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2024 DIGILAW 854 (AP)

Prathi Avnesh v. State of A. P.

2024-07-29

V.SUJATHA

body2024
ORDER : V. Sujatha, J. This Criminal Petition under Section 482 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) is filed seeking to quash the charge sheet in STC 194/2015 pending before the Court of Judicial Magistrate of First Class, Ichapuram. 2. The 2nd respondent/ Commissioner of Municipality on 02.01.2014 lodged a complaint under Section 366 of A.P. Municipalities Act, 1965, before Judicial First Class Magistrate, Ichapuram alleging commitment of offences by the petitioner/accused under Section 340 and 340A r/w Sec 209, 211, 217 and 228 of the A.P Municipalities Act 1965 (as amended). The said complaint was taken cognizance by the said Court on 08.06.2015 under STC No.194/2015. 3. The brief facts of the prosecution case are that on 25.3.2013 the 2nd respondent issued a provisional notice under Sec 228(1) of A.P Municipalities Act in proceedings in U.C. No.092/13 dated 25.3.2013 to the petitioner/accused informing him that he had constructed a building comprising of ground, 1st and 2nd Floor in Ward No.4, main road NHS street, Ichapuram Municipality, without obtaining any building permission under Section 209, 211/ 220 and 221 of the A.P. Municipalities Act 1965 (as amended) and it is further informed to him that he should stop all the work on receipt of this notice and after obtaining permission from the municipality he should commence further work. It was further informed to him through this notice that his construction is against the provisions under clause 3 of Sec 228(1) and (2) of the A.P Municipalities Act 1965 (as amended) and he shall remove the above said part of construction already constructed contrary to the above said provision immediately after receipt of this notice failing which, action will be taken as per law against him. The notice also informed him that he should give written explanation within 03 days of the receipt of the said notice. Thereafter, the 2nd respondent issued confirmation notice in U.C No. 9/2013 dated 22.11.2013 wherein it was informed to the petitioner/accused that as he had not given any explanation to the provisional notice dated 25.3.2013 and he has failed to remove the constructions illegally constructed by him, the said provisional notice U/Sec.228(3) is confirmed. Thereafter, the 2nd respondent issued confirmation notice in U.C No. 9/2013 dated 22.11.2013 wherein it was informed to the petitioner/accused that as he had not given any explanation to the provisional notice dated 25.3.2013 and he has failed to remove the constructions illegally constructed by him, the said provisional notice U/Sec.228(3) is confirmed. It is further informed to him that the part of building constructed without permission should be removed within 07 days of receipt of this notice failing which action of filing a criminal case under Sec.340 (Act 6 of 2008) shall be taken against him and the premises shall be sealed. Accordingly, the 2nd respondent lodged a complaint before the Court of Judicial Magistrate of First Class, Ichapuram under Section 340 and 340A r/w Sec 209, 211, 217 and 228 of the A.P Municipalities Act 1965 (as amended) [for brevity referred as ‘the Act 1965’]. 4. Heard learned counsel for the petitioner and the learned Additional Public Prosecutor for the 1st respondent-State as well as Mr. M. Manohar Reddy, learned counsel appearing for the 2nd respondent. 5. Perused the material on record. 6. Learned counsel for the petitioner would submit that though the petitioner had obtained building permission vide proceedings bearing No.BA15/2011/G1 dated 14.03.2011, the 2nd respondent did not consider the same and issued the provisional notice in a very casual manner and confirmed the same, without verifying the records. Moreover, the alleged provisional notice was not at all served on the petitioner and Section 340, 340A of the A.P. Municipalities Act 1965 does not apply to the facts of the case and invoking said sections is arbitrary and illegal as the petitioner was duly granted building permission and the said notices are vague and failed to give any specific violation. He further contended that the complaint is admittedly filed after 01 year 06 months after the petitioner completed his construction in September 2011. Therefore, the charge sheet in STC 194/2015 is liable to be quashed. 7. A bare perusal of Section 482 makes it clear that the Code envisages that inherent powers of the High Court are not limited or affected so as to make orders as may be necessary; (i) to give effect to any order under the Code or, (ii) to prevent abuse of the process of any Court or, otherwise (iii) to secure ends of justice. A court while sitting in Section 482 jurisdiction is not functioning as a court of appeal or a court of revision. It must exercise its powers to do real and substantial justice, depending on the facts and circumstances of the case. These powers must be invoked for compelling reasons of abuse of process of law or glaring injustice, which are against sound principles of criminal jurisprudence. 8. The decision rendered by the Hon’ble Apex Court in State of Haryana and others v. Bhajanlal and others, AIR 1992 SC 604 is considered as the guiding torch in the application of Section 482. At paras 102 and 103, the circumstances are spelt out as follows; “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 9. Having heard the submissions made by the learned counsels and on perusal of the material available on record, the point for determination that arises in this case is as follows : Whether there are any justifiable grounds for quashment of the proceedings against the Petitioner/Accused in STC 194/2015 pending before the Court of Judicial Magistrate of First Class, Ichapuram under Section 340 and 340A r/w Sec 209, 211, 217 and 228 of the A.P Municipalities Act 1965? 10. 10. For better appreciation, the relevant Sections of the Act, 1965 are extracted herein under : 209. Application to construct or reconstruct buildings. (1) If any person intends to construct or reconstruct a building other than a hut, he shall send to the Commissioner— (a) an application in writing for the approval of the site, together with a site plan of the land, and (b) an application in writing for permission to execute the work together with ground-plan, elevations and sections of the building, and a specification of the work. (c) a copy of the title deed of the land duly attested by a Gazetted Officer of the Government together with an urban land ceiling clearance certificate or as the case may be, an affidavit referred to in Section 184. Explanation. - 'Building' in this sub-section shall include a wall or fence of whatever height bounding or abutting on any public street. (2) Every document furnished under sub-section (1) shall contain such particulars and be prepared in such manner as may be required under rules or bye-laws. 11. 