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2013 DIGILAW 305 (AP)

Ajay Kumar Agarwal v. State of Andhra Pradesh

2013-04-22

R.Kantha Rao

body2013
ORDER This criminal petition is filed under Section 482 Cr.P.C., to quash the First Information Report in Crime No.322 of 2012 on the file of the Charminar Police Station, Hyderabad. 2. Heard the learned Counsel for the petitioner and the learned Additional Public Prosecutor representing the State. 3. The Conservation Assistant Incharge, Charminar, Hyderabad had sent a written report to the Station House Officer, Charminar Police Station, Hyderabad alleging that one unauthorized construction of Shiva Temple, near Charminar, Hyderabad, vide D.No.21-2-246 is being carried out by Sri Ajay Kumar Agarwal S/o. Vijay Kumar Agarwal, the petitioner herein, and the aforesaid construction falls within the prohibited area within 100 meters from Charminar, a centrally protected Monument, and it is in contravention of the provisions of Rule 33 of the Ancient Monuments and Archaeological Sites and Remains Rules 1959 as amended by the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010 (10 of 2010) (for short 'the Act'). It is also mentioned in the said report that a show-cause notice was issued to the petitioner on 21.8.2012, but the same was not replied by the petitioner. The Conservation Assistant made a request to the SHO, P.S. Charminar to file FIR against the petitioner. 4. The SHO, P.S. Charminar received the said report on 16.11.2012, made an entry in the General Diary and communicated to the de facto complainant stating that the provisions of Section 30A and B of the Act are non-cognizable in nature and advised him to approach the Magistrate concerned. Thereafter, it seems that the petitioner filed a complaint before the Chief Metropolitan Magistrate, Nampally and that the learned Magistrate forwarded the case to the SHO, Charminar Police Station for the purpose of investigation. On-receiving the same, the SHO, Charminar P.S., registered a case in Crime No.322 of 2012, which is now sought to be quashed in the FIR. 5. In this context, it is required to be noticed that one Mr. Syed Khaleelullah, a practising Advocate, filed WP No.393 of 2012 under the Public Interest Jurisdiction, seeking issuance of a writ of mandamus, declaring the inaction on the part of the respondents therein, wherein the Director General of Police, District Collector, Hyderabad, Commissioner of Police, Hyderabad City and others were respondents. Syed Khaleelullah, a practising Advocate, filed WP No.393 of 2012 under the Public Interest Jurisdiction, seeking issuance of a writ of mandamus, declaring the inaction on the part of the respondents therein, wherein the Director General of Police, District Collector, Hyderabad, Commissioner of Police, Hyderabad City and others were respondents. A direction was sought by the petitioner therein to remove the structures allegedly raised by the petitioner herein, before a Division Bench of this Court. The Secretary of the 10th respondent Mahadev Mandir Temple Committee, Charminar, Hyderabad filed counter-affidavit contending inter alia that the Shiv Mandir has been in existence since 1950 and the construction works carried out by the Office Bearers of the Temple are only renovation and repair works and that they were not aware of the fact that for renovation or repair work, permission from the competent authority under Section 20C of the Act was required. He specifically stated in the counter-affidavit that they did not increase the height and width of the existing structure. It was further contended that after the interim order passed by the Division Bench was communicated, the Temple Committee stopped further renovation and repair works and obtained legal advise and thereafter made two different applications both to the Municipal Authorities and competent authority under the Act. It was also undertaken by the Temple Committee that they would not proceed with any further renovation and repair works. 6. Upon hearing both the parties, the Division Bench of this Court passed the following order : "In view of the above, we intend to dispose of this matter after keeping it on record that whatever steps would be taken by the 10th respondent shall be keeping in view the undertaking given by them before us. It is desirable that the 10th respondent should not commence any repair/renovation works without the authority of law and without having the permission, which is required to be taken from the competent authority. The respondents-authorities to whom the 10th respondent has made the applications on the subject-matter in question, shall consider the same in accordance with the provisions of law." 7. Learned Counsel appearing for the petitioner submits that in view of the order passed by a Division Bench of this Court, the Commissioner of Endowments, Government of Andhra Pradesh, Hyderabad, has to make an enquiry and dispose of the