A.R. Shimpi, J.

1. The State of Maharashtra has filed this appeal challenging the acquittal recorded in favour of the respondent who was tried in Criminal Case No. 65 of 1973 by the Judicial Magistrate, First Class, Nagpur upon a charge that he on or about I5th day of September 1972 between 1.30 to 2 p. m. as a landlord without obtaining previous written permission of the Rent Controller, Nagpur discontinued the water supply to the tenement situated in Dhantoli, Nagpur and in the occupation of the complainant Deshpande, a tenant, in contravention of the provisions of clause 14-A. of the C. P. and Berar Letting of Houses and Rent Control Order, 1949 read with section 8 of the C. P. and Berar Regulation of Letting of Accommodation Act, 1946.

2. The facts in brief are as under: The complainant Deshpande was allotted a tenement admeasuring 18 x 12 in the house belonging to the respondent by the order of the Real Controller, Nagpur sometimes in the year 1964. It appears that at that time the water supply was through a well. There was no meter system prevailing in the year 1964 and it was not introduced by the Nagpur Municipal Corporation. The evidence appears to be that there was no independent water tap. Sometimes in the year 1968 a separate meter was taken for this tenement of the complainant, but in the name of the landlord. It is not necessary to go into the rival contentions of the parties as to what was the rent and whether the rent included the amount of water charges because Exhibit-14 is the notice of the complainant to the respondent wherein he has accepted the position that he was paying the charges of water and electricity separately besides the rent. The meter bill was issued by the Nagpur Corporation in the name of the respondent-landlord and it appears to be the grievance of the complainant Deshpande that the landlord was not giving those bills to him for payment of the water charges of the Municipal Corporation. Whatever that may be, it does appear that in connection with the meter which was installed for the benefit of the complainant Deshpande for taking tap water the arrears of water charges amounted to Rs. 100.65p. by 19th of August 1972 Exhibit-32 is the notice issued by the Municipal Corporation, Nagpur to the respondent Sathe in connection with the meter No. 63900 C. M. that the arrears were to the tune of Rs. 100.65. He was, therefore, requested to clear off the dues within three days, failing which action for disconnection of water supply and recovery of the dues would be taken against him.

3. It is the case of the complainant that on 15th September 1972 when he was in his office at about 2 p. m. the water meter was got disconnected by the respondent landlord. He came to know it from his wife. He, therefore filed a complaint with the police. That complaint was investigated by the police and it does appear that a report in the shape of charge-sheet was submitted by the police in the Court of the Judicial Magistrate, First Class, Nagpur to take action against the respondent for disconnecting the water supply of the complainant.

4. After this complaint was lodged some steps were taken by the respondent before the Magistrate to quash the proceedings on the ground of jurisdiction, but the Magistrate overruled them. Charge was framed thereafter. The complainant Deshpande was examined. He substantially deposed what I have stated as the prosecution case. It does appear from the various documents and the evidence produced before the Magistrate that the proceedings before the Rent Controller were pending between the parties which were initiated by the landlord. But it is not disputed that the relationship of tenant and landlord existed between the complainant and the respondent, at the material date when the actual disconnection of the water meter whereby the water supply was stopped has taken place. In addition to complainants evidence, evidence of one Tarachand Pohumal who is a trader and who has his shop in front of the respondents house was examined who stated that on that day municipal employees with some coolies from the Water Department had come. One Gokhale who resides with the respondent was present and that on instructions of Gokhale the water meter was taken out by the municipal employees and thereby the water supply was disconnected.

5. The other evidence which was relied upon by the complainant was of Municipal Overseer and the licensed plumber Vyas. That evidence has been adduced to show that the Municipal Corporation did not suo motu disconnect the water-supply of the complainant, but it was done at the instance of the respondent-accused. From the other evidence it appears that the accused engaged a licensed plumber by name Vyas who is P. W. 6. He stated that he generally undertakes the work of connection and disconnection of water supply meters, transfer of meters and repairs of pipe line. In the year 1972 the accused had come over to him and told him that he wanted a water tap to be disconnected. Vyas got a form filled. Accused signed that form in his presence. Vyas said "He signed and ordered to deposit Rs. 2 only. Accused gave Rs. 2 to me and I have deposited the same in the office. After this one more rupee was deposited in P. W. D. given to me by the accused". Vyas then took the order of disconnection from the Overseer on 15-9-1972. Vyas says that he went with the labourers. Accused was not in his house. Accused was sent for. Accused came there. Vyas then states: "I asked him which meter is to be disconnected and he pointed out." Thereafter the meter was deposited by Vyas in the office. He handed over the receipt to the accused. In the cross-examination of Vyas it was suggested that the accused was not acquainted with Vyas. Vyas denied that fact. Besides that, nothing more serious has come in the cross-examination.

