The court emphasized the need for independent consideration of the case by the trial court and highlighted the importance of analyzing the correctness of findings before reaching a decision.

JUDGMENT :

Ajay Kumar Gupta, J. :

1. Learned counsel appearing on behalf of the Petitioner/accused submits that by a judgment and order dated 07.05.2018 passed in Criminal Appeal No. 56 of 2016, the Learned Appellate Court below dismissed the appeal and affirmed the conviction and sentence passed under Section 401A KMC Act by the Learned Municipal Magistrate, 4th Court, Kolkata in M/F No. 28 of 2015 but during pendency of the case, the Municipal Authority has regularised the unauthorized construction of additional floor made on the sanctioned building Plan of G+III.

2. It is further submitted that two separate appeals filed by the two accused persons being CRR No. 2033 of 2018 and CRR No. 2034 of 2018. Out of those two appeals, one appeal being CRR No. 2033 of 2018 has been disposed by co-ordinate Bench of this Court and thereby remanded the case back to the learned Municipal Magistrate, 4th Court, Kolkata vide judgment and order dated 29.03.2022 with certain directions. The present petitioner is also standing in the same footing as such this instant case also may be remanded back for proper, fair and effective disposal of the main case.

3. On the other hand, learned counsels appearing on behalf of the State and Kolkata Municipal Corporation on their usual practice and candidly submitted similar judgment may be passed in this revisional application because the present petitioner is standing in the same footing as the other accused.

4. Heard both sides and on perusal of the judgment passed by the co-ordinate Bench, this Court finds the present revisional application has been filed challenging the correctness, legality and perversity of the judgment and order dated 07.05.2018 passed by learned Additional District & Sessions Judge, 1st Fast Track Court, Calcutta in Criminal Appeal No. 56 of 2016 wherein the learned Appellate Court was pleased to dismiss the appeal and affirmed the order of conviction and sentence passed by learned Municipal Magistrate, 4th Court, Calcutta in case No. M/F 28 of 2015.

5. Records reflect that the learned Municipal Magistrate, 4th Court, Calcutta was pleased to hold the present petitioner guilty for commission of offence punishable under Section 401A of the Kolkata Municipal Corporation Act, 1980 and sentenced him to suffer simple imprisonment for six months and to pay a fine of Rs. 5000/-, in default, to suffer simple imprisonment for two months. The provision of Section 401A of the KMC Act is set out as under for ready reference:

“401A. Construction of building in contravention of the provisions of the Act or the rules made thereunder. –

(1) Notwithstanding anything contained in this Act or the rules made thereunder or in any other law for the time being inforce, any person who being responsible by himself or by anyother 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, lesssee, mortgagee, consultant, promoter or financier, or a servant or agent of an owner, occupier, lesssee, 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 (2of 1974).

(3) Where an offence under sub-section (1) has been committed by a company, the provisions