Delhi District Court
State (Through Mcd) vs . Smt. Kashana Parveen on 5 May, 2009
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IN THE COURT OF SH. VIVEK KUMAR GULIA
METROPOLITAN MAGISTRATE - 1 (EAST)
KARKARDOOMA COURTS, DELHI
In re:
State (through MCD) Vs. Smt. Kashana Parveen
FIR NO. 4/99
PS: STF
U/s. 345A/461 of DMC Act & 188/448 IPC
1. Sr. No. of the case : 116/2
2. Date of institution : 09.06.1999
3. Name of the complainant : S. Kumaraswamy
4. Date of commission of offence: 09.01.1999-01.02.1999
5. Name of accused : Ms. Kashana Praveen,
W/o. Rahis Ahmad,
R/o. H.No. 230,
Ramesh Park,
Laxmi Nagar, Delhi.
Present address :
H. NO. I -191, Narayan
Nagar, Gali no.18,
Laxmi Nagar, Delhi
6. Offence complained of : 345A/461 of DMC Act
& 188 /448 IPC
7. Plea of guilt : Accused pleaded
not guilty
8. Date of reserving the order : 24.04.2009
9. Final order : Acquittal
10.Date of such Order : 05.05.2009
State vs. Kashana Praveen FIR no. 4/99
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JUDGMENT
1. The First Information Report No. 4/99 u/s. 345A/461 Delhi Municipal Corporation Act, 1957 (Act) and u/s 188 Indian Penal Code, 1860 (IPC) was registered on the basis of complaint (Ex. PW3/A) dated 05.02.1999 made by Dy. Commissioner, MCD, Shahdara (South) Zone, whereby it is alleged that the property no. R-230, Ramesh Park, Delhi (in short "property") was sealed by MCD along with officers of STF on 09.01.1999 on account of deviation against the sanctioned building plan u/s 345A of the Act. It was further mentioned therein that during the course of routine inspection, Sh. P.K. Jain, JE (Building) of the area found on 01.02.1999 that seal of the property had been tempered with and broken open illegally and Sh. Umar Qureshi, owner/builder of the property, has entered the premises and has been carrying out the construction unauthorizedly. Thereafter, after registration of the case, legal formalities were completed, viz., preparation of site plan, arrest memo, recording of disclosure statement and calling of the relevant documents from the concerned MCD Office. During investigation, the accused was found to be owner of the property. Thus, she was charge-sheeted and sent up for facing the trial.
State vs. Kashana Praveen FIR no. 4/99 3
2. Finding a prima-facie case, Sh. A.K. Chaturvedi, the then Ld. MM, Shahdara, Delhi, on 12.09.2000, framed charges u/s. 345A/461 of the Act and u/s.188/448 IPC against accused, to which she pleaded not guilty and claimed trial.
3. For proving its case, the prosecution produced six witnesses.
3A. PW1, Rajender Kumar Joshi, OI, Building, Shahdara, South Zone, brought the record of the property and proved first show cause notice Ex. PW1/B, permission letter for sending second show cause notice Ex. PW1/C, second show cause notice Ex. PW1/D, demolition order Ex. PW1/E, internal official correspondence Ex. PW1/F and PW1/G, sealing show cause notice Ex. PW1/I and sealing order Ex. PW1/H. 3B. PW2, P. K. Jain, JE, Karol Bagh Zone, MCD, deposed that on 09.01.1999, the property was sealed at two points and during routine inspection on 01.02.1999, he found that the seals were broken/tempered with. The witness replied in his cross- examination that at the time of sealing there was no construction activity being carried out and he does not know anybody by the name of Umar Qureshi. Further he deposed that there was no State vs. Kashana Praveen FIR no. 4/99 4 public witness at the time of sealing and he made no efforts to join any witness. Further, he admitted that he had not seen anybody breaking open the seal.
3C. PW3, ASI Birender Singh, deposed that on 11.02.1999, he recorded FIR No. 4/99 Ex. PW3/A. 3D. PW3 (?), S. Kumarswamy, Dy. Secretary, Ministry of I & B, Shastri Bhawan, N.Delhi., deposed that he was authorized by the Administrator Delhi vide order dt. 26.02.98 to file the complaint dated 05.02.1999 Ex. PW3/A. He issued sealing order Ex. PW1/H and show cause notice for sealing Ex. PW1/1.