6. Bhagwatiprasad Tiwari (P. W. 5), Overseer, has been examined. It appears from his evidence that the original application which was given by Vyas and which was filled and signed by respondent-accused was not traceable in the office of the Nagpur Corporation. He has relied upon certain entries as regards disconnection and counter-foil receipts of payment of Rs. 2 and the receipt issued in respect of deposit of water meter by Vyas, the licensed plumber. He stated that he has given the procedure as to what steps the Municipal Corporation takes when an application is made to it for disconnecting the water meter. He refers to the fact that contractor Vyas came to his office, gave the application, got his order and thereafter the water meter was disconnected. He stated that all the documents could be traced except the original application. He also made search extensively in the past and also on the date on which he gave evidence, but he could not trace the application. The procedure stated by him is as follows:

One has to apply through the licensed plumber for disconnection on prescribed form. Then we examine the spot by our Department. For disconnection a fee of Rs. 2 is charged and on depositing the same by the applicant a date is given for disconnection.

He also admitted that if there were arrears of water tap then the water supply meter is discontinued by the Corporation even, but there is not a suggestion to Bhagwatiprasad that in the instant case the water meter was disconnected suo motu by the Municipal Corporation. In the reply to a Court question Bhagwati-Prasad stated that he had recommended for disconnection on the application for disconnection of Meter No. 63900. There were 80 plumbers recognised by the Municipal Corporation. The extract of diary which he has produced is written by the licensed plumbers though it is a document of Municipal Corporation and an entry from that diary is produced at Exhibit-20.

7. The accused-respondent admitted that the complainant was his tenant. He also admitted that the complainant used to get water supply through a separate meter. However, he denied that he had given any application or paid any fee. He characterised the evidence of Bhagwatiprasad and Vyas as false. He also admits that after the water meter was disconnected, the tenant was getting water from other tenants. He also accepted the position that no written permission was obtained from the Rent Controller by stating: "did not stop the water supply and hence the question of obtaining permission from the Rent Controller does notarise." In short his case appears to be that because there were arrears of Rs. 100.65 in respect of this water meter, the Municipal Corporation disconnected the water meter and he was not responsible for the same. Therefore, he has not committed any offence as per clause 14-A of the order read with section 8 of the Act.

8. The learned Magistrate held construing the provisions of section 5 of the Act that in the instant case there was no complaint in writing by the complainant. Therefore, the Court could not take cognizance of the report submitted by the police officer. The learned Magistrate has discussed section 5 of the Act, section 190 of the Code of Criminal Procedure and the various provisions of the clauses of the Order to which a reference would be made in the later part of the judgment. In that view the learned Magistrate came to the conclusion that as there was no complaint made by the complainant, he cannot take cognizance of the police report. On merits, the learned Magistrate after discussing the evidence came to the conclusion that there were arrears. Therefore, there was every possibility that the Corporation employees themselves disconnected the meter in question. The learned Magistrate further observed that even if the accused respondent got the meter disconnected, still it could not be said that the water supply of the complainant was stopped. The learned Magistrate observed that there is a hand-pump fitted on the well of the accused and the complainant could have taken water from that well. In that view, the learned Magistrate came to the conclusion that no offence was brought home to the accused respondent. He, therefore, acquitted him.

