1 Rule.
2 The Respondents waive service.
3 By consent, Rule made returnable forthwith.
4 By this Writ Petition under Article 227 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure, 1973, the Petitioners are challenging the order dated 14.12.2012 passed by the learned Metropolitan Magistrate, 41st Court, Shindewadi, Dadar (East), Mumbai-14 in Case No.4100087/SW/2012 whereby he issued the process for the offences punishable under Sections 3(1), 3(3), 3(4) r/w 36 of the Maharashtra Fire Prevention and Life Safety Measures Act, 2006 (for short âthe said Actâ). This process was issued on a complaint which was lodged by the Respondent No.2 /Municipal Corporation for Greater Mumbai.
5 The complaint alleges that on 02.12.2012 at about 3:33 a.m., the officer concerned of Watch Room of Colaba Fire Station received a message from the Control Room to attend the Fire Call at Jolly Maker-I Cooperative Housing Society as fire broke out therein. The officer concerned had attended the call and found that the flat on 19th floor being Flat No.191-B of the building caught fire. The teams from Colaba and Nariman Point Fire Stations were preparing to fight the fire and at that time, the officer concerned was told that the fire equipment system was not in operative condition. The officer concerned came to know that the said system was not in usable condition. The officer, thereafter, prepared the fire investigation report to find out the cause of fire, which was defective electric circuit. The fire could not be controlled because of non-maintenance of the fire fighting measures provided in the building. The accused have failed to produce the certificates from the licenced agency for maintenance of the fire fighting equipments in good condition to the Chief Fire Officer in January and July, 2012. The manual call points and fire alarms were removed by the accused without information to the authority. These observations are mentioned in the investigation report dated 06.12.2012 which was placed before the senior officers. Accordingly, a notice was issued on 06.12.2012 to all the accused and served on them. The Petitioners/ accused are identified as owners of the building and office bearers of the society. That notice and reply thereto is part and parcel of the complaint. The reply being unsatisfactory, it was alleged that the offence punishable under the above provisions has been committed. It has been pointed out that the accused No.2 and 3 were removed from their posts by the Sub Registrar and that was intimated to them and equally the accused No.8 gave resignation three months back.
6 Upon such a complaint filed on 14.12.2012, the learned Metropolitan Magistrate perused the documents and found that there is sufficient material to proceed further. Hence, the learned Magistrate issued the process returnable on 17th January, 2013.
7 It is this order which is under challenge in this Writ Petition.
8 Mr.Ponda, learned counsel appearing for the Petitioners, has submitted that the impugned order is ex-facie erroneous and illegal. It is vitiated by total non application of mind. The learned Magistrate has merely endorsed his approval on the allegations made in the complaint without independent application of mind. The issuance of process is a serious matter. This is a criminal case. It concerns the life and liberty of the Petitioners, some of whom are senior citizens. In these circumstances the learned Magistrate was obliged to carefully scrutinize and verify the allegations in the complaint so as to find out whether any offence is committed by the Petitioners herein. The learned Magistrate has failed to discharge that duty in law.
9 It is next contended by Mr.Ponda that the complaint, read as a whole, does not disclose commission of any offence by the Petitioners. He submits that the complaint shows the accused No.1 as Jolly Maker-I Co-operative Housing Society, the accused No.2 is Chairman, the accused No.3 is described as ex-Vice-Chairman, the accused No.4 is described as ex-Secretary whereas the accused No.5 is the Joint Secretary. A lady, namely, accused No.6 is aged 81 years and was a Treasurer and equally the accused No.7 was the Joint Treasurer whereas the accused No.8 is arraigned as accused in his capacity as ex-Joint Treasurer. Mr.Ponda submits that the complaint alleges commission of offences under Sections 3(1), 3(3), 3(4) r/w 36 of the said Act. The complaint alleges that Section 36 of the said Act deals with the offences and penalties. Mr.Ponda submits that by way of sub-section (1) of Section 36 clause (a), contravention of any provisions of section 3(1) and 3(4) is an offence. The contravention of Section 3(3) is not an offence punishable under the said Act. Therefore, an omission to submit a certificate in terms of Section 3(3) has not been made punishable offence and therefore, the complaint could not have been filed alleging the same. Mr.Ponda refers to sub-section (1) of Section 38 and submits that the principle as to whenever a person who was in charge of and was responsible to the Company for the conduct of business of the Company as well as the Company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly, would mean general principles of vicarious liability will have to be read and imported in this provision. In other words, the word âcompanyâ is defined in explanation below Section 38(2) to mean a body corporate and includes a firm or other association of individuals and that would envisage a cooperative society as well, then, unless essential ingredients of the offence are established and proved and if the Company is held to be guilty only then the person who was in charge of and responsible to the Company for the conduct of its business can be deemed to be guilty of the offence.
10 In this regard, Mr.Ponda invites my attention to the definition of the term âownerâ appearing in Section 2(11) and equally section 2(10) which defines the term âoccupierâ. Assuming that the definition of the term âownerâ is inclusive and therefore, a registered cooperative housing society is also a owner, still it cannot be that every member of the cooperative housing society or apartment owner can be proceeded against for the offence. If a registered co-operative society functions and works only through its General Body and all powers vest in the General Body, then, the Managing Committee or persons in the management of the society cannot be singled out and proceeded against in criminal law. That would mean that the General Body is absolved in all cases of this nature. That would mean all the Managing Committee members are perse liable irrespective of particular function or duty they discharge. Then there is no scope for inquiring as to whether day to day decisions or management is carried out by any person employed or appointed by the Managing Committee or Managing Committee as a whole. That would be a construction contrary to Section 38(1) of the said Act.
11 Mr.Ponda was at great pains to submit that there cannot be any vicarious liability other than under Section 38 of the said Act. There is absolutely no allegation in the complaint to even prima facie indicate vicarious liability. All the Managing Committee members by their designation have been arraigned as accused. This is dangerous trend because that dispenses with the requirement as to who amongst them is in charge and was responsible to the Society for the conduct of its business. There is a presumption which is raised that every one of them is in charge of and responsible to the Society for the conduct of its business. The complaint must contain a statement or allegation and qua each accused, particularly in the backdrop of the language of Section 38(1) of the said Act. Mr.Ponda then submits that the element of charge, responsibility would, therefore, require the Complainant to aver and allege as above. If there is no such specific allegation, then, everybody would be deemed to be in control of the affairs of the Society. If the offence is committed by the Society and not by individuals, then, there is no basis for summoning the accused. For all these reasons, Mr.Ponda submits that this is a fit case for quashing the complaint.
12 Mr.Ponda tried to draw support from the provisions of the said Act and equally the provisions contained in Section 141 of the Negotiable Instruments Act, 1881 to urge that in case of a company merely alleging that other accused are directors and responsible for the conduct of business of the Company is not enough. If primary liability is that of the owner and in this case when there are 184 flats, then, it would be impossible for the General Body to meet and therefore, the management and administration of day to day affairs may be vested in the Managing Committee. However, even the Managing Committee members meet in terms of the bye-laws periodically and not daily. The day to day functions are delegated to the Secretary or appointed employee such as Manager. In these circumstances if on all complaints of the present nature, the process has to be issued, then, it would be not possible to manage the affairs of the co-operative housing society or small units. Then every act or omission, minor or petty it may be, would lead to an inference that the concerned persons/ accused have failed to discharge their duty envisaged by Section 3(1) of the said Act and therefore, have committed an offence within the meaning of sub-section (1) of Section 36 of the said Act. For all these reasons, the order under challenge issuing the process be set aside.
