M/S. SHWAS HOMES PVT. LTD. v. State of Kerala and Biju Lucose

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 16TH DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944 ``` ``` CRL.MC NO. 704 OF 2021 ``` ``` [TO QUASH S.T.NO.33/2020 IN C.C.NO.37/2012 ON THE FILE OF CONSUMER ``` ``` DISPUTES REDRESSAL COMMISSION (FORUM), ERNAKULAM] ``` ## `- PETITIONER/ACCUSED:` ``` M/S. SHWAS HOMES PVT. LTD., REPRESENTED BY ITS MANAGING DIRECTOR-SREENI PARAMESWARAN, VILLA NO.1, MYSTIC BELLS, GROUND FLOOR, KANIYAMPUZHA ROAD, EROOR P.O, ERNAKULAM DISTRICT. BY ADVS. S.VINOD BHAT KUM.ANAGHA LAKSHMY RAMAN SMT.GREESHMA CHANDRIKA.R ``` ## `RESPONDENTS/STATE AND COMPLAINANT:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2BIJU LUCOSE, S/O. T.A. LUCOSE, HOUSE NO. A/2, VRINDAVAN COLONY, CHEVAYOOR P.O, KOZHIKODE, REPRESENTED BY POWER OF ATTORNEY HOLDER T.A. LUCOSE, HOUES NO. A/2, VRINDAVAN COLONY, CHEVAYOOR P.O, KOZHIKODE, PIN 673 017. R2 BY ADVS. SRI.SHYAM PADMAN SMT.BOBY M.SEKHAR SRI.C.M.ANDREWS KUM.LAYA MARY JOSEPH SRI.HARISH ABRAHAM R1 BY SRI.SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16.09.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.MC No.704/2021 2 ``` O R D E R ``` ``` The petitioner is the accused in S.T.No.33/2020 in C.C.No.37/2012 on the file of the Consumer Disputes Redressal Commission (Forum), Ernakulam. This Crl.M.C. is filed by the petitioner challenging Annexure-A1 summons issued to the petitioner under ``` ``` Section 72 of the Consumer Protection Act, 2019, ``` ``` requiring him to appear in person or by pleader before the Commission for non compliance with the directions issued by the Commission as per Annexure- A3 order. ``` ``` 2.The facts which led to the filing of this Crl.M.C. are as follows: ``` ``` C.C.No.37/2012 was filed by the 2[nd] respondent ``` ``` alleging deficiency of service and unfair trade practice on the part of the petitioner herein. As per Annexure-A3, the complaint submitted by the 2[nd] ``` ``` respondent was allowed and a direction was issued to the petitioner herein to pay compensation to the complainant as per the terms of the agreement dated ``` Crl.MC No.704/2021 3 ``` 15.8.2010 and also to pay an amount of Rs.10,000/- as ``` ``` costs to the proceedings. Even though the Annexure-A3 order was challenged by the petitioner before the State Consumer Disputes Redressal Commission, Thiruvananthapuram (hereinafter referred to as ‘State Commission’), National Consumer Disputes Redressal Commission (hereinafter referred to as ‘National Commission’) and finally before the Hon’ble Supreme Court, all the challenges raised by the petitioner were rejected and thus Annexure-A3 has become final. ``` ``` 3.Subsequent to the dismissal of the Special Leave Petition by the Hon’ble Supreme Court, the 2[nd] respondent submitted an application for prosecution, which forms part of Annexure-A1. The aforesaid application was submitted under Section 27 of the Consumer Protection Act, 1986 even though by that time, Consumer Protection Act, 2019 came into force. The District Consumer Disputes Redressal Commission issued a summons directing the appearance of the petitioner to answer the charge under Section 72 of the Consumer Protection Act, 2019 for not complying ``` Crl.MC No.704/2021 4 ``` with the Annexure-A3 order. This Crl.M.C. is filed in ``` ``` such circumstances, challenging the issuance of summons. The petitioner is challenging the authority of the District Consumer Disputes Redressal Commission to invoke the prosecution as contemplated ``` ``` under Section 72 of the Act for the purpose of enforcing the orders of the court. According to the ``` ``` petitioner, enforcement of the orders can be sought only by resorting to the procedure contemplated under Section 71 of the Act. ``` ``` 4.Heard Sri. S. Vinod Bhat, the learned counsel ``` ``` for the petitioner, Sri. Sudheer Gopalakrishnan, the ``` ``` learned Public Prosecutor for the State and ``` ``` Sri.Shyam Padman, the learned counsel for the 2[nd] ``` ``` respondent. ``` ``` 5.The petitioner raised several contentions ``` ``` challenging the power of the District Commission in the matter of invoking the powers under Section 72 of ``` ``` the Act. However, the learned counsel appearing for the 2[nd] respondent raised a question as to the maintainability of this Crl.M.C, by highlighting that ``` Crl.MC No.704/2021 5 ``` the proceedings under Section 72 of the Act are not a ``` ``` proceeding under the provisions of the Code of Criminal Procedure (Cr.PC) but on the other hand governed by a special procedure contemplated under ``` ``` the Consumer Protection Act, 2019. Therefore, it was ``` ``` contended that the powers of this Court under Section ``` ``` 482 Cr.PC cannot be invoked. It is further pointed out that, Section 73 of the Consumer Protection Act, 2019 provides for an appeal against