Delhi District Court
State vs Jagdish Chander on 21 October, 2009
Page no. 1 of 11
IN THE COURT OF SH. SATISH KUMAR ARORA: MM KKD COURTS DELHI
FIR No. 14/99
U/s 345A/461 DMC Act
P.S. STF
State Vs Jagdish Chander
JUDGEMENT
a.Sl. No of the case : 02402R0022861999
b. Date of institution : 27.7.99
c. Date of commission of
offence : 04.9.98
d.Name of the complainant : State
e.Name of the accused & his
parentage and address : Jagdish Chander
s/o Sh. Mukand Lal
r/o 46/02, East Azad Nagar,
Krishna Nagar, Delhi
f. Offence complained of : 345A DMC Act r/w sec.188/448 IPC
g. Plea of the accused : pleaded not guilty
h. Order Reserved : 07.10.09
i. Final order : Acquitted
j. Date of such order : 21.10.09
Brief reasons for the decision of the case.
1. Prosecution case, in brief, is that a complaint u/s 466 A DMC Act dated 10.9.98 by Deputy Commissioner, MCD, Shahdara South Page no. 2 of 11 Zone, which was with respect to the tempering /illegal breaking open of the seal of property, was sent to the DCP, Special Task Force, Vikas Bhawan, I.P. Estate, Delhi. The said complaint was at the instance of and on the information of PW 3 R.A. Goel, JE (Civil) who during the course of routine inspection found the seal of the property bearing no. 624, Guru Ram Das Nagar, Laxmi Nagar, Delhi tampered with and broken open illegally. He further noticed that the owner/builder had entered into the sealed premises and was also carrying out the unauthorised construction. On the said complaint, the present case FIR was registered and the matter was entrusted upon IO/Inspector Sajjan Singh. During investigation, on 22.4.99 IO interrogated one Praduman Jain whose name was mentioned in the complaint as well as FIR. During the course of investigation, IO on 23.4.99 recorded the statement of PW 3 R.A. Goel, Jr. Engineer, Civil and further at his instance, prepared site plan. Finally, the present accused was arrested and after completion of necessary investigation, challan was filed in the court against the accused for trial.
2. On his appearance, copies of charge sheet and documents were supplied. After hearing both the sides, notice for the offence punishable u/s 345A DMC Act r/w sec.188/448/34 IPC was issued to the accused, to which he pleaded not guilty and claimed trial.
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3. Prosecution, in order to substantiate and prove its case, has examined five witnesses. PW 1 S K Tyagi, is the L.D.C. posted in the Office of Deputy Commissioner, MCD, Shahdara South Zone, Delhi. PW 2 HC Harvinder Singh was the DO at STF who recorded and proved FIR EX.PW 2/A. PW 3 R.A.Goel was the Junior Engineer (Civil) who during the course of inspection found the seal broken. PW 4 S. Kumarswami was the then Deputy Commissioner, MCD, Shahdara South Zone, Delhi on whose complaint, FIR was registered. PW 5 Inspector Sajjan Singh is the IO of the case.
PW 1 S.K.Tyagi brought the original summoned record of the property bearing no. 624, Guru Ram Das Nagar, Laxmi Nagar, Delhi. He proved the internal memo as EX.PW 1/A, copy of the sealing order as EX.PW 1/B, copy of show cause notice for the sealing of the said property as EX.PW 1/C, copy of FIR as lodged with the MCD is Ex.PW1/D, copy of first show cause notice issued to owner of property bearing no. 624 Guru Ram Das Nagar, Laxmi Nagar as Ex.PW1/E, copy nd of 2 show cause notice as EX.PW 1/F, copy of show notice for demolition as EX.PW 1/G and copy of demolition order dated 16.6.98 as Ex.PW1/H. Despite opportunity, ld. defence counsel chose not to cross examine him.
