SADHU @ SAHADEV SHANKAR KATKEversusTHE STATE OF MAHARASHTRA

                                                                           25-REVN-113-2004 @.doc



                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CRIMINAL APPELLATE JURISDICTION

                              CRIMINAL REVISION APPLICATION NO. 113 OF 2004

                   Sadhu @ Sahadev Shankar Katke                                ...Applicant
                              Versus
                   1. The State of Maharashtra                                  ...Respondents
                   2. Municipal Corporation, Greater Mumbai

                                                    ****
SNEHA
NITIN              Ms. Amita Chaware for the Applicant.
CHAVAN             Ms. Manisha Tidke, APP for Respondent/State.
Digitally signed   Mr. P.P. Chavhan for Respondent No.2/Municipal Corporation.
by SNEHA NITIN
CHAVAN
Date: 2026.08.17
                                                    ****
10:33:47 +0530


                                                 CORAM :      M.M. SATHAYE, J.
                                                   DATE :     14th AUGUST, 2026

                   P.C. :


                   1.             Heard learned counsel for the parties.


                   2.             Invoking jurisdiction under Section 397 read with 401 of the
                   Criminal Procedure Code (‘CrPC’ for short), revision is filed by sole
                   accused, challenging the Judgment and Order dated 20.03.2004 passed
                   by the Additional Sessions Judge, Greater Bombay in Criminal Appeal
                   No. 285 of 2003 dismissing the appeal and confirming the Judgment
                   and Order dated 18.11.2003 passed by the Metropolitan Magistrate,
                   39th Court, Vile Parle, Mumbai in CC No. 22/MRTP/2002.


                   3.             Learned Magistrate convicted the Revision Applicant under
                   Section 52 read with 43 of the Maharashtra Regional Town Planning
                   Act, 1966 (‘the said Act’ for short) and sentenced him to undergo simple
                   imprisonment for 3 months and to pay fine of Rs.4,000/- and in default
                   to undergo simple imprisonment of 1 and ½ months.


                   Sneha Chavan                                                                 1
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4.             Case of the Respondent No.2 Municipal Corporation, in short
is as under. That its Junior Engineer (PW-2) attached to the concerned
ward, on 04.01.2002, received a ‘telephonic complaint from unknown
person’ about unauthorised construction being carried out. That when
the Junior Engineer visited the site, he observed unauthorised
construction of brick masonry wall. On 05.01.2002, PW-2 lodged
complaint with the police station alleging offence under Section 52 read
with 43 of the said Act. Investigation was carried out. Statements were
recorded. Sanction was obtained. Chargesheet was filed. Revision
Applicant denied the charges. His defence is that of total denial.


5.             The prosecution   examined    4   witnesses     and      produced
documents on record. The case is based on an Inspection Report of PW-
2 dated 04.01.2001. PW-1 is a panch witness, who has turned hostile.
PW-3 is the ward officer, who has accorded sanction under the said Act.
PW-4 is the Investigating Officer attached to the Sakinaka police station.
Applicant has examined himself as DW-1.


6.             Learned Magistrate has convicted the Revision Applicant,
which is confirmed by the Additional Sessions Judge by the impugned
order.


7.             Learned Counsel for the Applicant submitted that the whole
case is based on only Inspection Report in which Junior Engineer has
mentioned the Applicant's name. She submitted that the Applicant was
not at all concerned with the construction activity and he is neither
owner of the site nor a contractor. She submitted that it is a clear case
of false implication. She submitted that the inspection report bears a
date which is not the date of the alleged incident. She further submitted


Sneha Chavan                                                            2
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that no ‘stop-work notice’ is produced on record to indicate that the
construction work was illegal.


8.             On the other hand, learned Counsel for Respondent No. 2
Municipal Corporation has supported the impugned order. He submitted
that at the time of inspection, unauthorised construction was found and
therefore, the complaint was lodged. He submitted that the date on the
inspection report is incorrectly stated by mistake.


9.             Having heard learned Counsel for the parties and on perusal
of the judgments of learned Magistrate as well as learned Additional
Sessions Judge, following facts emerge.


9.1.    The alleged unauthorised construction by the Revision Applicant
is found by PW-2 Junior Engineer who has filed the inspection report.
PW-2 has admitted that he did not remember whether the stop work
notice was issued in respect of the construction involved. He also
admitted that he cannot state who owned the place where the alleged
structure was being constructed. So far as the discrepancy in the date is
concerned, admittedly the inspection report is dated 04.01.2001.
However according to Respondent No. 2, the site visit had taken place
on 04.01.2002. Only explanation offered is that ‘it is by mistake’. He has
admitted that he has not recorded the statement of the person who gave
the information to him on telephone about alleged unauthorised
construction.