any order passed ``` ``` by the District Commission to the State Commission under Section 72 of the Act. Therefore, the ``` ``` preliminary question that has to be decided is whether this Crl.M.C. is maintainable at all. ``` ``` 6.The learned counsel for the petitioner ``` ``` contended that, by virtue of the deeming provision contained in Section 72(2) of the Consumer Protection Act, 2019, the District Commission is a Judicial First Class Magistrate Court and hence this Court is empowered to invoke the power under Section 482 of the Cr.PC. ``` Crl.MC No.704/2021 6 ``` 7.To examine the aforesaid contention, first of ``` ``` all, we should consider the statutory stipulations contained in the Consumer Protection Act, 2019. ``` ``` Sections 72 and 73 of the Consumer Protection Act, 2019 which read as follows: ``` ## `“72 : Penalty for noncompliance of order` ``` 72. (1) Whoever fails to comply with any order made by the District Commission or the State Commission or the National Commission, as the case may be, shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty-five thousand rupees, but which may extend to one lakh rupees, or with both. ``` ``` (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the District Commission, the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of first class for the trial of offences under sub-section (1), and on conferment of such powers, the District Commission or the State Commission or the National Commission, as the case may be, shall be deemed to be a Judicial Magistrate of first class for the purposes of the Code of Criminal Procedure, 1973 (2 of 1974). ``` ``` (3) Save as otherwise provided, the offences under sub- section (1) shall be tried summarily by the District Commission or the State Commission or the National Commission, as the case may be.” ``` ## `“73. Appeal against order passed under section 72` ``` (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, where an order is passed under sub-section (1) of section 72, an appeal shall lie, both on facts and on law from- ``` Crl.MC No.704/2021 7 ``` (a) the order made by the District Commission to the State Commission; ``` ``` (b) the order made by the State Commission to the National Commission; and ``` ``` (c) the order made by the National Commission to the Supreme Court. ``` ``` (2) Except as provided in sub-section (1), no appeal shall lie before any court, from any order of a District Commission or a State Commission or the National Commission, as the case may be. ``` ``` (3) Every appeal under this section shall be preferred within a period of thirty days from the date of order of a District Commission or a State Commission or the National Commission, as the case may be: ``` ``` Provided that the State Commission or the National Commission or the Supreme Court, as the case may be, may entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period of thirty days.” ``` ``` It is discernible from the above provisions that, for ``` ``` challenging an order passed by the District ``` ``` Commission under Section 72(1)of the Act, a specific ``` ``` statutory remedy is contemplated under Section 73(1) ``` ``` of the Act. One of the crucial aspects to be noticed ``` ``` in this regard is the statutory scheme of the ``` ``` Consumer Protection Act, 2019. The hierarchy of ``` ``` the forums contemplated in the Act, 2019 does not have a place for the High Court. The ``` ``` authorities specifically referred to in Consumer ``` ``` Protection Act are the District Consumer Disputes ``` ## Crl.MC No.704/2021 8 ``` Redressal Commission, State Consumer Disputes ``` ``` Redressal Commission and National Consumer Disputes Redressal Commission. Challenging the orders passed by the National Consumer Disputes Redressal Commission, a provision for appeal is provided to the Hon’ble Supreme Court. Therefore, at any level of the hierarchy, High Court is not included. The question whether the High Court can interfere with the orders passed by the District Forum or the State Commisison, which were constituted under the Consumer Protection Act, 1986 (which contained similar provisions) is already settled by the Hon’ble Supreme Court as well as this Court through various decisions. In Nivedita Sharma v. Cellular Operators Association of India and Others [(2011)14 SCC 337] the Hon’ble Supreme Court considered the challenge against an order passed by this Court interfering with the order passed by the State Commisison. In the said judgment, it was ``` ``` observed as follows: ``` ``` “18. The 1986 Act was enacted for better protection of the interests of consumers by making provision for the establishment of consumer councils and other authorities for the settlement of consumer disputes. ``` ## Crl.MC No.704/2021 9 ``` The object and purpose of enacting the 1986 Act is to provide for simple, inexpensive