Delhi District Court
Cc 113/11 (Rc 1/07) Cbi vs . Ajay Kumar Shrotriya & Anr. 1 on 13 September, 2013
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
SPECIAL JUDGE (PC ACT), CBI-08, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI.
CC No. : 113/2011
RC No. : 01/2007
PS : CBI/EOU-VI/New Delhi
U/s : 120B r/w 217, 420, 465, 468 IPC and 13(2) r/w 13(1)(d)
PC Act 1988 and substantive offences thereof.
Unique ID No.02401R0046812009
C.B.I.
Versus
1. Ajay Kumar Shrotriya
S/o Shri G.S. Shrotriya
R/o B-578, MIG Flats, Loni Road, Delhi.
2. Sudhir Kumar Thukral
S/o Shri R.S. Thukral
R/o B-4/2, Paschim Vihar, New Delhi.
Date of FIR : 23.01.2007
Date of Institution : 31.01.2009
Arguments concluded on : 13.09.2013
Date of Judgement : 13.09.2013
JUDGEMENT
1. As per case of prosecution, a preliminary enquiry No. PE SIJ 2006 E 0003 was registered in CBI EOU-VI, New Delhi on 3-5-2006 CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 1 against Sh. Brij Pal Singh, Executive Engineer, West Zone, MCD and other unknown public servants and private persons in compliance to the order dated 20-04-2006 passed by the Hon'ble High Court of Delhi in WP (C) No. 4582/2003 (Kalyan Sanstha Vs. Union of India & Others) to probe the nexus of MCD officers, including suspect with the hierarchy in the Engg. Deptt., builders and the political bosses. The said enquiry was marked to PW15 SI Arvind Kumar and on the basis of his findings, a complaint dated 23.01.2007 (Ex.PW15/A) was forwarded to Superintendent of Police, CBI EOU-VI for registration of FIR u/s 120B IPC r/w Section 13(2) r/w 13(1)(d) of PC Act, 1988 and Section 465 IPC against Ajay Kumar Shrotriya, JE West Zone MCD and other private persons for investigation. An FIR Ex.PW16/A bearing RC 1/2007 was accordingly registered and investigated by PW16 Inspector N. Mahato. Fifteen separate charge-sheets pertaining to 15 different properties in West Zone, MCD have been filed by prosecution. Accused Ajay Kumar Shrotriya, JE along with the owners/builders of the respective 15 properties have been arrayed as accused. It is interesting to notice that the premier investigating agency has only picked up the cases involving Ajay Kumar Shrotriya, JE who was on deputation from DDA to MCD from 06.05.02 to 30.09.03. No other officer from MCD i.e. JE/AE/EE/SE/DC has been chargesheeted in any case defying the spirit of the order passed by the Hon'ble High Court pursuant to which investigation was commenced. The nexus is deeper but only illusory investigation has been conducted giving a clean chit to many other officials involved.
CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 2
2. In brief, the contents of complaint dated 23.01.2007 made by SI Arvind Kumar on the basis of preliminary enquiry conducted by him may be referred which forms the foundation of registration of FIR and subsequent investigation.
As per the complaint Ex.PW15/A by SI Arvind Kumar enquiries revealed that 15 properties were booked for unauthorized construction by Ajay Kumar Shrotriya, JE West Zone, MCD, New Delhi which are detailed as under:
1) D-16, Fateh Nagar, New Delhi
2) D-15, Fateh Nagar, New Delhi
3) 24/13A, Tilak Nagar, New Delhi
4) 15/11A, Tilak Nagar, New Delhi
5) 16/23, Tilak Nagar, New Delhi
6) 22/23, Tilak Nagar, New Delhi
7) WZ-30, Krishna Park, New Delhi
8) WZ-23, Krishna Puri, New Delhi
9) WZ-150B, Krishna Park, New Delhi
10)4 Industrial Area, Tilak Nagar, New Delhi
11) C-16, Vikas Puri, New Delhi
12)WZ-406R, Janak Park, New Delhi
13)B-3/84, Paschim Vihar, New Delhi
14)A-5/11, Paschim Vihar, New Dehi
15)Shop No.19, New Market, Ramesh Nagar, New Delhi.
It is further alleged that Ajay Kumar Shrotriya made false notings that partial demolition of the properties had been carried out in pursuance of demolition orders passed in respective files. The fact CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 3 that notings were false is stated to be corroborated on comparison with the entries made in demolition register maintained in MCD, demolition register of concerned police station, log books of the concerned vehicles of the MCD, the relevant letter of requisition for police force. It is further the case of prosecution that the enquiry also revealed that unauthorized construction files relating to above 15 properties were not taken out from the office of Officer In-charge (Buildings) {OI(B)} and entries were forged by Ajay Kumar Shrotriya having knowledge that no demolition had taken place.
As such, it is alleged that accused Ajay Kumar Shrotriya abused his official position to cause undue pecuniary advantage for himself or other private persons. Further, on the basis of Preliminary Inquiry, recommendation was made by SI Arvind Kumar for registration of regular case (FIR) against Ajay Kumar Shrotriya and other persons.
3. In the aforesaid background, on registration of RC (FIR) by CBI, the case was further investigated by PW16 Inspector N. Mahato and chargesheet was filed u/s 173 Cr.P.C.
In nutshell, the case of prosecution is that property located at 4 Industrial Area Tilak Nagar New Delhi measuring about 287 sq. yards was owned by Sudhir Kumar Thukral having purchased and possessed the same vide various documents executed in his favour on 05.08.02. The property was booked for unauthorized construction by MCD under signatures of Ajay Kumar Shrotriya, JE, MCD vide FIR No.B/UC/WZ/03/38 dated 27.01.03 (Ex.PW2/A) and unauthorized CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 4 construction was stated to be in the shape of hall at basement and raising wall for ground floor. An endorsement was made on the FIR by Shri Vinod Kumar, AE for issuing the notice and taking necessary action as per DMC Act.
Accordingly, a show-cause notice u/s 344 DMC Act, 1957 dated 27.01.03 (Ex.PW2/C) was issued to the owner/builder under the signatures of Shri Vinod Kumar, AE and thereby it was also directed to the owners/builders to stop the construction. The notice was served by way of affixation by Ajay Kumar Shrotriya, JE on 28.01.03 after seeking permission from the AE to serve the same by way of affixation. Since no reply was received in the office of MCD to notice dated 27.01.03 (Ex.PW2/C), a further notice u/s 343 (1) of DMC Act, 1957 dated 03.02.03 (Ex.PW2/D) was issued under the signatures of Shri Vinod Kumar, AE thereby directing the owner/builder of the property in question to demolish the unauthorized construction within six days of the receipt of the notice. The aforesaid notice was also served by way of affixation on 04.02.03 by Ajay Kumar Shrotriya in the presence of the witnesses after seeking permission from AE to serve the same by way of affixation. Finally, as the owner/builder did not respond to the aforesaid notices, a demolition order dated 11.02.03 (Ex.PW2/E) was approved by Shri Vinod Kumar, AE on the proposal being put by Sh. Ajay Kumar Shrotriya, JE and he further remarked "demolish the UC as per policy of the department". The file was further marked to OI(B).
It is further the case of prosecution that demolition action was fixed for 19.02.03 in Tilak Nagar area. However, Ajay Kumar CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 5 Shrotriya, JE mentioned in the noting on the file that "demolition action could not be conducted due to non-availability of police force". The file was further put up before the AE(B) Shri Vinod Kumar who remarked to "try again" and sent back the file to OI(B).
