George Thomas Vs. State of Kerala and anr. - Court Judgment

Excerpt:
- state financial corporation act, 1951[c.a. no. 63/1951. sections 29 & 31: [k.s. radhakrishnan, thottathil b. radhakrishnan & m.n. krishnan, jj] recovery of loan amount held, once industrial concern commits default in repayment of the loan or advance made by the financial corporation and under a liability, the right of the corporation to invoke section 29 of the act accrues and it is open to the corporation to realise the entire loan advanced to the industrial concern not only from the properties of the industrial concern but also from the properties pledged or mortgaged b y the sureties for the loan advanced by the corporation. section 29 is a complete code by itself. liability of principal-debtor and surety is always joint and co-extensive. [n. narasimhaiah v karnataka state financial corporation, air 2004 kar 46 dissented from]. - clearly it may mean, perhaps, a linguistic purist would say that its most accurate connotation was to indicate, an order requiring an affirmative course of action to be taken in pursuance of the order;orderk. t. thomas, j.1. the petitioner was practising dentistry at erattupetta. he has no qualification or registration to practise dentistry. section 49 of the dentists act, 1948 (central act xvi of 1948) (for short the act) prohibits a person from practising dentistry unless that person is a registered dentist, or a registered dental hygenist or a registered dental mechanic. on 11-6-1979, pw. 2, the vice president of the kerala dental council, inspected the place where the petitioner was practising dentistry in a clinic styled as 'j. j. dental hospital', by using the degree of b.d.s. along with his name. prosecution steps were initiated against him at the instance of the registrar of the kerala dental council. he was found guilty of the offence under section 49 of the act. he was convicted and sentenced to pay a fine of rs. 500/-. the sessions court confirmed the conviction and sentence.2. two points have been urged in this revision. the first is that the trial court took cognizance of the offence without satisfying that the conditions for taking cognizance of the offence under the act have been fulfilled. the second point is that the complaint was filed after the period of limitation and hence, there is a bar under section 468 of the code of criminal procedure (for short the code). these points were raised before the appellate courts, but the learned sessions judge repelled those contentions. i shall now proceed to consider those points.3. section 52 of the act reads thus:no court shall take cognizance of any offence punishable under this act except upon complaint made by order of the state government or the state council.ext. p8 in this case is a resolution of the kerala dental council dated 22-9-1979. it reads thus:considered the recommendation of the executive committee and resolved that shri george thomas, j.j. dental hospital, erattupetta be prosecuted for practising dentistry without registration in violation of section 49 of the dentists act 1948 and also for falsely using the title b.d.s. along with his name. the registrar is authorised under section 52 to institute prosecution.there is no case for the prosecution that the kerala state dental council has passed any other order for initiating prosecution proceedings against the petitioner. according to the learned counsel for the petitioner, ext.p8 will not amount to an 'order', at the most it may amount to an authorisation. the order, as is commonly understood, is a direction or a command and since ext,p8 does not contain any such direction or command, it cannot be construed as an 'order', contended the learned counsel.he sought support to the said contention from the meaning given to the word 'order' in the chambers dictionary as a mandate or a direction. the word 'order' is not defined in the act. in r. v. recorder of oxford, (1969) 3 all er 428 bridge, j., while agreeing with lord- chief justice parker, has stated thus: 'the word 'order' in relation to legal proceedings in itself is ambiguous; clearly it may mean, perhaps, a linguistic purist would say that its most accurate connotation was to indicate, an order requiring an affirmative course of action to be taken in pursuance of the order; but it is equally clear that the word may have much wider meaning....which of j the two meanings is appropriate must of course always depend on the context.' in aiyar's judicial dictionary (at page 702 of the 9th edition) the author mentions that the word 'order' used in section 77 of the m.p. cooperative societies act, 1960 is so wide as to include every decision, award or order made under the act. he also mentions that the word 'order' in section 26(2) of the evacuee property act is used in its widest connotation. among the meanings given to the word 'order' in the 'new websters dictionary of english language', what is noteworthy in this context is the following meaning; 'to issue orders or instructions'.in the absence of a definition for the word 'order' in the act, i am inclined to give the widest meaning to it so as to secure the purpose of the provisions contained therein. the mere fact that ext.p8 is not couched in a commanding language is not sufficient to render it something other than an order as envisaged in section 52 of the act. a realistic approach to ext.p8 would indicate that the state dental council wanted the registrar to file the complaint against the petitioner and therefore necessary directions were incorporated in the resolution. there is no bar in communicating an order in the form of a resolution. an authorization to do a particular act inheres in it a direction to do that act. if ext.p8 is understood in this way, i have no doubt in my mind that it satisfies the requirement contained in section 52 of the act.4. in support of the second contention, the learned counsel invited attention to the fact that the offence was detected on 11-6-1979, but the complaint was filed in court only on 14-3-1980. under section 468 of the code, the period of limitation shall be six months if the offence is punishable with fine only. the offence under section 49 of the act is punishable with fine only and, therefore, it is contended that since the complaint was filed only after the period of six months, section 468 of the code is a bar to take cognizance of the said offence. the said bar in section 468 is subject to an exception as can be seen from the following words in section 468(1) of the code; 'except as otherwise provided elsewhere in this code, no courts shall take cognizance of an offence....' section 470 of the code allows exclusion of certain periods in computing the period of limitation. sub-section (3) of section 470 says that if previous sanction or consent of the government or any other authority is required for the institution of any prosecution for an offence, the time required for obtaining such consent or sanction shall be excluded. the word 'sanction' in section 470(3) is to be understood as analogous to the word 'order' in section 52 of the act. as i have already expressed !my inclination to give a very wide meaning to the word order, i have no difficulty to treat an order on a par with the sanction envisaged in section 470(3) of the code.5. on the next day of the detection of the offence, pw. 2 had conveyed the information to the state dental council and requested to take steps in the matter. on 22-9-1979 the kerala dental council passed ext. p8 resolution. so the period from 12-6-1979 to 22-9-1979 must be excluded from the period of limitation. when that period is excluded, the complaint can be found to be within time. hence, it is unnecessary to consider whether extension of the period of limitation need be granted in this case under section 473 of the code.no other point arises for consideration in this revision. the revision petition is dismissed.

