MUNICIPAL CORPORATION OF DELHI versus JAGDISH LAL SON OF RADHAKISHAN & ANR.

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MUNICIPAL CORPORATION OF DELm v. JAGDISH LAL SON OF RADHAKISHAN & ANR.

May 27, 1969

[J. C. SHAH, S. M. S!KRI AND V. RAMASWAMI, JJ.]

Prevention of Food Adulteration Act 1964 (37 of 1964),

s. 20- Afunicipality authorizing 1'1unlcipal Prosecutor to file complaint on its behalf-Accused acquitted-Municipality 1vhether 'complainant' lvithin ineaning of s. 417(3) of Code of Civil Procedure-Whether competent to file application for special leave to appeal.

A· complaint under s. 7 read with s. 16 of the Prevention of Food Aduiteration Act, 1964 \vas filed against the respondent. It was filed by the }..funicipal Prosecutor V.'ho had been authorised to file such compl~ints bv a resolution passed -by the appellant corporation under s. 20 of the aforesaid Act. On the respondent being acquitted the appellant corpora t~on filed an application in the High Court for special leave to appeal under s. 417 of the Cade of Criminal Procedure. The application was allov.1ed. When the appeal came up for hearing a pfeliminary objection \vas raised by the respondent that the complaint having been filed by the }\funicipal Prosecutqr the corporation was not a 'complainant' within the meaning of s. 417(p) of the Code of Criminal Procedure and there fore special leave to appeal should not have been granted. The High Court upheld the prelil))inary objection and dismissed the appeal. By special leave the corpoiation appealed to this Court.

HELD: (i) Under s. 476(1) (h) of the Delhi Municipal Corporation Act the person competent to institute legal proceedings is the Commis sioner. However the present case was governed not by that provision but by s. 20 of the Prevention of Food Adulteration Act. 1964 which pro vides that a prosecutiori under that Act may be instituted "by the Central Government or the State Government or a local authority or a person authdrised in this beha]f, by general or special order by the Central Government or the1 St'ate Government or a local authority". Section 2(vii) of the Prevention of Food Adulteration Act defines a "local autho rity" to mean "in the case of a local area which is a municipality, the municipal board or municipal cdrporation". The Delhi Municipal Cor poration was a local authority within the meaning of s. 20~ [581 H; 582 C, G-H: 584 A]

(ii) The Municipal! Prdsecutor had filed the complaint against the respondent under autMritv given to him by the resolution of the Delhi :rvrunicioal Corporation under s. 20 of the Prevention of Food Adulteration Act. In filing the complaint the said prosecutor was not actin~ on his own personal behalf but was acting as an agent authorised by the Delhi Municipal Corporation to file the complaint. It must therefore be deemed in law that the Delhi Municipal Corporation was the 'complainant' in the case. for according to ~be Latin maxim. "One who does an act through another is deemed in law to do it himself." [583 H; 584 C-D]

Being thus the co~plainant in the case the appeIIant Corporation could properly file the application under s. 417 of the Code of Criminal [Case remanded to High Court for disposal according to Procedure. Jaw.] [584 E]

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flallr11·dt1s Ai.:arwafa \", J. C. c:hak.rcH'c.rry, [1962] J S.C.R. 739 and A

:\'a;.ir Ah:i1aci v: Kine; Fn1peror, 63 I.A. 372 as 381, referred to.

CRt~HNAL APPELLATE JURISDICTION : Criminal Appeal No. 8

of 1966.

Appeal by special leave from the judgment. and order date~ April 29, 1965 of the Punjab High Court, Circuit Bench at Dellu in Criminal Appeal l\o. 164-D of 1962.

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Bishan Narain, K. K. Raizada and A. G. Ratnaparkh1, for the

appe:Jant.

Sardar Bahadur and Yougindra Khushalani, for respondent

No. I.

