At discharge stage, disputed ownership and notice objections cannot defeat a prima facie charge under Section 401A.

The petitioner challenged, under Sections 482 and 401 of the Code of Criminal Procedure, 1973, the order dated 15 December 2022 by which the Municipal Magistrate, 2nd Court, Calcutta rejected his application for discharge under Section 239 Cr.P.C. in Cr. M.S. No. 154 of 2018.

The criminal case arose from Girish Park Police Station Case No. 23 of 2018, registered on the complaint of an Assistant Engineer of the Kolkata Municipal Corporation alleging that the petitioner, described as the owner, was undertaking unauthorised and hazardous construction at the ground floor of premises no. 20, Baranasi Ghosh Street, Kolkata, creating a risk of building collapse and danger to human life.

A charge-sheet was submitted on 19 June 2018 under Section 401A of the Kolkata Municipal Corporation Act, 1980.

An earlier quashing petition filed by the petitioner was dismissed as not pressed, with liberty to raise all available grounds at the stage of discharge.

The petitioner contended that the property was subject to a partition and administration suit, that only minor repairs and temporary partitions had been carried out pursuant to a civil decree, and that no unauthorised or hazardous construction had been undertaken.

He further challenged the prosecution on the grounds of non-service of statutory notices and defective cognizance.

Whether the learned Municipal Magistrate committed any patent illegality, perversity, or jurisdictional error in finding a prima facie case warranting framing of charge under Section 401A of the KMC Act?

Whether the alleged civil partition decree, the petitioner’s defence that only permissible repairs were carried out, and the non-service of prior municipal notices rendered the prosecution groundless under Section 239 Cr.P.C.?

The Court applied Sections 482 and 401 Cr.P.C. governing the High Court’s inherent and revisional jurisdiction, and Section 239 Cr.P.C., under which an accused may be discharged where the charge is groundless.

Section 401A of the Kolkata Municipal Corporation Act, 1980 was treated as addressing unauthorised and hazardous construction posing a potential danger to public safety.

The Court also considered the petitioner’s objections concerning notices under Sections 400, 401, 548 and 557 of the KMC Act and cognizance under Section 190 Cr.P.C. read with Section 580 of the KMC Act.

Relying on Sajjan Kumar v. Central Bureau of Investigation, (2010) 9 SCC 368, the Court held that, at the stage of discharge or framing of charge, the court must assess whether the prosecution materials disclose a prima facie case or a reasonable basis for proceeding, without conducting a roving inquiry, weighing evidence, or adjudicating disputed defence claims as if at trial.

The revisional court may interfere only where the subordinate court’s order suffers from patent illegality, perversity, jurisdictional error, or a similar manifest infirmity.

The Court found that the police report, charge-sheet, and statements recorded during investigation contained materials connecting the petitioner with the alleged structural activities at the premises and therefore disclosed a prima facie case under Section 401A of the KMC Act.

The petitioner’s reliance on the civil partition decree, his assertion that only minor repairs had been carried out, and his denial of unauthorised construction involved disputed questions of fact requiring evidentiary determination at trial; they could not be accepted conclusively at the discharge stage.

Similarly, the objections regarding prior municipal notices did not, at that preliminary stage, extinguish the foundational accusation of hazardous and unauthorised construction presenting a possible public-safety risk.

Since the Magistrate had applied the correct legal test and had not acted perversely or without jurisdiction, no revisional or inherent intervention was warranted.

Criminal Revision No. 290 of 2023 was dismissed, and the order dated 15 December 2022 rejecting discharge was affirmed.

The Trial Court was directed to proceed expeditiously with framing of charges and the subsequent trial, without granting unnecessary adjournments; interim orders, if any, were vacated.