13 In support of the above contentions, Mr.Ponda has relied upon the following decisions:-
(1) AIR 1989 SC 1982 (Sham Sundar and others v/s State of Haryana).
(2) Criminal Appeal No.488/2013 (M/s GHCL Employees Stock Option Trust v/s M/s India Infoline Limited) decided on 22.03.2013 by the Honourable Supreme Court.
(3) AIR 1971 SC 2162 (GirdhariLal Gupta v/s D.N.Mehta).
(4) 2002 Cri.L.J. 4155 (Madras High Court) S.N.Bangurv/s M/s Klen and Marshalls Mrfs. and Exporters Pvt.Ltd..
(5) AIR 1983 SC 67 (Municipal Corporation of Delhi v/s Ram Kishan Rohtagi and others).
(6) (2008) 5 SCC 668 (MaksudSaiyed v/s State of Gujarat).
(7) 1998 Cr.L.J. 1 (Supreme Court), M/s Pepsi Foods Ltd. v/s Special Judicial Magistrate.
(8) (2010) 3 SCC 330, National Small Industries Corporation limited v/s Harmeet Singh Paintal and another.
(9) (2009) 10 SCC 48, K.K.Ahujav/s V.K.Vora and another.
(10) (2002) 7 SCC 655, Katta Sujatha v/s Fertilizers and Chemicals Travancore Ltd..
(11) (2006) 10 SCC 581, Sabitha Ramamurthy v/s R.B.S. Channabasavaradhya.
14 On the other hand, Mr.Naik, learned counsel appearing for the Respondent No.2, submitted that the order under challenge is merely issuance of process. Such an order does not decide any issue or the controversy conclusively. It is not as if the defences raised are foreclosed. The order issuing process is based on reading of the complaint and supporting materials. There is clearly a case made out for issuing the process. The learned Magistrate has passed an order issuing process on perusal of the complaint and accompanying documents. He has indicated that there being sufficient material to proceed further, the process has been issued for the offences that have been alleged. This is just a prima facie conclusion. Once it is in consonance with the material produced at that stage, then, this Court cannot reappreciate and reappraise the same and interfere in its writ jurisdiction and particularly under Article 227 of the Constitution of India. It cannot also interfere in its inherent jurisdiction.
15 Mr.Naik submits that on 02.12.2012 at about 3:33 am, a message was received to attend a fire call. The matter was indeed serious because on inspection it was revealed that the fire could not be controlled and spread because of non maintenance of fire fighting measures provided in the building. The accused failed to produce a certificate from the licenced agency of maintenance of fire fighting equipments in good repair condition. There was notice issued based on the contents of the fire investigation report. The accused gave reply to the notice and that was not satisfactory. In these circumstances the Municipal Corporation performed its public duty and filed a criminal complaint. It is not as if the complaint has been filed in criminal court hastily or without application of mind. The officers in the Fire Department are senior enough and equally matured to understand and appreciate difficulties faced by a co-operative housing society. Therefore, it is not as if the complaints are or would be filed recklessly and as a matter of routine. It is not as if there is any vengeance or ulterior motive in filing the complaint. It is in terms of the information which was made available and about constitution of the Managing Committee that the Petitioners have been arraigned as accused. This is not a case where Section 38 of the said Act can be said to be applicable straightaway. That would not apply to a cooperative society. Once the accused are Managing Committee members of the co-operative housing society, then, their position is peculiar and would be governed by the Maharashtra Cooperative Societies Act, 1960 and particularly position of the Managing Committee and General Body envisaged in Sections 72 and 73 thereof. Mr.Naik submits that these provisions have been relied upon and to establish that it is not because of the fire that the complaint has been filed. It is failure to take measures so as to prevent such fire that the offence is committed and that is why the complaint is filed. The Cooperative society is owner and the Managing Committee is in management and administration of its affairs. For all these reasons, the judgments cited by Mr.Ponda are completely inapplicable and at this prima facie stage. Mr.Naik submits that at the stage of issuance of process, the learned Magistrate is required to apply his independent mind, but the law does not require him to pass a judgment. Once brief reasons are recorded indicating prima facie satisfaction and due application of mind, then, the order does not suffer from any illegality or perversity requiring interference in writ jurisdiction. The Writ Petition be, therefore, dismissed.
16 For properly appreciating the rival contentions, a reference to the said Act is necessary. The said Act has been enacted to make more effective provisions for the fire prevention and life safety measures in various types of buildings in different areas in the State of Maharashtra.
17 Section 1 entitled âShort title, extent and commencementâ. Section 2 contains definitions and the definitions of terms âoccupierâ and âownerâ are relevant, which read thus:-
âSection 2(10) âOccupierâ includes:-
(a) any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the rent for the land or building or any part thereof in respect of which such rent is paid or is payable;
(b) an owner in occupation of or otherwise using land or building or part thereof;
(c) a rent-free tenant of any land or building or part thereof;
(d) a licensee in occupation of any land or building or part thereof;
(e) a member of a co-operative housing society or an apartment owner; and
(f) any person who, or an association, corporation (whether incorporated or not) or an organisation which is liable to pay to the owner damages for the use and occupation of any land or building or part thereof.
Section 2(11) âownerâ includes a person who for the time being is receiving or is entitled to receive, the rent of any land or building or part thereof whether on his account or on account of himself and others or as an agent, a registered co-operative housing society, trustee, guardian or receiver or any other person who should so receive the rent or be entitled to receive it if the land or building or part thereof were let to a tenant, or a builder, developer or promoter who constructs flats or apartment for sale under the provisions of the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963, or, as the case may be, the Maharashtra Apartment Ownership Act, 1970.â
18 Then comes Chapter-II of the said Act which contains the provisions relating to fire prevention and life safety measures. In that chapter, Sections 3 and 4 are relevant and read as under:-
â3. Owners or occupiers' liability to provide for fire prevention and life safety measures.
(1) Without prejudice to the provisions of any law or the rules, regulations or bye-laws made thereunder or the National Building Code of India, 2005, relating to fire prevention and life safety measures and in operation in the State for the time being in force, the owner or where the owner is not traceable, the occupier, of a building as classified in the Schedule-I or part of any such building shall provide fire prevention and life safety measures in such building or part thereof, minimum fire fighting installations as specified against such building in the said Schedule; and the owner or, as the case may be, the occupier shall maintain the fire prevention and life safety measures in good repair and efficient condition at all times, in accordance with the provisions of this Act or the rules :
Provided that, in the case of such building or part thereof the construction of which has been completed immediately before the date of commencement of this Act, the occupier, and subject to the provisions of sub-section (2), in the case of such building or part thereof which is under construction on such date, the owner, shall undertake and carry out such additional fire prevention and life safety measures, as are specified in the notice served on him under section 6.
Explanation.âThe classification of buildings as mentioned in the Schedule-I under this section and that in Schedule-II under section 11, conforms to the classification of buildings made under the provisions of the National Building Code of India, 2005.
(2) Notwithstanding anything contained in any law for the time being in force, no authority empowered to sanction the construction plan of any building or part of a building and to issue certificate of completion thereof, shall issue any certificate of completion or part completion thereof, unless it is satisfied that the owner has complied with the requirements specified in Schedule-I, or as the case may be, in the notice so served on him as aforesaid.