and speedy remedy to the consumers who have grievance against defective goods and deficient services. This benevolent piece of legislation intended to protect a large body of consumers from exploitation. ``` ``` 19. Prior to the 1986 Act, consumers were required to approach the Civil Court for securing justice for the wrong done to them and it is a known fact that decision of the litigation instituted in the Civil Court could take several years. Under the 1986 Act, the consumers are provided with an alternative, efficacious and speedy remedy before consumer forums at district, State and national level. ``` ## `xxxx xxxx xxxx` ``` 24. S.19 provides for remedy of appeal against an order made by the State Commission in exercise of its powers under sub-clause (i) of Clause (a) of S.17. If S.11, S.17 and S.21 of the 1986 Act which relate to the jurisdiction of the District Forum, the State Commission and the National Commission, there does not appear any plausible reason to interpret the same in a manner which would frustrate the object of legislation. ``` ``` 25. What has surprised us is that the High Court has not even referred to S.17 and S.19 of the 1986 Act and the law laid down in various judgments of this Court and yet it has declared that the directions given by the State Commission are without jurisdiction and that too by overlooking the availability of statutory remedy of appeal to the respondents. ``` ``` 26. We also find that the High Court has taken cognizance of the statement made on ``` ## Crl.MC No.704/2021 10 ``` behalf of the counsel for the petitioners that their clients would challenge Clause (iii) of para 38 of the State Commission's order by filing an appeal under S.19 of the Act and the fact that one of the aggrieved parties, namely, American Express Bank Limited has already filed an appeal questioning paragraph 38(iii) of the order of the State Commission. After having noticed that some of the petitioners were inclined to avail the remedy of appeal against the particular portion of the order passed by the State Commission, the High Court should not have entertained the writ petition filed under Art.226 of the Constitution and the miscellaneous petitions filed under Art.227 of the Constitution and directed them to avail remedy of appeal under S.19 of the 1986 ``` ``` Act... " ``` ``` 8.The aforesaid observations were taken note of ``` ``` by the Division Bench of this Court inRegional Cancer Center v. Kerala State Consumer Dispute Redressal Commission, Vazhuthacaud and Ors. [2021(5) KHC 236] and Cicily Kallarackal v. Vehicle Factory ``` ``` [(2012) 8 SCC 524]. In Regional Cancer Center’s case ``` ``` (supra), it was observed in paragraph 14 as follows. ``` ``` “14. The Consumer Protection Act, 1986 is a self contained and a complete mechanism for redressal of the consumers related grievances by filing complaint, appeal and revision from the District Forum up to the Supreme Court subject to limits of jurisdiction provided therein. When hierarchy of ``` Crl.MC No.704/2021 11 ``` remedies are provided under the Consumer Protection Act, 1986, the appellant has to avail the remedy under the said Act. Ext.P10 order passed by the State Commission is revisable before the National commission under S.21(b).” ``` ``` 9.Thus, it is evident that, since the Consumer ``` ``` Protection Act is a self contained code which provides for a separate procedure for proceedings under the said Act, including the manner in which the ``` ``` orders passed by the Forums created under the Act have to be challenged, it was held that the High Court could not entertain the challenge against the ``` ``` orders passed by any of the Forums created by the Act ``` ``` invoking the powers under Article 226 of the Constitution of India. Thus, the challenge against ``` ``` the orders passed on its original side, cannot be entertained by the High Court invoking the powers under Article 226 of the Constitution of India, ``` ``` under normal circumstances. ``` ``` 10.Thus, when the jurisdiction of this Court ``` ``` cannot be invoked in respect of original proceedings contemplated under the Act, under no circumstances, can it be held that the said power would be available ``` Crl.MC No.704/2021 12 ``` for the High Court in respect of a challenge against ``` ``` the proceedings for executing the orders passed by the Forums on its original side. ``` ``` 11.The contention of the learned counsel for the ``` ``` petitioner regarding the sustainability of this ``` ``` Crl.MC is by mainly placing reliance upon sub-section ``` ``` (2) of Section 72 of the Act. It is true that, the ``` ``` aforesaid provision confers the power of the Judicial ``` ``` First Class Magistrate Court upon the District ``` ``` Commission, State Commission and National Commission. ``` ``` However, the crucial aspect to be noticed