skt/- 1 26.revn.587.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 587 OF 2009 Haji Mohammed Sayyed Inamdar & Anr. ... Applicants Vs. Municipal Corporation of Gr.Mumbai & Anr. ... Respondents ...... Mr.M.S.Kadu, Advocate for the applicants. Ms.Teja Katdare, Advocate for respondent no.1 – B.M.C.; Mr.D.R.More, APP for respondent no.2-State. ...... CORAM : J.H. BHATIA, J. DATE : 14th JULY, 2010. P.C. 1 Heard the learned counsel for the parties. Perused the record and proceedings and the impugned order and judgment passed by the learned Metropolitan Magistrate, 42nd Court, Shindewadi, Dadar, Mumbai in C.C.No.3791/ME/2004 as well as the order passed by the learned Additional Sessions Judge in Criminal Appeal dismissing the Criminal Appeal No.276 of 2008. skt/- 2 26.revn.587.09.sxw 2 The petitioners are said to be Trustees who had made some construction of Mosque and Madarasa without obtaining necessary permission. On 15-10-2003, a show cause notice under Section 351 of the Mumbai Municipal Corporation Act came to be issued to them and they were called upon to show the authenticity of these structure. They failed to produce any documents either about the permission taken for construction or to show that the structure was in existence since prior to 1-4-196, which is a datum line. Therefore, the Assistant Commissioner, after going through the record passed on a reasoned order on 8-03-2004 and directed to demolish the unauthorised structure. The said order was served on the accused persons on 9-3-2004 and they were required to remove the unauthorised structure within 15 days, which they failed. Therefore, a complaint was filed under Sections 342, 347 r/w. Section 475A (1)(b) and Section 351 of the Mumbai Municipal Corporation Act (for short 'The said Act'). The charge was framed against the accused under Section 351 r/w.475A(1)(b)of the said skt/- 3 26.revn.587.09.sxw Act. After trial, all the accused were convicted for the said offence and were sentenced to undergo simple imprisonment for one month and to pay fine of Rs. 5,000/- each and in default to undergo further simple imprisonment for one month each. The order of conviction and sentence was challenged by the accused persons in criminal appeal. The appeal was dismissed. 3 The learned counsel firstly contended that the offence under Section 475A(1)(b) is not a warrant case and therefore charge could not have been framed and only plea should have been recorded without framing the charge. Secondly he contended that if the charge was to be framed, the Court should have recorded the evidence before framing of charge as required under Section 244, 245 of the Code of the Criminal Procedure. As no evidence was recorded, the accused should have been discharged. Therefore, the further proceeding is vitiated. The record reveals that after framing of charge, the petitioners had filed a skt/- 4 26.revn.587.09.sxw revision application. That revision application was rejected by the Sessions Court. That order became final as there was no further challenge to the said order. Having framed the charge, the Court proceeded with recording of evidence just like a warrant triable case. 4 The offence punishable under Section 475A(1)(b) of the said Act is punishable with imprisonment which may extend to one year and fine but it shall not be less than one month with fine, which may extend to rupees twenty-five thousand rupees but shall not be less than five thousand rupees. Therefore, the offence is summons case and not the warrant case. The Section 259 of the Cr.P.C. provides that ‘when in the course of trial of a summons-case, relating to an offence punishable with imprisonment for a term exceeding six months, it appears to the Magistrate that in the interest of justice, the offence should be tried in accordance with the procedure for the trial of warrant-cases, such Magistrate may proceed skt/- 5 26.revn.587.09.sxw to re-hear the case in the manner provided by this Code for the trial of warrant cases’. In the present case, the learned Magistrate exercised the power under Section 259 of Cr.P.C at the stage of framing the charge. Therefore, this case was tried as a warrant case. As far as the framing of charge without recording of any evidence, as required under Section 244 of the Cr.P.C. in a warrant trial case, is concerned, that order has already became final. Thereafter, evidence was recorded and the Court came to conclusion that firstly show cause notice was given which was not properly replied and thereafter, the concerned Assistant Municipal Commissioner has passed a reasoned order and by serving the said order, he had directed the accused persons to remove or demolish the unauthorized structure within 15 days, which was not complied. Therefore, the accused had committed the offence under Section 475A(1)(b). 5 The learned counsel further contended that no notice was issued under Section 354 of the Act after skt/- 6 26.revn.587.09.sxw the show cause notice. But this contention is against the record. Therefore, I find no illegality or irregularity in the conviction. The learned Magistrate awarded the minimum prescribed sentence as per law and therefore needs no interference. 6 For the aforesaid reasons, the revision application stands dismissed. [ J.H. BHATIA, J.]