Sanjeevkumar S/O Harakchand ... vs The State Of Maharashtra And Anr
2017 Latest Caselaw 725 Bom

                                              4602.2016 Cri.Appln..odt
                                    1



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                  CRIMINAL APPLICATION NO.4602 OF 2016 


          Sanjeevkumar s/o.Harakchand Kankariya,  
          Age: 57 years, Occ. Business/Agri.  
          R/o. 8, Raj Tower, Opp. Athiti Hotel,  
          Jalana Road, Aurangabad,  
          Tq. & Dist. Aurangabad.         APPLICANT

                   VERSUS 

          1.       The State of Maharashtra,  
                   Through Mukundwadi Police Station,  
                   Aurangabad.  

          2.       Suresh Baburao Sangewar,  
                   Age: 45 years, Occ. Building 
                   Inspector [Service],  
                   Office Address: Ward No.'F', 
                   Municipal Corporation, Aurangabad
                   Tq. & Dist. Aurangabad.    RESPONDENTS

                                ...
          Mr.Dhananjay   M.Shinde,   Advocate   for   the 
          applicant
          Mr.S.Y.Mahajan,   Addl.P.P.   for   Respondent/ 
          State
          Mr.Deelip   Bankar   Patil,   Advocate   for 
          respondent no.2  
                                ...

                          CORAM:  S.S.SHINDE & 
                                  K.K.SONAWANE,JJ.     

Reserved on : 07.03.2017 Pronounced on : 15.03.2017

4602.2016 Cri.Appln..odt

JUDGMENT: (Per S.S.Shinde, J.):

1. This Application is filed praying

therein for quashing the FIR bearing Crime

No.66/2016, registered with Mukundwadi Police

Station, Aurangabad, for the offences

punishable under Section 188 of the Indian

Penal Code as well as under Sections 52, 53

and 54 of the Maharashtra Regional & Town

Planning Act, 1966.

2. The learned counsel appearing for

the applicant invites our attention to an

averments in the Application and grounds

taken therein and submits that, the Municipal

Corporation has granted relaxation in side

margins as per commencement Certificate, and

sanction plan dated 30th December, 2012.

Therefore, there is no substance in the

allegations in the FIR that the applicant has

not kept side margins as per Rules, and

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violated the conditions imposed while

granting permission for construction. It is

submitted that the Corporation has granted

relaxation in side margins since the

applicant shown his willingness to transfer

some portion of the land to the Municipal

Corporation for approach road to the adjacent

plot owners, who are having plots behind the

applicant's land. Therefore, the side margins

kept by the applicant is as per sanctioned

plan, hence, no offence is made out. The

construction carried out by the applicant is

as per sanctioned plan as well as revised

sanctioned plan. The applicant has paid

premium time to time for alteration and

relaxation of the conditions imposed while

sanctioning the plan. The learned counsel

invites our attention to the various

documents placed on record. It is submitted

that the applicant filed the application

under Section 44 of the MRTP Act, seeking

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permission for further development. In spite

of an application filed by the applicant for

further construction, the said application

was not decided within stipulated period of

sixty days, as provided under sub-section [5]

of Section 45 of the Maharashtra Regional &

Town Planning Act, 1966 [for short 'said

Act']. Therefore, in view of the aforesaid

provisions in case the Planning Authority

does not communicate its decision whether to

grant or refuse permission to the applicant

within sixty days from the date of receipt of

application, in that case, such permission

shall be deemed to have been granted to the

applicant on the date immediately following

the date of expiry of sixty days. It is

submitted that the FIR against the applicant

is filed without following due process of law

enumerated under Sections 52 and 53 of the

said Act thereby even if the construction is

illegal, then the Corporation is bound to

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issue notice under Section 53. Thereafter,

the aggrieved person if wish, can apply for

construction permission. After granting

permission the notice issued under Section 53

would automatically stands withdrawn or

otherwise. If the permission is refused, then

the aggrieved person can avail remedy as per

law. In the present case, no mandatory

procedure is followed and without the same,

directly offence is registered, which is

nothing but sheer abuse of process of law.

3. It is submitted that the Division

Bench (at Principal Seat) of the Bombay High

Court in the case of Mahesh Shivram Puthran

Vs.Commissioner of Police & ors.1 has taken a

view that without prior sanction under

Section 142 of the MRTP Act, the offence

cannot be registered. It seems that, in the

present case, the FIR is registered against

the applicant without obtaining sanction.

1 2011 [3] Bom.C.R. [Cri.] 526

4602.2016 Cri.Appln..odt

It is submitted that, the police machinery

cannot lodge FIR for the offence punishable

under Section 188 of the IPC. It is submitted

that, if the authority wants to prosecute the

accused under Section 188 of the IPC, then

they must apply before the Competent Court

under Section 195 of the Code of Criminal

Procedure. Therefore, relying upon the

averments in the application, grounds taken

therein and annexures thereto, the relevant

provisions of the said Act, and the judgment

cited across the Bar, the learned counsel

appearing for the applicant submits that the

FIR deserves to be quashed and set aside.

4. On the other hand, the learned APP

appearing for respondent-State, relying upon

the investigation papers, submits that the

prosecution has collected sufficient

material, and on the basis of the said

material, trial can proceed. He submits that,

the applicant has carried out unauthorized

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construction and created third party rights.

The innocent citizens have been cheated by

him by attempting to sell the commercial

premises, without making buyer aware about

the fact that there is no permission by the

Corporation for such unauthorized

construction. He submits that, by way of

carrying out unauthorized construction and

not leaving proper margins in construction as

undertaken, the applicant has not only

violated the conditions of permission, but is

involved in the alleged commission of

offences.