It is next the case of prosecution that Ajay Kumar Shrotriya, JE fraudulently and dishonestly made an entry dated 27.02.03 in the demolition register to the effect "punctured the hall at GF" and thereby showing to have carried out partial demolition at 4 Industrial Area Tilak Nagar but did not raise any charges for demolition. Further, no entry relating to the demolition of the property was made in the Unauthorized Construction File of the property. It is also alleged that the entry did not exist at the time of preparation of monthly statement of demolition for the month of February, 2003 which was prepared by Officer-in-Charge (Building). Also the demolition action was not reflected in the monthly action taken report prepared in the department. It is also the case of prosecution that in the demolition register of PS Tilak Nagar, no entry of demolition action in respect of property in question was shown on 27.02.03 and also the log book of the vehicle maintained by the department showed that the vehicle was out of order. Further none visited PS Tilak Nagar for obtaining police force for assistance. Investigation further disclosed that on 27.02.03 the demolition action was fixed within the jurisdiction of PS Hari Nagar as per the entry dated 27.02.03 made in the demolition register.
It is further the case of prosecution that during investigation the property in question was inspected by team of officers from CPWD CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 6 and vide report dated 09.01.08 (Ex.PW8/A) along with plan (Ex.PW3/1), it was observed that no approved plans in respect of the property are available and unauthorized coverage existed in the front , back and side set back areas and basement, ground floor, first floor, second floor and third floor as reflected in the plans annexed with the report. The actual FAR was stated to be 444.33% against permissible FAR of 125%.
It is further alleged by the prosecution that the aforesaid demolition was not carried, in conspiracy with co-accused Sudhir Kumar Thukral and thereby Ajay Kumar Shrotriya abused his official position as public servant.
4. Charge was framed against accused Ajay Kumar Shrotriya and Sudhir Kumar Thukral under Section 120(B) r/w Section 417/465/468/217 IPC r/w Section 13(2) along with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Charge was further framed against accused Ajay Kumar Shartoriya for substantive offences under Section 417/465/468/217 IPC and Section 13(2) r/w Sec 13(1)
(d) of the Prevention of Corruption Act, 1988.
5. In support of its case, prosecution examined sixteen witnesses, namely:
i. Shri Ashok Kumar
ii. Shri Moti Lal
iii. Shri U.K. Dey
iv. Shri D.N. Rehani
v. Shri Umesh Singh
vi. Ct. Jacob Mathew
vii. Shri R.S. Rana, AGEQD
CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 7
viii. Shri S.S. Rana
ix. Shri Lal Chand
x. Shri Vijay Kumar Kadyan
xi. Ct. Shiv Prasad
xii. Shri Himanshu Pandey
xiii. ASI Jagram Singh
xiv. Shri Narender Pal Singh
xv. SI Arvind Kumar
xvi. Inspector N. Mahato
(a) PW15 SI Arvind Kumar conducted the preliminary enquiry
prior to registration of FIR. He deposed that he remained posted in EOU-VI from 2005 to 2009 and during his tenure, a preliminary enquiry was registered in CBI on 03.05.2006 in compliance to the orders dated 20.04.2006 passed by the Hon'ble High Court of Delhi in Writ Petition C(C) No. 4582/2003 to probe the nexus of MCD officers in engineering department, builders and political bosses. Further, the said PE was entrusted to him and after enquiring the matter, 15 properties were selected in which it was found that demolition was carried out in papers. After verifying the facts, it was found that reports in MCD records were different than the actual facts. Further, during the enquiry, owners of respective properties were examined by him along with the record of MCD and respective police stations and it was found that Ajay Kumar Shrotriya, JE West Zone MCD forged the documents having knowledge that no demolition had taken place and dishonestly made bogus entries in the relevant records. He further stated that accused Ajay Kumar Shrotriya being a public servant abused his official position to cause undue pecuniary advantage for himself or other private persons and accordingly, recommendation was made for registering a regular case u/s 120B r/w 13(2) r/w 13(1)(d) of PC Act and substantive offence u/s 465 IPC. Further, in this respect, a CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 8 letter dated 23.01.2007 (Ex.PW15/A) comprising of four pages was written by him to the then SP Shri A.K. Ohri.
(b) PW1 Shri Ashok Kumar, the then Vice Chairman, DDA (i.e. the competent authority) accorded sanction for prosecution of accused Ajay Kumar Shrotriya, JE and proved the sanction order Ex.PW1/A.
(c) PW2 Shri Moti Lal, the then Officer In-Charge (Building) MCD, deposed that during the period May 2002 to November, 2004 he was posted as OI (Building) in West Zone and during the aforesaid assignment he was custodian of unauthorized construction files and was maintaining circular files, movement register, demolition register, missalband registers and also used to make entries regarding unauthorized construction in missalband registers. Further, during the aforesaid assignment he had made various entries in missalband register maintained in the office regarding unauthorized construction.
Further, FIR No. B/UC/WZ/03/38 dated 27.01.03 (D-3) regarding unauthorized construction in building no. 4, Industrial Area, Tilak Nagar, New Delhi (Ex.PW2/A) was lodged by Shri Ajay Kumar Shrotriya, the then JE under his signatures at point A. Further, he entered the particulars of this building in missalband register at serial no. 38 (Ex.PW2/B). The FIR was put up before concerned AE Shri Vinod Kumar who put his endorsement "issue notice and take necessary action as per DMC Act" at point C. He further stated that the file was handed over to Shri Ajay Kumar Shrotriya on 27.01.03 and thereupon show cause notice dated 27.01.03 (Ex.PW2/C) was issued by Shri Vinod Kumar, AE. Further, CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 9 Ajay Kumar Shrotriya sought permission for pasting the notice which was approved by Shri Vinod Kumar, AE under his signatures at point B. Thereafter, the notice was pasted at site in the presence of witnesses by Ajay Kumar Shrotriya, JE.
He further stated that notice under Section 343(1) DMC Act dated 03.02.03 (Ex.PW2/D) was procured by Ajay Kumar Shrotriya and the same bears the signatures of Shri Vinod Kumar, AE. The same was reflected in missalband Register at point X against entry dated 03.02.03. Further, permission was sought by Ajay Kumar Shrotriya to paste the notice and an endorsement was made at point E by Ajay Kumar Shrotriya on the back of notice Ex.PW2/D swhich was approved by Shri Vinod Kumar, AE at point F. Thereafter, the endorsement was also made in respect of pasting of the notice at site under the signatures of Ajay Kumar Shrotriya on 04.02.03 on Ex.PW2/D. He further proved demolition order dated 11.02.03 (Ex.PW2/E) passed in respect of the property in question under signatures of Ajay Kumar Shrotriya, JE at point A and also bearing signatures of Shri Vinod Kumar, AE at point B. He further stated that an endorsement was made on the demolition order Ex.PW2/E by Shri Vinod Kumar, AE "demolish the U/C as per the policy of department".
He further stated that an endorsement was made at point D on Ex.PW2/E under the signatures of Ajay Kumar Shrotriya to the effect "demolition could not be conducted due to non-availability of police force" and the file was put up before Vinod Kumar, AE who remarked "try again" at point E and the file was marked to OI(B).
He also stated that as per movement register (D8) (Ex.PW2/F), on 19.02.03 no file pertaining to this property was taken over by Ajay CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 10 Kumar Shrotriya. However, two files pertaining to property no. 12/21, Tilak Nagar and 68A, Mukherjee Park were taken by Ajay Kumar Shrotriya and were received back by him.
He further stated that demolition register (Ex.PW2/G) was maintained by him during his tenure in the office. Further, the same was kept in the office for the purpose of reporting of demolition by concerned JE and making entries in this regard in the register. He also stated that there is no entry on page no. 16 in the demolition register against the date 19.02.03 regarding demolition of any property and it is reflected against the said entry that no force was available.
He further stated that as per rule the unauthorized construction file pertaining to property in question should be handed over to him on the same day for arrangement of police force for demolition but the file was never handed over to him by Ajay Kumar Shrotriya. Further, the files regarding record of unauthorized building remained in his custody but could not recollect how this file came to him.
