Rajkumar Vs. Gunmala and ors. - Court Judgment

Excerpt:
- madhya pradesh municipal corporation act (23 of 1956)section 91 & m.p. municipal corporation act (1956), section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k.seth, jj] public nuisance - suit for injunction - held, section 91(i) of the c.p.c. is not exhaustive of the remedies that are available to a party even in case of a public nuisance or other wrongful act affecting or likely to affect the public. the remedy of the corporation and any other person under sub-section (5) of section 307 of the act of 1956 is independent of the provisions of section 91 of the c.p.c. and not only the corporation but any other person can apply to the district court for injunction or removal or alteration of a building on the ground that the provisions of the act of 1956 or the bye-laws made thereunder have been contravened. sections 41(j) & 4 & m.p. municipal corporation act (1956), section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k. seth, jj] relief of injunction held, the reliefs under the specific relief act, 1963 are granted for the purpose of enforcing individual civil rights as will be clear from section 4 of the specific relief act. 1963. accordingly, injunction under part iii of the specific relief act, 1963 is granted to the plaintiff either to prevent a breach of an obligation in favour of the plaintiff, or to compel the performance of an obligation in his favour. unless, therefore, there is an obligation in favour of the plaintiff which needs to be enforced, the court cannot grant injunction. hence, it is provided in section 41(j) of the specific relief act. 1963 that an injunction cannot be granted when the plaintiff has no personal interest in the matter. the provisions of the specific relief act, 1963 do not apply to the right conferred on the corporation and any other person under sub-section (5) of section 307 of m.p. municipal corporation act, 1956. under the provisions of the act of 1956, every building must comply with the provisions of the act of 1956 and the byelaws made thereunder and hence if there is any breach of the provisions of the act of 1956 or the bye-laws made thereunder, sub-section (5) of section 307 of the act of 1956 confers a right not only on the corporation but also any other person to apply to the district court for an injunction for removal or alteration of a building on the ground that there has been the contravention of the provisions of the act of 1956 or the bye-laws made thereunder. this remedy under sub-section (5) of section 307 of the act of 1956 is independent of and different from the remedies under the specific relief act. 1963. section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k. seth,jj] injunction for removal or alternation of any building-locus standi to claim - held, the word any which has diverse meanings, therefore, has to be interpreted depending on the context and the subject matter of statute in which it is used. there are various other provisions in the act of 1956 and the byelaws made thereunder relating to buildings within the area of the corporation which have to be complied with. legislature has., therefore, to provide for some remedy if the provisions of the act of 1956 or the byelaws thereunder in respect of a building are violated. it is only for this reason that under sub-section (5) of section 307 of the act of 1956, a right has been conferred not only on the corporation but on any other person to apply to the district court for injunction for removal of a building or alteration of any building on the ground that it contravenes any provisions of the act or the byelaws made thereunder. hence, not only the corporation but every other person has been given the right to apply to the district court for injunction for the removal or alteration of any building on the ground that it contravenes any provisions of the act or the byelaws made thereunder. the context and the subject-matter of the statute in which the word any has been used is thus, wide enough to include all persons other than the corporation or every other person other than the corporation or any other person other than the corporation. - revision also failed and then petitioner has come up before this court praying for invocation of provisions of section 482 of criminal procedure code and for directing the trial court to allow the application moved by the present petitioner. 5. the order passed by 11th additional sessions judge, indore in criminal revision shows that the case was at the stage of pronouncement of judgment and the complainant was effectively cross-examined by the present petitioner. it was not even clarified by the present petitioner in the trial court as well as in the revisional court also as to on what points it has become necessary to cross-examine further the same witness. the present petitioner believed on the version of the co-accused and did not take effective part in the trial and had not cross-examined the complainant effectively. now at the stage of pronouncement of judgment co-accused who was the managing director of the firm has informed the petitioner that his efforts for compounding the offence had failed and therefore petitioner is required to take care regarding his own defence. it is apparent from the order passed by the revisional court as well as from the averments made in this petition itself that the criminal case has travelled beyond the stages of recording prosecution evidence, examination of accused persons in the defence. it appears that he failed to avail the opportunities which were provided to him. the powers which are available to this court under section 482 of criminal procedure code can only be exercised in rarest of rare cases and particularly when there is any occasion of failure of justice or it is necessary in the interest of justice to exercise such powers.orders.c. vyas, j.1. mr. c.b. pandey, learned counsel for the petitioner.2. heard in motion.3. this is a petition filed under section 482 of criminal procedure code for quashment of the order passed by jmfc, indore in criminal case no. 2264/01 dated 7.11.2006 by which the application moved by present petitioner under section 311 of the criminal procedure code was dismissed and which has been confirmed by 11th additional sessions judge, indore by order dated 8.1.2007 passed in criminal revision no. 755/06.4. present petitioner and some other persons are facing criminal prosecution under section 138 of the negotiable instruments act on the basis of a private complaint filed by non-applicant no. 1. the case is at the stage of pronouncement of judgment. at this stage an application under section 311, criminal procedure code has been moved by the present petitioner for recalling the complainant so that some questions can be put to her regarding the present petitioner. the prayer was opposed by the complainant and thereafter the application was dismissed. revision also failed and then petitioner has come up before this court praying for invocation of provisions of section 482 of criminal procedure code and for directing the trial court to allow the application moved by the present petitioner.5. the order passed by 11th additional sessions judge, indore in criminal revision shows that the case was at the stage of pronouncement of judgment and the complainant was effectively cross-examined by the present petitioner. it was not even clarified by the present petitioner in the trial court as well as in the revisional court also as to on what points it has become necessary to cross-examine further the same witness.6. learned counsel for the petitioner submitted that co-accused of the case has assured the petitioner that he will take care of the defence of accused persons and will try to settle the dispute with the complainant by compounding the offence. the present petitioner believed on the version of the co-accused and did not take effective part in the trial and had not cross-examined the complainant effectively. now at the stage of pronouncement of judgment co-accused who was the managing director of the firm has informed the petitioner that his efforts for compounding the offence had failed and therefore petitioner is required to take care regarding his own defence. learned counsel for the petitioner submitted that in this background it becomes necessary for the present petitioner to recall the complainant for further cross-examination so that whole defence of the present petitioner can be put to him.7. i have considered the arguments advanced by learned counsel for the petitioner. it is apparent from the order passed by the revisional court as well as from the averments made in this petition itself that the criminal case has travelled beyond the stages of recording prosecution evidence, examination of accused persons in the defence. during all these stages petitioner was having full opportunity to cross-examine the complainant and to put his defence. it appears that he failed to avail the opportunities which were provided to him. even, now it is not clear as to what type of questions are necessary to be put to the complainant. it has not been clarified in the petition itself. in such circumstances at the fag end of the trial when the case is at the stage of pronouncement of judgment then it is not advisable to reopen the trial of the criminal case and to recall the complainant for cross-examination. the powers which are available to this court under section 482 of criminal procedure code can only be exercised in rarest of rare cases and particularly when there is any occasion of failure of justice or it is necessary in the interest of justice to exercise such powers. in the facts of present case, there appears no such occasion.8. therefore in the facts and circumstances of the case the order passed by the trial court and confirmed by revisional court does not suffer from any infirmity and injustice and does not call for any interference. the petition fails and is dismissed in limine without giving any notice to the opposite party.

