Delhi District Court
State vs . Nand Kishore on 30 July, 2016
IN THE COURT OF SH. RAJINDER SINGH, METROPOLITAN
MAGISTRATE-06, DWARKA COURTS, DELHI
FIR No. 04/08
PS: JP Kalan
U/S :447/188 IPC
State Vs. Nand Kishore
Serial / C. No. 117/1/16
U.ID No. 422434/2016
Date of Commission of the 24.12.2007
offence:
Name of the Complainant Sh. Mahavir Singh
BDO, Najafgarh Delhi
Name and address of accused Nand Kishore,
S/o Lt. Sh. Neta Ram.
Village Sikarpur
Najafgarh Delhi
Offence complained of or proved U/s 447/188 IPC
Plea of accused persons Accused
Pleaded not guilty.
Final Order Convicted
Date of pronouncing the orders 30.07.2016
State Vs. Nand Kishore
FIR No. 04/08
PS: JP Kalan Page no. 1 of 11
Date of Institution: 27.05.2008
Date on which Judgment reserved 09.07.2016
Date of Judgment: 30.07.2016
JUDGMENT
BRIEF FACTS
1. Complaint dated 24.12.2007 was given by the BDO, Najafgarh Delhi, to the SHO PS JP Kalan, regarding encroachment and tress pass by the accused on Gram Sabha Land in Khasra no. 29/21,22,23,30/1,2,9,10,11,12,19 and 30 Village Jain Pur, Shikar Pur within the jurisdiction of PS JP Kalan. The accused Nand Kishore at unknown date and time committed tress pass on the aforesaid land. The accused disobeyed the order No. F.SDM/RA/2007/155 duly promulgated by the public servant.
NOTICE
2. Notice for the offences punishable u/s 447 & 188 IPC was framed against the accused Nand Kishore on 13.07.2010. Accused pleaded not guilty and claimed trial.
State Vs. Nand Kishore
FIR No. 04/08
PS: JP Kalan Page no. 2 of 11
PROSECUTION EVIDENCE
3. The prosecution examined eight PWs to prove its case.
3.1 PW1: W/Ct. Sharda (Duty Officer) Proved the FIR of this case. The computer generated copy of the FIR is Ex. PW1/A. Her endorsement on rukka is Ex. PW1/B. 3.2 PW2: Sh. M.S. Dagar.
Stated that in the year 2007 he was posted as BDO, Najafgarh, South West District. On Nank Kishore (accused) from village Jain Pur (Shikarpur) had sown wheat crop on Gram Sabha land in mustkil No. 29-30, in this regard, letter Ex. PW2/A was written to the SHO and FIR was registered against the accused Nand Kishore (correctly identified). The authorization letter regarding the working of Sh. Manoj Kumar and Abhishek Kumar is Ex. PW2/B. The complaint U/s 195 Cr. P.C is Ex. PW2/C. 3.3 PW3: Sh. Manoj Kumar (Village Level worker, Directorate of Panchayat, Tis Hazari.
Stated that in the year 2008 he was posted as Panchayat State Vs. Nand Kishore FIR No. 04/08 PS: JP Kalan Page no. 3 of 11 Secretary in the office of BDO, South West District. On 10.01.2008 he alongwith his colleague Sh. Ashok yadav (PW4) went to PS JP Kalan and gave the complaint Ex. PW2/A. They went to village Jain Pur/ Shikarpur alongwith the police officials. They found that wheat crop was sown. Sh. Ashok Kumar told PW3 that the land was Gram Sabha Land. The accused (correctly identified) was arrested and his personal search was conducted vide memo Ex. PW3/A and PW3/B respectively.
3.4 PW4: Sh. Ashok Kumar.
Corroborated the testimony of PW3.
3.5 PW5: Sh. Manish, Halka Patwari of Revenue Estate Jainpur Delhi.
Produced the original record and copy of khatoni pertaining to Khasra no. 29/21,22,23,30/1,2,9,10,11,12,19 and 30 Village Jain Pur, Shikar Pur for the year 2001-2002. As per record the said land is in the name of Gram Sabha. The Khatedar title has not been changed on record. Copy of the Khatoni is Ex. PW5/A (OS&R).
