Full Judgment Text & Judicial Ruling

1969 P Cr

1969 P Cr. L J 630

[Dacca]

Before Adul Hakim, J

Mst. BAKRIDON BIBI‑Petitioner

Versus

AUTHORISED OFFICER D. I. T.‑Opposite‑Party

Criminal Revision No. 221 of 1967, decided on 7th January 1969.

East Pakistan Building Construction Act, 1952 (II of 1953)------Ss. 3 & 12‑Deviation from approved plan‑Allegation neither mentioned in complaint nor put to accused during examination under S. 242, Cr. P. C.‑Conviction and sentence set aside and matter sent back to trial Court with direction to proceed with case in accordance with law.

Mozammel Huq Khan for Petitioner.

Abdur Rahman Chowdhury for the Opposite‑Party.

Syed A. N. M. Nasiruddin for the State.

ORDER

This Rule is directed against an order of conviction passed by Mr. M. A. Malik, Magistrate, 1st Class, Dacca sentencing the accused petitioner under section 12 of the East Pakistan Building Construction Act of 1952 (hereinafter called the Act),

The prosecution case, in short, is that the petitioner Mst. Bakridon Bibi undertook a pucca construction on 15‑1‑65 at Plot No. 324 of Mouza Sahar Dacca in deviation of the approved plan of the Dacca Improvement Trust. P. W. 1 Mr. A. U. Mondal, the Building Inspector visited the locality and reported the matter to the authorised officer. The petitioner was thereupon served with a notice to stop further construction forthwith and to show cause within three days from the date of the receipt of the notice as to why she should not be prosecuted under section 3 of the said Act. No reply having been received the Building Inspector again went to the locality, took measurement and submitted a report for her prosecution. The authorised officer after obtaining the sanction for prosecution from the Government lodged a complaint to the Sub‑Divisional Magistrate, Dacca for necessary action, under a prosecution report marked Exh. 6. The accused petitioner was thus put on trial before the learned Magistrate to meet a charge under section 12 of the said Act.

The defence is a plea of not guilty. The specific case of the defence is that the place of occurrence being within the Central Commercial Zone according to Master Plan. It was not binding upon her to keep a vacant space of four feet as no where in the said Building and Construction Act there is mentioned about it.

Two witnesses for the prosecution and none for the defence were examined in the case. The learned Magistrate on appraisal of the evidence and the materials on record, convicted and sentenced the accused petitioner as stated above. The accused petitioner preferred an appeal before the learned Sessions Judge, Dacca against the said order of conviction and sentence but the learned Additional Sessions Judge, 3rd Court, Dacca dismissed the same. The petitioner being aggrieved thereby moved this Court and obtained the present Rule.

Mr. Mozammel Huq Khan, the learned Advocate appearing for the petitioner has contended that the accusations put to the accused under section 242 of the Code of Criminal Procedure and the case now established in Court by evidence are completely different. The charge having not stated the accusations for which she was found guilty, is defective and as such the conviction of the petitioner is not maintainable in law.

The accused petitioner was convicted under section 12 of the said Act for not keeping the four feet side space on the western boundary, as required under rule 3 of the Rules of the E. P. Building Construction Act and not for making the construction without approved plan of the authorised officer under section 3 of the said Act.

The trial was held in summons procedure and hence no formal charge was framed in the case. The accused was, however, examined under section 242, Cr. P. C. and the substance of accusation put to the accused under that section was really the charge against her.

The substance of accusation put to the accused during examination under section 242, Cr. P. C. shows that she was prosecuted under section 12 of the said Act for undertaking the construction without an approved plan by the authorized Officer as required under section 3 of the said Act and not for keeping the four feet side space on the western boundary as required under rule 3 of the Rules framed thereunder. The accusation does not show that she was prosecuted for contraven?tion of the provisions of said rule 3 or for deviation of the, approved plan.

The prosecution report Exh. 6, amongst others, contains:

"The said construction was made on or about January 1965 without obtaining the permission of the authorised officer under section 3 of the said Act."

It is thus apparent from the complaint as well as the form of recording examination of accused under section 242, Cr. P. C. . that the charge actually levelled against the accused was for construction of a building without an approved plan. But the case now made out in Court against the accused is that she undertook a pucca construction in deviation of the approved plan by the Dacca Improvement Trust. This allegation of deviation of the approved plan was never stated in the charge nor in this petition of complaint. The petitioner, in the circumstances, care rightly complain that she has been prejudiced in the trial. If this allegation of deviation of the approved plan would have been stated in the accusation under section 242, Cr. P. C. i.e. the charge levelled against the accused, she could certainly give reasons that she did not make any departure from the approved plan or whatever she did, she did it within the limits of law. In this view of the matter, I hold that the accused has been seriously prejudiced in the trial and the grievance of the learned Advocate has considerable force.

Mr. Abdur Rahman Chowdhury, learned Advocate appearing for the Dacca Improvement Trust has submitted that the accused understood the allegations and as such it cannot be said that she ?was prejudiced in the trial in any way. I cannot agree with him The charge must clearly and specifically state the accusations so as to give notice to the accused to take proper defence in the trial.

It is true that under rule 3 of the Rules proved under East Pakistan Building Construction Act of 1952, every proposed building must have 10 feet back space and 4 feet side space. exclusive of the sweeper passage, if any. But P. W. 1, the Building: Inspector has admitted in his deposition that in the Building arid Construction Act there is no mention that a space of four feel must be kept vacant in the Commercial Zone. He has also admitted that one or two plans in the Commercial Zone are having no side space vacant had been passed by the authorised officer. The witness has further stated that there are old house around the disputed house having no side space and against that complaint was made to the authorised officer but no action could be taken against the persons concerned as those construction, were made as per sanctioned plans.

It, therefore, follows that in some cases the authorised office himself also passed the plans in the Commercial Zone without rigidly following the rule of four feet side space and that in the old town the rule of keeping four feet side space was not rigidly observed.

The law is not respector of any body. Law must be equally enforced and observed every where as far as practicable. The Dacca Improvement Trust cannot pick and choose the law according to its own pleasure. Be that as it may, since in the present case the allegation of deviation of the approved plan was neither mentioned in the complaint nor put to the accused during examination under section 242, Cr. P. C., as already' found earlier, I have no other alternative but to set aside the order of conviction and sentence and send the matter back to the trial Court with direction to proceed with the case, after putting the accusation specifically to the accused, in accordance with law.

The learned Sessions Judge has not considered this aspect of the case in his judgment. The order of the trial Court and that of the appellate Court are accordingly set aside.

The Rule is made absolute.

Rule made absolute.

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