Judgment:
ORDER

S.C. Vyas, J.

1. Mr. C.B. Pandey, learned Counsel for the petitioner.

2. Heard in motion.

3. This is a petition filed under Section 482 of Criminal Procedure Code for quashment of the order passed by JMFC, Indore in Criminal Case No. 2264/01 dated 7.11.2006 by which the application moved by present petitioner under Section 311 of the Criminal Procedure Code was dismissed and which has been confirmed by 11th Additional Sessions Judge, Indore by order dated 8.1.2007 passed in Criminal Revision No. 755/06.

4. Present petitioner and some other persons are facing criminal prosecution under Section 138 of the Negotiable Instruments Act on the basis of a private complaint filed by non-applicant No. 1. The case is at the stage of pronouncement of judgment. At this stage an application under Section 311, Criminal Procedure Code has been moved by the present petitioner for recalling the complainant so that some questions can be put to her regarding the present petitioner. The prayer was opposed by the complainant and thereafter the application was dismissed. Revision also failed and then petitioner has come up before this Court praying for invocation of provisions of Section 482 of Criminal Procedure Code and for directing the Trial Court to allow the application moved by the present petitioner.

5. The order passed by 11th Additional Sessions Judge, Indore in criminal revision shows that the case was at the stage of pronouncement of judgment and the complainant was effectively cross-examined by the present petitioner. It was not even clarified by the present petitioner in the Trial Court as well as in the Revisional Court also as to on what points it has become necessary to cross-examine further the same witness.

6. Learned Counsel for the petitioner submitted that co-accused of the case has assured the petitioner that he will take care of the defence of accused persons and will try to settle the dispute with the complainant by compounding the offence. The present petitioner believed on the version of the co-accused and did not take effective part in the trial and had not cross-examined the complainant effectively. Now at the stage of pronouncement of judgment co-accused who was the Managing Director of the firm has informed the petitioner that his efforts for compounding the offence had failed and therefore petitioner is required to take care regarding his own defence. Learned Counsel for the petitioner submitted that in this background it becomes necessary for the present petitioner to recall the complainant for further cross-examination so that whole defence of the present petitioner can be put to him.

7. I have considered the arguments advanced by learned Counsel for the petitioner. It is apparent from the order passed by the Revisional Court as well as from the averments made in this petition itself that the criminal case has travelled beyond the stages of recording prosecution evidence, examination of accused persons in the defence. During all these stages petitioner was having full opportunity to cross-examine the complainant and to put his defence. It appears that he failed to avail the opportunities which were provided to him. Even, now it is not clear as to what type of questions are necessary to be put to the complainant. It has not been clarified in the petition itself. In such circumstances at the fag end of the trial when the case is at the stage of pronouncement of judgment then it is not advisable to reopen the trial of the criminal case and to recall the complainant for cross-examination. The powers which are available to this Court under Section 482 of Criminal Procedure Code can only be exercised in rarest of rare cases and particularly when there is any occasion of failure of justice or it is necessary in the interest of justice to exercise such powers. In the facts of present case, there appears no such occasion.

8. Therefore in the facts and circumstances of the case the order passed by the Trial Court and confirmed by Revisional Court does not suffer from any infirmity and injustice and does not call for any interference. The petition fails and is dismissed in limine without giving any notice to the opposite party.