Vasant S/O Ramchandra Dharkar vs State Of Maharashtra, Through ...
2016 Latest Caselaw 378 Bom

     Judgment                                          1                                  wp190.15.odt




                                                                                    
                   
                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                NAGPUR BENCH, NAGPUR.




                                                           
                        CRIMINAL WRIT PETITION NO. 190  OF 2015




                                                          
     Vasant S/o. Ramchandra Dharkar,
     aged about 67 years, Occupation :
     Retired, Resident of Plot No.11, 




                                            
     Friends Colony, Katol Road, Nagpur. 
                              ig                                         ....  PETITIONER.

                                        //  VERSUS //
                            
     1. State of Maharashtra through
        Police Station Officer, 
        Police Station, Tahsil, Nagpur. 

     2. Mr Madan S/o. Balaji Ratan,
      


        R/o. 558, New Shukrawari,
        Fawara Chowk, Nagpur. 
   



                                                     .... RESPONDENTS
                                                                    . 
      ______________________________________________________________
     Shri P.A.Abhyankar, Advocate for Petitioner. 
     Shri N.B.Jawade, A.P.P. for Respondent No.1.   





     None for Respondent No.2. 
     ______________________________________________________________

                                  CORAM : Z.A.HAQ, J.

DATED : MARCH 07, 2016.

ORAL JUDGMENT :

1. Heard Shri P.A. Abhyankar, advocate for the petitioner and

Shri R.S.Nayak, A.P.P. for the respondent No.1. None appears for the

respondent No.2.

Judgment 2 wp190.15.odt

2. RULE. Rule made returnable forthwith.

3. The petitioner has challenged the order passed by the

learned Additional Sessions Judge dismissing the revision filed by the

petitioner and maintaining the order passed by the learned Magistrate

by which the learned Magistrate has rejected application (Exh.26) filed

by the petitioner praying that he be discharged from the proceedings.

4. The State of Maharashtra filed charge-sheet against 12

persons (including the petitioner) alleging commission of the offences

punishable under Sections 120-B, 420, 468, 471 and 34 of the Indian

Penal Code. The allegations are that the co-accused (owners of the

land) had sought sanction from Nagpur Municipal Corporation for

construction of the building utilizing Floor Space Index of 2.5, though

as per the Development Control Regulations, 1991 the Floor Space

Index available for the land on which the building was to be

constructed was 1.5. Subsequently, the Planning Authority issued

notice dated 19th March, 2003 calling upon the owners of the land to

show cause as to why the sanction to the plan should not be revoked as

the Floor Space Index permissible was 1.5 and not 2.5.

Judgment 3 wp190.15.odt

The petitioner was working as Executive Engineer with

Nagpur Municipal Corporation at the relevant time when the plan for

construction was submitted for sanction on 26th May, 1999 by the co-

accused. According to the petitioner, the plan was referred as per the

procedure for scrutiny to the Junior Engineer, spot inspection was

undertaken by the Deputy Engineer who submitted report and then the

approval was granted by the petitioner. The contention of the

petitioner is that the prosecution has been initiated on the complaint

made by M/s. EMAAR Developers and Builders, Nagpur and it was

because of some dispute between the owners of the land and M/s.

EMAAR Developers and Builders, Nagpur. It is contended that the

complaint does not attribute any overtact to the petitioner on the basis

of which the petitioner can be prosecuted for the charges as levelled

against him.

5. The learned advocate for the petitioner has pointed out the

judgment passed by this Court in Criminal Writ Petition No. 84 of 2014

on 10th March, 2015 by which the co-accused (owners of the land) are

discharged.

Judgment 4 wp190.15.odt

For the same reasons as recorded in the judgment given in

Criminal Writ Petition No. 84 of 2014 on 10th March, 2015 and the fact

that the material on record does not show that there is sufficient

evidence on the basis of which the petitioner can be prosecuted for the

charges levelled against him, the petition has to be allowed.

6.

Hence, the following order :

            i)         The impugned orders are set aside.


            ii)        Application (Exh.26) filed by the petitioner under Section 
      

227 of the Code of Criminal Procedure is allowed.

iii) The petitioner is discharged from the proceedings of Regular Criminal Case No. 859 of 2010 pending before the

learned Magistrate.

Rule is made absolute in the above terms. In the

circumstances, the parties to bear their own costs.

JUDGE

RRaut..