He further stated that the programme for demolition used to be chalked out by the concerned XEN and the same was communicated to the concerned JEs / Asstt. Engineer. Further, OI(B) used to prepare letter in regard to levy of demolition charges and after procuring the signatures of concerned Asstt. Engineer, he used to send it to the owner/occupier for paying the same. Further, request regarding requisition of police force for the assistance in demolition was sent to concerned DCP/SHO of the area.
He further stated that Action Taken Report against the unauthorized construction used to be prepared by him on the basis of demolition register which is usually written by the concerned JE. Further, the copy of the same used to be kept in his custody for official CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 11 purposes. He also stated that Action Taken Report (Ex.PW2/H colly) bears his signatures at point B on page No. 1,4,5 6,7 along with the signatures of the then EE, Sh. Kadyan at point A. He also identified signatures of Shri B.P. Singh, EE at point A on page no. 8 & 9 of Ex.PW2/H. He also stated that he used to prepare Action Taken Report on the basis of information provided in demolition register and entries of missalband register which was maintained by him during his official course of duty and the action taken report was sent to concerned Sr. Officers on monthly basis by him. Further, he used to send action taken reports on the basis of demolition register and missalband register for the concerned period and after verifying the records used to submit the same before XEN for forwarding to higher officials.
He further proved letter dated 23.01.03 (Ex.PW2/i) addressed to Deputy Commissioner of Police requesting for providing police force for 19.02.03 for Vikaspuri area bearing the signatures of Shri B.P. Singh, the then EE (B).
He also stated that the duty to return the file was of the JE/AE who took over the possession of the file and normally the file used to be returned on the same day after the action had been taken. Further, the file was to be again taken by JE in case the action was to be again/ subsequently taken. He further stated that the file pertaining to property in question was not entered in the movement register on 19.02.03 for any demolition action and the file pertaining to property no. 12/21, Tilak Nagar and 68A, Mukherjee Park were taken by Ajay Shrotriya, JE on said date and the same were also received on same date i.e. 19.02.03.
CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 12
(d) PW10 Shri Vijay Kumar Kadyan, deposed that during the period May, 2003 to May, 2005, he was posted as Executive Engineer in MCD, West Zone, Rajouri Garden, New Delhi. His duties as Executive Engineer were supervisory in nature which included closing of missalband register pertaining to registration of FIR of unauthorized construction, sending reports to higher authorities regarding working of the building department, demolition programmes to be undertaken as well as which were executed. Further he used to forward the reports to higher authorities as put before him by OI(B) which pertained to the details of demolitions, sealing of properties and action taken u/s 345 (A) of DMC Act etc. which were carried during the particular month.
He further identified his signatures on Action Taken Report Ex.PW2/H (D13) & missalband register Ex.PW2/B for the period May 2003 onwards till May 2005. He also stated that entry regarding FIR No. B/UC/WZ/03/38 was available at point A in missalband Register (Ex.PW2/B) (D9).
He further stated that in 2003, office Incharge Building (Sh. Moti Lal) used to put his signatures before putting the relevant record before him. Further, he identified his initials at point B on Action Taken Report (Ex. PW-2/H).
He also stated that demolition register (Ex.PW2/G) remained in possession of OI(B) and the JE concerned makes the entries regarding demolition carried as per record. Further, as per practice prevailing in the office, after the demolition action is taken and the file is placed before the AE, the same is marked to OI(B).
(e) PW5 Umesh Singh deposed that he was posted in MCD West CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 13 Zone since 1999-2000 as beldar and as per his duties, he used to accompany the JE concerned to the properties wherein unauthorized construction may have been carried for purpose of service of notices under the DMC Act. Further, Shri Ajay Kumar Shrotriya was posted as JE in West Zone MCD during his tenure. He further stated that the notices were handed over to the owner/builder, if present at spot and in the absence of the same the notices were pasted as per the directions of the JE concerned.
He further identified his signatures at point B on the back of notice u/s 344 of DMC Act (Ex.PW-2/C) and stated that he had affixed the aforesaid notice on the building and accompanied the JE on the date of service of aforesaid notice Ex.PW2/C. Further, since the owner/builder of the property was not available, the notice was affixed as per instructions of Shri Ajay Kumar Shrotriya.
He further stated that as per procedure, he used to visit the concerned property along with the JE. Further, he used to sign the notice after affixation as per the directions of JE and the property number which they visited was reflected in the notices.
He further stated that notice under Section 343 DMC Act dated 03.02.03 (Ex.PW2/D) bearing his signatures at point B and signatures of Shri Ajay Kumar Shrotriya at point A was affixed outside the main gate of the property.
He also clarified that two copies of the notices are prepared out of which one copy is affixed while the other is placed with the official record and signatures are made on the copy preserved for official purpose.
(f) PW9 Shri Lal Chand posted as Driver in MCD, West Zone CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 14 (Building Department) deposed that he used to ferry the officials and the police force as and when directed by the officials & also used to maintain log book (Ex.PW9/A). Further, the entries as to the places which were visited on the respective dates were reflected in the log book (Ex.PW9/A).
He further stated that in case the truck was requisitioned by a particular officer, the same was also reflected and the log book was also countersigned by the officer concerned in the relevant column. Further the log book was maintained by him for vehicle no. DDL 4607 driven by him and the entries on various dates on which he was deputed in the vehicle are in his handwriting.
He further stated that he had given his statement with respect to the placement of the truck on various dates as inquired by the CBI officials and confirmed the location of the truck on 19.02.03.. Further entry dated 19.02.03 is in his hand and he had taken the vehicle on the requisition of the then JE Shri A.K. Mittal who visited Police Station Tilak Nagar to take police force for demolition and, thereafter, the truck returned back without carrying out demolition as the police force was not available. He also identified his signatures at point A and signatures of the then JE at point B in the said entry.
He further stated that as per log book (Ex.PW9/A) on 27.02.03 the vehicle was requisitioned by Shri Ajay Kumar Shrotriya, JE vide entry at point F on page no. 151 of Ex.PW9/A. As per the said entry, vehicle was out of order and remained at Subhash Nagar workshop for repair. Thereafter, after getting it repaired, he took it back to West CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 15 Zone office and entry in this regard bears his signatures at point A and initials of Shri Ajay Kumar Shrotriya at point B. He further stated that after his retirement, Dal Chand was deputed as driver on the said vehicle.
(g) PW12 Shri Himanshu Pandey, the then Executive Engineer, CPWD, PW3 Shri U.K. Dey, the then AE(P), CPWD and PW8 Shri S.S. Rana, the then Dy. Architect, CPWD proved the report Ex.PW8/A along with plans appended therewith (Ex.PW3/1) which was prepared on inspection of property no. 4 Industrial Area, Tilak Nagar. The report further reflects the permissible construction as per building bye-laws of 1983 and construction existing at site in the year 2008.
(h) PW7 Shri R.S. Rana, AGEQD proved the handwriting report (Ex.PW7/B) comprising of seven pages along with detailed reasons.
He stated that documents of this case were referred by SP, CBI EOU-VI, New Delhi vide their letter no. 4664/3/1/2007/EOU-VI dated 10.6.08 (Ex.PW7/A) along with annexures. Further, after careful and thorough examination of the documents, he came to the conclusion which was expressed in the form of a report (Ex.PW7/B) comprising of seven pages along with detailed reasons which bears his signatures at point B and signatures of Dr. B.A. Vaid, GEQD at point A who had also examined the case independently and came to the same conclusion. He also stated that the report was sent to CBI office vide letter no. CX-166/2008-1909 dated 31.12.08 and bears signatures of Shri B.A. Vaid at point A on Ex.PW7/B. CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 16
(i) PW6 Ct. Jacob Mathew deposed that he remained posted as Constable in P.S. Tilak Nagar from 2002 to 2007 and was handling work of diary dispatch and delivery and acceptance of dak to various offices along with maintaining demolition register at PS since he was attached with Reader to SHO.
