Ananya Mukherjee vs The State of West Bengal and Another

Ashim Kumar Roy, J.—The petitioner has approached this court for quashing of the charge sheet relating to an offence punishable u/s 204A of the West Bengal Municipal Act, 1993 on the ground that no offence has been made out against the petitioner for which charge sheet has been submitted. It is contended by the learned advocate for the petitioner that on the face of the allegations made in the F.I.R. nothing has been disclosed which constitute an offence punishable u/s 204A of the West Bengal Municipal Act, 1993.

The learned advocate for the State opposes the prayer for quashing. However, in spite of repeated asking by this court, he has not been able to show either from the allegations made in the F.I.R. or from the charge sheeted materials any offence punishable u/s 204A of the West Bengal Municipal Act, 1993 is made out.

The learned advocate for the Bally Municipal Corporation submits that to stop an unauthorized construction at the premises in question, they merely informed the police and it was their case the construction was without sanction but there was no allegation of commission of any offence punishable u/s 204A of the said Act. She submitted that although there was no allegation in their complaint to police, on their own the police registered the case for the offence u/s 204A of the Bengal Municipal Act, 1993.

It needs no mention that an F.I.R. or a charge sheet can always be quashed if on perusal of the allegation made in the F.I.R. and the materials collected during investigation, without disputing the correctness of the same, no offence is made out.

In this case, charge sheet has been submitted u/s 204A of the West Bengal Municipal Act, 1993 and, therefore, it would be appropriate to refer the said penal provision, which is quoted below:

204A. Construction of building in contravention of the provisions of the Act or the rules made thereunder--(1) Notwithstanding anything contained in this Act or the rules made thereunder or in any other law for the time being in force, any person, who being responsible by himself or by any other person on his behalf, so constructs or attempts to so construct or conspires to so construct any new building or additional floor or floors of any building in contravention of the provisions of this Act or the rules made thereunder as endangers or is likely to endanger human life or any property of the Municipality whereupon the water-supply drainage or sewerage or the road traffic is disrupted or is likely to be disrupted, or is likely to cause a fire hazard, shall be punishable with imprisonment of either description for a term which may extend to five years and also with fine which may extend to fifty thousand rupees.

Explanation--"Person" shall include an owner, occupier, lessee, mortgagee consultant, promoter or financier, or a servant or agent of an owner, occupier, lessee, mortgagee, consultant, promoter or financier, who supervises or causes the construction of any building or additional floor or floors of any building as aforesaid.

A plain reading of the said provisions, goes without saying that such offence is attracted only when a new building or additional floor or floors of any building in contravention of the provisions of this Act or the rules made thereunder is constructed and when such construction endangers or is likely to endanger human life or any property of the Municipality whereupon the water-supply, drainage or sewerage or the road traffic is disrupted or is likely to be disrupted, or is likely to cause a fire hazard. The basic requirements to constitute such offence is not only that there is a construction in contravention of the provisions of the said Act or rule framed thereunder, but the construction must be of such a nature which endangers or is likely to endanger human life or any property of the Municipality whereupon the water-supply, drainage or sewerage system is prevailed or the road traffic is disrupted or likely to be disrupted, or is likely to cause a fire hazard. Now, going through the allegations made in the F.I.R., I find except the allegation that the petitioner was making a construction at the premises in question in violation of Sub-section (1) of Section 220 of the West Bengal Municipal Act, 1993 ignoring the Municipal notice, there was no further allegation, far less those allegations which are the foundation of an offence punishable u/s 204A of the said Act. I further find in their complaint, the complainant Bally Municipality requested the police to take steps in terms of Sub-section (3) of Section 220 of the said Act. Meaning thereby police was requested for police posting for the purpose of preventing the petitioner to make any further construction, although at the same time request was made for taking other legal actions. Since the F.I.R. do not disclose commission of a cognizable offence police exceeded its jurisdiction to record the F.I.R. and to undertake the investigation.

During investigation also no materials have been collected by the police to show the aforesaid essential requirements of the offence punishable u/s 204A was there. Therefore, submission of the chargesheet is also illegal.

In the result, this application is allowed and proceeding stands quashed.

However, this order will not prevent the Municipal Authority to take appropriate legal action against the petitioner in accordance with law.

This revisional application is accordingly, disposed of. Criminal Section is directed to deliver urgent photostat certified copy of this order to the learned advocate of the parties, if applied for, as early as possible.