(3) The owner or occupier, as the case may be, shall furnish to the Chief Fire Officer or the nominated officer, a certificate in the prescribed form issued by a Licensed Agency regarding the compliance of the fire prevention and life safety measures in his such building or part thereof, as required by or under the provisions of this Act, and shall also furnish to the Chief Fire Officer or a nominated officer, a certificate in the prescribed form, twice a year in the months of January and July regarding the maintenance of fire prevention and life safety measures in good repair and efficient condition as specified in sub-section (1).
(4) No person shall tamper with, alter, remove or cause any injury or damage to any fire prevention and life safety equipment installed in any such building or part thereof or instigate any other person to do so.
4. Preventive measures:
(1) The State Government may, by notification in the Official Gazette, require owner or occupier of premises in any area or of any class of premises used, which in its opinion, are likely to cause risk of fire, to take such precautions as may be specified in such notification.
(2) Where such notification has been issued, it shall be lawful for the Director or Chief Fire Officer of local authority or planning authority or any fire officer authorized either by the Director or Chief Fire Officer to direct the removal of objects or goods likely to cause the risk of fire, to a place of safety and on failure by the owner or occupier to do so, the Director or any Chief Fire Officer or fire officer may, after giving the owner or occupier a reasonable opportunity of making the representation, seize, detain or remove such objects or goods.
(3) The Director or the Chief Fire Officer or any other fire officer while performing his duties in Fire Fighting operations or any other duties of seizure, detention or removal of any goods involving risk of fire may require the assistance of a police officer or members of the police force as an aid in performance of such duties and it will be the duty of police officer of all the ranks or such members to aid the Director or such fire officer in the execution of their duties under this Act.â
19 Section 5 confers power of inspection on the Director or the Chief Fire Officer or the nominated officer. Section 6 provides for notice regarding fire prevention and life safety measures. Section 7 enlists the steps to be taken in the event of non compliance of notice issued under Section 6. Section 8 confers power to seal the building.
20 Then comes Chapter-III which is entitled âLicensed Agencyâ. In that, Sections 9 and 10 have been inserted so that a Licensed Agency can act under the licence for the purpose of this Act and it shall carry out the work of fire prevention and life safety measures or perform such other activities required to be carried out any place or building or part thereof.
21 Chapter-IV contains provisions relating to levy, collection and recovery of fire service fees. Sections 11 to 17 in that enable the State Government to levy, collect and recover the fire service fees.
22 Chapter-V provides for the Director of Fire Services, his appointment and other officers and staff to assist him. Section 19 provides for his powers, duties and functions. Section 20 gives him power to enforce performance of duties.
23 Chapter-VI contains provisions regarding fire officers and fire personnel. That contains Sections 21 to 24. Section 25 falls in Chapter-VII and it provides for constitution of special fund. Chapter-VIII is entitled âsupplemental and miscellaneousâ and contains Section 26 onwards so as to enable the requisitioning of fire fighting property, powers of officers on occasion of fire and contains other provisions. Then comes Sections 36 to 39, which read as under:-
â36. Offences and Penalties.
(1) Whoever contravenes any provision of any of the following sections, namely :â
(a) under section 3,â
(i) sub-section (1), failure of the owner or, as the case may be, the occupier to provide and maintain the fire prevention and life safety equipment in good repair and efficient condition;
(ii) sub-section (4), tampering with, altering, removing or causing any injury or damage to any fire prevention and life safety equipment installed in a building or instigating any other person to do so;
(b) under section 4, sub-section (2), failure to remove objects or goods likely to cause the risk of fire;
(c) under section 5, sub-section (3), obstructing the entry by a person or molesting such person after such entry for inspection;
(d) under section 6, failure to comply with the notice, directing the owner or occupier to undertake measures regarding fire prevention and life safety;
(e) under section 8,â
(i) sub-section (2), failure to comply with the direction issued by the Director or the Chief Fire Officer, as the case may be,
(ii) sub-section (4), removing the seal of the building without written order made by the Director or the Chief Fire Officer;
(f) under section 10, sub-section (1),â
(i) carrying out the work of providing fire prevention and life safety measures, or performing such other related activities by a person other than the Licensed Agency;
(ii) giving a certificate under sub-section (3) of section 3 without there being actual compliance or maintenance of fire prevention and life safety measures and equipment;
(g) under section 14, sub-sections (1) and (2), construction of a building without applying for permission of the Authority or without such permission and thereby avoiding to apply for assessment of fee payable under this Act; shall, without prejudice to any other action taken or which may be taken under any of the provisions of this Act, be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than rupees 20,000 but which may extend to rupees 50,000; and where the offence is continuing one with a further fine which may extend to rupees 3000 for every day during which such offence continues after the conviction for the first such offence :
Provided that, in the absence of any special and adequate reasons to the contrary to be mentioned in the judgment of the court, such punishment shall not be less than three months and such fine shall not be less than ten thousand rupees or such daily fine shall not be less than one thousand rupees per day for a continuing offence.
Explanation .âThe expressions used in clauses (a) to (g) are not intended as the definitions of offences described in the sections mentioned in each of these clauses or even as abstracts of those sections but are mentioned merely as references to the subject matter of the offences under those sections.
(2) Whoeverâ
(a) willingly attempts, in any manner whatsoever, to evade any fee leviable under this Act, or
(b) willingly attempts, in any manner whatsoever, any payment of any fee or interest or both under this Act, or
(c) contravenes any of the provisions of this Act or the rules for which no specific penalty has been provided by this Act, or
(d) fails to comply with the requirements of any order or any notice or any directions issued under any of the provisions of this Act or the rules by the Director or any Authority or the Chief Fire Officer of such Authority or any other officer authorised by any of them, for which no specific penalty has been provided by this Act, shall, on conviction, be punished,â
(i) in case where the amount of fees or interest or both involved exceeds rupees 50,000 during the period of a year, with rigorous imprisonment for a term which shall not be less than six months but which may extend to three years and with fine;
(ii) in case where such amount is less than rupees 50,000 during a year, with rigorous imprisonment for a term which shall not be less than three months but which may extend to one year and with fine;
(iii) in case of contravention of any provision of this Act or the rules made thereunder or failure to comply with the requirements of any order or notice as aforesaid, with rigorous imprisonment for a term which shall not be less than six months but which may extend to three years and with fine:
Provided that, in the absence of any special and adequate reasons to the contrary to be mentioned in the judgment of the court, punishment under any of these paragraphs shall not be less than one month and such fine shall not be less than two thousand rupees.
(3) Whoever aids or abets any person in commission of any offence specified in sub-section (1 ) or (2) shall, if the act is committed in consequence of the abetment, and no express provision is made by this Act for the punishment of such abetment, be punished with the punishment provided for the offence.
Explanation .â An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.
37. Cognizable and non-bailable offences. Offences under sub-section (4) of section 3 and of removal of seal without an order under sub-section (4) of section 8 shall be cognizable and non-bailable.
38. Offences by companies.
(1) Where an offence under this Act has been committed by a company every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that, nothing contained in this subsection shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation .âFor the purposes of this section,â
(a) âcompanyâ means a body corporate and includes a firm or other association of individuals ; and
(b) âdirectorâ, in relation to a firm, means a partner in the firm, and in relation to any association of persons or body of individuals, means any member controlling the affairs thereof.
39. Compounding or withdrawal of proceedings.
(1) The Director or Chief Executive Officer of the Authority, by whatever designation called, or any person authorised in this behalf by any of them by general or special order may either before or after the institution of the proceedings, compound any offence, excluding those referred to in section 37, made punishable by or under this Act or the rules or withdraw from such proceedings.
