Delhi District Court
) The Present Kalandra Was Registered By ... vs State Of on 21 February, 2014
IN THE COURT OF MS.PURVA SAREEN, METROPOLITAN MAGISTERATE01, SOUTH, SAKET COURT, NEW DELHI State v. Mobin Ali DD No.35B dt.28.03.2013 PS SJ Enclave U/s 100 DP Act JUDGMENT
Date of Institution : 02.04.2013
Date of Commission of offence : 28.03.2013
Name of the complainant : HC Chand Pal
Name & address of the accused : Mobin Ali S/o Suleman Khan
R/o T72, Hauz Khas Village,
New Delhi
Offence complained of : 100 DP Act
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of reserve for orders : 18.02.2014
Date of announcing of orders : 21.02.2014
Briefly stated the facts of the case are :
1) The present kalandra was registered by IO/complainant. As per kalandra on 28.03.2013 at about 12.40 pm at Ward No.163, Hauz Khas Village, State v. Mobin Ali Page 1 DD No.35B , PS SJ Enclave Near Valmiki Mandir, New Delhi accused Mobin Ali willfully trespassed in Govt land by digging it and getting the sewer pipe put in the same and thereby committed an offence punishable u/s 100 DP Act.
2) Investigation was done. Statement of witnesses were recorded. Kalandra was prepared. After completion of investigation same was filed before the court. Accused made an appearance before the court. Documents were supplied to the accused. Notice u/s 100 DP Act was served to the accused to which the accused pleaded not guilty and claimed trial and thereafter the matter was fixed for prosecution evidence.
3) In order to prove the charge against accused, the prosecution examined two witnesses as under :
(i) PW1 HC Chand Pal deposed before the court that on 28.03.2013 he was on duty at police post Hauz Khas Village. He was called by Duty Officer of PS SJ Enclave. He received a complaint filed by MCD dt. 28.03.2013 regarding removal of sewer line from Valmiki Mandir Park. Thereafter, he went to the spot and saw sewer pipe was put into the said govt. land by digging the park. Accused Mobin Ali was called and interrogated. He took photograph of place of occurrence through his mobile. Kalandra was prepared against accused Mobin Ali. Accused was arrested and was released on police bail.
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Accused and case property correctly identified by witness. In his cross examination by ld. Defence counsel it is stated by witness that he received the complaint from the duty officer at 12 Noon and reached at the spot around 12.30 pm. It is admitted by witness that the original copy of complaint is not attached along with judicial file. Accused did not produce any permission letter before him at the spot.
Ld. Defence counsel placed on record photocopy of permission letter running into three pages dated 23.02.2013 vide memoEx.PW1/D1. It is admitted by witness that accused had a complaint DD No.19B dated 27.03.2013 regarding sanction of above said sewer line and investigation was marked upon complaint DD No.19B. After inquiry he submitted final report thereon to concerned SHO. He did not remember the contents of said report. When he reached at the spot he found sewer pipe in broken condition. No member of MCD was reached at the spot in his presence. It is admitted by witness that he had not seen the accused digging the sewer and putting sewer pipe. It is further admitted by witness that the said kalandra was prepared by SI Kamlesh Meena on his dictation.
(ii) PW2 Veer Singh, the then Assistant Director, Horticulture deposed before the court that on 28.03.2013 accused Mobin Ali was unauthorizedly laying sewer pipe in MCD park. He personally visited the State v. Mobin Ali Page 3 DD No.35B , PS SJ Enclave PS SJ Enclave and made a written complaint and with the assistance of police sewer pipe was removed. The Section Officer verified that the work had been done by accused Mobin Ali.
In his cross examination by ld. Defence counsel it is stated by witness that police did not recorded his statement. Witness further stated that he did not know whether accused obtained the permission to install sewer pipe line connection. He did not prepare any site plan at the time of complaint.
4) Thereafter, PE was closed. Statement of accused was recorded u/s 281 CrPC wherein he stated himself to be innocent and prefer to lead defence evidence.