3.6 PW6: Ct. Parvesh Kumar.
Stated that on 10.01.2008 he was posted as Constable at PS State Vs. Nand Kishore FIR No. 04/08 PS: JP Kalan Page no. 4 of 11 JP Kalan. On that date he joined investigation with IO ASI Ramesh Chand. They went to village Shikarpur. PW3 and PW4 also accompanied them. The accused Nand Kishore had sown wheat crop on the Gram Sabha Land. At the instance of Sh. Ashok Kumar IO prepared the Site Plan. Accused was arrested and his personal search was conducted vide memo Ex. PW3/A and PW3/B respectively.
3.7 PW7: Sh. Ramesh Chand (IO).
Stated that on 10.01.2008 he was posted at PS JP Kalan. He received the complaint Ex. PW2/A and made the endorsement Ex. PW7/A. He got the case registered, thereafter, he alongwith Ct. Parvesh and Panchayat Secretaries Sh. Ashok Kumar and Manoj Kumar went to the village Jainpur, Shikarpur there accused Nand Kishore had sown wheat crop on the Gram Sabha Land. The Punchayat Secretaries identified the land and site plan Ex. PW7/A was prepared at the instance of Sh. Ashok Kumar. The accused was arrested and his personal search was conducted vide memos Ex. PW3/A and PW3/B respectively. Investigation was completed and the challan was filed.
State Vs. Nand Kishore
FIR No. 04/08
PS: JP Kalan Page no. 5 of 11
3.8 PW8: Sh. Naveen Kalia (UDC from the office of SDM Najafgarh).
Produced the record of Order no. F.SDM/RA/2007/155 dated 09.03.2007 with regard to proceedings U/s 86 A of Delhi Land Reforms Act. A corrigendum was issued, whereby, the typographical error regarding the name of the village was corrected as village Jainpur instead of Khera Dabar. The orders are Ex. PW8/A and PW8/B respectively (OS&R).
All the witnesses were offered to the accused for cross examination.
Vide order dated 10.09.2013 P.E was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C
4. On 19.09.2013 Statement of the Accused was recorded u/s 313 Cr.P.C. Accused stated that he is in cultivatory possession of the said land since 1978. He was never evicted from this land. The order was passed wrongly against him. Accused want to lead D.E. DEFENCE EVIDENCE
5. Accused examined three DWs to prove his defence. 5.1 DW1: Accused Nand Kishore himself (U/s 315 Cr.P.C.) He stated that he is in cultivatory possession of the said land State Vs. Nand Kishore FIR No. 04/08 PS: JP Kalan Page no. 6 of 11 since 1978 and he was never dispossessed from the said land. He filed a civil suit regarding the said land. Interim injunction order was granted in his favour vide order dated 02.04.2009, copy of the same is mark 'B'. The Gram Sabha has failed to take any action within the limitation period. As such, he has a right to be declared the Bhumidar with regard to the said land. Copies of the Khasra Girdawaries pertaining to the said land for the period 2004 to 2008 are Mark 'A' (colly).
During cross examination accused admitted that he took possession of the said land without any lawful authority in the year 1978. He also admitted that the name of Gram Sabha is mentioned as the owner of the said land in the record Mark 'A' produced by him. He further claimed that the ownership of the said land is with Gram Sabha but he is in possession of the said land. He also admitted that he has not been declared Bhumidar of the said land so far.
5.2 DW2: Sh. Vijay Kumar.
Stated that accused is doing farming on the said land since his (DW2) childhood.
5.3 DW3: Sh. Sukhbir.
Corroborated the testimony of DW2.
State Vs. Nand Kishore
FIR No. 04/08
PS: JP Kalan Page no. 7 of 11
All DWs were cross examined by Ld. APP for the State. Vide statement dated 07.05.2016 accused closed D.E. FINAL ARGUMENTS
6. Arguments heard.
It was argued by the Ld. APP that in view of the testimony of PW5 it is clear that the said land is Gram Sabha Land. PW8 produced the record and the corrigendum, whereby, the name of Village Jainpur was inserted in the order dated 09.03.2007. PW3 and PW5 identified the land upon which the accused has encroached. PW5 produced the land revenue record to show that the said land is Gram Sabha Land. Even during his cross examination the accused DW1 admitted that he occupied the said land without any lawful authority. The identity of the said land is not disputed by the accused.