(2) When an offence has been compounded, the offender, if in custody, shall be discharged, and no further proceedings shall be taken against him in respect of the offence compounded.â
24 Sections 40 to 48 are to be found in Chapter-VIII and enable carrying into effect the object and purpose of the Act by providing for prosecution and giving overriding effect to the Act in terms of Section 44, which reads as under:-
â44. Act to have overriding effect, but shall be in addition to existing laws.
(1) The provisions of this Act and the rules shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any other law.
(2) Subject to the provisions of sub-section (1), the provisions of this Act shall be in addition to, and not, save as expressly provided hereinabove, be in derogation of the provisions of any relevant municipal law or any other law for the time being in force in any area in which this Act has come into force.â
25 The appointment of the Fire Officer or Fire Supervisor in certain buildings is provided by Section 45. Section 46 deals with effect of other laws and reads as under:-
â46. Effect of other laws.
Notwithstanding anything contained in any other law for the time being in force, when anything in relation to the fire prevention and life safety measures is required to be done or approved under this Act, any such thing shall not be deemed to have been lawfully done or approved by reason only of the fact that permission, approval or sanction required under such other law therefor has been obtained.â
26 Sections 47 and 48 enable delegation of powers and power to call for report, return or information.
27 Chapter-IX contains Rules. Section 49 appearing therein confers power on the State Government to make rules for carrying out the purposes of this Act. Section 50 confers power to remove difficulty.
28 Thus, the said Act can be termed as a comprehensive and complete legislation providing for fire prevention and life safety measures. Its object and purpose is to make more effective provisions for fire prevention and life safety measures in various types of buildings in different areas in the State of Maharashtra. One need not over emphasize the importance of such legislation and particularly to take care of fire in high rise and tall buildings in urban areas. It is common ground that the increase in population in urban areas has resulted in construction of multi-storeyed buildings and thereby posing immense challenge regarding safety of the structures and occupants therein. It is important to enact measures so as to prevent calamities such as a fire. The concern of the legislature is, therefore, that not only care should be taken to prevent the fire, but life safety measures should be put in place. It is in order to take precautionary and safety measures to meet such calamities or contingencies that the Legislature steps in. It is, thus, a legislation which contains provisions relating to fire prevention and life safety measures and equally confers powers on the authorities thereunder to insist on undertaking and implementing such fire prevention and life safety measures as are deemed fit and necessary. The Act has been given a overriding effect, but not in absolute terms. Equally, the Act does not undermine the importance of compliance with other laws. By Section 3 and other provisions, all powers that are conferred on the authorities are coupled with a duty.
29 When such legislation contains provisions for taking cognizance of offences and imposition of penalties and the powers are conferred in existing Criminal Courts, but cognizance shall be taken only on a complaint or upon information received from the Director or Chief Fire Officer, then, one cannot ignore the legislative mandate. Even a criminal statute and penal provision do not rule out placing an interpretation having regard to the subject matter of the offence and the object of law seeks to achieve. A penal statute can be interpreted in this manner. In âPrinciples of Statutory Interpretationâ (13th Edition 2012) by Honourable Justice G.P.Singh, what is observed by the learned Author is pertinent enough:-
âLORD REID in the context of the rule of construction applicable to penal statutes said: âWe are always trying to find the intention of the Legislature. Where taking into account the surrounding circumstances and the likely consequences of the various possible constructions there can be at all any doubt about the intention, we must, where penalties are involved, require that the intention shall clearly appear from the words of the enactment construed in the light of those matters. But if we can say that those matters show that a particular result must certainly have been intended, we would, I think, be stultifying the underlying principle if we required more than that the statutory provisions are reasonably capable of an interpretation carrying out that intention.â In an earlier case, LORD REID explained that the rule of restrictive interpretation of penal provisions âonly applies where after full enquiry and consideration one is left in real doubt. It is not enough that the provision is ambiguous in the sense that it is capable of having two meaningsâ, for the imprecision of language is such that it is difficult to draft any provision which is not ambiguous in that sense. Difference of judicial opinion as to the meaning of the provision may also be not enough for applying the rule, and a judge while dealing with a question of construction of the provision must himself be in real doubt before he can call in aid the rule.
STORY, J. in agreeing to the rule in its âtrue and sober senseâ stated the same as follows: âPenal statutes are not to be enlarged by implication or extended to cases not obviously within their words and purport. But where the words are general, and include various classes of persons, I know of no authority, which would justify the court in restricting them to one class, or in giving them the narrowest interpretation, where the mischief to be redressed by the statute is equally applicable to all of them. And where a word is used in a statute, which has various known significations, I know of no rule, that requires the court to adopt one in preference to another, simply because it is more restrained, if the objects of the statute equally apply to the largest and broadest sense of the word.â
Penal statutes have also to be interpreted âhaving regard to the subject matter of the offence and the object of the law it seeks to achieve. The purpose of law is not to allow the offender to sneak out of the meshes of law. Criminal jurisprudence does not say so.â
Considerations of public policy are not foreign in interpreting and applying a criminal statute.â
(See pages 919 and 929)
âSo in interpreting and applying a penal statute, it has to be borne in mind that respect for human rights of the accused is not the only value at stake. âThe purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interest of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider triangulation of interests. It involves taking into consideration the position of the accused, the victim and his or her family, and the public.â
(See page 923)
30 In J.K.IndustriesLtd. and others v/s Chief Inspector of Factories and Boilers and others, reported in (1996)6 SCC 665, the Honourable Supreme Court was considering the constitutional validity of proviso (ii) to Section 2 of the Factories Act, 1948 as amended by Act 20 of 1987. The argument was that this proviso violates the mandate of Articles 14, 19(1) (g) and 21 of the Constitution of India. In considering that challenge, the Honourable Supreme Court has adverted to the principles of Interpretation of Statutes and in paragraphs 3, 40, 42, 43, 46 held as under:-
â3. The basic question which requires our consideration is whether in the case of a company which owns or runs the factory, is it only a director of the company who can be notified as the occupier of the factory within the meaning of proviso (ii) to Section 2 (n) of the Act, or whether the company can nominate any other employee to be the occupier by passing a resolution to the effect that the said employee shall have âultimate control over the affairs of the factoryâ. If the answer to the question is that in the case of a company, only a director can be notified as an occupier under the Act, the next question which would require our consideration is about the constitutional validity of proviso (ii) to Section 2(n) of the Act as introduced by the Amending Act of 1987. The answer to these questions would depend upon the interpretation of amended Section 2(n) of the Act It would, therefore, be appropriate to first notice the provisions of Section 2 (n) as it sited prior to the amendment and as it stands today.
Section 2(n) as it stood prior to Amendment of 1987.
"2(n) "occupier" of a factory means the person who has ultimate control over the affairs of the factory, and where the said affairs are entrusted to a managing agent, such agent shall be deemed to be the occupier of thee factory;
Section 2(n) as it is after Amendment of 1987.
