Amar Nath Sadhu vs The State Of West Bengal & Anr on 9 February, 2018

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Calcutta High Court (Appellete Side)

Amar Nath Sadhu vs The State Of West Bengal & Anr on 9 February, 2018

Bench: Debi Prosad Dey

IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:

The Hon'ble Justice Debi Prosad Dey

CRR No. 232 of 2017
With
CRAN 3721 of 2017

Amar Nath Sadhu

Versus
The State of West Bengal & Anr.

And.

CRR No. 428 of 2017
With
CRAN 3543 of 2017

Shishir Kumar Bajoria
Versus
The State of West Bengal & Anr.

Appearance:
Mr. Sabyasachi Banerjee
Mr. Ayan Bhattacharya
Mr. Anirudha Agarwalla
Ms. Farhaj Nasim...................for the Petitioner. (CRR 232 of 2017)

Mr. Anindya Mitra...Sr, Advocaqte
Mr. Debasish Roy
Mr. Sandipan Ganguly...Sr. Advocate
Mr. Sabyasachi Banerjee
Mr. Somopriya Roy Chowdhury
Mr. Anirban Dutta.
Mr. Anand Agarwalla................for the Petitioner (CRR 428 of 2017)

Mr. Asish Kumar Sanyal
Mr. Anidya Sundar Chatterjee
Mr. Goutam Dinda.......for the K.M.C.

Heard on : 21.12.2017, 16.01.2018 and 31.01.2018

Judgment on : 09.02.2018

Debi Prosad Dey, J. :-
CRR 428 of 2017 and CRR 232 of 2017 have been taken up together for

disposal since two non‐executive Directors of Heritage Health Insurance, TPA
Private Limited have filed the respective applications under Section 482 of the

Code of Criminal Procedure for quashing of the proceeding being case no.

2829 of 2016 arising out of Hare Street Police Station Case No. 236 of 2016

under Section 401A of the Kolkata Municipal Corporation Act, pending

before the Court of learned senior Municipal Magistrate, Calcutta, Kolkata

Municipal Corporation Court. The petitioners are the non‐executive Directors

of Heritage Health Insurance, TPA Private Limited having its registered office

at 3 N. S. Bose Road, Kolkata‐ 700001 under police station Hare Street. The

said company was in requirement of a space at its administrative office and

that is why, has taken on lease an office space measuring more or less 559 Sq.

Ft. of 2nd Floor of Mallick House on 7 Hare Street, Calcutta‐700001. The

company thereafter undertake the renovation work of such office space with

notice to the Councilor of Ward No.45 vide annexure P3. The Kolkata

Municipal Corporation served a notice upon the company under Section 401

of the Kolkata Municipal Corporation Act, 1980 alleging that the repair work

being carried out at the said office premises without any sanction from the

Kolkata Municipal Corporation. In the meantime, on receipt of a notice

under Section 41A of the Code of Criminal Procedure addressed to the

Directors of the said company it came to the knowledge of the petitioners that
the Kolkata Municipal Corporation has also lodged a complaint against the

company under Section 401A of Kolkata Municipal Corporation Act.

The company duly replied to the notice under Section 401 of the

Kolkata Municipal Corporation Act explaining the nature of work undertaken

by the company in the lease hold property. Thereafter, the Assistant Engineer

(Civil) Borough‐V, Kolkata Municipal Corporation directed the company to

demolish the work undertaken by the company. The company accordingly

demolished the wooden construction inside the lease hold property and

explained the alleged change of user of such property. In terms of such

undertaking the company ultimately demolished the work already executed

by the company. The Assistant Engineer, Building Department of Borough‐IV

& V, Kolkata Municipal Corporation thereafter being satisfied about such

demolition work of the company withdrew the notice under Section 401 by

letter No. BL/316/AE(c)/Bldg Br IV & V, dated 1st August, 2017. The company

also intimated to the Assistant Engineer(Civil) of Building Department about

the work to be undertaken by the company and it has further been intimated

that as per Rule 3(2) of the Kolkata Municipal Corporation Building Rules,

2009 no such permission is required. That letter has also been acknowledged
and admitted by the Kolkata Municipal Corporation by its letter dated

23.08.2017

Annexed with the supplementary affidavit.

Learned Advocate Mrs. Anusuya Sinha has submitted a report of the Sub‐Inspector of Police wherefrom it transpires that in fact the Kolkata Municipal Corporation has withdrawn the notice under Section 401 of the Kolkata Municipal Corporation Act. The authenticity of the said letter has been verified by the Sub‐Inspector of Police. It is, therefore, apparent from such letter of the Kolkata Municipal Corporation that in fact the notice under Section 401 of the Kolkata Municipal Corporation Act has been withdrawn by the Kolkata Municipal Corporation.