application way-back made by the Temple Committee. Learned Counsel appearing for the petitioner submits that in view of the order passed by a Division Bench of this Court, the Commissioner of Endowments, Government of Andhra Pradesh, Hyderabad, has to make an enquiry and dispose of the application way-back made by the Temple Committee. So far, according to the learned Counsel, the said application was not disposed of and it was not decided by the Commissioner of Endowments or by any competent authority. Therefore, according to the learned Counsel, registering a case against the petitioner by the police and proceeding to investigate is premature and it would result in oppression of the petitioner and other members of the Temple Committee and therefore, the FIR is liable to be quashed. 8. On the other hand, learned Additional Public Prosecutor would submit that since the report was lodged by the Conservation Assistant In-charge, Charminar, Hyderabad alleging that the construction work was done by the petitioner, the police after receiving the said complaint from the Magistrate, can investigate into the offence alleged, and there are no valid grounds to quash the FIR. 9. Sub-section (dc) of Section 2 of the Act defines construction as under : "( dc) "construction" means any erection of a structure or a building, including any addition or extension thereto either vertically or horizontally, but does not include any reconstruction, repair and renovation of an existing structure or building, or, construction, maintenance and cleansing of drains and drainage works and of public latrines, urinals and similar conveniences, or, the construction and maintenance of works meant for providing supply of water of public, or, the construction or maintenance, extension, management for supply and distribution of electricity to the public or provision for similar facilities for public;" 10. Section 30A of the Act provides punishment for construction, etc., in prohibited area. Whereas, Section 30B of the Act provides for punishment for construction, etc., in regulated area and both the provisions attract the penal provision of the Act. 11. The contention of the learned Counsel appearing for the petitioner is that since no construction at all was made and in view of the fact that the structure has been in existence since 1950, the petitioner is not liable for prosecution under Section 30B of the Act. 11. The contention of the learned Counsel appearing for the petitioner is that since no construction at all was made and in view of the fact that the structure has been in existence since 1950, the petitioner is not liable for prosecution under Section 30B of the Act. Learned Counsel would further contend that the competent authority in view of the order passed by the Division Bench in the writ petition, has to dispose of the application made by the Temple Committee and has to record a finding as to whether the activity which was carried on by the petitioner and other Temple Committee Members was only a renovation or a construction and in the absence of any finding, the police shall not investigate into the matter. There is any amount of force in the contention of the learned Counsel appearing for the petitioner. 12. The specific case of the petitioner is that the Shiv Mandir near Charminar has been in existence since 1950 and only renovation and repair work was carried on and the said work was stopped after the interim order passed by the Division Bench in the writ petition. The Division Bench specifically directed the Commissioner of Endowments to consider the application made by the petitioner on the subject-matter in question in accordance with the provisions of law. But, so far, no finding was recorded by any competent authority, after making due enquiry into the issue whether the activity carried on by the petitioner and other Committee Members was a construction or renovation or repairs. In the absence of any such finding by the competent authority, as rightly pointed out by the learned Counsel for the petitioner, launching criminal prosecution is premature. 13. Therefore, considering all aspects of the matter, and the findings recorded by the Division Bench of this Court in Writ Petition No.393 of 2012, I am of the considered opinion that unless there is a finding by the competent authority that a construction was made by the petitioner or any member of the Temple Committee, if the police proceeded to investigate into the matter, it is nothing but abuse of process of law and ultimately it would result in miscarriage of justice. 14. For the foregoing reasons, the criminal petition is allowed and FIR No.322 of 2012 on the file of the Charminar Police Station, Hyderabad is quashed. 14. For the foregoing reasons, the criminal petition is allowed and FIR No.322 of 2012 on the file of the Charminar Police Station, Hyderabad is quashed. The miscellaneous petition filed in this petition also stands disposed of.