Judgment:
ORDER

K. T. Thomas, J.

1. The petitioner was practising dentistry at Erattupetta. He has no qualification or registration to practise dentistry. Section 49 of the Dentists Act, 1948 (Central Act XVI of 1948) (for short the Act) prohibits a person from practising dentistry unless that person is a registered dentist, or a registered dental hygenist or a registered dental mechanic. On 11-6-1979, PW. 2, the Vice President of the Kerala Dental Council, inspected the place where the petitioner was practising dentistry in a clinic styled as 'J. J. Dental Hospital', by using the degree of B.D.S. along with his name. Prosecution steps were initiated against him at the instance of the Registrar of the Kerala Dental Council. He was found guilty of the offence under Section 49 of the Act. He was convicted and sentenced to pay a fine of Rs. 500/-. The Sessions Court confirmed the conviction and sentence.

2. Two points have been urged in this revision. The first is that the trial court took cognizance of the offence without satisfying that the conditions for taking cognizance of the offence under the Act have been fulfilled. The second point is that the complaint was filed after the period of limitation and hence, there is a bar under Section 468 of the Code of Criminal Procedure (for short the Code). These points were raised before the appellate courts, but the learned Sessions Judge repelled those contentions. I shall now proceed to consider those points.

3. Section 52 of the Act reads thus:

No Court shall take cognizance of any offence punishable under this Act except upon complaint made by order of the State Government or the State Council.

Ext. P8 in this case is a resolution of the Kerala Dental Council dated 22-9-1979. It reads thus:

Considered the recommendation of the Executive Committee and resolved that Shri George Thomas, J.J. Dental Hospital, Erattupetta be prosecuted for practising dentistry without registration in violation of Section 49 of the Dentists Act 1948 and also for falsely using the title B.D.S. along with his name. The Registrar is authorised under Section 52 to institute prosecution.