R. 1\'. Sachthey, for respondent No. 2.

learned Magistrate acquitted

The Judgment of the Court was delivered by Ramnswami, J. On August 29, 1960 Shri Sham Sundar Mathur, Municipal Prosecutor of th~ Delhi Municipal Corpora tion filed a complaint in the court of Magistrate First Class against the respondent, Jagdishlal under s. 7 read with s. 16 of the Pre vention of Food Adulteration Act, 1954 (37 of 1954). In the said complaint Shri Sham Sundar Mathur said that he was compe tent to file the complaint under s. 20 of the aforesaid Act in accord ance with a resolution passed by the Corporation in its meeting held on December 23, 1968. By his order dated April 30, 1962 the the respondent. The Delhi Municipal Corporation made an application to the High Court asking for special leave under s. 417 of the Code of Criminal Pro cedure to appeal against the order of acquittal. The application was granted on September 3, 1962. When the appeal came up for hearing a preliminary objection was raised on behalf of the re~pondent that the only person competent to tile the appeal was the complainant, Shri Sham Sundar Mathur. But the leave appli calion was not filed by him and, therefore, the Municipal Corpora tion was not competent to prosecute the appeal. It was contended th~t only the complainant was competent to present an applica tion for special leave under s. 417(3) of the Code of Criminal Procedure. As the complainant this case was Shri Sham Sundar Mathur the appeal could not be filed by the Delhi Miini c.ipal Corporation. The Hig? c.ourt upheld the preliminary objec tmn of the respondent and d1sm1ssed the appeal by its order dated April 29, 1965. This appeal is brought by special leave on behalf of the Delhi Municipal Corporation against the judgment of the High Court dated April 29, 1965 in Cr. Ar. No. 163-D of 1962.

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Section 20 of the Prevention of Food Adulteration Act, 1954

states :

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MUNIC. CORP. DELHI v. JAGDISH (Ramaswam1, J.)

58 I

instituted

"(1) No prosecution for an offence under this Act the except shall be written consent of, the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Cen tral Government or the State Government or a local authority :

or with

by,

Provided that a prosecution for an offence under this Act may be instituted by a purcha,er referred to in sec tion 12, if he produces in court a copy of the report of the public analyst along with the cc;mplaint.

Section 417, sub-ss. (1), (2) and.(3) of the Code of Criminal Procedure after its amendment by Act 26 of 1955 provide :

" ( 1) Subject to the provisions of sub-section ( 5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (XXXV of 1946), the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal.

(3) If such an order of acquittal is passed ;n any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

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The principal question to be determined is whether the com plaint dated August 29, 1960 was instituted by the Delhi Munici It is argued on behalf of the respondent that pal Corporation. the complaint petition was not made and signed by the person competent under the Delhi Municipal Corporation Act, 1957 to exercise powers of the Corporation in the matter of institution of legal proceedings. In our opinion there is substance in this con tention. The only provision under the Delhi Municipal Corpora tion Act, 1965 which confers power to institute legal proceedings is s. 476(1) (h) which states:

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" ( 1 ) The Commissioner may-

(h) institute and prosecute any suit or other !egal proceeding, or with the approval of. the Stand~ng Com mittee withdraw from or compronuse any sun or any claim for any sum not exceeding five hundred rupees which has been instituted or made in the name of the Corporation or of the Commissioner;

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includes It is clear that the phrase "other legal proceedings" the power institute a complaint before a Magistrate could is and hen:e exercise the is no other provision .in 1s Act which confers such power on anyone else. This view /j,1t!avi'1~ Agar supported bv the decision of this Court wa/a v. }. c. Chakramrty( 1 in which it was pointed out that a complaint under The Calcutta ~uoicipal Act, 1923 as applied to the ~unicipality of Howrah, would only be tiled by the autho rities mentioned therein and not by an ordinary citizen Section 537 of that Act provided that the Commissioners may institute, defend or withdraw from legal proceedings under the Act; under s. 12 the Commissioners can delegate their functions to the Chair man, and the Chairman may in his turn delegate the same t,) the It was obsened in Vicc-Chaimian or to any municipal ollicer. that case that the machinery provided in the Act must be followed in enforcing its provisions, and it \&;as against the tenor and ~ .. rieme of the Act to hold that s. 537 was merely enabling in nature. The principle invoked in that case was that adopted by the Privy Coun cil in Na~ir Ahmad v. King Emperor (') viz. : that where a pawer is given to do a ceriain thing in a certain way, the thing must be It was, therefore, held that il a done in that way or not at all. legal proceeding was imtituted under the Municipal Act in ques tion, it must be done in accordance wi:h the provisions of the Act and not otherwise.