3E. PW4, Jamal Anwar, submitted that accused is his sister. He conceded that property was sealed by MCD and admitted his signatures on disclosure statement Ex. PW4/A. In his cross- examination, witness submitted that police did not arrest the accused in his presence.
3F. PW5, Inspector Rajender Singh, being the IO deposed that he served notice to OI (B) Ex. PW5/A on 15.02.1999 to produce various MCD documents. Further he proved seizure memo Ex. PW5/B and site plan Ex. PW5/C. He recorded statement of witnesses and on 26.03.1999 arrested the accused in presence of Jamal Anwar. Witness also proved arrest memo Ex. PW5/D and State vs. Kashana Praveen FIR no. 4/99 5 property ownership documents PW5/E. During cross-examination, witness deposed that name of accused came during investigation and she produced the documents pertaining to ownership. Further he deposed that property belongs to accused though he does not know if property was ever handed over to any builder.
4. When all the incriminating evidence, brought on record by prosecution side, was placed before the accused to know her explanation u/s. 313 Criminal Procedure Code (Cr.P.C.), it was replied that she had neither broken the seal nor tress-passed upon the property. It is a false case against her and she is innocent.
5. I have heard the State through Ld. APP and Sh. K. Ahmad, Learned defence counsel.
6. It is argued by the prosecution side that all the witnesses have fully supported the case of prosecution and as such accused may be held guilty of the offences alleged against her. Per Contra, it is argued by Ld. Counsel for the accused that accused had no role to play in the alleged commission of offences and she deserves acquittal.
State vs. Kashana Praveen FIR no. 4/99 6
7. It is argued that no unauthorized construction was raised by accused at the property. Ld. Defence Counsel also emphasized that though PW's have proved the fact of sealing of the property, however, same was not done in accordance with law. It is observed that vide complaint dt. 05.02.1999, filed by S. Kumaraswamy (PW3), it was alleged that the seal of the property had been tempered with by Sh. Umar Qureshi (owner/builder); he has tress- passed the sealed premises and carried out the construction unauthorizedly. Moreover, Umar Qureshi also finds place in sealing order dated 14.07.1998 Ex. PW1/H. Thus, it is clear that proceedings of MCD were initiated only against one Umar Qureshi whose connection with the property has not been investigated. It seems Umar Qureshi has nothing to do with property as neither he is owner of the property nor his whereabouts are known. Aforesaid FIR was registered against Umar Qureshi on the complaint Ex. PW3/A made by Dy. Commissioner and not against the accused arrayed in the case in hand.
8. It is evident that no proceedings was initiated by MCD against the accused though during investigation she was found to be owner of the property. Therefore, order of sealing, as far as accused is State vs. Kashana Praveen FIR no. 4/99 7 concerned, is void ab-initio and not operable against her since order u/s. 345A of the Act could not be passed without serving a mandatory and statutory notice upon the accused. Now, when the sealing of property is not proved to be legal, no question can arise in respect of tress-passing the property after breaking open the seals illegally constituting offence u/s. 448 IPC or violating the order duly promulgated by public servant constituting offence u/s. 188 IPC. Otherwise also, prosecution has failed to bring on record even an iota of evidence to show that it was the accused who had broke open the seals illegally and tress-passed thereupon.
9. The upshot of the above discussion is that the prosecution has failed to prove the charges levelled against the accused in this case. The accused, therefore, deserves acquittal. Ordered accordingly.
Announced in the open court ( Vivek Kumar Gulia )
On 5th Day of May, 2009 MM-I (East)
(Total pages - 7) Karkardooma Courts, Delhi.
State vs. Kashana Praveen FIR no. 4/99
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State (through MCD) Vs. Smt. Kashana Parveen FIR NO. 4/99 PS: STF U/s. 345A/461 of DMC Act & 188/448 IPC 05.05.2009 Present : Ld. APP for the state Accused on bail with counsel.
Vide separate judgment of the even date, accused Radhey Shyam is acquitted.
File be consigned to Record Room.
( Vivek Kumar Gulia ) MM-I (East) Karkardooma Courts, Delhi.
State vs. Kashana Praveen FIR no. 4/99