9.2.    PW-3 sanctioning authority has admitted in cross examination
that he has not asked for any explanation from his subordinate officers
related to the difference in the date of the offence and date on the


Sneha Chavan                                                            3
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inspection report. He has also admitted that the name of the accused is
mentioned only as per report of the Junior Engineer and there is no
other documentary evidence to show that accused was the person
related to the offence. He has admitted that he does not know the area
of the premises in question and whether it is approved by the Municipal
Corporation or not. He has also admitted that the stop-work notice
under Section 354A of the then existing Bombay Municipal Corporation
Act, did not reflect the police complaint.


9.3.     PW-4 Investigating Officer has admitted in cross-examination
that he cannot say whether the Junior Engineer had any authority to file
the complaint. He admitted that except the oral information supplied by
the Junior Engineer (PW-2), no other information was produced. He has
admitted that he is not aware whether on the date of incident, the
Revision Applicant was present at the site. He has also admitted that
except the complaint, no other documents (stop work notice) was given
to him. He has also admitted that except the Junior Engineer’s
statement, he has no documentary evidence to show that Revision
Applicant was the contractor of alleged structure. He has admitted that
he is not aware whether the Revision Applicant was owner or occupier
of the alleged plot.


9.4.    The Revision Applicant entered the witness box as DW-1 who has
stated that on the date of alleged incident, he was not involved in the
construction work. He has stated that he was neither owner of the
premises in question nor the contractor. He has stated that false case
has been filed against him.


10.            In the teeth of aforesaid admissions, the Courts below seems


Sneha Chavan                                                            4
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to have proceeded on the deposition of PW-2 Junior Engineer and his
inspection report alone to hold that at the time of visit, the Revision
Applicant was present engaged in unauthorised construction.


11.            PW-2 (Junior Engineer) seems to have acted with super
promptness         on   receiving   anonymous     telephonic      complaint   on
04.01.2002, visiting the site on same day and lodging police complaint
next day on 05.01.2002.


12.            Section 52 of the said Act provides that any person, who
whether at his own instance or at the instance of any other person,
commences, undertakes or carries out development or changes the use
of land without permission required under the said Act or which is not
in accordance with any permission granted or in contravention of any
condition of permission or after the permission for development has
been revoked or in contravention of any permission which has been
duly modified, shall on conviction be punished.


13.            It is therefore necessary that before convicting a person under
this provision, whether the construction was without permission or was
not in accordance with the permission, is essential to be verified.


14.            On the perusal of the judgment of the Learned Magistrate and
learned Additional Sessions Judge, apparently there is no such effort
made to verify this aspect. The owner of the property has not been
examined. No document is brought on record about sanction granted of
which permission was allegedly breached. Nothing is produced to
indicate that the action of alleged unauthorised construction was sought
to be stopped.


Sneha Chavan                                                              5
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15.            The inspection report, apart from the fact that it bears a wrong
date, simply mentions the name of Revision Applicant as both owner
and contractor. This is a case where the Revision Applicant has stepped
into witness box and has denied any connection with the property in
question. He has clearly stated that he is neither owner nor contractor
thereof. In such circumstances, mere inspection report which makes
vague reference to Revision Applicant as both owner and contractor,
could not have been held sufficient to connect the Revision Applicant
with alleged activity of unauthorised construction.


16.            It is important to note that apart from the Revision Applicant,
no other alleged workers who were allegedly constructing along with
Revision Applicant, are made co-accused. No statements of such other
other workers are recorded.


17.            The entire approach adopted by the Courts below towards
fixing criminal liability, including punishment in the nature of
imprisonment, is found to be completely casual. It has resulted in
miscarriage of justice, in as much as, the Applicant was required to face
criminal prosecution from the year 2002 for last 24 years.


18.            In the aforesaid facts and circumstances and for reasons
indicated above, in my considered view, the conviction as well as
sentence under the impugned orders, is perverse which has resulted in
clear miscarriage of justice. Hence, interference is required.


19.            The Revision Application is accordingly allowed.


20.            Impugned order dated 20.03.2004 is quashed and set aside.



Sneha Chavan                                                               6
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Criminal Appeal No. 285 of 2003 is allowed. The conviction as well as
sentence under Order dated 18.11.2003 in CC No. 22/MRTP/2002 is
quashed and set aside. The Revision Applicant is acquitted of the
alleged offence. Applicant’s bail bond stands canceled. Surety, if any,
stands discharged.




                                       (M.M. SATHAYE, J.)




Sneha Chavan                                                        7