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2024 DIGILAW 749 (CAL)

Shyam Sundar Singh v. State of West Bengal

2024-04-08

AJAY KUMAR GUPTA

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JUDGMENT : Ajay Kumar Gupta, J. : 1. Learned counsel appearing on behalf of the Petitioner/accused submits that by a judgment and order dated 07.05.2018 passed in Criminal Appeal No. 56 of 2016, the Learned Appellate Court below dismissed the appeal and affirmed the conviction and sentence passed under Section 401A KMC Act by the Learned Municipal Magistrate, 4th Court, Kolkata in M/F No. 28 of 2015 but during pendency of the case, the Municipal Authority has regularised the unauthorized construction of additional floor made on the sanctioned building Plan of G+III. 2. It is further submitted that two separate appeals filed by the two accused persons being CRR No. 2033 of 2018 and CRR No. 2034 of 2018. Out of those two appeals, one appeal being CRR No. 2033 of 2018 has been disposed by co-ordinate Bench of this Court and thereby remanded the case back to the learned Municipal Magistrate, 4th Court, Kolkata vide judgment and order dated 29.03.2022 with certain directions. The present petitioner is also standing in the same footing as such this instant case also may be remanded back for proper, fair and effective disposal of the main case. 3. On the other hand, learned counsels appearing on behalf of the State and Kolkata Municipal Corporation on their usual practice and candidly submitted similar judgment may be passed in this revisional application because the present petitioner is standing in the same footing as the other accused. 4. Heard both sides and on perusal of the judgment passed by the co-ordinate Bench, this Court finds the present revisional application has been filed challenging the correctness, legality and perversity of the judgment and order dated 07.05.2018 passed by learned Additional District & Sessions Judge, 1st Fast Track Court, Calcutta in Criminal Appeal No. 56 of 2016 wherein the learned Appellate Court was pleased to dismiss the appeal and affirmed the order of conviction and sentence passed by learned Municipal Magistrate, 4th Court, Calcutta in case No. M/F 28 of 2015. 5. Records reflect that the learned Municipal Magistrate, 4th Court, Calcutta was pleased to hold the present petitioner guilty for commission of offence punishable under Section 401A of the Kolkata Municipal Corporation Act, 1980 and sentenced him to suffer simple imprisonment for six months and to pay a fine of Rs. 5000/-, in default, to suffer simple imprisonment for two months. Records reflect that the learned Municipal Magistrate, 4th Court, Calcutta was pleased to hold the present petitioner guilty for commission of offence punishable under Section 401A of the Kolkata Municipal Corporation Act, 1980 and sentenced him to suffer simple imprisonment for six months and to pay a fine of Rs. 5000/-, in default, to suffer simple imprisonment for two months. The provision of Section 401A of the KMC Act is set out as under for ready reference: “401A. Construction of building in contravention of the provisions of the Act or the rules made thereunder. – (1) Notwithstanding anything contained in this Act or the rules made thereunder or in any other law for the time being inforce, any person who being responsible by himself or by anyother person on his behalf, so constructs or attempts to so construct or conspires to so construct any new building or additional floor or floors of any building in contravention of the provisions of this Act, or the rules made thereunder as endangers or is likely to endanger human life, or any property of the Corporation whereupon the water-supply, drainage or sewerage or the road traffic is disrupted or is likely to be disrupted or is likely to cause a fire hazard, shall be punishable with imprisonment of either description for a term which may extend to five years and also with fine which may extend to fifty thousand rupees. Explanation. -“Person” shall include an owner, occupier, lesssee, mortgagee, consultant, promoter or financier, or a servant or agent of an owner, occupier, lesssee, mortgagee, consultant, promoter or financier, who supervises or causes the construction of any new building or additional floor or floors of any building as aforesaid. (2) The offence under sub-section (1) shall be cognizable and non-bailable, within the meaning of the Code of Criminal Procedure, 1973 (2of 1974). (3) Where an offence under sub-section (1) has been committed by a company, the provisions of section 619 shall apply to such company. Explanation.