9. Feeling aggrieved the present appeal has been filed. Shri Patil, learned Special (authorised) Additional Government Pleader urged that the learned Magistrate was in error in holding that he could not take cognizance on a police report. He submitted that the learned Magistrate misconstrued the provisions of section 5. He urged that for taking cognizance of an offence under section 5 of the C. P. and Berar Regulation of Letting of Accommodation Act, 1946 (hereinafter referred to as the Act) a complaint may be filed before the Magistrate by the person aggrieved by such offences or by a person who is a public servant as defined in section 21 of the Indian Penal Code. He urged that police officer is a public servant and as such the report given by the police officer is sufficient if it discloses the offence for the Magistrate to take cognizance of the offence. On facts, he submitted that the judgment of the learned Magistrate is perverse. He urged that there was no evidence to show that the Municipal Corporation sua motu disconnected the meter in the instant case. He submitted that from the evidence adduced on the record an irresistible inference arises that it was the accused who got the water meter of the complainant disconnected and, therefore, committed the mischief within the meaning of clause 14 A of the Order read with section 8 of the Act.

10. Mr. Ghatpande learned advocate appearing for the accused-respondent supported the judgment of the learned Magistrate. He urged by drawing my attention to the notice issued by the Corporation dated 19th of August 1972 that in connection with this meter the Corporation had issued a notice calling upon the landlord to pay the arrears of Rs. 100. This notice, urged Shri Ghatpande, would go to show that the Corporation, the landlord being in arrears, wanted to take steps and therefore has taken steps on 15th September 1972 to disconnect the water meter. He urged that the evidence of Bhagwatiprasad is neither here nor there. It does not support the prosecution, nor goes against the accused. The entries in the diary which are relied upon by Bhagwatiprasad are made by licensed plumbers. Whether the water meter is disconnected at the instance of the owner or by the Corporation suo motu still the same entries would follow. Therefore, it could not be said that the landlord, namely, the accused respondent, was responsible for getting the water meter disconnected. He urged that Vyas has not given a truthful version. His evidence is in conflict with the evidence of prosecution witness Tarachand. Witness Tarachand states that one Mama Gokhale who resides in the house of the accused was present and not accused respondent while Vyas said that accused was called. In view of this conflict, it cannot be said that Vyas, the licensed plumber is the truthful witness.

11. Shri Ghatpande urged that if the original application would have been produced, then it could be said that the accused was responsible, but there is no application coming forth. That would go to show, urged Shri Ghatpande, that the accused must not have made any such application. In the absence of the application, it could not be said that it was the accused who asked Vyas to apply on his behalf to the Municipal Corporation to disconnect the water meter. He urged that the learned Magistrate has considered this evidence. The appreciation of evidence cannot be said to be perverse. Therefore, this finding of fact could not be disturbed by this Court.

12. Shri Ghatpande submitted that the learned Magistrate was right in holding that he could not take cognizance of the offence under section 5 of the Act because the police had filed the report. Shri Ghatpande drew my attention to clause 28 as well as section 9 of the Act. He also drew my attention to section 190 of the Code of Criminal Procedure as well as section 5 of the Code of Criminal Procedure. I shall refer to these provisions in the later part of my judgment.

13. C P. and Berar Letting of Houses and Rent Control Order, 1949 is issued under section 2 of the Act. Under this Order clause 14-A reads as under:

No landlord shall, except with the previous written permission of the Controller, take any steps for discontinuing the supply of water or electricity to a house under occupation of a tenant.

This clause imposes a prohibition on the landlord. In order to show the breach of this clause, it will have to be shown that the relationship of the landlord and tenant existed between the complainant and the accused. The landlord had not obtained the previous written permission of the Rent Controller for discontinuing the supply of water and that the tenant was having a separate water as an amenity for better enjoyment of the tenement in his occupation as a tenant. It is not disputed before me that the complainant Deshpande is a tenant and accused-respondent is a landlord The tenement was allotted to complainant Deshpande in the year 1964. It is also not disputed that in the year 1969 a separate meter for the water tap was given for the enjoyment of the tenement of complainant Deshpande by the landlord i.e. the accused-respondent. It is also not disputed that the meter stood in the name of the landlord in the Municipal record. The bills of the water charges were received by the landlord. They were made available to the tenant and the tenant was paying those bills either directly or through the landlord. On that point there is no dispute because it is common ground that there were arrears of the Municipal Corporation for the water charges. It, therefore, follows from the admitted facts that the complainant Deshpande had a water supply by a separate water meter standing in the name of the accused-respondent landlord. It is also not disputed that no written permission of the Controller has been taken to discontinue the water supply. It is also not disputed that the physical act of disconnection of the water meter has taken place on 15th September 1972. Therefore the only question that arises for consideration is whether the disconnection is done by the landlord or by the Municipal Corporation as contended on behalf of the respondent-accused and as has been held by the learned Magistrate.