5. The learned counsel appearing for

respondent no.2, relying upon the averments

in the affidavit-in-reply filed by respondent

no.2, made following submissions:

6. By way of instant Criminal

Application, the applicant is praying to

quash the Crime No.66/2016 registered with

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Mukundwadi Police Station, Aurangabad, on

22.01.2016 for the offences punishable under

Section 188 of the IPC as well as under

Sections 52, 55 and 54 of the MRTP Act, 1966.

It is submitted that, respondent no.2 is a

Building Inspector. He has inspected the

premises and found that, there are gross

violation of the commencement certificate

[building permission] dated 30.08.2014, which

is in force. Thereafter, he had filed

complaint, pursuant to which the aforesaid

crime has been registered. The applicant has

suppressed the material facts from this

Court. On this count itself, the Criminal

Application deserves to be dismissed.

7. It is submitted that, it is

pertinent to note that, the situation of the

plot of the applicant is that, on three sides

there are roads. As per the building bye-

laws, the side margins are required to be

left as follows:

4602.2016 Cri.Appln..odt

i] Towards south : [24 mtrs. wide road] required side margin 4.5 mtrs.

ii] Towards west : [7.5 mtrs.wide road] required side margin 4.5 mtrs.

iii] Towards North :[9 mtrs. wide road] required side margin 4.5 mtrs.

iv] Towards East : [Rear side] required side margin 6 mtrs.

8. The rear side margin is as per the

height of the building. Initially, the

applicant has submitted a proposal along with

the building plan [building permission] to

the Municipal Corporation, Aurangabad, for

sanction of commencement certificate

[building permission] to him. The applicant

had agreed to leave 7.5 meters road to the

rear side. In token thereof, the applicant

was to give additional FSI and some

relaxation side margin. Accordingly, the

commencement certificate was issued on

30.12.2011.

4602.2016 Cri.Appln..odt

9. It is further submitted that, the

applicant did not act upon the aforesaid

commencement certificate dated 30.12.2011.

Accordingly, the same was lapsed. Therefore,

no reliance can be placed over the same as

the same is not in force. The applicant

himself has submitted a fresh proposal for

issuance of fresh commencement certificate

along with the building plan to the Municipal

Corporation, Aurangabad. In the said building

plan, the width of the plot has been shown

more than the earlier. Considering the said

proposal, a fresh commencement certificate

dated 12.05.2014 was also issued to the

applicant. The above said fresh commencement

certificate dated 12.05.2014 is also not in

force, as again the applicant has submitted

further proposal for the revised permission.

10. We have carefully considered the

submissions of the learned counsel appearing

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for the applicant, learned APP appearing for

respondent-State, and the learned counsel

appearing for respondent no.2. With their

able assistance, we have perused the

averments in the application, annexures

thereto, and also the reply filed by

respondent no.2, annexures thereto, the

judgment cited across the bar by the learned

counsel appearing for the parties, and also

the relevant provisions of the MRTP Act, and

the investigation papers made available by

the leaned APP appearing for the State. Upon

reading an allegation in the FIR in its

entirety, prima facie, an alleged offences

have been disclosed. There is sanction as

contemplated under the relevant procedure

before registering the offence by the

Competent Authority. The defence raised by

the applicant is that, he sought permission

for further construction by taking recourse

to Sections 44 and 45 of the MRTP Act. Though

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the permission is not granted by the

Corporation, in view of provisions of Section

45 in case the Planning Authority does not

communicate its decision whether to grant or

refuse permission to the applicant within

sixty days from the date of receipt of

application, in that case, such permission

shall be deemed to have been granted to the

applicant on the date immediately following

the date of expiry of sixty days. The said

defence cannot be considered at the stage of

considering the prayer for quashing of the

FIR, otherwise it would lead to adjudication

of disputed questions of fact.

11. In our prima facie opinion, when the

applicant has carried out the alleged

construction for commercial purpose, it was

incumbent upon him to adhere to the

conditions on which the permission was

granted. Ultimately commercial premises are

to be sold and utilized by the buyers. In

4602.2016 Cri.Appln..odt

absence of permission by the Corporation,

constructing of such premises and selling out

it to the third parties as alleged by the

Investigating Officer, and creating third

party rights, that too, without making them

aware that the said construction is carried

out without permission may amount to

cheating. By any stretch of imagination, the

First Information Report cannot be quashed,

when the allegations in the FIR disclosed an

ingredients of the alleged offences. It is

settled law that, while exercising writ

jurisdiction or jurisdiction under Section

482 of the Criminal Procedure Code, at the

time of considering the prayer for quashing

the FIR, when an investigation is in

progress, this Court is not supposed to find

out the truthfulness or falsity of the

allegation or to consider the defences raised

by the accused. Once the Court is convinced

that, on reading the allegations in the FIR,

4602.2016 Cri.Appln..odt

the alleged offences have been disclosed, the

Court may leave the matter for further

investigation to the Investigating Officer.

The Supreme Court in the case of "State of

Haryana Vs. Bhajan Lal2 has taken a view

that, the investigation is an exclusive

domain of the Investigation Officer as long

as the said investigation is in accordance

with law, and no any other person or courts

are supposed to interfere in such

investigation.

12. Therefore, for the reasons

aforesaid, when the FIR is under

investigation, and an investigation is going

on in accordance with law, there is no reason

to cause interference in such an

investigation. In that view of the matter,

we are not inclined to entertain the prayer

for quashing the FIR, hence, Criminal

Application stands rejected. We clarify that

2 AIR 1992 SC 604

4602.2016 Cri.Appln..odt

an observations made herein above are prima

facie in nature.

              [K.K.SONAWANE]            [S.S.SHINDE]
                  JUDGE                    JUDGE  
          DDC