- “Company” shall have the same meaning as in the Explanation to section 619.” 6. The crux of the section emphasis on “endangers or is likely to endanger human life, or any property of the Corporation whereupon …………….”. In the present case, where for constructing an extra floor, the prosecution was initiated. The petitioner in the present revisional application has enclosed an order dated 15.07.2016 passed by Dy. Ch. Engg. The crux of the section emphasis on “endangers or is likely to endanger human life, or any property of the Corporation whereupon …………….”. In the present case, where for constructing an extra floor, the prosecution was initiated. The petitioner in the present revisional application has enclosed an order dated 15.07.2016 passed by Dy. Ch. Engg. (Bldg.)/South. The said order was passed pursuant to the order of the learned trial Court convicting the present petitioner. Surprisingly the said order expresses an observation/opinion of an expert for regularizing the construction which was held to be illegal, unauthorised and endangering human life by a criminal court. The opinion of the expert of the KMC authority is set out as follows: “In my observation/Opinion – The violation of Building Rules 62, 69, 70, 74, 78, 106, 107, 109, 111, 117, 127, 133 & 134 of Building Rule 2009 are not so grave and serious and infractions of Building Rules for the same are minor in terms of the provision for regulation framed for hearing & regularisation of the case U/s. 400(1) of KMC Act, 1980, as amended on June 20, 2015.” 7. The KMC authorities cannot have double standards before a court of law. A person cannot be sent to jail and an illegal construction is regularised, if it is at all illegal and endangering human life. A court is not an expert to come to a conclusion and express its opinion regarding the nature of construction. The authority who passed the order in its designation incorporates the word “engineer” the finding of that authority is that there are infractions which are minor. If infractions are minor, then it cannot endanger the human life and the building or the construction can be allowed to retain its form without being demolished. 8. The records of the present case are remanded to the learned trial court for fresh consideration on the issue arises subsequently and the learned Magistrate will ask the same to the concerned Officer to appear and give explanation in respect of the order dated 15.07.2016. 9. The judgment and order of conviction and sentence passed by the learned Municipal Magistrate, 4th Court, Calcutta on 13.05.2016 in case no. M/F 28 of 2015 is hereby set aside. Consequently, the order of the learned appellate court is also set aside. 10. 9. The judgment and order of conviction and sentence passed by the learned Municipal Magistrate, 4th Court, Calcutta on 13.05.2016 in case no. M/F 28 of 2015 is hereby set aside. Consequently, the order of the learned appellate court is also set aside. 10. The learned trial court would independently take a decision without being influenced by any observations made by this Court after taking into account the order dated 15.07.2016 passed by the Deputy Chief Engineer (Building)/South. 11. If required, the files of KMC authority may be produced before the court for analysing the correctness of the findings before coming to a finding of guilt or acquittal by the learned Municipal Magistrate, 4th Court, Kolkata under Section 401A of the KMC Act. The learned Magistrate will take this order dated 15.07.2016 passed by the Dy. Ch. Engg. (Bldg.)/South as an additional evidence, if required under Section 311 of the Code of Criminal Procedure, to examine the designated officer or any authority of KMC to clear the doubt and difference between ‘minor’ and ‘endanger’ and, thereafter, pass afresh judgment, considering the whole evidence available before him/her. 12. The petitioner and also the KMC authority will be present before the learned Municipal Magistrate, 4th Court, Kolkata on 15.05.2024. 13. With the aforesaid observations, the revisional application being CRR 2034 of 2018 is disposed of. Consequently, CRAN 3 of 2020 (Old No. CRAN 1245 of 2020) is also disposed of. 14. Interim order, if any, is hereby vacated. 15. Department is directed to send back the lower court records, if any, to the jurisdictional court within a period of Seven days from date. 16. All parties shall act on the server copy of this order duly downloaded from the official website of this Court. 17. Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.