He further stated that the demolition register maintained at PS Tilak Nagar contains entry with respect to dak received from MCD office regarding demolition of unauthorized construction and requirement of police force by MCD office. Further, the requisition of police force by MCD department was used to be put up before SHO for necessary action and arrangement and details of same were used to be maintained in demolition register by him or Reader.
He further proved endorsement "not carried out" in entry at serial no. 7 dated 19.02.03 in the demolition register maintained at PS Tilak Nagar (Ex.PW6/A) in his hand. He further stated that as per the entry, a request from MCD was received for requisition of police force for carrying demolition in Tilak Nagar area and also proved the remarks made in the last column to the effect "MCD staff not reported". He also clarified that in the said entry, there is no mention of any specific reason as to why MCD staff had not reported.
He further stated that as per demolition register maintained in PS Tilak Nagar (Ex.PW6/A), there was no requisition of police force by MCD staff on 27.02.03 as there was no entry in the demolition register of PS Tilak Nagar from 22.02.03 to 03.03.03.
(j) PW13 ASI Jag Ram Singh deposed that in 2008, he was posted in PS Tilak Nagar as Head Constable and was looking after the work of Reader to SHO, PS Tilak Nagar. Further, the demolition CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 17 register was maintained at the PS with respect to the demolition carried by MCD and entries in the same were made by Ct. Jacob Mathew.
He also proved the demolition register maintained at PS Tilak Nagar (Ex.PW6/A) and stated that the entries in the said register for the year 2002 and 2003 were made by Ct. Jacob Mathew. He further stated that the entry dated 19.02.03 in remarks column was in the handwriting of Ct. Jacob Mathew wherein it is reflected that police force was requisitioned for Tilak Nagar area but demolition was not carried out since MCD staff not reported.
(k) PW4 Shri D.N. Rehani deposed that he had purchased part of property no.4, Industrial Area, Tilak Nagar having construction on the ground and first floor somewhere in 2004 from Shri Sudhir Kumar Thukral.
He further stated that he did not receive any notice from MCD regarding unauthorized construction since its purchase and neither any demolition action had been carried after purchase of the property.
He further clarified that plot no. 4, Industrial Area is in three separate portions and his daughter-in-law is owner of about 125 sq. yards in the plot.
(l) PW14 Shri Narender Pal Singh deposed that he was running a manufacturing unit at 4, Industrial Area, Tilak Nagar for about last 20 years and had purchased a built up structure measuring around 350 sq. yards consisting of ground, first and second floor from one Hitender Kumar.
He further stated that he did not receive any notice from MCD CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 18 nor he had ever come to know if any of his neighbours had received any notice regarding unauthorized construction. Further, no demolition action in respect of property in question has been taken since the date of purchase.
(m)PW16 Inspector N. Mahato deposed that on 23.01.2007, he was posted at EOU-VI, New Delhi as Inspector and was entrusted with the investigation of complaint dated 23.01.2007 which was enquired at preliminary stages by SI Arvind Kumar and thereupon it was entrusted to him under the signatures of the then SP Shri A.K. Ohri at point A on FIR dated 23.01.2007 (Ex.PW16/A). Further, FIR was accompanied with the complaint of SI Arvind Kumar dated 23.01.2007 (Ex.PW15/A) vide which he was asked to investigate regarding unauthorized construction and demolitions carried out by accused A.K. Shrotriya during his posting in building department west zone of MCD New Delhi. Further, the matter pertained to 15 properties as mentioned in the complaint of SI Arvind Kumar (Ex.PW15/A).
He further stated that during the course of investigation, he obtained the search warrant from Spl. Judge, Tis Hazari Courts u/s 93 Cr.P.C. and conducted search in the presence of independent witnesses and other team members at residence and office of Shri Ajay Shrotriya. Further, he also collected various documents from MCD office Rajouri Garden, occupants/builders of the buildings in question, office of CPWD like missalband register (Ex.PW2/B), demolition register (Ex.PW2/D in CC No.93/11), log book (Ex.PW5/A), attendance register (Ex.PW8/DA in CC No.93/11) and demolition register pertaining to PS Tilak Nagar.
He further stated that notices to the concerned witnesses/ CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 19 officials were issued by him and he also recorded the statement of witnesses which were relevant to the case. Further, he obtained opinion from GEQD regarding handwriting as per marks on various registers and documents. He further stated that the documents were forwarded for opinion in sealed cover vide letter dated 10.06.2008 (Ex.PW7/A) and report (Ex.PW7/B) was thereafter obtained. Further, the property in question was also inspected by the officials from CPWD and he had accompanied the officials for aforesaid purpose and obtained report (Ex.PW8/A) along with measurements (Ex.PW3/1).
He further stated that the unauthorized construction file was seized consisting of FIR, notices u/s 343/344 DMC Act and demolition order along with other relevant documents. Further, the demolition register maintained in MCD along with missalband register, log book of the driver deputed for carrying the staff was also seized in original and the copies of the same have been filed with the respective charge sheets.
He further stated that he had also collected the action taken report maintained in respect of demolition carried in the concerned properties and statement of OI(B) along with EE was also recorded. Further, the statements of other concerned officials and witnesses were also recorded including Jagmohan Swarup. Also, he had joined the police officials from the concerned PS wherein a separate demolition register was also maintained at some of the Police Stations and relevant documents were collected in this regard.
He further stated that as per investigation, the accused conspired for purpose of fabrication of records and unauthorized construction was not demolished in accordance with law.
CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 20 He also identified photocopies of various documents pertaining to ownership of property no. 4, Industrial Area, Tilak Nagar, New Delhi which were produced by accused during investigation (Mark PW16/A1, Mark PW16/A2, Mark PW16/A3, Mark PW16/A4, Mark PW16/A5, Mark PW16/A6, Mark PW16/A7, Mark PW16/A8 and Mark PW16/A9) and stated that originals of the same are in possession of the accused.
6. In his statement u/s 313 Cr.P.C. accused Ajay Kumar Shrotriya denied the case of prosecution and claimed that he had been falsely implicated in this case. He further denied having made any false entry in the MCD record qua demolition action taken in the property. He further took a categorical stand that he had gone to spot with baildar by private conveyance and Shri Gautam Chand, AE had also accompanied the demolition team as Incharge thereof. He also took a stand that for minor demolitions, no charges were made. He also stated that since there was no programme for demolition fixed for Tilak Nagar for 27.02.03, there was no question of asking for police force from PS Tilak Nagar. He also stated that in fact 1800 properties were reflected on website as per MCD record but only 15 were selected to make him a scapegoat. He further submitted written statement u/s 313(5) Cr.P.C. and also examined DW1 Shri Pradeep Kumar Mittal, present OI(B) in defence.
DW1 Shri Pradeep Kumar Mittal, OI(B), West Zone, MCD, Delhi proved the period of tenure and ward assigned to Ajay Kumar Shrotriya, Junior Engineer during the period 01.05.2002 to 30.09.2003 as per the available record of building department in the CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 21 form of chart (Ex.DW1/X collectively). The same consisting of four pages was prepared on the basis of the office orders as available in the Area Distribution Register w.e.f. 01.01.2001.
He also produced a chart reflecting the name of the Junior Engineers and Assistant Engineers (Ex.DW1/Y & DW1/Z respectively) who had worked in the West Zone Building Department during the period 03.05.02 to 30.09.03 bearing his signatures at point A along with Shri A.K. Meena, EE(B) at point B and Shri R.K. Ailawadi, SE at point C. He further deposed that the chart has been prepared on the basis of Area Distribution Register and office records.