14. I find that the learned Magistrate has not only not applied his mind to the evidence in the case, but has drawn wrong conclusions which cannot be supported by the evidence adduced in the case. I am inclined to hold that these conclusions are perverse. The learned Magistrate has discussed that question in paragraphs 8 and 9 of the judgment. Paragraph 8 gives a summary of the evidence and refers to the fact that there was an outstanding balance of arrears of Rs. 100-65 in respect of this meter. The learned Magistrate, therefore, observes that the complainant in his cross-examination stated that he had not paid the bill of water charges and rent of the tenement from 1/2/1972. From this the learned Magistrate draws a conclusion :

Thus in view of Ex, D-32 there is every possibility that Corporation may itself have disconnected the meter in question.

The learned Magistrate has not discussed the evidence of the Overseer Bhagwatiprasad as well as Licensed Plumber Vyas while arriving at this conclusion. The non-consideration of the evidence by the learned Magistrate can be said in the least to be perverse. It would be, therefore, necessary to appraise that evidence to find out whether it goes to support the case of the complainant or it goes to support the case of the respondent-accused.

15. It is true that the entries in the register which are produced by Bhagwatiprasad would be the same if the meter is disconnected by the Municipal Corporation or is disconnected at the instance of the owner, namely, the landlord of the tenant. However, there would not be a deposit of disconnection in case the Municipal Corporation disconnects the water meter. There is a fee of Rs. 2/- paid to the Corporation for obtaining its permission to disconnect the meter. There is also a receipt issued to one Vyas who is a licensed plumber who deposited the meter in the Municipal Corporation If the Municipal Corporation has suo motu taken an action, then there was no necessity of a receipt of deposit of meter being issued to Vyas the licensed plumber. The very fact that a receipt is issued to Vyas in respect of deposit of that meter which is disconnected goes to show that Vyas was responsible for disconnecting it after obtaining the necessary permission of the Municipal Corporation. Bhagwatiprasad is not suggested in the cross-examination that because of the arrears the Municipal Corporation suo motu disconnected the meter. If it was true, as is being contended before me, that the Municipal Corporation may have taken suo motu action nothing prevented the accused-respondent who was represented by an advocate to cross-examine Bhagwatiprasad and to ask him that it was Municipal Corporation who suo motu disconnected the meter. There is no cross-examination to that affect and that itself goes to show that the Municipal Corporation must not have taken suo motu action, though there were arrears.

16. The dates are very telling in the instant case. The arrears of water tax upto 19-8-1972 amounted to Rs. 100.65. From the suggestions made to the complainant, it appears that he was in arrears not only of the water tax. but also of the house rent and this in all probability may have induced the landlord to take steps of discontinuance because the physical act of discontinuance of the water meter is taken on 15th of September 1972 This inference can be drawn from the evidence of Vyas, the licensed plumber. Vyas in the instant case has categorically stated that he was employed to do that work by accused. Accused came and told him that he wanted to disconnect a particular water meter. He filled the application. Accused signed that application in his presence, paid him Rs. 2/- and Vyas took further steps. He got the order of the Municipal Corporation, got the water connection disconnected and thereafter deposited the water meter in the Municipal Corporation and handed over all the receipts to the accused.

17. The only suggestion worth the mark made to him was that the accused was not acquainted with Vyas. Vyas denied that fact. Though the accused in his statement under section 342, Code of Criminal Procedure, says and characterises the evidence of Vyas as false, still Vyas was not suggested that what he was deposing was false. There appears to be no earthly reason for Vyas to come to the Court and to depose against the accused. It is not even suggested that Vyas has been engineered by the complainant or by the Municipal Corporation. Shri Ghatpande submitted that the original application is not coming forth and the Municipal Corporation might have disconnected the meter because of the arrears. It is true that the application has not been produced. Bhagwatiprasad has given explanation that it was not available as it could not be traced even after diligent efforts of tracing it. It, therefore, follows that it is lost. But simply because there is no application on record, one cannot jump to the conclusion that the Municipal Corporation disconnected the meter because of the arrears. There is enough evidence to connect the accused with the disconnection and that evidence is the evidence of Vyas which I have discussed. It, therefore, follows that it was the accused who got the water meter disconnected and stopped the water supply of complainant Deshpande and has, therefore, committed the mischief under Clause 14-A of the order. The learned Magistrate, therefore, on facts was in error in holding that there was every possibility that the Corporation may itself have discontinued the meter in question. It is also not necessary for me to consider whether the well water is available. It is seen that from 1969 a separate water meter is given to the tenant. He is in enjoyment of a separate water tap. He was getting the water from that water tap. Because of the disconnection of the meter the water tap could not be used for drawing water. Therefore, it will have to be held that the landlord in the instant case has committed a breach under clause 14-A of the Order.