Learned senior Counsel Mr. Debasish Roy appearing on behalf of the petitioner contended that the petitioners are non‐executive Directors and they were not in charge of day to day function of the company under reference. The information given to the police by the Kolkata Municipal Corporation does not depict the name of the present petitioners as executive/Managing Director of the said company. It has simply been mentioned in such notice that Director of such company is responsible for undertaking such renovation work without sanction from Kolkata Municipal Corporation. Mr. Roy drew the attention of the Court with regard to Section 401A of the Kolkata Municipal Corporation Act, which may be reproduced below:

"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 Corporation 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 new building or additional floor or floors of any building as aforesaid.

2. The offence under sub‐section(1) shall be cognizable and non‐ bailable, within the meaning of the Code of Criminal Procedure, 1973(2 of 1974).

3. Where an offence under sub‐section (1) has been committed by a company, the provisions of section 619 shall apply to such company.

Explanation‐ Company shall have the same meaning as in the Explanation to section 619."

Mr. Roy further contended that in order to invoke Section 401A of the Kolkata Municipal Corporation Act, it is incumbent upon the corporation to allege that construction of any new building or additional floor/floors of any building has been undertaken by the company in contravention of the provisions of the Act or the Rule made thereunder, which endanger human life or any property of the Corporation 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. Mr. Roy submitted that there is absolutely nothing in the notice issued by the Kolkata Municipal Corporation to show that the repair work undertaken by company would in any way endanger or is likely to endanger human life or any property of the corporation causing disruption in water supply, drainage or sewerage or road traffic. In that view of this case, it is submitted that there is absolutely no material in the alleged First Information Report for the offence under Section 401 A of the Kolkata Municipal Corporation Act and accordingly such First Information Report ought to be quashed. It is, further submitted that the Kolkata Municipal Corporation has already withdrawn the notice under Section 401 of Kolkata Municipal Corporation Act and accordingly continuance of the proceeding under reference would amount to abuse of process. Mr. Roy also drew the attention of the Court to Section 619 of Kolkata Municipal Corporation Act. Section 619 of Kolkata Municipal Corporation Act may be reproduced below:‐ "Offences by companies.‐ Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.:

Provided that nothing contained in this sub‐section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

Notwithstanding anything contained in sub‐section (1), where an offence under this Act has been committed by a company and it is provided that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.‐ For the purposes of this section.‐ a. Company means a body corporate, and includes a firm or other association of individuals; and b. Director in relation to a firm means a partner in the firm." The Kolkata Municipal Corporation also could not specify in the alleged First Information Report or in the notice as to who was in charge of the company and who was responsible for conducting the day to day business of the company. On that score also the notice under Section 401 appears to be vague and cannot be permitted to continue. The withdrawal notice of the Kolkata Municipal Corporation has been verified by the state and found to be genuine.

Mr. Sannayal, learned senior Counsel appearing on behalf of the Kolkata Municipal Corporation however contended that mere demolition of such work, which was undertaken in contravention of the Provisions of Kolkata Municipal Corporation Act, 1980, would not absolve the petitioners from the rigors of law but the said fact may be taken up at the time of awarding punishment to the petitioners as a mitigating circumstances. Mr. Sannyal further contended that the petitioners illegally constructed inside their lease hold premises without sanction from Kolkata Municipal Corporation and accordingly the application under Section 482 of the Code of Criminal Procedure ought to be rejected.

I have already stated in the forgoing paragraphs that the Kolkata Municipal Corporation could not show as to who was in charge of such company and accordingly Section 619 of the Companies Act exempted the present petitioners being non‐executive Directors of such company from the alleged offence. Secondly, the Kolkata Municipal Corporation has withdrawn the notice under Section 401 of the Kolkata Municipal Corporation Act and copy of which has been sent to the Hare Street police station obviously with the intention of closing the case against the present petitioner. Thirdly, the authenticity of such letter has been verified by the state machinery. Fourthly, the Kolkata Municipal Corporation has also admitted that such repairing work can be undertaken without any sanction in terms of Rule 3(2) of the Kolkata Municipal Corporation Rules, 2009.

In the premises set forth above I find sufficient merit in both the applications and accordingly both the applications under Section 482 of the Code of Criminal Procedure being CRR No. 232 of 2017 and CRR No. 428 of 2017 stand allowed.

All the CRAN applications are also disposed of in terms of the aforesaid order.

The case no. 2829 of 2016 arising out of Hare Street police station case no. 639 of 2016 under Section 401 A of the Kolkata Municipal Corporation Act, 1980 pending before the Court of learned senior Municipal Magistrate, Calcutta Municipal Court stands quashed.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible (Debi Prosad Dey, J.)

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