The posting of respective Junior Engineer in the concerned wards in which the property booked by MCD were located was also provided by way of chart (Ex.DW1/X1) for the period 03.05.02 to 30.09.03.
Accused Sudhir Kumar Thukral in his statement u/s 313 Cr.P.C. also denied the case of prosecution and claimed that he had been implicated falsely. He also submitted that he was unaware about the service of notices issued by MCD.
7. Counsel for accused Ajay Kumar Shrotriya assailed the case of prosecution on various grounds detailed below and also filed written submissions on record:
a) That the sanction order Ex.PW1/A had been passed by PW1 Shri Ashok Kumar, Competent Authority against accused Ajay Kumar Shrotriya without application of mind.
CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 22
b) That Ajay Kumar Shrotriya had no occasion, motive or opportunity to obtain any pecuniary advantage and the investigating agency had malafidely implicated accused Ajay Kumar Shrotriya who was on deputation from DDA with MCD for a short period from 06.05.02 to 30.09.03 ignoring the role of all other JEs/AEs posted in West Zone, MCD.
c) It was also vehemently urged that there was no evidence to prove conspiracy between the accused and the same could not be inferred in the absence of any evidence to show meeting of minds. It was also submitted that no evidence had been led to show of passing of gratification or meeting of accused at any point of time.
d) Counsel for accused Ajay Kumar Shrotriya also urged that demolition charges were not to be claimed by Ajay Kumar Shrotriya since the same was the job of OI(B) and also no demolition charges were generally claimed for carrying out minor demolitions.
e) It was vehemently contended that the investigating agency had commenced the investigation only with the motive to fix Ajay Kumar Shrotriya, JE who had been on short period of deputation leaving aside the role of all other officials i.e. JE, AE, EE, SE or DC. It was urged that accused had been already acquitted in CC No.92/11, 111/11 & 109/11, 114/11, 117/11, 107/11, 108/11 & 116/11 wherein the prosecution had miserably failed to point out evidence of conspiracy or that the CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 23 demolition action had not been taken by the accused. In the aforesaid context, it was pointed out that in the chargesheet bearing CC No.117/11 arising out of FIR (RC) No.1/2007, the prosecution had relied upon statement of one Ramesh, baildar recorded u/s 161 Cr.P.C. who had admitted the carrying out demolition in property no. A5/11, Paschim Vihar involved in CC No.111/11 but the same was deliberately suppressed by the investigating agency in CC No.111/11 and accused stood acquitted therein considering the said infirmities and motivated investigation.
It was also contended that in CC No.92/11 wherein accused has been acquitted by this Court, Ajay Kumar Shrotriya was arrayed as an accused despite the fact that he had been never posted in the Ramesh Nagar Ward wherein the property was alleged to have not been demolished by him. It was contended that this Court has already observed the serious lapses in investigation in aforesaid case and the accused stands acquitted.
f) It was submitted that the proceedings recorded in Unauthorized Construction File on 19.02.03 to the effect that demolition action could not be taken due to non availability of police force, could not be doubted merely because the file was not reflected in the File Movement Register as the file had been duly marked to AE(B) Shri Vinod Kumar on aforesaid date and he had also initialed the file and remarked "try again" under his initials dated 19.02.03.
CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 24 It was also contended that it could not be inferred that partial demolition action was not carried by Ajay Kumar Shrotriya as per noting dated 27.02.03 in demolition register merely because corresponding entry was not reflected in UC file or that the movement of file was not reflected by the OI(B) in the 'File Movement Register'. Reliance was also placed on the cross-examination of PW2 Shri Moti Lal who admitted having missed the making of entries several cases due to overload of work in the file movement register and other record, wherein demolition had been carried.
It was also submitted that the file never stood closed by mere entry dated 27.02.03 made in the demolition register whereby partial demolition action was taken by Ajay Kumar Shrotriya. It was also contended that investigating agency has not booked the AE or any subsequent JE/AE posted after transfer of Ajay Kumar Shrotriya for failing to take further demolition action since the same was never closed by mere part demolition action reflected vide entry dated 27.02.03 in demolition register.
g) It was also submitted that there was no bar for the JE to visit the property in question for taking demolition action against the unauthorized construction without police force and with the available staff of MCD. It was further urged that Ajay Kumar Shrotriya had visited the property in question on 27.02.03 without police force and taken action in the properties reflected in the demolition register i.e. C16, Vikaspuri, New Delhi; 32/15, Tilak Nagar; WZ-150B, Krishna Park; 4 Tilak Nagar CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 25 and 34/5 Mukherjee Park. It was also contended that the prosecuting agency has not challenged the demolition action taken in 32/15 Tilak Nagar and 34/5 Mukherjee Park which were also taken on the aforesaid date without police force.
h) It was also contended that the inference could not be drawn that partial demolition action had not been taken on 27.02.03 on the basis of inspection conducted in 2008 by CPWD reflecting the existing construction as it could not be ruled out that the repairs/renovation may have been carried of the portion which had been partially demolished in the intervening period of about five years.
It was also pointed out that at the time of booking of unauthorized construction in the premises, the same was reflected in the shape of basement and raising of wall for ground floor. However, as per the CPWD report the property during year 2008 consisted of ground floor, first floor, second floor and third floor which aspect has not been looked into by the investigating agency and the JE/AE/EE during whose tenure the property had come up and had failed to initiate any action has been completely overlooked.
i) It was also urged that Ajay Kumar Shrotriya had been posted in the concerned Ward No. 22 for a short duration from 20.06.02 to 02.09.02, 31.12.02 to 31.03.03 & 10.04.03 to 29.05.03 and the investigating agency had made him a scapegoat ignoring the role of the officials posted prior to him and after his transfer from the concerned ward though they CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 26 failed to initiate any demolition action. It was also pointed out that Shri A.K. Mittal, Shri U.C. Saxena, Shri S.K.Anand and Shri R.P.S. Nain who were posted in the intervening periods were given clean chit who failed to initiate any action but Ajay Kumar Shrotriya had been wrongly booked by the investigating agency by disputing the demolition action taken by him.
j) It was also contended that there was no requirement or procedure that demolition action could not be carried without obtaining the police force and in fact on 27.02.03 the action was taken by him without police force and there was no question of obtaining the police force from PS Tilak Nagar since the demolition action was fixed in the area of PS Hari Nagar and the truck was out of order.
k) It was also vehemently contended by counsel for accused that no evidence has been led by prosecution to show that the demolition action had not been taken by the accused on 27.02.03 and merely because a corresponding entry was not made in the unauthorized construction file, it could not be presumed that the entry in the demolition register had been fabricated. It was submitted that the UC file never stood closed by a mere entry of partial demolition action which was taken and reflected in the demolition register and was missed to be mentioned in the UC file. Further, there was no bar for the succeedings JEs/AEs posted after transfer of Ajay Kumar Shrotriya to initiate demolition action as per law on the basis of factual position reflected in the UC file which required further CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 27 demolition action to be taken.
l) Counsel for accused Ajay Kumar Shrotriya also relied upon John Pandian Vs. State Rep. by Inspector of Police, T. Nadu, MANU/SC/1025/2010 : 2011(1) JCC 193 in support of the contentions made by him.
m) Counsel for accused also contended that the motivated investigation is even reflected from the fact that none of the JEs/AEs/EE had been booked during whose tenure the unauthorized construction had further come up as reflected in CPWD report.
