	submitte	d that
no offence was made out as against the		Applicant.
There is not even an allegation that the		Applicant

¶40

¶41

played any role in the commission of alleged offences. He, therefore, submitted that this is a

¶42

fit case for exercising power under section 482 of

¶43

the said Code.

¶44

8.	Though	the first Re	spondent h	as not appe	ared,
written	submissions	have	been	filed	by	the	Advocate
for the	first	Responde	nt.	Perusal	of	the	written
submissions	shows	that	even	the	rein	it	is not

¶45

disclosed in what capacity the Applicant was

¶46

arraigned as an accused.

¶47

9.		I	have car	efully consider	ed the s	ubmi	ssions.
The	Applicant		in	his	cap	acity		as	the	Managing
Director	of		the	Company	and	one	Shri	R.M	.	Bhuttar
were	arraig	ned	as	accused.		The	said	R.	M.Bhuttar	is
said	to	be	the	Owner of	the	god	own.	Th	ough in	the
complaint	it		is	not dis	closed	tha	t	the	said	Mr.
Bhuttar	was		the	Owner,	in	the		written	su	bmissions
filed	by	t	he	first Resp	ondent	,	the	said	Shri	Bhuttar
has	been	des	cribed	as the	Own	er	of	the	premises.	As
stated	earlier	,	an	allegati	on		of	c	ommission	of
offence	is	that	the	Applican	t i	s	guilty	of	keepi	ng or
suffering	to		be	kept or	allow	ing	to	be	kept	wooden
articles,	iron		scrap,	paper	and		old		waste.	The
complaints		speci	fically	allege			the		violation	of

¶48

¶49

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

¶50

which were allegedly found in the godown form part of

¶51

Part-III of Schedule-M.

¶52

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

¶53

¶54

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

¶55

invoking power of this Court under section 482 of the

¶56

said Code.

¶57

Accordingly, rule is made absolute in terms

¶58

of prayer clause (a).

¶59

Parties and concerned Court to act upon an

¶60

authenticated copy of this order.

¶61

Warrant, if any, issued against the Applicant

¶62

in the said case stands cancelled. Bail bond, if

¶63

any, furnished by the Applicant also stands

¶64

cancelled.

T.M.M.Nambiar v. State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

T.M.M.Nambiar v. State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Chandrakant B.Garware Vs Gill and Co.Ltd. and Anr.

Chandrakant B.Gaware and Anr. Vs Gill and Co.Ltd. and Anr.

Chandrakant B.Garware Vs Gill and Co.Ltd. and Anr.

Girishchandra M. Gupta Vs Sr. Inspector of Police Bhayander Police Stn.

T.M.M.Nambiar Vs State of Maharashtra and Anr.

T.M.M.Nambiar Vs State of Maharashtra and Anr.