5) In his defence evidence accused produced one witness as under :
(i) DW1 Gulshan Saini was JE, Delhi Jal Board, RK Puram who produced record pertaining to permission for house Sewer Connection connecting the house sewer with the sewer pipeline laid down by the authority managing the water and sewers. He used to look after area known as Hauz Khas Village. Witness further stated that there was a park in front of house of accused and temple is another side of the house. There was opening of the house towards back side and it was in between the park and the last wall of the property built up in particular line. There State v. Mobin Ali Page 4 DD No.35B , PS SJ Enclave was no boundary of the park in front of the house. There was a passage besides the park. The sewer lines in the area are laid by the respective house in the passage between the wall and the area of the park. There was one sewer line connecting house sewer with the DJB line of sewer. There was no line of DJB in the park, however, consumer line connecting the DJB line was passing through the park. There was a permission letter given in the name of Smt. Reshma for property no.87, Hauz Khas Village. The receipt no.888042 is issued by their office as the same bears reference in our file vide challan no.81/675264 dated 23.02.2013. There was permission to connect the consumer connection with DJB main hole. They used to carry out physical inspection of the property and the provision and availability of area to lay pipe line connecting the consumer connection with DJB main hole. He used to look after the area since th August 2010 and had joined the services with DJB since 28 April, 2010. The permission to lay connection was valid and effected on 28.03.2013.
In his cross examination by Ld. APP for the stated it is stated by witness that he had made physical inspection on the land prior to giving permission for house sewer connection. He had given oral direction to occupants of property in question that the applicant would lay the consumer connection sewer line along with the wall connecting with the State v. Mobin Ali Page 5 DD No.35B , PS SJ Enclave DJB main hole and not to use any public land or park in front of house in question. He had no personal knowledge how to lay pipe line with DJB main hole by the applicant after taking permission as he had never visited the spot again for said purpose. He cannot say whether accused used the park to lay the pipe line or not. Photograph Ex.P1 shown to the witness and he could not respond if the photograph depicts the site of laying the sewer line in the park area. It is admitted by witness that neither IO nor any person of his department visited the property in question to know how the applicant laid the pipe line with DJB main hole as applicant had not intimated him or his department at the time of lying the said pipe line.
6) Thereafter, DE was closed. I have heard the arguments by ld. Counsel for accused and ld. APP for the state and carefully gone through the evidence recorded and perused the documents placed on record by the prosecution in this case.
7) The place in question was a residential area. It is highlighted that IO has not joined any public witness. The place being residential area, several public witnesses were present at the time of investigation and apprehension of the accused and while completing the formalities but none of them was even requested to become a witness. This casts doubt about the sincere efforts made by the IO to join independent witnesses. In State v. Mobin Ali Page 6 DD No.35B , PS SJ Enclave Roop Chand v. State of Haryana reported in 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. In case of Pradeep Narayana V. State of Maharashtra reported AIR 1995 Supreme Court 1930, it was held that failure of police to join witness from locality during investigation creates doubt about fairness of the investigation, benefit of which has to go to the accused.
8) The accused examined DW1 Gulshan Saini, JE, Delhi Jal Board who who brought the record from his department pertaining to permission for house sewer connection. The same has not been denied by the state. The defence witness who is a JE from Delhi Jal Board in his cross examination has also stated that he had no knowledge whether the accused used the park or public land to lay the pipe line or not. He has also not been able to identify whether the photographs placed on record by the prosecution that the same pertains to the property encroached upon by the accused.
9) Further, the photograph relied upon by the prosecution can not be called a substantive piece of evidence as neither the accused is seen digging the place on photograph nor there is any other landmark which can connect that accused to the said encroachment.
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10) Also, the photograph has not been corroborated by other evidence. The Section Officer who verified and who had done the laying down work has not been made a witness or examined.
11)In view of above discussion, the prosecution has not been able to prove the case u/s 100 DP Act against the accused. Further, the permission produced by the accused sanctioned by Delhi Jal Board has been admitted by the concerned official and could not be disproved. Therefore, the accused stands acquitted for the alleged offence.
12)Bail bond to remain in force for a period of one month u/s 437A CrPC.
13)File be consigned to record room.
Announced in the open court (PURVA SAREEN)
st
on 21 February 2014 MM01/SOUTH/SAKET COURT
NEW DELHI
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