1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1673 OF 2009 Shri Amarjitsingh Daljitsingh Jhandwal ..Petitioner Vs. Ms. Nanda Ajay Kasotia & Anr. ..Respondents Shri S. S. Salunkhe with Mr. B.B.Shah for Petitioners Shri Virendra H. Parikh for Respondent No.1 Mrs. P.P.Bhosle APP for the State CORAM : S.C.DHARMADHIKARI, J. DATE : 19th January, 2010. P.C. : 1. The Petitioner is the original Accused No.2. In this Petition, he prays for quashing the complaint on the file of the Learned Additional Chief Metropolitian Magistrate, 9th Court, at Bandra, Mumbai, that is registered as Case No. 2 116/M/2006 and an order issuing process summoning him. The Complainant has alleged in this complaint that she resides at 12, Sneh Sadan, 28-B, Sitladevi Temple Road, Mahim, Mumbai – 400 016.. She is residing with her husband and her daughter. The maid servants are also residing with her. 2. She has stated that one M/s. Janaki Developers as the developers and original Accused Nos.8 to 10 as the co- developers constructed one building named “Venus” on plot of land more particularly described in paragraph 3 of the complaint. She has alleged that the Commencement Certificate, Completion Certificate and Occupancy Certificate for the said buildings have been issued by the original Accused Nos.5, 6 & 7. 3. It is stated that the original Accused Nos. 1 to 4 are the authorities for issuing NOC in respect of compliance with 3 D.C. Rules regarding Fire Fighting and Safety Measures. After referring to the authorities in charge issuance of such certificate, it is stated by her that the Original Accused No.8 by an Agreement dated 26.04.2004 sold flat No.601 in this building to the Complainants. The signatories to the Agreement have been referred to and thereafter it is stated that upon completion of construction original Accused Nos.8 to 10 represented to her that they have complied with the legal provisions including D.C. Rules. They have also represented that for purpose of issuing occupation certificate, Accused No.1 to 4 have issued no objection certificate in respect of mandatory fire safety measures and equipments and Fire fighting arrangements. It is believing, these representation that she occupied that flat, took possession and got interior work done. However, she has noticed that after the occupation, there was fluctuation in the electric supply and it was irregular. The Complaint proceeds to narrate as to how, the necessary fire alarm and emergency 4 arrangements have not been made. She has stated as to how, there was an emergency when a fire took place on 15.01.2006. Her father and some other occupants of the building tried to operate the fire alarm, but it was not connected with the local fire station or Chief fire station. The details as to how, the fire fighting installation was defective, have been set out in the complaint. 4. Upon such allegations and statements, she has stated that the Accused have committed offences which are punishable under Section 193, 197, 198, 337 read with Section 120-B and 420 read with section 34 of Indian Penal Code. 5. Upon such a complaint being filed, the Learned Magistrate recorded the verification statement and after perusing the materials produced including the certificates, he directed issuance of process only against the original Accused Nos.8, 9 and 10. 5 6. Aggrieved by the order issuing the process against the said Accused, they preferred Revision Application in the Court of Sessions, Greater Bombay. The original Complainant also filed Revision Application aggrieved by the fact that the process has not been issued against all Accused and more particularly Accused No.2, the present Petitioner. 7. After hearing both sides, the Sessions Court allowed the Revision Application of the Complainant partly and directed the Additional Chief Metropolitian Magistrate to issue process under section 197 read with Section 193 of Indian Penal Code against Accused No.2. The Learned Additional Sessions Judge dismissed the Revision Application of Original Accused Nos. 8, 9 and 10. That part is not challenged before me. I am concerned with the above referred direction of the Sessions Court. 6 8. It is this order, which is impugned in the present Writ Petition. I have heard Shri P.B.Shah, Counsel appearing for the Petitioner at length. I have also heard the Counsel appearing on behalf of Respondent No.1. With their assistance, I have perused the Petition and the Annexures thereto including the impugned Judgment. The Learned Additional Sessions Judge was in no error in setting aside the order of the Learned Additional Chief Metropolitian Magistrate. In all such matters, the Magistrate and the Court concerned has to be satisfied prima facie that the complaint discloses commission of an offence. The statement and allegations therein make out a case for issuance of process or not. That an offence is disclosed as against the Petitioner is the conclusion of the Learned Sessions Judge. He has given reasons for setting aside the order of the Magistrate and directing the issuance of process even against the Petitioner. In paragraph 12 of the impugned order, it is held by the Learned Sessions Judge that when the fire took place, fire 7 Brigade officers visited the building and one of them submitted his report in which, he specifically stated that he did not find any fire fighting installation in working condition. He stated that, he did not find “hose reel” provided to each “midland” of the building. The certificate dated 07.06.2005 that was issued, has not been found in order by the Learned Judge in as much as, the building was not inspected. Therefore, it is his prima facie view that, the report of the person working in the very same department contradicts the contents of the NOC. The Learned Judge in the preceding paragraph has referred to the specific role of the Petitioner. He has found a note of the Petitioner who was, then, posted as Chief Fire Officer. In the note, he has enumerated what care the Builder should take in respect of fire fighting equipment for the building. Yet, he has given certain concession to the builders. After this he issued the NOC dated 07.06.2005. This states that the building was inspected by Senior officers and it was observed that the 8 building had complied with all the requirements. The Equipment was tested and found in order and that is how no objection to occupy and use the building was granted. The Learned Additional Sessions Judge’s prima facie findings are based on the reading of the entire complaint and especially the paragraphs attributing a specific Role in the matter to the Petitioner. The Complainant has in her verification statement reiterated the same and produced the relevant documents. It is thereafter that the Learned Additional Sessions Judge held that a prima facie case of the Petitioner being guilty of the offences punishable under Section 193 and 197 has been made out. 9. I do not see as to how this prima facie conclusion can be termed as perverse or erroneous to such an extent as would enable me to interfere in my writ jurisdiction. Ultimately, these are matters were Highrise buildings are routinely constructed in big cities and if necessary, fire Safety and 9 fighting measures are not installed yet the authorities in charge of scrutiny and checking of such installations, issue certificate without spot inspection and verification at site, then, the criminal complaint of such nature has to be tried. This is not something which the Trial Court should have ignored in this case. Mr. Shah could not point out as to how this prima facie conclusion reached by the Revisional court could be interfered with in my extra ordinary, equitable and discretionary jurisdiction. At this prima facie stage, the material produced by the original Complainant were scrutinized and that above was necessary. It is not as if, the Court is obliged to go into other details at this prima facie stage. 10. In such circumstances, I am of the view that the Sessions Court’s order impugned in this Petition does not suffer from any serious legal infirmity and more so of the nature pointed out above. The Writ Petition is accordingly dismissed. That 10 the Petitioner has retired from the service is hardly of any consequence at this stage. It would be open for the Petitioner to point out to the Trial Court when the case is tried, that he could not be Accused of having committed any offence much less punishable under Section 193 and 197 of IPC. The Writ Petition is devoid of any merits and is dismissed. All observations are tentative and prima facie and shall not influence the trial Court while trying the case. (S.C.DHARMADHIKARI, J.)