Counsel for accused Sudhir Kumar Thukral submitted that there could not have been any conspiracy with Ajay Kumar Shrotriya in particular since different JEs were posted prior to booking of the alleged construction by MCD and after passing of demolition order and no evidence has been led on record to show the meeting of minds with Ajay Kumar Shrotriya in particular or any other MCD official. It was also contended that there is absolutely no evidence to reflect that the accused was known to Ajay Kumar Shrotriya, JE or had ever met him or if any gratification had been passed. It was also contended that the accused Sudhir Kumar Thukral had absolutely no role in making of any entries in the records of MCD which are in possession of the MCD officials. However, the partial demolition action claimed to have been carried in the property in question on 27.02.03 was supported by the accused but it was submitted that he was unaware of the service of notices u/s 343/344 DMC Act, 1957.
CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 28 On the other hand, ld. PP for CBI vehemently contended that the entry dated 27.02.03 in the demolition register was falsely made in conspiracy by Ajay Kumar Shrotriya in order to help accused and save the property from demolition. It was further contended that the contradictions in the testimony of witnesses were of minor nature and did not discredit the statement of the witnesses in entirety. It was also submitted that the entry dated 27.02.03 pertaining to carrying of partial demolition was forged and fabricated in MCD records by Ajay Kumar Shrotriya as it is not supported by the corresponding record.
Apart from above, reliance was also placed on the inspection report prepared by CPWD in the year 2007-08 after the registration of FIR/RC by CBI which reflected the unauthorized construction carried in the property.
8. I have heard Shri Y. Kahol, Advocate for accused Ajay Kumar Shrotriya, Shri H.S. Dhawan, Advocate for accused Sudhir Kumar Thukral and ld. PP for CBI at length and perused the record.
Before deliberating upon the evidence on merits, the scope of Section 120B IPC may be briefly noticed, as the foundation of the prosecution case is that the entry dated 27.02.03 was forged by Ajay Kumar Shrotriya in furtherance of conspiracy with co-accused and it was wrongly reflected that the demolition action had been partly taken in the property, to safeguard the same from demolition. It is also necessary to find out in this case as to whether the accused Ajay Kumar Shrotriya abused his position and acted dishonestly or with a corrupt or oblique motive.
CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 29 Criminal conspiracy has been defined in Section 120A of the Indian Penal Code and Section 120B provides punishment for the same. A conspiracy must be put to action, inasmuch as, so long a crime is generated in the mind of the accused, it does not become punishable. The offence is said to have been committed only when the thoughts take concrete shape of an agreement to do or cause to be done an illegal act or an act although not illegal by illegal means. The gist of the offence of the conspiracy lies in agreement being the essential element and mere knowledge of the plan is not per se enough. It also needs to be taken into account that the acts or the conduct of the parties must be cautious and clear enough to infer their concurrence as to common design and its execution. Also the incriminating circumstances must form a chain of events from which conclusion about the guilt of the accused could be drawn.
For the purpose of bringing the charge of criminal conspiracy read with other sections for which the accused has been charged, the prosecution is required to show the circumstances on which it could be inferred that the accused had hatched a conspiracy. Though often the conspiracy is hatched in secrecy and for proving the offence direct evidence may not be possible to obtain but in aforesaid eventuality the circumstances need to be proved which may lead to an inference that the accused acted in conspiracy. It has to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew leading to the commission of a crime by one or more persons to the agreement, of that offence.
CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 30 The principles laid down for ascertaining the conspiracy as referred in para 40 & 41 of (2009) 8 Supreme Court Cases 617 State of Madhya Pradesh vs. Sheetla Sahai and Others may aptly be quoted:
"40. In Kehar Singh v. State (Delhi Admn.), this Court has quoted (at SCC p. 731, para 271) the following passage from Russell on Crimes (12th Edn., Vol.1) The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.
41. In State (NCT of Delhi) v. Navjot Sandhu this Court stated the law thus: (SCC p.691, para 101) One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution."
9. Since accused Ajay Kumar Shrotriya is also alleged to have CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 31 abused his position and by corrupt or illegal means obtained pecuniary advantage, it may be relevant to refer to observations made by the Hon'ble Apex Court in S.K. Kale vs. State of Maharashtra AIR 1977 Supreme Court 822 with reference to Section 5(1)(d) of the Prevention of Corruption Act, 1947. It was therein held that the abuse of position in order to come within the mischief of the section must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department. It was further held that it is for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person.
In the aforesaid context, since the conspiracy has been inferred on circumstantial evidence, it may be apt to refer to the observations of the Hon'ble Supreme Court in para 21 & 22 of S.P. Bhatnagar and Another vs. The State of Maharashtra AIR 1979 Supreme Court
826.
"21.................It would be well to bear in mind the fundamental rule relating to the proof of guilt based on circumstantial evidence which has been settled by a long line of decisions of this Court. The rule is to the effect that in cases depending on circumstantial evidence there is always the danger that conjecture or suspicion may take place of legal proof. In such cases the mind is apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely it is, considering CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 32 such matters, to over-reach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete.
22. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
10. Now, adverting to the chargesheets filed by the prosecution, the evidence fairly needs to be assessed in the background that though the directions issued by the Hon'ble High Court in WP(C) 4582/2003 directed to probe the nexus of MCD officers including suspects with the hierarchy in the Engineering Department, builders and political bosses but the investigation has been intentionally confined to the cases involving accused Ajay Kumar Shrotriya, the then JE on deputation from DDA to MCD for a period of less than one and a half years. The posting of Ajay Kumar Shrotriya in the respective wards in the West Zone CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 33 involving the 15 properties investigated by CBI has been for short periods revolving for few weeks to few months. The role of the other JEs, AEs, EE during whose tenure some of the properties may have substantially come up and who failed to take any further demolition action after transfer of Ajay Kumar Shrotriya from concerned ward has been completely overlooked by the investigating agency and investigation has been focused only in respect of the entries of partial demolition action made by Ajay Kumar Shrotriya in respect of the aforesaid 15 properties. It is pertinent to note that the files never stood closed by entries made by Ajay Kumar Shrotriya reflecting partial demolition action during his postings in respective wards. The further demolition action required to be taken has been completely ignored by the succeeding JEs including the AEs & EE who were equally responsible to take the demolition proceedings to logical end.
The investigation and circumstances reflect a clear partisan role taken by the investigating agency in picking up selective cases pertaining to Ajay Kumar Shrotriya and ignoring all other aspects of investigation in blatant violation of the directions for investigation issued by the Hon'ble High Court.
However, the same does not lessen the responsibility of Ajay Kumar Shrotriya, JE and each respective case requires to be scrutinized independently to assess if the entries for partial demolition were forged by him in conspiracy.
It may also be relevant to observe at this stage that accused Ajay Kumar Shrotriya has already been acquitted in CC No.92/11, CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 34 111/11 & 109/11, 117/11, 114/11, 107/11, 108/11 & 116/11 wherein the prosecution failed to prove conspiracy beyond reasonable doubt or that the entry of partial demolition action had been forged by him. In CC No.92/11, Ajay Kumar Shrotriya was arrayed as an accused by investigating agency despite the fact that he had never been posted in Ramesh Nagar Ward and the prosecution miserably failed to prove that demolition entry in respect of property concerned was forged by him.
It may also be noticed that thereafter prosecution has also filed applications for withdrawal of six cases against Ajay Kumar Sharotriya & others under Section 321 Cr.P.C. which includes the present case but the same were declined as the applications were not filed in four other similar cases based on analogous evidence and were contested by prosecution.
11. Keeping in view the principles referred to in the preceding paragraphs, observations made in para 10 above and the period of posting of Ajay Kumar Shrotriya in the ward in question, the circumstances relied upon by the prosecution may now be assessed to see whether they factually exist and, if so, whether they are of a character to be wholly incompatible with the innocence of the accused and consistent with their guilt.