18. After having so held on facts, the next question that arises for consideration is whether on the report in the instant case which has been given by police officer, the Magistrate could take cognizance of it or not. If he could not take cognizance, then finding of acquittal will have to be confirmed. If he could take cognizance, then the learned Magistrate was in error in acquitting the accused.

19. In order to appreciate the submissions, it is necessary to refer to section 5 of the Act. Section 5 relates to cognizance of offences. It reads:

No Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by the person aggrieved by such offence or by a person who is a public servant as defined in section 21 of the Indian Penal Code.

The plain reading of the section is that the Court shall take cognizance of any offence punishable under this Act if there is a report in writing of the facts constituting such offence made by the aggrieved person or by a person who is a public servant as defined in section 21 of the Indian Penal Code. There is no dispute in the instant case that there is a report in writing of the facts constituting such offence. It will have to be also accepted that there is no report in writing of the facts constituting such offence by the complainant Deshpande. It appears that the complainant Deshpande on the day when the police filed a charge-sheet gave a complaint to the Police Sub-Inspector. That was also produced along with the charge-sheet and an argument was made before the Magistrate that there was a complaint by an aggrieved person. It is not necessary to go into that question because no report has been made directly by the complainant to the Magistrate and no reliance was placed on that report of Shri Deshpande given to the police officer as a report to the Magistrate in the instant case on behalf of the learned special authorised Government Pleader. Reliance is only placed on the latter part of section 5 that a report in of the facts constituting an offence was made by a public servant, namely, police officer. It is not disputed that Police Sub-Inspector is a public servant as a defined in section 21 of the Indian Penal Code. Therefore, reading the section in its plain grammatical meaning, it follows that if there is a report by a public servant in writing of the facts constituting such an offence about which there is no dispute, then the Court shall take cognizance of such offence. Reading section 5, I am inclined to hold that the learned Magistrate was in error in holding that the police cannot file a report and, therefore, as there was no proper report the Court could not take cognizance of the offence.

20. Shri Ghatpande, learned Advocate for the respondent submitted that though the word public servant is referred in section 5 of the Act, it cannot be taken generally to be any public servant for the purposes of making a report to enable the Court to take cognizance under section 5 of the Act. He submits that this inference can be drawn by reading section 9 of the Act and clauses 28 and 29 of the Order. Section 9 reads as under:

Any authority under an Order made under section 2 may, if the said order so provides, take or cause to be taken, such steps and use, or cause to be used, such force as may, in the opinion of such authority, be reasonably necessary for securing compliance with, or for preventing or rectifying any contravention of such Order or for the effective exercise of such power.

Section 9, therefore, lays down that the authority can take or cause to be taken such steps or force which would reasonably be necessary for securing compliance with or for preventing or rectifying any contravention of such Order or for the effective exercise of such power. Shri Ghatpande emphasised the word "rectifying" and the plain meaning of rectifying, urged Shri Ghatpande, is to put it in order and, therefore, the authority can put in order, namely, the breach committed of clause 14-A of the Order, that is to put in order the disconnection of the water supply.

21. He then drew my attention to clauses 28 and 29, clause 28 (1) reads as under:

The Deputy Commissioner may take or cause to be taken such steps and use or cause to be used such force as may, in his opinion, be reasonably necessary for the purpose of securing compliance with, or for preventing or rectifying any contravention of this Order or for the effective exercise of such power.

Clause 28 does enable the Deputy Commissioner to take or cause to be taken such steps or use such force which in his opinion would be reasonably necessary for securing compliance of the Order or for preventing or rectifying any contravention of the Order or for the effective exercise of such power. There cannot be any dispute for this proposition that the Deputy Commissioner can take steps in the sense that he may direct the landlord to connect the water supply which he has disconnected or the Deputy Commissioner may if so desires file a complaint under section 5.