6.1 It was argued by ld. Counsel for the accused that the accused is in the possession of the said land since 1978. DW2 and DW3 have also supported the claim of the accused. The Khatoni record, the revenue record Mark 'A' shows that the accused is in cultivatory possession of the said land. Civil suit with regard to the said land is pending in the Revenue court. The accused lost his case before State Vs. Nand Kishore FIR No. 04/08 PS: JP Kalan Page no. 8 of 11 the Revenue Court. First appeal is pending before the District Court Kapashera. There is no evidence to show that the land in question is Government Land. No PW identified the said land.
JUDGEMENT
7. IDENTITY OF THE LAND.
In the complaint Ex. PW2/A it is stated that the accused has forcibly raised crops on the land in question. The Khasra numbers of the land in question have been mentioned in the complaint. PW3 and PW4 also identified the said land. The accused has no where disputed the identity of the said land. In D.E also the accused DW1 stated that he is having the possession of the said land. The accused DW1 also relied upon the Khasra Girdawari record Mark 'A'. In the details of the evidence and circumstances of the case it is clear that the land regarding which complaint has been moved is properly identified and the accused also did not raise any dispute regarding the identity of the said land.
7.1 It is observed that in the notice dated 13.07.2010 U/s 251 Cr.P.C, it is stated that the offence was committed within the jurisdiction of PS Najafgarh as already discussed above, there is no dispute regarding the identity of the said land. The accused has not been misled in his defence. No prejudice has been caused to the State Vs. Nand Kishore FIR No. 04/08 PS: JP Kalan Page no. 9 of 11 accused due to the typographical error on the notice dated 13.07.2010 U/s 251 Cr.P.C.
8. The accused admitted that he is in possession of the said land. During cross-examination, DW1 also admitted that he entered the said land without any lawful authority. The only defence raised by the accused is that he is in cultivatory possession of the said land since 1978. In his testimony the accused DW1 claimed that the Gram Sambha failed to take action within the limitation period. Now, he has a right to be declared Bhumidar with regard to the said land. It is pertinent to observe that the limitation period is with regard to the civil remedies only. With regard to the offence of tress pass there is no limitation period, where the accused having tress passed, continues to occupy the said property. In such circumstances, even otherwise it is a continuing offence. Vide order Ex. PW8/A read with order Ex. PW8/B the accused was obliged to vacate the said land which he failed to do. It is admitted on behalf of the accused that he lost the first round of litigation before the Revenue Court. His first appeal before the D.C Kapashera is pending. As of now, the accused has not been able to show any legal right to occupy and continue the occupation on the said land. At present, the status of the accused on the said land is of as a tress passer.
State Vs. Nand Kishore
FIR No. 04/08
PS: JP Kalan Page no. 10 of 11
9. The accused has unauthorizedly encroached upon the Gram
Sabha Land in Khasra no. 29/21,22,23,30/1,2,9,10,11,12,19 and 30 Village Jain Pur, Shikar Pur. The accused claimed that the order Ex. PW8/A and PW8/B were passed wrongly and he was not given any opportunity to lead evidence therein. Official order even if wrong or erroneous has to be complied, unless it is modified or verified in any manner by the competent authority. It is not open to the accused to decide whether any order of any authority is proper or wrong. If the accused has any grievance against the order of any public authority, he can avail of all his legal remedies, but the accused can not choose to disobey the said order.
10. In view of this, it is clear that the accused has willfully disobeyed the order Ex. PW8/A and PW8/B. Prosecution has proved its case beyond reasonable doubts. The Accused is held guilty of the offences punishable U/s 447/188 IPC.
Put up on 26.08.2016 for arguments on sentence.
Pronounced in the Open Court (RAJINDER SINGH)
on this 30th day of July, 2016 MM-06: Dwarka : Delhi
State Vs. Nand Kishore
FIR No. 04/08
PS: JP Kalan Page no. 11 of 11