Evidence has been led on record in defence in several cases including present case (i.e. CC No.113/11) whereby the posting of Ajay Kumar Shrotriya and other JEs in the concerned ward wherein property in question is located has been revealed for the period 2002-03 as under:
CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 35 Ward Name of JE's Tenure of JE's in said No. Ward Sh. Ajay Kumar Shrotriya 20.06.02 to 02.09.02 Sh. A.K. Mittal 02.09.02 to 14.012.02 21-22 Sh. U.C. Saxena 14.12.02 to 31.12.02 Sh. Ajay Kumar Shrotriya 31.12.02 to 31.03.03 Sh. S.K. Anand 31.03.03 to 10.04.03 Sh. Ajay Kumar Shrotriya 10.04.03 to 29.05.03 Sh. R.P.S. Nain 29.05.03 onwards The aforesaid chart clearly reflects that Ajay Kumar Shrotriya was posted only for a short period from 20.06.02 to 02.09.02, 31.12.02 to 31.03.03 & 10.04.03 to 29.05.03. The property in question was booked for unauthorized construction on 27.01.03 by Ajay Kumar Shrotriya and it was reflected on FIR "old construction/on complain". The unauthorized construction was further reflected in the shape of hall at basement and raising wall for ground floor. The construction of first floor, second floor and third floor as reflected in CPWD report must have subsequently come up but the period during which the same has been constructed is not reflected in the investigation and neither the role of concerned JEs/AEs posted at aforesaid time has been looked into. The controversy has been merely narrowed down by the investigating agency overlooking all other aspects to the entry dated 27.02.03 made in the demolition register whereby partial demolition action was reflected in the old construction in the shape of basement and raising of wall at ground floor. The conspiracy to carry the unauthorized construction thereafter and ignoring of demolition action by the concerned JE/AE posted at aforesaid time has been completely CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 36 overlooked by the investigating agency.
12. It may next be observed that notice u/s 344 (1) DMC Act, 1957 dated 27.01.03 (Ex.PW2/C) as well as 343 DMC Act dated 03.02.03 (Ex.PW2/D) were issued under the signatures of Shri Vinod Kumar, AE as per record of MCD. The aforesaid notices were further served on the owner/builder of the property by way of affixation by Ajay Kumar Shrotriya, JE after obtaining the approval from Shri Vinod Kumar, the then AE. The demolition order was thereafter passed on 11.02.03 as proposed by Ajay Kumar Shrotriya and approved by Shri Vinod Kumar, AE. The proceedings till aforesaid stage have not been disputed by the investigating agency.
The investigating agency has only disputed entry dated 27.02.03 made by Ajay Kumar Shrotriya in demolition register whereby partial demolition action is reflected and entry dated 19.02.03 made by him in UC file whereby it was observed on the demolition order (Ex.PW2/E) to the effect "demolition action could not be taken due to non availability of police force". The case of the prosecution is that the aforesaid entry dated 19.02.03 made in UC file on Ex.PW2/E has been wrongly made since the demolition action was fixed at PS Tilak Nagar wherein it was recorded in the demolition register maintained at PS Tilak Nagar to the effect "not carried out/MCD staff not reported". It is submitted that the demolition had not been carried out since the MCD staff had not reported and not due to non availability of police force.
At the outset, it may be observed that so far as aforesaid entry dated 19.02.03 in the UC file is concerned, the proceedings undertaken on aforesaid date cannot be disputed since the same CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 37 stand countersigned by Shri Vinod Kumar, AE(B). In case there was any doubt as to the non availability of police force, the same would also have been commented upon by Shri Vinod Kumar, AE(B) but he simply remarked "try again". The fact that the MCD officials visited the police station Tilak Nagar on the aforesaid date stands corroborated by the entry dated 19.02.03 made in the log book by Shri Lal Chand (PW9) who stated that he had taken the vehicle on the requisition of the then AE Shri A.K. Mittal who visited PS Tilak Nagar to take police force for demolition but later on they returned back without carrying demolition action because police force was not made available by the concerned authorities. The fact that the demolition was also fixed on the aforesaid date by Shri A.K. Mittal, JE along with Ajay Kumar Shrotriya, JE also stands corroborated from the entry dated 19.02.03 made in the demolition register wherein the name of Shri A.K. Mittal also stands recorded. The fact that the log book also stands initialed against entry dated 19.02.03 also corroborates that the police force was unavailable. In case any such entry was wrongly made, then obviously Shri A.K. Mittal as well as PW9 Lal Chand could also have been charge-sheeted by the investigating agency. In the facts and circumstances, merely on the basis of entry reflected in the demolition register at PS Tilak Nagar, it cannot be concluded that the demolition action was intentionally not carried out on 19.02.03 and a false entry was recorded by Ajay Kumar Shrotriya. It may also be observed that in the aforesaid entry, the remarks "MCD staff not reported"
have been recorded in a different blue ink though the remarks in the remaining portion are in different impression of blue and red CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 38 ink and it is not free of doubt if the same was recorded on the same date. It is also pertinent to note that PW6 Ct. Jacob Mathew in his cross-examination also submitted that he had no personal knowledge regarding the entries made in the remarks column as the same were made as per the instructions of the Reader but the investigating agency has not cited the Reader posted at aforesaid time at PS Tilak Nagar.
The fact that the proceedings were taken on the aforesaid date by Ajay Kumar Shrotriya cannot be doubted since the file was marked on 19.02.03 to the AE(B) Shri Vinod Kumar who remarked on the noting "try again". In case the file had not been handed over by OI(B), the aforesaid noting by Ajay Kumar Shrotriya, JE and further observations by AE(B) could not have been recorded on 19.02.03. As such, the stand of the prosecution that the file was not handed over by OI(B) on 19.02.03 does not find corroboration from record. Even otherwise, no complaint was made by OI(B), in case the file was not handed over by him to JE on 19.02.03. It may also be noticed that Shri Vinod Kumar, AE was reported by the prosecution to have expired and, as such, has not been examined. In the facts and circumstances, the prosecution has failed to prove that the proceedings on 19.02.03 were fabricated by Ajay Kumar Shrotriya, JE.
13. The investigating agency has further disputed the entry dated 27.02.03 made by Ajay Kumar Shrotriya, JE in demolition register during his tenure in the ward from 31.12.02 to 31.03.03 whereby partial demolition action was stated to have been carried by him and noting was made to the effect "punctured the wall at GF" though no CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 39 corresponding entry was made in the unauthorized construction file. The said entry dated 27.02.03 is alleged by prosecution to be concocted without actually carrying the demolition.
The entire blame and investigation by prosecution only centres around entry dated 27.02.03 which is claimed by prosecution to have been forged in conspiracy with the co-accused. It is imperative to notice that if the unauthorized construction continued after transfer of Ajay Kumar Shrotriya since the construction in the year 2008 on inspection was also found to consist of first, second and third floor and further demolition action was not taken after his transfer, the conspiracy obviously would also have been with the JE/AE/EE posted during aforesaid time rather being only confined with Ajay Kumar Shrotriya. At the time the property was booked by Ajay Kumar Shrotriya and the action was proposed, the same only consisted of basement and raising of wall of ground floor and further the property was described as old construction. The evidence on the point of conspiracy shall be discussed in detail in the subsequent paras but it is suffice to point out that there is no conclusive evidence on record to show as to the meeting of minds between Ajay Kumar Shrotriya and co-accused Sudhir Kumar Thukral and the inference as to conspiracy with Ajay Kumar Shrotriya is only based upon entry dated 27.02.03. The root of the prosecution case, as such, appears to be on a slippery ground.
It may also be observed that on 27.02.03 Ajay Kumar Shrotriya had taken partial demolition action in property no. 32/15 Tilak Nagar CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 40 and 34/5 Mukherjee Park without police force but the investigating agency has not disputed or challenged the action taken by him in aforesaid properties. There is no reason to presume that he could have legally taken action without police force in aforesaid properties but could not have taken the same in 4, Industrial Area, Tilak Nagar, New Delhi (i.e the property in question).