22. Clause 29 deals with the authorization by the Deputy Commissioner to take steps which he could have taken under clauses 23, 24, 24-A, 25 and 28. However, reading section 9 of the Act as well as clauses 28 and 29 of the Order, I am unable to agree with the submissions of Shri Ghatpande that the Deputy Commissioner alone or the person authorised by the Deputy Commissioner alone is to be taken as a person who can make a report. That will be, in my opinion, restricting the meaning of public servant used in section 5 of the Act. If the Legislature wanted that the authority under the C. P. and Berar Rent Control Order has alone to initiate the proceedings, then the Legislature would have stated that the complaint may be by the aggrieved person or by the authority empowered to do it under clause 28 or clause 29 of the Order. The Legislature in its wisdom has thought to use the word public servant and the Legislature has qualified who can be that public servant. It says the public servant as defined in section 21 of the Indian Penal Code. The plain meaning of section 5, therefore, in my opinion, would be that if there is a report by any public servant who can be styled as public servant under section 21 of the Indian Penal Code, then the Magistrate has to take cognizance if the report is in writing and contains facts constituting an offence under the Act or the Order.

23. Section 190 of the Code of Criminal Procedure is in Chapter XV dealing with the jurisdiction of Criminal Courts. Clause (b) lays down the conditions requisite for initiation of proceedings. Section 190 is with respect to cognizance of offences by Magistrates. It lays down that the Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitute an offence, upon a report in writing of such facts made by any police, officer, upon information received from any person other than a police officer or upon his own knowledge or suspicion that such offence has been committed. This offence is under the Special Act. Therefore, the provisions of section 190 would not apply in the instant case because there is a specific section, namely, section 5 of the Act, dealing with cognizance of offences. Shri Ghatpande urged that under the provisions of the Code of Criminal Procedure the Magistrate can take cognizance upon a report in writing made by any police officer. If the Legislature wanted that the Magistrate should take cognizance on report of a police officer, then there was no necessity of enacting section 5. I am unable to agree with the submission. Section 190, as stated above, refers to taking cognizance in three respects. The third clause is that the Magistrate can take cognizance upon information received from any person other than police officer. Whether that person may be aggrieved or may not be aggrieved with that offence or upon his own knowledge or suspicion that such offence has been committed. This particular clause is not to be found in section 5 of the Act. Section 190, Code of Criminal Procedure, therefore, cannot be invoked to find out what was the intention of the Legislature in drafting section 5. We have to read section 5 plainly and find out its plain meaning I have already given the plain meaning and it can be said that a Magistrate can take cognizance on a report made by a police officer in respect of the facts constituting the offence either under the Act or under the Order.

24. My attention was drawn by Shri Ghatpande to the Second Schedule of the Code of Criminal Procedure and especially to the Schedule dealing with the offences against other laws and it was pointed out that in respect of offences under the other Acts punishable with imprisonment for one year but less than three years the police officer shall not arrest without warrant. He, therefore, urged that it was a non-cognizable offence and as such police officer could not have investigated it. We are not on the point of investigating by a police officer and it is not necessary to decide whether the investigation is regular or irregular when permission of the Magistrate is not obtained. We are on a simple point whether the Magistrate can take cognizance of an offence about which a report is made by a police officer. I am inclined to hold that under section 5 the Magistrate has to take cognizance on a report of a police officer if it shows facts constituting an offence. I, therefore, hold that the learned Magistrate was in error in acquitting the accused.

25. After having so held, the next question that arises for my consideration is what sentence I should award to the accused. I am told at the Bar that within six months from the date of the complaint the meter is restored to the complainant. The meter now stands in the name of the complainant. Taking all these facts into consideration, I am inclined to hold that a fine of Rs. 100 would meet the ends of justice. I, therefore, pass the following order.

26. Accused is held guilty and convicted under clause 14-A of the C. P. and Berar Rent Control Older, 1949 read with section 8 of the Act and is fined to pay Rs. 100. In default of payment of fine he is sentenced to suffer rigorous imprisonment for 3 months. Time of one month is granted for payment of fine.