There is no case for the prosecution that the Kerala State Dental Council has passed any other order for initiating prosecution proceedings against the petitioner. According to the learned Counsel for the petitioner, Ext.P8 will not amount to an 'order', at the most it may amount to an authorisation. The order, as is commonly understood, is a direction or a command and since Ext,P8 does not contain any such direction or command, it cannot be construed as an 'order', contended the learned Counsel.

He sought support to the said contention from the meaning given to the word 'order' in the Chambers Dictionary as a mandate or a direction. The word 'order' is not defined in the Act. In R. v. Recorder of Oxford, (1969) 3 All ER 428 Bridge, J., while agreeing with Lord- Chief Justice Parker, has stated thus: 'The word 'order' in relation to legal proceedings in itself is ambiguous; clearly it may mean, perhaps, a linguistic purist would say that its most accurate connotation was to indicate, an order requiring an affirmative course of action to be taken in pursuance of the order; but it is equally clear that the word may have much wider meaning....Which of J the two meanings is appropriate must of course always depend on the context.' In Aiyar's Judicial Dictionary (at page 702 of the 9th edition) the author mentions that the word 'order' used in Section 77 of the M.P. Cooperative Societies Act, 1960 is so wide as to include every decision, award or order made under the Act. He also mentions that the word 'order' in Section 26(2) of the Evacuee Property Act is used in its widest connotation. Among the meanings given to the word 'order' in the 'New Websters Dictionary of English Language', what is noteworthy in this context is the following meaning; 'to issue orders or instructions'.

In the absence of a definition for the word 'order' in the Act, I am inclined to give the widest meaning to it so as to secure the purpose of the provisions contained therein. The mere fact that Ext.P8 is not couched in a commanding language is not sufficient to render it something other than an order as envisaged in Section 52 of the Act. A realistic approach to Ext.P8 would indicate that the State Dental Council wanted the Registrar to file the complaint against the petitioner and therefore necessary directions were incorporated in the resolution. There is no bar in communicating an order in the form of a resolution. An authorization to do a particular act inheres in it a direction to do that act. If Ext.P8 is understood in this way, I have no doubt in my mind that it satisfies the requirement contained in Section 52 of the Act.

4. In support of the second contention, the learned Counsel invited attention to the fact that the offence was detected on 11-6-1979, but the complaint was filed in court only on 14-3-1980. Under Section 468 of the Code, the period of limitation shall be six months if the offence is punishable with fine only. The offence under Section 49 of the Act is punishable with fine only and, therefore, it is contended that since the complaint was filed only after the period of six months, Section 468 of the Code is a bar to take cognizance of the said offence. The said bar in Section 468 is subject to an exception as can be seen from the following words in Section 468(1) of the Code; 'except as otherwise provided elsewhere in this Code, no courts shall take cognizance of an offence....' Section 470 of the Code allows exclusion of certain periods in computing the period of limitation. Sub-section (3) of Section 470 says that if previous sanction or consent of the Government or any other authority is required for the institution of any prosecution for an offence, the time required for obtaining such consent or sanction shall be excluded. The word 'sanction' in Section 470(3) is to be understood as analogous to the word 'order' in Section 52 of the Act. As I have already expressed !my inclination to give a very wide meaning to the word order, I have no difficulty to treat an order on a par with the sanction envisaged in Section 470(3) of the Code.

5. On the next day of the detection of the offence, PW. 2 had conveyed the information to the State Dental Council and requested to take steps in the matter. On 22-9-1979 the Kerala Dental Council passed Ext. P8 resolution. So the period from 12-6-1979 to 22-9-1979 must be excluded from the period of limitation. When that period is excluded, the complaint can be found to be within time. Hence, it is unnecessary to consider whether extension of the period of limitation need be granted in this case under Section 473 of the Code.

No other point arises for consideration in this revision. The revision petition is dismissed.