"2(n) "Occupier" of a factory means the person, who has ultimate control over the affairs of the factory:
Provided that -
(i) in the case of a firm or other association of individuals any one of the individual partners or members thereof shall be deemed to be the occupier;
(ii) in the case of a company, any one of the directors shall be deemed to be occupier;
(iii) in the case of a factory owned or controlled by the Central Government or any State Government of any local authority, the person or persons appointed to mange the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier;
40. In keeping with the aim and object of the Act which is essentially to safeguard the interests of workers, stop their exploitation, and take care of their safety, hygiene and welfare at their place of work, numerous restrictions have been enacted in public interest in the Act. Providing restrictions in a statute would be a meaningless formality unless the statute also contains a provision for penalty for the breach of the same. No restriction can be effective unless there is some sanction compelling its observance and a provision for imposition of penalty for breach of the obligations under the Act or the rules made thereunder is a concomitant and necessary incidence of the restrictions. Such a provision is contained in Section 92 of the Act, which contains a general provision for penalties for offences under the Act for which no express provision has been made elsewhere and seeks to lay down uniform penalty for all or any of the offences committed under the Act. The offences under the Act consist of contravention of (1) any provision of the Act; (2) any rules framed thereunder; and (3) any order in writing made thereunder. It comprises both acts of omission and commission.. â¦....
42. The offences under the Act are not a part of general penal law but arise from the breach of a duty provided in a special beneficial social defence legislation, which creates absolute or strict liability without proof of any mens rea. The offences are strict statutory offences for which establishment of mens rea is not an essential ingredient. The omission or commission of the statutory breach is itself the offence. â¦....
43. What is made punishable under the Act is the 'blameworthy' conduct of the occupier which resulted in the commission of the statutory offence and not his criminal intent to commit that offence. The rule of strict liability is attracted to the offences committed under the Act and the occupier is held vicariously liable alongwith the Manager and the actual offender, as the case may be. Penalty follows actus reus, mensrea being irrelevant.
46. The object of the Act would stand defeated if for the commission of strict offences, the identified director, as the deemed occupier of the factory, is not held vicariously liable. An argument similar to the one raised before us regarding the harshness of the provision insofar as an "innocent" director is concerned, was also canvassed in M.C. Mehtas case. We may excerpt that portion which formulates the question and furnishes the answer:
"So far as the undertaking to be obtained from the Chairman and Managing Director of Shriram is concerned it was pointed out by Shriram that Delhi Cloth Mills Ltd. which is the owner of Shriram has several units manufacturing different products and each of these units is headed and managed by competent and professionally qualified persons who are responsible for the day to day management of its affairs and the Chairman and Managing Director is not concerned with day to day functioning of the units and it would not therefore be fair and just to require the Chairman and Managing Director to give an undertaking that in case of death or injury resulting on account of escape of chlorine gas, the Chairman and Managing Director would be personally liable to pay compensation. We find it difficult to accept this contention urged on behalf of Shriram. We do not see any reason why the Chairman and/or Managing Director should not be required to give an undertaking to be personally liable for payment of compensation in case of death or injury resulting on account of escape of chlorine gas......"
31 This view has been followed in the case of Chairman, SEBI v/s Shriram Mutual Fund reported in (2006)5 SCC 361. In paragraphs 33 and 35 of this decision, the Honourable Supreme Court refers to the same principles and holds as under:-
â33. This Court in a catena of decisions have held that mens rea is not an essential element for imposing penalty for breach of civil obligations:
(a) Director of Enforcement v. MCTM Corpn. (P) Ltd. (1996) 2 SCC 471 : (SCC pp.478 and 480-81, paras 8 and 12-13)
8. It is thus the breach of a "civil obligation" which attracts "penalty" under Section 23(1)(a), FERA, 1947 and a finding that the delinquent has contravened the provisions of Section 10 FERA 1947 that would immediately attract the levy of "penalty" under Section 23, irrespective of the fact whether the contravention was made by the defaulter with any "guilty intention" or not. Therefore, unlike in a criminal case, where it is essential for the 'prosecution' to establish that the 'accused' had the necessary guilty intention or in other words the requisite 'mens rea' to commit the alleged offence with which he is charged before recording his conviction, the obligation on the part of the Directorate of Enforcement, in cases of contravention of the provisions of Section 10 of FERA, would be discharged where it is shown that the "blameworthy conduct" of the delinquent had been established by wilful contravention by him of the provisions of Section 10, FERA 1947. It is the delinquency of the defaulter itself which establishes his 'blameworthy' conduct, attracting the provisions of Section 23(1)(a) of FERA, 1947, without any further proof of the existence of "mens rea". Even after an adjudication by the authorities and levy of penalty under Section 23(1)(a) of FERA, 1947, the defaulter can still be tried and punished for the commission of an offence under the penal law,....
12. "In Corpus Juris Secundrum. Vol.85 at page 580, para 1023, it is stated thus:
"A penalty imposed for a tax delinquency is a civil obligation, remedial and coercive in its nature, and is far different from the penalty for a crime or a fine or forfeiture provided as punishment for the violation of criminal or penal laws."
13. We are in agreement with the aforesaid view and in our opinion what applies to "tax delinquency" equally holds good for the 'blameworthy' conduct for contravention of the provisions of FERA, 1947. We, therefore, hold that mens area (as is understood in criminal law) is not an essential ingredient for holding a delinquent liable to pay penalty under Section 23(1) (a) of FERA, 1947 for contravention of the provisions of Section 10 of FERA, 1947 and that penalty is attracted under Section 23(1)(a) as soon as contravention of the statutory obligation contemplated by Section 10(1)(a) is established. The High Court apparently fell in error in treating the "blameworthy conduct" under the Act as equivalent to the commission of a "criminal offence", overlooking the position that the "blameworthy conduct" in the adjudicatory proceedings is established by proof only of the breach of a civil obligation under the Act, for which the defaulter is obliged to make amends by payment of the penalty imposed under Section 23(1)(a) of the Act irrespective of the fact whether he committed the breach, with or without any guilty intention."
(b) J.K. Industries Ltd. and Ors. Vs. Chief Inspector of Factories and Boilers and Ors., (1996) 6 SCC 665:
42. The offences under the Act are not a part of general penal law but arise from the breach of a duty provided in a special beneficial social defence legislation, which creates absolute or strict liability without proof of any mens rea. The offences are strict statutory offences for which establishment of mens rea is not an essential ingredient. The omission or commission of the statutory breach is itself the offence. Similar type of offences based on the principle of strict liability, which means liability without fault or mens rea, exist in many statutes relating to economic crimes as well as in laws concerning the industry, food adulteration, prevention of pollution etc. in India and abroad. "Absolute offences" are not criminal offences in any real sense but acts which are prohibited in the interest of welfare of the public and the prohibition is backed by sanction of penalty.
(c) R.S. Joshi Sales Tax Officer, Gujarat and Ors. Vs. Ajit Mills Ltd. and anr.etc. , (1977) 4 SCC 98:
Even here we may reject the notion that a penalty or a punishment cannot be cast in the form of an absolute or no-fault liability but must be preceded by mens rea. The classical view that 'no mens rea, no crime' has long ago been eroded and several laws in India and abroad, especially regarding economic crimes and departmental penalties, have created severe punishments even where the offences have been defined to exclude mens rea. Therefore, the contention that Section 37(1) fastens a heavy liability regardless of fault has no force in depriving the forfeiture of the character of penalty."