PW 3 R A Goel in his examination in chief testified that he had Page no. 4 of 11 worked in the area of Shahdara South Zone for about 1½ year and during his tenure, he noticed unauthorised construction in property bearing no. 624, Guru Ram Das Nagar, Laxmi Nagar, Delhi. He further testified that after getting the necessary approval from the higher authority and getting no reply from the owner/builder, the demolition order was passed and sealed show cause notice was issued to the owner/builder with time to file his reply. He further stated that he had put up the proposal for sealing the property in question before Deputy Commissioner, MCD, Shahdara South Zone for further action vide internal memo EX.PW 1/A. On 29.7.98, the said property was sealed in the presence of MCD officials and Special Task Force staff. He further testified that on 31.8.98, when he was on inspection, he found the said seal tampered with. He sent the proposal for resealing the property on 31.7.98 vide internal memo Ex.PW 1/A. The said fact was also pointed out by the STF staff and the file was consequently put up before Deputy Commissioner, MCD, Shahdara South Zone, Delhi for resealing on 04.9.98. He further testified that thereafter, the FIR EX.PW 1/D was booked against the owner/builder of the aforesaid property with the Delhi Municipal Corporation, Building Department. Pursuant to booking of FIR, second notice for demolition which is EX.PW 1/F was put up before higher authorities and the second show cause notice EX.PW 1/F for the Page no. 5 of 11 demolition of the property in question was passed by him. Finally, the proposal for demolition order was put up by him before the higher authority. In his cross examination by Ld. defence counsel, he testified that he do know the owner of the building and further can not tell either the number of the floor or number of the rooms in the said property. He testified as correct that in the complaint EX.PW 1/A preferred by Deputy Commissioner, MCD, Shahdara South Zone to the DCP, STF, the name of the owner /builder has been shown as Praduman Jain. He further stated that at the time of finding the breaking open of the seal on his routine inspection, he had not met the owner, however, he tried to enquire about the ownership of the house but nobody informed about the details. He denied the suggestion that he had taken money from the builder or that he is deposing falsely.
PW 4 S Kumarswami who was the then Deputy Commissioner, MCD, Shahdara South Zone stated that on the facts reported to him about the tampering /breaking open of the seal he made a complaint EX.PW 4/A to the DCP, STF. In his cross examination, he testified that he is having no personal knowledge about the spot and it was only on the information given by the JE R.A. Goel that he made the complaint. He further testified as correct that it was only on the basis of record of JE that premises no. 624 Guru Ram Das Nagar, Laxmi Nagar belongs to Page no. 6 of 11 the owner/builder, he had filed the complaint naming him.
PW 5 Inspector Sajjan Singh is the IO of the case. He testified that on 05.3.99 he was handed over the investigation of the present case and he interrogated Praduman Jain whose name is mentioned in the FIR with respect to breaking open of the seal of the property in question. He further testified that on 23.4.99, he recorded the statement of JE (Building) Sh. R.A. Goel and also prepared site plan EX.PW 5/A at his instance. He further testified that accused was arrested and his personal search was conducted vide memo EX.PW 5/A and Ex.PW5/C respectively. He further testified that he recorded disclosure statement EX.PW 5/D of the accused and also obtained the copy of the agreement to sell mark A from him. In his cross examination by Ld. defence counsel, he testified as correct that as per FIR, accused is Praduman Jain and property in question is situated at house no. 624, Guru Ram Das Nagar, Laxmi Nagar, Delhi. He further testified that he never recorded the statement of accused Praduman Jain, however, during interrogation, Praduman Jain revealed that he is a social worker and he was present at the spot at the time of sealing of the property and for that reason he has been named as accused. PW 5 further testified that Praduman Jain informed him that he can give correct name and address of the accused and can also produce him. On 2.6.99 he produced the Page no. 7 of 11 accused before him who showed documents in his own name with respect to the sealed property. He further testified that accused had not shown him the original documents and it was only the photocopy which was kept by him with the file. He stated as correct that the documents seized from the accused does not bear either the number 624 or the place Guru Ram Das Nagar, Laxmi Nagar. He denied the suggestion that he has falsely implicated the accused or that the present case is a false case.
4. In his statement recorded u/s 313 Cr.P.C., accused pleaded innocence and stated that he had been falsely implicated as he has no concern with the property no. 624 Guru Ram Das Nagar, Laxmi Nagar. He further stated that he has been falsely implicated at the instance of Praduman Jain, property dealer of the area. However, he preferred not to lead evidence in his defence.