is that, ``` ``` the aforesaid powers are conferred upon the said ``` ``` Commissions, to initiate proceedings for non- ``` ``` compliance with the orders passed by the said ``` ``` authorities. As far as the question of non compliance ``` ``` with the orders passed by a forum and consequences ``` ``` thereof are concerned, the same are practically in ``` ``` the nature of civil contempt. To establish the ``` ``` aforesaid aspect, the learned counsel for the 2[nd] ``` ``` respondent places reliance upon a decision rendered by theHigh Court of Allahabad in Ghaziabad ``` Crl.MC No.704/2021 13 ``` Development Authority and Ors. v. Union of India (UOI) and Ors. [2003 ILR 3 AII 835]. In the said decision, the nature of powers that are being exercised by a Forum while initiating proceedings under Section 27 of the Consumer Protection Act, 1986 which is the corresponding provision to Section 72 of the Consumer Protection Act, 2019 was considered. In ``` ``` the said decision, it was observed as follows: ``` ``` “19. Thus, criminal contempt means scandalizing the Court or lowering its authority or Interfering with the Court of Justice. On the other hand, civil contempt means disobedience of any order of the Court and the purpose of civil contempt is to compel obedience of the order of the Court. The principal object of civil contempt proceedings is hence to secure enforcement of the order of the Court vide State v. Dasrath Jha MANU/BH/0211/1950 : AIR 1951 Pat443 ; Vidya Sagar v. IIIrd Additional District Judge, 1991 (2) AWC 869 : 1991 ALJ 816 ; C.S. Majoo v. Administrator General, 1964 (1) Cr LJ 449 ; In re Swaminathan, MANU/TN/0091/1955 : AIR1955Mad121 ; Bhagwati Prasad Tripathi v. Sri Raj Vir Singh 1986 (2) ARC 385, etc. ``` ``` 20. A perusal of Section 27 clearly shows that proceedings therein are in the nature of proceedings for civil contempt, and their object is to compel obedience of the orders of the District Forum, State Commission or the National Commission. 21. Once this aspect is understood, it will be immediately realized that the submission of the learned counsel for the petitioner that the proviso to Section 27 is unconstitutional as it has not ``` Crl.MC No.704/2021 14 ``` provided for any procedure for the trial is totally misconceived. The proceedings under Section 27 are really not ordinary criminal proceedings in respect of offences under the I.P.C. or some other statute. The proceedings under Section 27, as stated above, are really in the nature of civil contempt proceedings. Hence, the only procedure required in these proceedings is that the principles of natural justice should be complied with. ``` ``` 22. It may be mentioned that under the Contempt of Courts Act, 1952, there was no procedure for the contempt of court proceedings and only the well- settled customary principles were applicable to such proceedings. No doubt under the Contempt of Courts Act, 1971 and Chapter 35E of the Allahabad High Court Rules, the procedure for contempt of court proceedings in the Allahabad High Court has been prescribed, but in our opinion, this procedure need not be followed by the District Forum, State Commission or the National Commission in proceedings under Section 27. Hence, the District Forum, State Commission or the National Commission need only to follow the rules of natural justice in respect of such proceedings, ``` ``` 23. It appears that Parliament has specifically enacted Section 27 so as to give teeth to the provisions of the Consumer Protection Act. Had there been no provision for enforcement of the orders of the authorities under the Act, the entire purpose of the Statute would have been frustrated as nobody would obey the orders of these authorities. Without the sanction of Section 27, the entire consumer jurisdiction would only be a paper tiger lacking teeth.” ``` ## `12. I fully agree with the view taken by the High` ``` Court of Allahabad. As held therein, the proceedings ``` Crl.MC No.704/2021 15 ``` initiated under Section 72 of the Act are in the form ``` ``` of civil contempt and cannot be equated with the ordinary criminal proceedings for which the inherent powers of this court under Section 482 of Cr.p.C can ``` ``` be extended. In other words, merely because of the ``` ``` reason that, to punish a person who refuses to comply ``` ``` with the orders passed by the said Court, the powers of a Judicial First Class Magistrate Court are conferred upon the respective Commissions, the said ``` ``` proceedings would not become a criminal proceeding so ``` ``` as to invoke the powers under Section 482 Cr.PC. The crucial aspect to be noticed in this regard is that, sub-section (2) of Section 72 of the Act, which ``` ``` confers powers of a Judicial First Class Magistrate Court upon the Commissions constituted under the ``` ``` Consumer Protection Act, starts