DHARAMPAL Vs. STATE

JUDGEMENT

(1.) There are three connected revision applications before me, arising out of convictions of three different persons u/S. 9 of the UP (Regulations of Buildings Operations) Act, 1958 (hereinafter referred to as 'the Act'). In each of the three cases an unauthorised construction was alleged to have been made by the accused in a plot of land situated in Kichha, a village which had been duly declared a regulated area under the provisions of the Act. Dharampal applicant was alleged to have constructed a second storey on a room occupied by him in plot No. 665 after having started the constructions in the month of July, 1967, which were said to be continuing at the time when the prosecution was launched. In this case, the prosecution began with a report made by Sri Bharadwaj, PW 2, an Overseer of the regulated area Nainital, to the Prescribed Authority under the Act. The District Magistrate of Nainital, as the Prescribed Authority, to whom the report was sent, accorded the sanction as required by S. 12 of the Act, and then directed that the report of the unauthorised construction be forwarded to the Magistrate who tried the case. In the case of Angan Lal applicant, a similar report was made by the same Overseer of the regulated area, Sri Bharadwaj, PW 2. The allegation here was that the construction of the house commenced over an area of 9 feat x 12 feet in the same plot No. 665 in village Kichha in the month of February and continued in the month of March, 1967, without obtaining the permission of the Prescribed Authority. On this report, made to the Prescribed Authority by the Overseer, the District Magistrate, as Prescribed Authority, passed an order directing that the case be sent to the Magistrate who triad it. There was a similar report, made by the Naib -Tahsildar, for an unauthorised construction made by the applicant Choudhari Ram in field No. 660, south of the old Kichha Abadi, which was described as a new construction lying within the regulated area. In this case also, the District Magistrate, as Prescribed Authority of the regulated area, sanctioned the prosecution on the report which was forwarded to a Magistrate for trial for an offence punishable u/S. 9 of the Act. Thus, in each case, the Magistrate signed under the typed form showing that he had, after going through the report, sanctioned and directed a prosecution of the accused for an offence punishable u/S. 9 of the Act. In each of the three oases, the trying Magistrate had found that the unauthorised construction in question was made by the accused who was in possession of the land and of the building constructed on it. In each of the three cases, the Lekhpal of the village and the officer making the report had appeared as witnesses. In two of the cases the officer making the complaint was an Overseer and in the third case the officer was a Naib -Tahsildar. The questions of law which were raised in these revision applications were two: firstly, whether the report sent to the Prescribed Authority on which sanction was accorded and an order, directing that the case be tried by the Magistrate, concerned, passed by the Prescribed Authority, constituted a complaint of which cognizance could be taken u/S. 190(1)(a) CrPC; and, secondly, whether the trial of the applicant was not vitiated by violation of S. 247 CrPC.

(2.) So far as the first point is concerned, I may say, at the outset, that the report made to the Prescribed Authority on which sanction was accorded, although containing the particulars of the alleged offence, such as the time and place and the manner of the commission of the offence in respect of the construction mentioned there as well as the name of the alleged offender, does not, on the face of it, appear to be a complaint to the trying Magistrate. The report, treated as a complaint and forwarded to the trying Magistrate, was really made to the Prescribed Authority for the purposes of obtaining the sanction required by S. 12 of the Act for a prosecution. Nevertheless, I am unable to find any error in the view taken by the lower appellate court that the documents and actions taken on them, viewed as a whole, could be treated as complaints made to the Magistrate concerned. S. 4(1)(h) CrPC makes it clear that a complaint is only an "allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a Police Officer". There is no prescribed form for a complaint. In the cases before me, the document containing the necessary information against the accused person was not addressed to the trying Magistrate. It would have been much better if a proper complaint had been drawn up by the complaining officer who had made the report to the Prescribed Authority. Nevertheless, as the court below has held, the applicants had not been shown to have been prejudiced by the absence of a separate formal complaint addressed to the trying Magistrate. In the absence of any proof that this unusual and irregular manner of making the complaint to the court of the trying Magistrate had misled the accused or prejudicially affected the trial, I am unable to hold that the trials were vitiated. The irregularity, which is there, is cured, in my opinion, by S. 537 CrPC.

(3.) To support the second contention, learned counsel for the applicants relied on a Division Bench decision of this Court in State v/s. Rewa Chand ( : 1960 AWR 629) where it was held that the provisions of S. 247 are mandatory. This Sec. reads as follows: - -