5. I have heard ld. APP for the state and ld. defence counsel and have perused the record carefully. Whereas ld. APP contends that sufficient evidence has come on record so as to nail down the accused on the charge, on the other hand, ld. defence counsel contends that prosecution has failed to prove its case beyond reasonable doubt that it was the accused who had not only tampered or had broken the seal but also trespassed into the premises and further carried out the Page no. 8 of 11 unauthorised construction in the premises. In support of his contentions, Ld. defence counsel refers to the testimony of PW 3 R.A. Goel. Ld. defence counsel submits that it was at the instance of PW 3 R.A. Goel that all the proceedings for alleged breaking open of the sealed premises, trespassing and carrying out of unauthorised construction were initiated. He further submitted that PW 3 R.A. Goel was the then area Jr.Engineer (Building) who alleged to have noticed the breaking open of the seal on his routine inspection. He contends that show cause notices issued prior to sealing of the property have been addressed to the owner/builder of the premises bearing no. 624, Guru Ram Das Nagar, Laxmi Nagar, Delhi. In none of the show cause notices issued or even in the internal memo, the accused has been named. It is only in the complaint EX.PW 4/A made by PW 4 S. Kumarswamy, the then Deputy Commissioner, MCD, Shahdara South Zone, that the name of the builder/owner finds mention and that too not of the accused but of one Praduman Jain. Ld. defence counsel then refers to the testimony of PW 4 S Kumarswamy, who in his cross examination, testified that he has lodged the complaint with the DCP STF on the information furnished by PW 3 R A Goel. He further testified that he had no personal knowledge about the incident. Ld. defence counsel further contends that it is highly improbable that the area Jr. Engineer R. A Goel was not able to gather Page no. 9 of 11 the knowledge as to who is the builder/owner of the property. It seems highly improbable that area Jr.Engineer is lacking knowledge in the ownership details as to property/houses in his area. Furthermore, he could have enquired from the House Tax Department as to who was the owner/builder. Ld. defence counsel then refers to the testimony of PW 5 IO SI Sajjan Singh. Even though, IO has made inquiries from Praduman Jain who has been named in the complaint EX.PW 4/A, however, his statement u/s 161 Cr.P.C. has not been taken on record. PW 5 further testified that the only document seized from the accused was an agreement to sell, that too was a photocopy and not original. Ld. defence counsel refers to the copy of agreement to sell which is Mark X wherein the property is shown as property no. 35 Khasra No. 51/11, 12 and 13, Krishan Kunj Extension, Khajuri Khas, Delhi. Nowhere in the said document, house no. 624 Guru Ram Das Nagar has been shown. Furthermore, even the address of the accused mentioned in the agreement to sell is 8 Mohan Park, West Angad Nagar, Laxmi Nagar, Delhi which is apparently not that of the property in question. He thus contends that possibility of foul play against the accused can not be ruled out. There is no material on record so as to suggest that it was the accused Jagdish who not only tampered with the seal but also trespassed into the premises and had carried out unauthorised Page no. 10 of 11 construction. Ld. defence counsel, thus, contends that on the basis of material available on record there is no case made out against the accused and he deserves to be acquitted for the offence.
Having heard the respective submissions, I am of the opinion that the contentions of Ld. defence counsel have force as nowhere either in the show cause notices or even in the FIR EX.PW 4/A which was lodged with the MCD, the name of the owner/builder of the property bearing no. 624, Guru Ram Das Nagar, Laxmi Nagar, Delhi has been revealed. Furthermore, in the complaint EX.PW 4/A, name of the owner has been shown as Praduman Jain. There is no justification as to why the name of the owner/builder of the property was not there in any of the earlier documents including the internal memo Ex.PW 1/A, the demolition and sealing order as well as the show cause notices. It is also apparent from the prosecution evidence that the IO/Inspector Sajjan Singh has not made any efforts to verify as to who was the owner/builder at the time of alleged offence. Photocopy of agreement to sell mark X nowhere helps the prosecution in establishing the guilt of the accused. I am in agreement with the contention of Ld. defence counsel that the agreement to sell mark X also nowhere suggests that accused Jagdish was having any concern with the property in question. The element of foul play at the instance of concerned MCD officials more specifically Page no. 11 of 11 Area Jr. Engineer R.A. Goel with the IO can not be ruled out. The investigation has been done both by the concerned MCD officials and the police in a most perfunctory manner. The sealing order passed by the then Deputy Commissioner, MCD, Shahdara South Zone seems to have been passed in a very casual manner without making any attempt to enquire from the Area Jr. Engineer (Building) R.A. Goel as to why he was not having the details of the owner/builder of the disputed property.
6. In view of the foregoing reasons, I am of the opinion that prosecution has failed to establish its case beyond reasonable doubt against the accused. Benefit of doubt thereof is accordingly given to the accused. He is acquitted of the offence. His B/B S/B stands discharged. File be consigned to Record Room.
Announced in the open court on 21.10.09 (SATISH KUMAR ARORA) METROPOLITAN MAGISTRATE, KARKARDOOMACOURTS, DELHI