with a non-obstante clause namely,“Notwithstanding anything contained in ``` ``` the Code of Criminal Procedure, 1973”.Similarly, ``` ``` Section 73 of the Consumer Protection Act, which provides for an appellate remedy against the orders passed under Section 72 of the Act, also starts with ``` Crl.MC No.704/2021 16 ``` a non-obstante clause to the effect that ``` ``` “Notwithstanding anything contained in the Code of ``` ``` Criminal Procedure, 1973”. From the above, the scheme ``` ``` of the Act is clearly revealed and it conveys that the powers of the Judicial First Class Magistrate, are conferred upon the Commissions, for a very limited purpose of enforcing the orders passed by the said Commissions. This would mean that, when an order ``` ``` is passed or proceedings are initiated under Section ``` ``` 72 of the Consumer Protection Act, 2019, the remedy ``` ``` contemplated against the same is only an appeal as provided under Section 73 of the Act, notwithstanding anything contained in the Code of Criminal Procedure, ``` ``` 1973. In other words, the non obstante clause contained in Sections 72(2) and 73 of the Act would exclude the invocation of the powers of this Court under Section 482 of Cr.PC, when it comes to the challenge against the orders or proceedings under the provisions of the Act. ``` ``` 13.In Vijayan v. K. Ramya [2015(4) KHC 789], a ``` ``` Single Bench of this Court considered the scope of ``` Crl.MC No.704/2021 17 ``` invocation of powers under Section 482 Cr.PC in ``` ``` respect of a challenge against the proceedings under the Protection of Women from Domestic Violence Act, 2005. In the said decision, it was observed as follows: ``` ``` “2. On hearing both sides, I find that such a relief cannot be granted under S.482 of CrPC. DV Act is a self contained Act containing the procedure for proceedings therein. Admittedly, the Trial Court has not passed any order in the proceedings. If there is any such interim order or final order, the remedy against the order is provided under the Act itself. Just a proceeding brought under the DV Act cannot be questioned or challenged under S.482 of CrPC. For the High Court to invoke the powers under S.482 of CrPC, there must be some proceeding under the CrPC. When proceedings under the DV Act are governed by that Act itself, which is a self contained Act, the parties to such a proceeding will have to find remedies under the Act, or if remedy is not possible under the said Act, the parties will have to approach the High Court under Art.227 of the Constitution of India” ``` ``` The observations made in the said decision, even though it was in respect of a different enactment, would fortify the view that I had taken. ``` ``` 14.There is yet another aspect which goes ``` ``` against the petitioner. In this case, what is under ``` Crl.MC No.704/2021 18 ``` challenge is only a summons. The petitioner is challenging the power of the District Commission to issue such summons. Nothing precludes the petitioner from raising this question before the District Commission itself. Without even raising such contention before the said forum, the petitioner rushed to this Court by filing this Crl.M.C under Section 482 Cr.PC. The facts would reveal that the 2[nd] respondent is pursuing his remedies under the Consumer Protection Act, 1986 from the year 2012 onwards and the order passed in his favour stands confirmed by the Hon’ble Supreme Court as well, and thus, it attained its finality. At this juncture, the filing of a Crl.M.C of this nature, raising a hyper- technical contention as to the maintainability of the execution proceedings, can only be treated as an attempt on the part of the petitioner to prolong the proceedings and to get away from the obligation imposed upon him by the order passed as per Annexure- A3. ``` ``` In such circumstances, I do not find any reason ``` Crl.MC No.704/2021 19 ``` to entertain this Crl.M.C, as the same does not have ``` ``` merits. Accordingly, this Crl.M.C. is dismissed. However, it is made clear that the dismissal of the ``` ``` Crl.M.C. shall be without prejudice to the contentions raised by the petitioner as to the jurisdiction of the District Commission to initiate proceedings under Section 72 of the Consumer Protection Act, 2019. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` pkk ``` Crl.MC No.704/2021 20 ## `APPENDIX OF CRL.MC 704/2021` |`PETITIONER’S`|`ANNEXURES:`| |---|---| |`ANNEXURE A1`|`COPY OF THE PROSECUTION PETITION NO.S.T.`| ||`NO.33/2020 IN C.C 37/2012 OF CONSUMER`| ||`DISPUTES REDRESSAL COMMISSION, (FORUM),`| ||`ERNAKULAM WITH SUMMONS.`| |`ANNEXURE A2`|`COPY OF THE COMPLAINT C.C. 37/2012 OF`| ||`CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.`| |`ANNEXURE A3`|`COPY OF THE ORDER DATED 28.11.2014 IN C.C.`| ||`NO.37/2012 OF CONSUMER DISPUTES REDRESSAL`| ||`FORUM, ERNAKULAM.`|