(d) M/s Gujarat Travancore Agency vs. CIT, (1989) 3 SCC 52:
It is sufficient for us to refer to Section 271(1)(a), which provides that a penalty may be imposed if the Income Tax Officer is satisfied that any person has without reasonable cause failed to furnish the return of total income, and to Section 276-C which provides that if a person wilfully fails to furnish in due time the return of income required under Section 139(1), he shall be punishable with rigorous imprisonment for a term which may extend to one year or with fine. It is clear that in the former case what is intended is a civil obligation while in the latter what is imposed is a criminal sentence. There can be no dispute that having regard to the provisions of Section 276-C, which speaks of wilful failure on the part of the defaulter and taking into consideration the nature of the penalty, which is punitive, no sentence can be imposed under that provision unless the element of mens rea is established. In most cases of criminal liability, the intention of the legislature is that the penalty should serve as a deterrent. The creation of an offence by statute proceeds on the assumption that society suffers injury by the act or omission of the defaulter and that a deterrent must be imposed to discourage the repetition of the offence. In the case of a proceeding under Section 271(1)(a), however, it seems that the intention of the legislature is to emphasise the fact of loss of revenue and to provide a remedy for such loss, although no doubt an element of coercion is present in the penalty. In this connection, the terms in which the penalty falls to be measured is significant. Unless there is something in the language of the statute indicating the need to establish the element of mens rea it is generally sufficient to prove that a default in complying with the statute has occurred. In our opinion, there is nothing in Section 271(1)(a) which requires that mens rea must be proved before penalty can be levied under that provision."
(e) Swedish Match AB Vs. SEBI, (2004) 11 SCC 641:
The provisions of Section 15-H of the Act mandate that a penalty of rupees twenty five crores may be imposed. The Board does not have any discretion in the matter and, thus the adjudication proceeding is a mere formality. Imposition of penalty upon the appellant would, thus, be a forgone conclusion. Only in the criminal proceedings initiated against the appellants, existence of mens rea on the part of the appellants will come up for consideration."
(f) SEBI vs. Cabot International Capital Corporation: (2005) 123 Comp. Cases 841 (Bom):
47. Thus, the following extracted principles are summarised:
(A) Mens rea is an essential or sine qua non for criminal offence.
(B) Strait jacket formula of mens rea cannot be blindly followed in each and every case. Scheme of particular statute may be diluted in a given case.
(C) If, from the scheme, object and words used in the statute, it appears that the proceedings for imposition of the penalty are adjudicatory in nature, in contra-distinction to criminal or quasi criminal proceedings, the determination is of the breach of the civil obligation by the offender. The word "penalty" by itself will not be determinative to conclude the nature of proceedings being criminal or quasi-criminal. The relevant considerations being the nature of the functions being discharged by the authority and the determination of the liability of the contravenor and the delinquency.
(D) Mens rea is not essential element for imposing penalty for breach of civil obligations or liabilities.
(E) There can be two distinct liabilities, civil and criminal under the same Act.
52. The SEBI Act and the Regulations are intended to regulate the Security Market and related aspects, the imposition of penalty, in the given facts and circumstances of the case, cannot be tested on the ground of "no mens rea no penalty". For breaches of provisions of SEBI Act and Regulations, according to us, which are civil in nature, mens rea is not essential. On particular facts and circumstances of the case, proper exercise or judicial discretion is a must, but not on a foundation that mens rea is an essential to impose penalty in each and every breach of provisions of the SEBI Act.
54. However, we are not in agreement with the appellate authority in respect of the reasoning given in regard to the necessity of mens rea being essential for imposing the penalty. According to us, mens rea is not essential for imposing civil penalties under the SEBI Act and Regulations."
35. In our considered opinion, penalty is attracted as soon as the contravention of the statutory obligation as contemplated by the Act and the Regulation is established and hence the intention of the parties committing such violation becomes wholly irrelevant. A breach of civil obligation which attracts penalty in the nature of fine under the provisions of the Act and the Regulations would immediately attract the levy of penalty irrespective of the fact whether contravention must made by the defaulter with guilty intention or not. We also further held that unless the language of the statute indicates the need to establish the presence of mens rea, it is wholly unnecessary to ascertain whether such a violation was intentional or not. On a careful perusal of Section 15(D)(b) and Section 15-E of the Act, there is nothing which requires that mens rea must be proved before penalty can be imposed under these provisions. Hence once the contravention is established then the penalty is to follow.â
32 In the case of Union of India v/s Dharmendra Textile Processors reported in (2008) 13 SCC 369, the earlier judgments were referred to and followed in arriving at the conclusion that in interpreting the penal provisions and statutes, considerations of public policy and public interest are not out of place.
33 In the present case, what one finds is that the complaint alleges that the Petitioners have failed to maintain fire fighting measures provided in the building. The Petitioners have failed to produce a certificate from the Licensed Agency for maintenance of fire fighting equipments in good repair and condition to the Chief Fire Officer in June-July, 2012. The manual points and fire alarms were removed by them without information to the authority. All these findings are mentioned in the Investigation Report dated 06.12.2012. A notice was given to the Petitioners based on the contents of the report and reply thereto being not satisfactory that the Petitioners have been charged with the offences punishable under Sections 3(1), 3(3), 3(4) r/w 36 of the said Act.
34 To my mind, contravention of any provisions enumerated in Section 36(1) of the said Act is an offence, then, it cannot be held as a matter of absolute principle that the Complainant must make specific allegations as urged by Mr.Ponda. In this context, Section 36(1) clause (a) refers to Section 3(1). Failure of the owner or as the case may be, the occupier to provide and maintain the fire prevention and life safety equipment in good repair and efficient condition is an offence and punishable with imprisonment and fine. The explanation below sub-section (1) is also important and cannot be ignored. Then, Section 38(1) which has been referred to by Mr.Ponda clarifies that when an offence under the Act has been committed by the Company, every person, who at the time when the offence was committed was in-charge or was responsible for the conduct of business of the Company as well as the Company, shall be deemed to be guilty. The argument of Mr.Ponda is, therefore, that both provisions together with definitions of the terms âoccupierâ and âownerâ require the Complainant to specifically aver and allege as to how besides the Company or Society in this case, every officer or officer bearer or employee is responsible for its affairs, rather day to day management and hence liable.
35 In this context, Mr.Ponda relies upon the Maharashtra Cooperative Societies Act, 1960 (for short MCS Act) and submits that the same will be the applicable law to the owner in this case. The accused No.1 is a registered cooperative society under the MCS Act. The term âofficerâ is defined in Section 2(20) of the MCS Act. Then it is submitted that Section 72 of the MCS Act appearing in Chapter-VII, says in unequivocal terms that the final authority of every society shall vest in General Body of members in General Meeting summoned in such manner as may be specified in bye-laws. True it is that this is subject to the provisions in the MCS Act and Rules, but Mr.Ponda submits that if the final authority vests in general body of members, then, picking and choosing only those elected by the General Body as representatives, namely, Chairman, Secretary, Treasurer, etc. is impermissible in law. Mr.Ponda submits that the Managing Committee cannot be hauled up for any dereliction of duty or act of omission and commission.
36 Mr.Ponda's argument overlooks the distinction between the final authority of every society and management of every society. Section 73(1) of the MCS Act in clearest term states that the management of every society shall vest in Committee constituted in accordance with the MCS Act, Rules and Bye-laws, which shall exercise such powers and perform such duties as may be conferred or imposed respectively by the MCS Act, Rules and Bye-laws. The distinction between vesting of final authority and vesting of management of every society in a Committee is fine but substantial and must be borne in mind. Once the Managing Committee consists and comprises of elected members and elections are held in terms of the applicable rules and bye-laws and at which members of General Body of every society are electors or voters, then, it would be improper not to bear in mind this distinction. It would be impossible otherwise to pin point the default or blameworthy conduct. Section 73(1AB) of the MCS Act reads as under:-
â73(1AB) The members of the committee shall be jointly and severally responsible for all the decisions taken by the committee during its term relating to the business of the society. The members of the committee shall be jointly and severally responsible for all the acts and omissions detrimental to the interest of the society. Every such member, (i) in case of housing societies, within forty five days of his assuming the office; and
(ii) in case of other societies, within fifteen days of his assuming the office;
shall execute a bond to that effect, in the form as specified by the State Government by general or special order.
