Case Note & Summary
The petitioners, Sushant Singh Kushwaha and his wife Kavita Sushant Singh Kushwaha, filed a Criminal Writ Petition before the High Court of Bombay at Goa challenging the prosecution of Criminal Case No. AOA/85/2018 pending before the Judicial Magistrate, First Class, Pernem. The case arose from FIR No. 192/2017 registered by Pernem Police Station, and a charge sheet was filed alleging an offence under Section 17A of the Goa Town and Country Planning Act, 1974 (the Act), which prohibits cutting of hilly land and filling of low-lying land. The petitioners contended that the prosecution was invalid because Section 124 of the Act mandates that no prosecution for any offence under the Act can be instituted except with the previous sanction of the Government or the Planning and Development Authority concerned. The Additional Public Prosecutor for Respondent No. 2 confirmed that no such sanction had been obtained. The court held that since the mandatory sanction was absent, the prosecution was wrongly instituted and could not proceed. The court quashed the criminal case but clarified that it had not considered the merits, and the State was free to seek sanction and prosecute afresh if it so chose.
Headnote
A) Criminal Law - Sanction for Prosecution - Mandatory Requirement - Section 124, Goa Town and Country Planning Act, 1974 - Prosecution under Section 17A of the Act cannot be instituted without previous sanction of the Government or Planning Authority - Court quashed criminal case as sanction was admittedly absent - Held that prosecution was wrongly instituted and cannot proceed (Paras 3-5).
Issue of Consideration
Whether prosecution under Section 17A of the Goa Town and Country Planning Act, 1974 can be instituted without previous sanction under Section 124 of the Act.
Final Decision
Criminal Case No. AOA/85/2018 pending before the Judicial Magistrate, First Class, Pernem is quashed and set aside. The State is free to consider prosecution after seeking previous sanction under Section 124 of the Act.
Law Points
- Mandatory sanction for prosecution
- Quashing of criminal proceedings
- Section 124 Goa Town and Country Planning Act
- 1974
- Section 17A Goa Town and Country Planning Act
Case Details
2019 LawText (BOM) (06) 179
Criminal Writ Petition No. 224 of 2018
S.C. Gupte, Nutan D. Sardessai
Arjun Naik, Mehandi Naik Desai for Petitioners; S. R Rivankar, Public Prosecutor for Respondent No.1; Pravin Faldessai, Additional Public Prosecutor for Respondent No.2
Sushant Singh Kushwaha and Smt. Kavita Sushant Singh Kushwaha
Police Incharge, Pernem Police Station; Town and Country Planning Department of Pernem Taluka; Public Prosecutor, High Court Complex, Panaji, Goa (deleted)
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Nature of Litigation
Criminal Writ Petition challenging prosecution under Section 17A of the Goa Town and Country Planning Act, 1974.
Remedy Sought
Quashing of Criminal Case No. AOA/85/2018 pending before the Judicial Magistrate, First Class, Pernem.
Filing Reason
Prosecution was instituted without previous sanction as required under Section 124 of the Act.
Issues
Whether prosecution under Section 17A of the Goa Town and Country Planning Act, 1974 can be instituted without previous sanction under Section 124 of the Act.
Submissions/Arguments
Petitioners argued that prosecution was invalid due to lack of previous sanction under Section 124 of the Act.
Additional Public Prosecutor confirmed that no previous sanction was obtained.
Ratio Decidendi
Prosecution under Section 17A of the Goa Town and Country Planning Act, 1974 cannot be instituted without previous sanction of the Government or Planning Authority under Section 124 of the Act. Since no such sanction was obtained, the prosecution is invalid and liable to be quashed.
Judgment Excerpts
Since, admittedly, there is no previous sanction, the prosecution has been wrongly instituted and cannot go through.
Criminal Case No.AOA/85/2018, pending before the Judicial Magistrate, First Class, at Pernem is, accordingly, quashed and set aside.
Procedural History
FIR No. 192/2017 was registered by Pernem Police Station. Charge Sheet No. 56/2018 was filed alleging offence under Section 17A of the Goa Town and Country Planning Act, 1974. Criminal Case No. AOA/85/2018 was pending before the Judicial Magistrate, First Class, Pernem. The petitioners filed Criminal Writ Petition No. 224 of 2018 challenging the prosecution.
Acts & Sections
- Goa Town and Country Planning Act, 1974: 17A, 124
