WP.1639-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION No. 1639 OF 2010 Prasad Vaman Gawde ...Petitioner Vs. Mumbai Municipal Corporation & Ors. ...Respondents *** Mr. Ajit S. Karwande, for the Petitioner. Mrs. Teja Katedore a/w Sandeep Patil i/b Mrs. V. K. Khatau & N. A. Shaikh, for Respondent No.1. Mrs. M. R. Tidake, APP for the Respondent-State. *** CORAM: V. M. KANADE J. DATE : AUGUST 13, 2010 P.C. 1. Heard the learned counsel appearing on behalf of the petitioner, respondent No.1 and the learned APP for the State. The petitioner is aggrieved by an order passed by the Additional Sessions Judge dated 22nd April, 2010, in Criminal Appeal No. 431 of 2009. By the said order, the learned Additional Sessions Judge was pleased to dismiss the application filed by the petitioner under S. 391 Cr.P.C., WP.1639-10 - 2 - seeking permission to lead evidence. 2. Brief facts of the case are as under- . A criminal complaint was filed against the petitioner by the Mumbai Municipal Corporation and an offence was registered under section 353-A of the M.M.C. Act and under S. 53(1)(7) of the M.R.T.P. Act. Initially two show-cause notices were issued to the petitioners- one as a developer of the suit property in question; and as a tenant of the suit property. In the said show cause notices it was alleged that the petitioner has committed following five irregularities- (i) It was stated that the elevation features on north and south side of the tenements on west side of the stair-case were merged with joining rooms from first floor to sixth floor; (ii) Secondly, it was alleged that the approved toilets were also merged with the adjoining tenements; (iii) Thirdly, it was alleged that the tenement/Flat No. 102 were unauthorizedly sub-divided for commercial purpose; (iv) Fourthly, there was a change of user of Flat No. 103 from residential to commercial; (v) Occupants of Flat No.502 and 602 were residing there without obtaining occupation certificate from the M.M.C. 3. It appears that though the said show-cause notice was issued against all the occupants and the present petitioner, the explanation given WP.1639-10 - 3 - by occupiers of tenement Nos. 202, 203, 302, 303, 402, 503, 601 and 602 was accepted, and therefore, no action was taken against them. However, the charge-sheet was filed against the present petitioner. On the basis of evidence adduced by the prosecution, the trial Court was pleased to convict the petitioner. Being aggrieved by the said order, he preferred an appeal in the Sessions Court. After the appeal was admitted, he filed an application under S. 391 Cr. P. C. in which it was alleged that since the documents/letters mentioned in the application were not available to him at the time of trial, he could not produce these documents in the trial Court. These documents are annexed at Page 76 to 97 of this petition, the description of which is given in the application before the Sessions Court. 4. The learned counsel appearing on behalf of the petitioner submitted that there were several discrepancies in the show-cause notice which has been issued; and secondly these documents were not produced in the trial Court and therefore, he submitted that these documents were relevant for the purpose of deciding his defence and in the interest of justice, the Sessions Court ought to have permitted him to produce these documents on record. He submitted that all these documents are public documents, as defined under the Evidence Act, and therefore, formal WP.1639-10 - 4 - proof of these documents is not necessary. He therefore, submitted that the impugned order be quashed and set aside. 5. The learned counsel appearing for respondent No.1, on the other hand, vehemently opposed the submission made by the learned counsel for the petitioner. She submitted that since the petitioner was a developer and also a tenant, he was very well aware about the existence of these documents and the contentions raised by him in the application that he became aware of these documents only after he filed an application under the R.T.I Act, was incorrect. Secondly, it was submitted that even during the trial, he could have applied for filed the documents, assuming that he was not aware about the existence of these documents. Thirdly, it was submitted that these documents could not be taken on record merely because they were the public documents. The learned counsel submits that she disputes the submission of the learned counsel for the petitioner that these documents are public documents. 6. After having heard both the counsel and after having perused the documents which were annexed at page 76 to 97, in my view, in the interest of justice, it would be appropriate if the petitioner is permitted to bring on record these documents by leading additional evidence. The allegations made against the petitioner and other WP.1639-10 - 5 - occupants was regarding unauthorized construction of certain toilets and other structures in the building which was made by the petitioner. The petitioner was also one of the tenants in the said building. The documents which were sought to be brought on record appears to be the noting/minutes of the concerned engineers and the noting made by their Officers, and the said documents may be relevant for the purpose of proving his defence. Since these document were in possession of the respondent No.1 Corporation, it is possible that he became aware about the existence of these documents, only after an application was filed under the RTI Act. It is to be noted that the Respondent Corporation has exonerated number of tenants against whom the show-cause notices were initially issued. 7. In this background, therefore, the Sessions Court ought to have, in my view, permitted the petitioner to lead evidence under S. 391 Cr.P.C. The submissions made on behalf of the respondent Corporation cannot be accepted. However, it is clarified that if the petitioner will have to prove the documents in accordance with the law, the objection raised by the learned counsel for the Corporation regarding admissibility proof of documents is kept open. The writ petition is therefore, allowed and the impugned judgment and order of the Sessions Court is set aside. WP.1639-10 - 6 - The petitioner shall be permitted to bring on record the aforesaid documents, in accordance with law. . The writ petition is accordingly disposed of in above terms. Sd/- [ V. M. KANADE J.]