The member who fails to execute such bond within the specified period shall be demand to have vacated his office as a member of the committee:
Provided that, before fixing any responsibility mentioned above, the Registrar shall inspect the records of the society and decide as to whether the losses incurred by the society are on account of acts or omissions on the part of the members of the committee or on account of any natural calamities, accident or any circumstances beyond the control of such members:
Provided further that, any member of the committee, who does not agree with any of the resolution or decision of the committee, may express his dissenting opinion which shall be recorded in the proceedings of the meeting and such member shall not be held responsible for the decision embodied in the said resolution or such acts or omissions committed by the committee of that society as per the said resolution. Such dissenting member, if he so desires, may also communicate in writing his dissenting note to the Registrar within seven days from the date of the said resolution or decision. Any member, who is not present for the meeting in which the business of the society is transacted, and who has not subsequently confirmed the proceedings of that meeting, such member shall also not be held responsible for any of the business transacted in that meeting of the society.â
37 While it is true that the requirement of execution of bond may have been dispensed with, yet the fact remains that the Managing Committee, in whom the management of the society vests, is responsible for the conduct of day to day affairs and particularly for the acts and omissions detrimental to the interest of the society. Mr.Ponda's argument overlooks the basic aspect that the law does not contemplate the General Body of members to be concerned with day to day administration and management of affairs of the society. That is why the term âcommitteeâ defined in Section 2(7) of the MCS Act means a Committee of management, Board of Directors or Directing Body by whatever name called in which the management of affairs of the Society is vested under Section 73. The term âofficerâ is defined to mean a person elected or appointed by the Society to any office of such society according to its bye-laws and includes Chairman, Vice-Chairman, etc..
38 Therefore, it is futile to urge that a society is not covered by definition of the term âownerâ as appearing in the said Act of 2006. In fact that extreme position cannot be taken once the owner is a inclusive concept and therefore, must bring within its fold a registered co-operative housing society. Equally, the distinction between the terms âoccupierâ and âownerâ is of great significance. It is owner's or occupier's liability to provide for fire prevention and life safety measures. It is clear by sub-section (1) of Section 3 of the said Act that when owner is not traceable, the occupier is the person envisaged and held liable for complying with the mandate of law. In these circumstances it is not possible to agree with Mr.Ponda that the complaint contains omnibus and general allegations. It is his submission that the complaint must contain specific statement and allegation and in terms of sub-section (1) of Section 38 of the said Act. He reads Section 38(1) in a manner as would bring a co-operative housing society, accused in this case, on par with a company. Therefore, every person who was in-charge and was responsible to the Company or the conduct of business of the Company as well as the Company shall be deemed to be guilty of the offence and shall be liable to be prosecuted against and punished accordingly, is something which presupposes such specific allegation and statement.
39 To my mind, the contention that Section 38 is not applicable to a cooperative society cannot be accepted and for obvious reasons.
40 The definition of the term âcompanyâ is to be found in explanation below Section 38(2). It is elastic in nature. It means a body corporate and includes a firm or association of individuals. Therefore, it cannot be confined or restricted to a company as defined in the Indian Companies Act, 1956 or analogous legislation. If it is an inclusive term, then, in the context of a cooperative housing society it would be necessary for the Court to satisfy itself as to how all those who are arraigned as accused were in charge and responsible for the conduct of business of the society. They together with the society have to be, therefore, convicted and held guilty of the offences. That duty and obligation of the Court is in no way dispensed with. Therefore, the Complainant will have to specify as to how all the Managing Committee members are in-charge and responsible to the society for the conduct of business of the society. The Complainant will have to ascertain the basic position regarding the constitution of the Managing Committee, the officers of the Society in whom the powers are delegated and particularly about policy matters and day to day affairs. It will not be permissible to arraign or implead the Managing Committee members or officers by mere nomenclature. The Complainant must state as to how he has termed them as accused and with reference to the information derived from the records of the Society including its bye-laws. There is thus, no scope for the apprehension that the BMC's Fire Department or Unit will file complaints with general allegations and description, without verifying the factual position. If such complaints are filed, the Magistrates are not bound to issue summons or process.
41 In the present case, the complaint refers to an incident of fire and then visit of Mr.K.F.D'Souza and his team from the Nariman Fire Station. The inspection carried out and findings in the report of Inspection Team are referred. The Report enlists contributory factors for spread of fire and finally contains recommendations at paragraph 17. Based on the report of the Inspection Team, a notice was sent to the Chairman of the Society which is called a show-cause notice for non maintenance of fire fighting equipments and life safety measures. The attention of the Chairman was invited to the incident of fire and violations. The notice called upon the Chairman to show cause as to why the prosecution should not be launched against him. Such notice was issued to the Vice Chairman, Secretary, Treasurer, Joint Treasurer and then the replies thereto have been referred to. Based on all this that the complaint containing the above allegations has been filed. In the complaint itself it has been stated that the accused Nos.2 and 3 were removed from their posts by the Registrar and by intimation to them on 27.11.2012. The accused No.8 had given resignation few months back as per the inquiry with the Society office bearers. This means that the complaint contains relevant material and it may be the stand of accused that some of them have resigned or were no longer committee members. However, as has been rightly pointed out by Mr.Naik, the complaint is not filed alleging offences punishable under the said Act because of the incident of fire, but the complaint takes that into account and alleges that it was because of non compliance with Sections 3(1), 3(3) and 3(4) of the said Act which is an offence, that the fire occurred. Thus, fire prevention and life safety measures were not provided and they were not maintained in good and effective condition at all times as required by the statute. That obligation and duty has to be performed at all times and it may be that a given office bearer was not holding office on the date of such incident or calamity, but his liability is absolute and he must then, as a part of defence, substantiate and prove that there was no failure to provide and maintain fire prevention and life safety equipments in good repair and condition. Apart therefrom, the person who is arraigned as an accused can prove that the offence was committed without his knowledge or that he has exercised due diligence to prevent such offence. In these circumstances to urge that the complaint does not disclose commission of any offence by the Petitioner Nos.1 to 7 is not proper to say the least. Reliance placed on the model bye-laws, at this stage, will not carry the case any further. Once it is understood that the offence under the said Act is contravention of and non compliance with the provisions enumerated in Section 36, then, coupled with the legislative intent it will have to be held that any technical pleas of the nature raised cannot be entertained at this stage. The distinction in law has to be borne in mind. The Law makes default in compliance and contravention of the provision obliging maintenance of fire and life safety measures, an offence and enables imposing penalty therefor. That is a public duty.
42 In India as well abroad, as has been emphasized by me hereinabove, a distinction has been made as to what would amount to commission of offence or infact punishment for commission of an offence. If the blameworthy conduct is the foundation or premise upon which the provision has been made, then, it is not permissible to ignore it. Even decisions of the Courts abroad and particularly of the House of Lords in Tesco Supermarkets Limited And Nattrass decided on February 3, 4, 8 and 9 and March 31, 1971 reported in (1972) Appeal Cases 153 (HL), recognizes the above distinction. The lack of due diligence, lack of care, are the principles on which the criminal liability is based. Then, bearing in mind the object and purpose sought to be achieved and in larger public interest, an interpretation will have to be placed on the provision which would advance that purpose and suppress the mischief. But, that it would be difficult and in some cases, impossible to proceed in criminal law. In BalramKumawat v/s Union of India, reported in AIR 2003 SC 3268, the Honourable Supreme Court held as under:-
â19. Contextual reading is a well-known proposition of interpretation of statute. The clauses of a statute should be construed with reference to the context visavis the other provisions so as to make a consistent enactment of the whole statute relating to the subject-matter. The rule of 'ex visceribus actus' should be resorted to in a situation of this nature.
