- (1.) Heard the learned Counsel for the parties.
(2.) The present petition has been filed under Section 482 of the Code of Criminal Procedure praying that the proceedings arising out of Behala Police Station Case No. 150 of 2012 dated 2nd April, 2012 under Section 11-C/11-J of the West Bengal Fire Services Act, 1950 now pending before the Chief Judicial Magistrate, Alipore, 24-Parganas (S) be quashed. The complaint was lodged by the Station Officer, Behala Fire Station W. B. F. & F. S. stating therein that a big fire broke out in the factory premises of the petitioners on 1st April, 2012 and to extinguish the same 13 numbers of Fire Engines were deployed. It was stated in the complaint that primary investigation was carried out and it was revealed that the factory in question was operating in violation of Section 11C of, the West Bengal Fire Services Act.
(3.) The learned Counsel for the petitioners has placed-reliance upon the judgment rendered by a learned Single, Judge of this Court in the case of Susanta Kumar Bose v. State of West Bengal,2012 2 CalHN 515 to contend that for negligent act and non-maintenance of electric wiring, no person can be prosecuted, unless a prior notice as envisaged under Section 35 of the Act has been served upon the owner/operator of the premises. The operative part of the judgment as relied read as under :- "Though the petitioner had not committed any offence, the opposite party No. 2 has submitted charge-sheet/final report on 27.12.2005 alleging, inter alia, that prima facie charge under section 11C of the West Bengal Fire Services Act, 1950 had been established against the petitioner and another person an the learned Court below has taken cognizance under section 11C of the West Bengal Fire Services Act, 1950 which is bad in law for breach of mandatory provisions of section 11C of the said Act which runs on as follows : "11C. Owner of occupier of high-risk building to provide fire prevention and fire safety measures.- (1) The owner or, where the owner is not traceable, the occupier of a high-risk building or part thereof shall provide fire prevention and fire safety measures in such building or part thereof and the occupier shall maintain the fire prevention and fire safety measures in good repair and in efficient condition at all times in accordance with the provisions of this Chapter or the rules made thereunder. Provided that in the case of such building or part thereof, the construction of which has been completed on any date before the date on which this Chapter comes into force, the occupier and, in the case of such building or part thereof which is under construction on the date immediately before the date on which this chapter comes into force, the owner shall undertake and carry out such additional fire prevention and fire safety measures as are specified in the notice served on him under sectioin 35.' Thus, it is quite clear that due notice is to be served on the owner or occupier of a high risk building to provide fire prevention and fire safety measures as specified in such notice under section 35 of the Act. Learned lawyer for the State in his usual art of fairness has submitted that in the instant case no such notice was issued to the petitioner. Service of such notice before initiation of the proceeding prescribed in the statute is mandatory and such failure is obviously a gross irregularity which vitiates the entire proceeding ab initio Learned lawyer for the petitioner has drawn my attention to a case reported in (2009)1 C Cr LR (Cal) 424, in which this Court quashed similar proceeding for non-compliance of proviso to section 11Cof the Act. I also subscribe to the same view and hold that the same principle will be applicable in the instant case. Accordingly, it is held that since no notice was serve upon the petitioner in respect of the above premises specifying the measures to be taken, question of non compliance of the same leading to institution of instant criminal proceedings is an abuse of this process of law and the instant proceeding is bad for non-compliance of proviso to Section 11C(1) of the West Bengal Fire Services Act, 1950 and the same should be quashed to prevent abuse of the process of the Court.";