211. Prohibition against commencement of work without permission. - The construction or reconstruction of a building shall not be begun unless and until the Commissioner has granted permission for the execution of the work. 12. 217. Power to require alteration of work. (1) If the Commissioner finds that the work— (a) is otherwise than in accordance with the plans or specifications which have been approved; or (b) contravenes any of the provisions of this Act or any bye-law, rule, order of declaration made thereunder he may, by notice, require the owner of the building within a period stated either--(i) to make such alterations as may be specified in the said notice with the object of bringing the work into conformity with the said plans or provisions; or(ii) to show cause why alteration should not be made. (2) If the owner does not show cause as aforesaid, he shall be bound to make the alterations specified in such notice. (3) If the owner shows cause as aforesaid, the Commissioner shall by an order cancel the notice issued under sub-section (1), or confirm the same subject to such modifications as it may think fit. 13. 228. Demolition or alteration of building work unlawfully commenced, carried on or completed. (3) If the owner shows cause as aforesaid, the Commissioner shall by an order cancel the notice issued under sub-section (1), or confirm the same subject to such modifications as it may think fit. 13. 228. Demolition or alteration of building work unlawfully commenced, carried on or completed. (1) If the Commissioner is satisfied— (i) that the construction or reconstruction of any building or well— (a) has been commenced without obtaining the permission of the Commissioner or the Chairperson as the case may be, or where an appeal has been made to the council, in contravention of any order passed by the council; or (b) is being carried on, or has been completed, otherwise than in accordance with the plans or particulars on which such permission or order was based; or (c) is being carried on, or has been completed, in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye laws; or (ii) that any alterations required by any notice issued under Section 217 have not been duly made; or (iii) that any alteration of or addition to any building or any other work made or done for any purpose into or upon, any building, has been commenced or is being carried on or has been completed in breach of Section 227. (2) The said officer shall serve a copy of the provisional order made under sub-section (1) on the owner of the building or well, together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed. (3) If the owner fails to show cause to the satisfaction of the said officer, he may confirm the order with such modification as he thinks fit to make, and such order shall then be binding on the owner. 14. 340. Penalty for unlawful building. (3) If the owner fails to show cause to the satisfaction of the said officer, he may confirm the order with such modification as he thinks fit to make, and such order shall then be binding on the owner. 14. 340. Penalty for unlawful building. - If the construction or reconstruction of any building or well— (a) is commenced without the permission of the Commissioner, or (b) is carried on or completed otherwise than in accordance with the particulars on which such permission was based, or (c) is carried on or completed in contravention of any lawful order or in breach of any provision contained in this Act or in any rule or bye-law made thereunder or of any direction or requisition lawfully given or made, or if any alterations or additions required by any notice issued under Section 217 or Section 228 are not duly made, or if any person to whom a direction is given under Section 228 to alter or demolish a building or well fails to obey such direction, the owner of the building or well or the said person, as the case may be, shall be liable on conviction to a fine which may extend in the case of a building to five hundred rupees subject to a minimum of fifty rupees and in the case of a well or hut to fifty rupees, subject to a minimum of ten rupees and to a further fine which may extend in the case of a building to one hundred rupees subject to a minimum of ten rupees and in the case of a well or hut to ten rupees subject to a minimum of two rupees, for each day during which the offence is proved to have continued after the first day. 15. Furthermore, learned counsel for the petitioner relied on Section 366 of the Act, 1965, which is extracted as under : 366. Persons empowered to prosecute. - Subject to the provisions of Section 365, no person shall be tried for any offence against the provisions of this Act, or of any rule or bye-law made under it, unless complaint is made by the Commissioner or by a person expressly authorized in this behalf by the Council within three months of the commission of the offence. - Subject to the provisions of Section 365, no person shall be tried for any offence against the provisions of this Act, or of any rule or bye-law made under it, unless complaint is made by the Commissioner or by a person expressly authorized in this behalf by the Council within three months of the commission of the offence. But nothing therein shall affect the provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), in regard to the powers of certain magistrates to take cognizance of offences upon information received or upon their own knowledge or suspicion; Provided that failure to take out a licence, obtain permission or secure registration under this Act shall, for the purposes of this section, be deemed a continuing offence until the expiration of the period, if any, for which the licence permission or registration is required and if no period is specified, complaint may be made at any time within twelve months from the commencement of the offence. 16. As per the above provision, the complaint may be made at any time within 12 months or one year time from the commencement of the offence, but as seen from the record, in the present case, the petitioner had obtained building permission on 14.03.2011 and construction was completed within six (06) months period i.e., by September 2011 and the petitioner gave the premises on lease to Canara Bank. But the 2nd respondent issued provisional notice on 25.03.2013 and confirmation notice in U.C.No.9/2013 dated 22.11.2013. Thus, the construction was over by September 2011 and the notices were given after 1 year 6 months. The date of filing of charge sheet is 02.01.2014, i.e. three years after obtaining the permission. Therefore, as rightly contended by the learned counsel for the petitioner, prima facie the complaint is barred by limitation. Therefore, liable to be set aside. 17. Accordingly, the Criminal Petition is allowed by quashing the proceedings against the Petitioner/Accused in STC 194/2015 pending before the Court of Judicial Magistrate of First Class, Ichapuram under Section 340 and 340A r/w Sec 209, 211, 217 and 228 of the A.P Municipalities Act 1965. Miscellaneous petitions pending, if any, in this Petition shall stand closed.