20. In State of West Bengal v. Union of India (AIR 1963 SC 1241 at p.1255), the learned Chief Justice stated that law thus:
âThe Court must ascertain the intention of the Legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law, and the setting in which the clause to be interpreted occurs.â
21. The said principle has been reiterated in R.S. Raghunath v. State of Karnataka and another (AIR 1992 SC 81 at p.89).
22. Furthermore, even in relation to a penal statute any narrow and pedantic, literal and lexical construction may not always be given effect to. The law would have to be interpreted having regard to the subject matter of the offence and the object of the law it seeks to achieve. The purpose of the law is not to allow the offender to sneak out of the meshes of law. Criminal Jurisprudence does not say so.â
43 The judgment in Tesco Supermarkets Limited (supra) has been referred to by the Honourable Justice G.P.Singh in his work âPrinciples of Statutory Interpretationâ at pages 964 and 965, where the nature of activity makes the premises where it is carried on a major hazard site, then appropriate dues are imposed upon employer. Equally, the licensing act and other acts in the field of consumer protection and public health provide that the offence is quasi-criminal. The nature of the act which the legislature is dealing with has to be referred to. In this context, the learned Author has referred to the leading judgments of the English Courts and held that the contravention must be seen in the context of the nature of duty. If the nature of duty is such that public safety and public health is at stake, then, even default in complying with the provisions enshrining that duty would be an offence and that is made punishable. If that is made punishable, then, the provision cannot be ignored. Thus, one goes back to the settled principle that in construing criminal statute, the principle of strict construction is capable of being relaxed. That is relaxed bearing in mind the provision in each statute. As has been emphasized by the very learned Author and relying on several judgments, the guiding principle is that the penal statutes have also to be interpreted having regard to the subject matter of the offence and the object of the law it seeks to achieve. The purpose of law is not to allow the offender to sneak out of the meshes of law. As has been enshrined above, the considerations of public policy are not foreign in interpreting and applying a criminal statute.
44 For the above reasons, it is not possible to agree with Mr.Ponda that the order issuing process is bad in law or perverse. 45 True it is, as emphasized by Mr.Ponda, that being summoned upon to answer a criminal charge is a serious matter. The learned Magistrate should not act mechanically while issuing the process, but should apply his mind. If the criminal proceedings are serious matters, then, it is expected, as rightly emphasized by Mr.Ponda, that the learned Magistrate must apply its mind to the allegations in each individual complaint and find out as to whether essential ingredients are satisfied or not. It is not possible to lay down an abstract or general principle as has been requested by Mr.Ponda in this case. Ultimately, the principles which have been applied in interpreting Sections 138, 141 and 142 of the Negotiable Instruments Act, 1881 cannot be straightaway applied, read and imported in the said Act. Mr.Ponda submits that in this case the Petitioners are held to be vicariously liable and that is impermissible. That it is not so is clear from what has been held by me hereinabove. Now the argument based on the provisions of the Negotiable Instruments Act, 1881 is that there is no essential pleading. To my mind, the criminal law cannot be set in motion as a matter of course. The Magistrate is obliged to examine the nature of allegations made in the complaint and then summon the accused. He should not, as emphasized by the Honourable Supreme Court, act as a silent spectator. However, in the facts of this case, to my mind, the learned Magistrate has scrutinized the complaint allegations carefully and by taking them into account and equally the documents referred to therein, that he has decided to proceed and issue a process and called upon the Petitioners to appear before him. It may be that in a given case the process will not be issued on general and vague statements and merely because a person happens to be an officer or managing committee member or director. It all depends upon the facts and circumstances in each case as to whether the occupier is to be proceeded against or owner himself. If the owner is an artificial person, then, as specified in Section 38(1) of the said Act, the learned Magistrate will insist at least the primary averments and essential allegations being made and scrutinize the relevant material at the prima facie stage to find out as to whether each and every officer or director should be proceeded or that the process be restricted to few of them who were directly in-charge of or in control of the affairs as submitted by Mr.Ponda. It is not possible for the learned Magistrate to express any final opinion at the initial stage about such contested and debated matters. A prima facie satisfaction is all that is necessary. However, even that should not be vitiated as emphasized in the Supreme Court decisions. But, care should be taken that each and every person connected with the Company or Society or body of individuals is not roped in. Ultimately, the Company means a body corporate and includes a firm and association of individuals. The learned Magistrate, therefore, cannot be oblivious of this concept and the definition and equally explanation below Section 38(2) of the said Act. While issuing the process, however, he is not expected to render and give any final opinion. A limited scrutiny and verification to ascertain the role of persons sought to be proceeded against, will definitely be required to be undertaken so that protection is given to those who have no role to play in day to day management and affairs. In these circumstances the apprehension of Mr.Ponda can be taken care of by clarifying that all ingredients as would require the Court to be satisfied in relation to a company incorporated and registered under the Indian Companies Act, 1956, may have to be satisfied in the case of a co-operative housing society, but the distinction as pointed out by me hereinabove, namely, vesting of final authority in the General Body of members and vesting of management in the Managing Committee or office bearers, will guide the learned Magistrate at the stage of issuing the process as well. Therefore, if the Managing Committee in a given case has delegated some of its powers to others within them or has, with the concurrence or consent of General Body, appointed a third party or agent to undertake and complete some of its tasks and jobs including duties to provide fire prevention and life safety measures, then, the learned Magistrate will take into account such instances as are brought before him and substantiated with appropriate material. If the allegations in the complaint themselves are such that each and every officer and managing committee member need not be summoned to answer the charge, then, the learned Magistrate may limit and restrict the issuance to a few or in a given case, issue a process if he is satisfied from the allegations and statements in the complaint that those termed as managing committee members were directly responsible for taking measures envisaged by the said Act. Thus, the apprehension that merely because the complaint terms somebody as Chairman, Vice Chairman, Secretary, Treasurer, etc. that summons or process will be issued straightaway is baseless.
46 Once the above view is taken, then, it is not necessary to refer to each of the judgments relied upon by Mr.Ponda.
47 However, in the facts and circumstances of the present case, the learned Magistrate has not exceeded his limits or powers in summoning the Petitioners and merely because they are senior citizens, they cannot escape the criminal liability. I have no doubt in mind that the learned Magistrate will not insist on their attendance in person on every day on which the trial is being held by him. He will give them appropriate concessions and exemptions. Equally, merely because he has summoned them does not mean that he is obliged to convict them and more so because the order issuing the process is confirmed by this Court.
48 I am satisfied that the order issuing the process does not suffer from any illegality or perversity warranting interference in writ jurisdiction. In such circumstances I proceed to dismiss the Writ Petition. Rule is discharged. The Writ Petition is dismissed.
49 However, all contentions of both sides on merits are kept open. This order will not prevent the Petitioners from raising appropriate pleas and equally requesting the learned Magistrate that the charge may not be framed against them or any one of them and contentions in that behalf are also kept open.