But the question presented for determination in the present appeal is somewhat different. Under s. 20 of Act 37 of 1954 the prosecution for the offence may be instituted either (a) by the Cemral Government or t.he State Government or a local authority or (b) a person authonsed m that behalf by general or special order by the Central Government or the State Government or a local authority. Section 2(vii) of Act 3 7 of 1954 defines a "local is a authori~" to mean "in the case of a local area which I 1) 6.1 i.A. Jn" lSt.

(tl [1962) J S.C.R. 739.

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MUNIC. CORP. DELHI v. JAGDISH (Ramaswami, J.)

583

pality, the municipal board or municipal corpora~ion_." A ~om­ plaint under s. 20 of the A_ct may, therefore, be mst1t~ted ~ith_er by the Municipal Corpora!Jon or by a person authonsed m its behalf by general or special order by th~. Municipal Corporation. The Resolution of the Delhi Municipal Corporation dated Decem ber 23, 1958 reads as follows:

"Subject : Authorising the Municipal Prosecutor and the Assistant Municipal Prosecutor to launch Pro secutions under section 20 of the Prevention of Food Adulteration Act, J 954.

The area under the jurisdiction of the Delhi Munici pal Corporation bas been declared a "local area" under s. 2 (vii) of the Prevention of Fo;Jd Adulteration Act vide Chief Commissioner's Notification No. F.32(30) 58-M and PH(i) dated 13th June, 1958 published in the Delhi Gazette. (Part IV) dated 26th June, 1958 and consequently the ' Municipal Corporation of Delhi is the Local Authority for that area within the meaning of section 2(vii) of _the said Act.

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Section 20 of. the Prevention of Food Adulteration Act, 1954 contemplates the appointment of persons who shall be authoris~d to institute prosecutions under this Act by the Local' Authority concerned.

Shri Sham Sundar Mathur, M.A., LL.B., Municipal Prosecutor and Shri Bankey Behari Tawkley, Assistant Municipal Prosecutor were authorised by the erstwhile Delhi Municipal Committee nnder the above section."

"Shri Vijay ~umar Malhotra moved the following resolution, which: was seconded by Shri Prem Sagar Gupta:

Resolved that !the recommendations of the Commis sioner vide letter No. 139/Legal/58 dated 1-12-58 regarding authorising the Municipal prosecutor and the Assistant Municipal Prosecutor to launch prosecutions under section 20 of the Prevention of Food Adultera tion Act, 1954 be ar;:iroved.

The resolution was carrk:I."

1n the present case Sh}'i Sham Sundar Mathur, Municipal Prose cutor !ileri the complaint under s. 20 of Act 37 of 1954 under U4Sur.C.l/69-8

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(1970] l S.C.R.

the authority given to him by the resolution of the Municipal Cor the Municipal Corporation, Delhi, is a local poration. Since authority within the meaning of s. 20 of Act 37 of ! 954 and since it conferred authority on the Municipal Prosecutor the complaint was properly filed by Sham Sumlar Mathur. The question is whether the Delhi Municipal Corporation or Shri Mathur was the complainant within tbc meaning of s. 417(3) of the Code of It was argued on behalf of the respondent Criminal Procedure. that tbe complainant was Shri Sham Sundar Mathur, the Muuici pal Prosecutor and the Delhi Municipal Corporation was not com petent to make an application for special leave under s. 417(3), It Cr. P.C. We are unable to accept this argument as correct. is true that Shri Sham Sundar Mathur filed the complaint petition on August 29, 1960. But in filing the complaint Shri Mathur was not acting on his own personal behalf but was acting as an agent authorised by the Delhi Municipal Corporation to file the complaint. It must, therefore, be deeined in the contemplation cf law that the Delhi Municipal Corporation was the complainant in the case. The maxim qui per a/ium facit per seipswn facere videtur (he who docs an act through another is Jccmed in Jaw to do it himself) illustrates the general doctrine on which the law relating to the rights and liabilities of principal and agent depends. We are, therefore, of opinion that Shri Mathur was only acting in " representative capacity and that the Delhi Municipal Corpora tion was the complainant within the meaning of s. 417(3) of the Code of Criminal Procedure and the petition for special leave and the appeal petition were properly instituted by the Delhi Munici pal Corporarion. For these reasons we allow the ~~peal, set aside the judgment of the High Court dated April 9. 1965 and direct that the appeal should be remanded to the High Court for being heard afresh and disposed of according to Jaw.

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Aprea/ alloived.