Criminal Revision Application No.295 of 1998

21st April, 2006

Petitioner Counsel: Shri. A. G. GODHAMGAONKAR,Shri. S. V. KURUNDKAR
Respondent Counsel: Smt. R. D. REDDY

Cases Cited:
State of M. P. Vs. S. B. Johri, AIR 2000 SC 665 [Para 7]

JUDGMENT

JUDGMENT:- The petitioner impugns the order of the 4th Additional Sessions Judge, Nanded dated 27-08-1998 by which Revision against the order of discharge passed by learned Chief Judicial Magistrate, Nanded was allowed and the matter was remitted for framing of charge.

2. Relevant facts in nutshell are: that the petitioner is owner of House property bearing Municipal No.3-5-118 situated at Mahavir chowk, Nanded. The petitioner obtained permission for development of property as he desired to construct two storied house. Permission was granted by Municipal Council, Nanded and the construction commenced. During construction, complainant Jagjeetsingh Chiragiya/Respondent No.1, who is Sanitary Inspector and Supervisor of that area, visited the site on 07-08-1993. He took measurements in the presence of petitioner and found that there is an excess construction. He, therefore, prepared Panchanama (Exh.13) and submitted a report (Exh.14) to superiors. Subsequently, notice (Exh.15) dated 18-08-1993 came to be served on the petitioner. The Sanitary Inspector, in due course, again visited the property. He made enquiries with the petitioner and found that instead of complying with the notice, petitioner has completed the construction. He, therefore, submitted report dated 08-03-1995 (Exh.16). As there was no compliance with the notice and the petitioner had not taken any steps for regularization, sanction for his prosecution for offence punishable under section 52(1) read with Sections 53(1) and 54(1) of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "the MRTP Act") was accorded by the Chief Officer. As a result, the complaint was filed with the Chief Judicial Magistrate, Nanded, which was registered as Regular Criminal Case No.736/1995.

3. After recording the evidence of complainant Jagjeetsingh, parties were heard. Learned Chief Judicial Magistrate found that the testimony of Jagjeetsingh (complainant) in respect of service of notice and Panchanama is doubtful. In this view of the matter, he discharged the petitioner.

4. The matter was carried in appeal. The learned 4th Addl. Sessions Judge, Nanded found, on appreciation of evidence, that learned CJM had practically given benefit of doubt to the petitioner. He further found that such a course is not permissible at the stage of framing of charge. In this view of the matter, learned 4th Addl. Sessions Judge, Nanded, quashed and set aside the impugned order and restored the case to the file, with a direction to the learned CJM that charge should be framed. This order has been impugned in the present Revision.

5. Learned counsel for petitioner has raised two points: (1) It is permissible for the Magistrate to appreciate the evidence at the stage of framing of the charge, therefore, the order passed by the learned CJM is valid, legal and proper; (2) that the prosecution is premature as notice u/s.53 of the MRTP Act, is not served on the petitioner.

6. Per contra, learned counsel for Respondent No.1 Shri. Kurundkar, has submitted that it is not permissible for the Court to appreciate evidence at the stage of framing of charge. He further submitted that notice has been duly served, therefore, the order passed by the learned CJM is rightly set aside. According to learned counsel, no case for interference by this Court in its revisional jurisdiction, is made out, Revision, therefore, should be dismissed.

7. The principles in respect of framing of charge are now well-established. At this stage, the material on record is to be accepted as it is. If there is sufficient material on record to make out a prima facie case, the Court has to proceed to frame a charge. It is very much permissible for the Court to appreciate evidence for limited purpose of ascertaining whether a prima facie case has been made out. However roving enquiry and detailed analysis of the evidence is not permissible. In this behalf, reference can be made to the decision of the Apex Court reported in AIR 2000 SC 665 in the matter of State of M. P. Vs. S. B. Johri and others. Considering the principles applicable at the stage of framing of charge, with reference to Section 227, Cr.P.C. which is pari materia to Section 245, Cr.P.C., the Apex Court observed as follows:

"4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient material for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the material produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case there would be no sufficient material for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. Vs. Jitendra Bhimji Bijjayya etc. reported in (1990)4 SCC 76 : (AIR 1990 SC 1962 : 1990 Cri.L.J. 1869), after considering the provisions of Sections 227 and 228, Cr.P.C. Court posed a question whether at the stage of framing the charge, trial Court should marshal the materials on the record of the cases as she would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may pursue the records for that limited purpose, but it is not required to marshal with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar Vs. Ramesh Singh (1977)4 SCC 39 : (AIR 1977 SC 2018 : 1977 Cri.L.J. 1606), Union of India Vs. Prafulla Kumar Samal (1979)3 SCC 4 : (AIR 1979 SC 366 : 1979 Cri.L.J. 154) and Supdt. of Remembrancer of Legal Affairs West Bengal Vs. Anilkumar Bhunja (1979)4 SCC 274 : (AIR 1980 SC 52 : 1979 Cri.L.J. 1390) and held thus:-

"From the above discussion it seems well settled that at the Ss.227 and 228 stage, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case." (Emphasis supplied)

8. These principles should be kept in mind while considering the issue involved in the present case.

9. Learned counsel for petitioner has submitted that approach of the Appellate Court, as seen from the observations in para no.6, is obviously erroneous. According to learned counsel, it is permissible for Magistrate to consider the evidence on record at the time of framing of the charge. The Magistrate, thus, has to consider the evidence on record with a view to ascertain whether prima facie case has been made out and whether if unrebutted, evidence would lead to conviction. However, it is not open to the Magistrate to appreciate or marshal the evidence at the stage of framing of charge. In the present case, learned Chief Judicial Magistrate has, in fact, appreciated the evidence and came to the conclusion that evidence of complainant in respect of Panchanama as well as service of notice is not reliable and, on that basis, he has discharged the petitioner. Such an approach is not permissible. The lower Appellate Court has rightly observed that the order of discharge passed by the learned CJM suffers from the vice of illegality and has rightly quashed and set aside the said order.

10. The second plank of contention is that the notice is not served on the petitioner, therefore, prosecution itself is premature. Learned counsel has made reference to Sections 52 and 53 of the MRTP Act, particularly to Sub-section (3) onwards of Section 53. According to learned counsel, as the notice is not served on the petitioner; he has no opportunity to apply for permission as required under section 44 of the MRTP Act.

11. Turning to the evidence of complainant, it can be seen that the complainant has testified that the notice Exh.15 is served on the petitioner. Suggestions that the notice has not been served are denied by the Respondent No.1. It can also be seen that subsequently, the Sanitary Inspector has again visited the site and made enquiries with the petitioner and found that there was no compliance of the notice. On the contrary, petitioner has completed the work in violation of the permission granted to him regarding development of the property. In this background, it has rightly been argued by the learned counsel for Respondent No.1 that the disputed issue can be decided at the time of trial but prima facie service of notice has been established. Therefore, it was not necessary to verify the signature on the notice and the Vakalatnama for coming to any conclusion regarding service of notice. Such a course would not be permissible at this stage. Having regard to the material on record the contention of learned counsel for petitioner that the notice has not been served cannot be sustained at this stage. In this view of the matter no case for interference is made out. Learned 4th Addl. Sessions Judge, Nanded has properly considered all the aspects. The impugned order does not suffer from any illegality. Revision, therefore, fails and is dismissed. Rule is discharged.

12. Any observations made in this order are made at the prima facie stage only. The trial Court has to independently assess the evidence and should not be influenced by any observations made herein, on factual aspects.

Revision dismissed.