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 2. Municipal Corporation, Greater Mumbai ...Respondents **** Ms. Amita Chaware for the Applicant. Ms. Manisha Tidke, APP for Respondent/State. Mr. P.P. Chavhan for Respondent No.2/Municipal Corporation. **** 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 SNEHA NITIN CHAVAN Digitally signed by SNEHA NITIN CHAVAN Date: 2026.08.17 10:33:47 +0530 25-REVN-113-2004 @.doc 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 25-REVN-113-2004 @.doc 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 25-REVN-113-2004 @.doc 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 25-REVN-113-2004 @.doc 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 25-REVN-113-2004 @.doc 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 25-REVN-113-2004 @.doc 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