The accused also stands acquitted in CC No.116/11 wherein also it could not be proved beyond reasonable doubt if the entry recorded as to partial demolition action in property no. C16, Vikaspuri, New Delhi on 27.02.03 was wrongly recorded. In the aforesaid case, the demolition action was further supported by the concerned AE Shri Gautam Chand (examined as PW7) who was posted in aforesaid ward and he deposed that he had accompanied Ajay Kumar Shrotriya, JE to the site. He also clarified in aforesaid case that by mere part demolition action dated 27.02.03 recorded in the demolition register, the file never stood closed. Further, in his cross-examination dated 09.05.12 in aforesaid case, he stated that JE cannot close the unauthorized construction file. He further clarified that the entry may have been missed in the UC file due to oversight or pressure of work. He further stated during cross-examination dated 16.07.12 on page 4 that the labourers alongwith the MCD staff can also travel by private vehicle to the property in case the government vehicle is not available.
Shri Gautam Chand has also been examined in defence in CC No.115/11 wherein also partial demolition action is stated to have been taken by Ajay Kumar Shrotriya in WZ-150B, Krishna Park, New Delhi (falling in same ward) on 27.02.03 and entry was recorded by CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 41 Shri Ajay Kumar Shrotriya, JE in the demolition order without making a corresponding entry in the Unauthorized Construction File. Even in aforesaid case, the action could not be taken on 19.02.03 due to non availability of police force and an entry to this effect was made in the Unauthorized Construction File. The aforesaid case has also been taken up for disposal along with the present case wherein accused examined Gautam Chand, AE in defence and he stated on oath that he accompanied accused Ajay Kumar Shrotriya in all the five properties in which demolition action was taken as per directions of then EE Shri Brij Pal Singh since the concerned AE of the properties wherein the action was taken was not available.
Unfortunately, the prosecution could not examine Shri Vinod Kumar, AE who was posted in Ward no. 22 at relevant time as he expired before commencement of trial and had dealt with the file on 19.02.03 and prior to it since the FIR was registered during his tenure and also the notices u/s 344 & 343 DMC Act, 1957 were issued under his signatures.
In the facts and circumstances, the stand taken by Ajay Kumar Shrotriya that he visited the property in question without police force, cannot be discarded.
It may also be appropriate to point out that in connected cases decided by this Court including CC No.114/11 (CBI vs. Ajay Kumar Shrotriya/Krishna Pahwa) in which the accused have been acquitted, it has also come on record in testimony of Brij Pal Singh, the then EE that demolition action could be carried by JE concerned without police CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 42 force in an ongoing unauthorized construction. In the aforesaid case, it has also been brought on record in testimony of Umesh Singh, Baildar that they used to demolish the unauthorized construction even without the aid of police force wheresoever it was directed by JE concerned and they also used to visit the property by their personal conveyance as it was not necessary to commute in official vehicle provided by MCD. Shri Umesh Singh, Baildar examined as PW1 in CC No.109/11 by prosecution also made a similar statement to aforesaid extent in said case and has also deposed to aforesaid extent even in the present case i.e. CC No.113/11.
In view of above, merely because the JE visited the property without the police aid, it cannot be presumed that the entry was forged or the partial demolition action had not been carried out as inferred by the Investigating Agency. More so for the reason that the conspiracy with co-accused has not been proved beyond reasonable doubt.
Also, PW10 Shri Vijay Kumar Kadyan, the then EE(B) in the present case as well as in CC No.116/11 also corroborated the above fact in his cross-examination dated 11.04.12 (page 5) that file is not closed by mere part demolition and complete unauthorized construction is to be removed within the purview of Building Bye- laws. He also deposed that demolition action can be taken by a JE even without taking the file relating to unauthorized construction at spot in cross-examination dated 11.04.12 on page 5. He also further stated (on page 7 of cross-examination dated 11.04.12) that the Incharge of demolition squad is AE and it is the duty of AE at site what action is to be taken with respect to unauthorized construction at CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 43 site and the responsibility of taking the complete demolition action lies with the AE. He also clarified on page 8 of his cross-examination dated 11.04.12 that there has to be specific order for closing of the file by AE concerned and the file is not closed till demolition action is taken against the unauthorized construction or the same is regularized.
It may also be noticed that PW Vijay Kumar Kadyan examined in other cases including CC No.107/11 deposed on similar lines and also clarified that JE is not the officer authorized to close the file and the same is closed by AE.
The testimony of other JEs examined on behalf of prosecution in other cases is also to similar effect. PW7 Shri Umesh Chand Saxena, the then JE(B) in CC No.107/11 also stated in his cross- examination dated 19.04.12 (page 4) in aforesaid case that till the time unauthorized construction file is closed, the action for demolition can be again taken.
In the light of evidence led on record, it can be safely inferred that the unauthorized construction file never stood closed by the aforesaid noting dated 27.02.03 made by Ajay Kumar Shrotriya in the demolition register whereby partial demolition action was taken. Thus, on the basis of aforesaid entry, it cannot be concluded in the facts and circumstances that the proceedings had been fabricated by Ajay Kumar Shrotriya.
14. It is also imperative to point out that mere reflection of movement of files by OI(B) in the 'file movement register' for purpose CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 44 of demolition action on the date fixed for demolition does not appear to be conclusive to determine that the demolition action had not been taken. As per contention made by ld. PP for CBI, the movement of the files was recorded in the file movement register only in case the demolition action was scheduled with police force as per monthly programme. In view of above, the movement of files on the dates other than fixed for scheduled demolition was not recorded and the the UC files in custody of OI(B) could have been taken by the JEs/AEs for any other proceedings without recording in the file movement register. The possession of the UC file being obtained by JE without entry in the movement register since he did not visit the site as scheduled is probable and no adverse inference can be drawn merely because the movement of file was not reflected in the file movement register. It may also be noticed that the custody of the files and demolition register maintained by MCD remains with OI(B) but no explanation has come as to how the files could have been accessed by Ajay Kumar Shrotriya if the same remained in possession of OI(B). Further, no complaint was lodged by AE(B) or EE in case the demolition action had been wrongly shown by Ajay Kumar Shrotriya in the file.
It may also be mentioned that only the attested copies of file movement register have been produced by the investigating agency and the original register has not been brought on record.
15. It may also be noticed that a mere non entry of the file in the movement register or the action taken report or the missalbandh register or demolition claim charge register does not automatically CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 45 lead to an inference that the entries for partial demolition action had been forged by the JE. The same needs to be assessed in the light of other circumstances and evidence on record.
It is imperative to note that during cross-examination of PW2 Moti Lal {the then Officer Incharge (Buildings)}, it has been brought on record that various entries existing in the demolition register were not supported by corresponding entry in the missalbandh register, file movement register, demolition charge register which may be due to negligence or oversight by OI(B) but were not disputed or charge-sheeted by Investigating Agency. The aforesaid aspect has been admitted by PW2 Moti Lal in his cross-examination dated 23.02.12 page no.15 in the present case (i.e. CC No.113/11) to the effect that:
"There is an entry in demolition register dated 19.03.03 in respect of properties no. 14/9 and 10/62 Punjabi Bagh but there is no corresponding entry in missalbandh register, file movement register, demolition charge register. I cannot say anything about the entry in ATR since the same for the said period is not available on judicial record. Similar is my reply in respect of property no. D-12 Rajouri Garden, 10/62 West Punjabi Bagh, 21/98 West Punjabi Bagh, 34/75 West Punjabi Bagh, 2A/DG2 Vikaspuri-II, B-98 Kirti Nagar, 9/50 Kirti Nagar, X-5 Kirti Nagar and B-2/133 Janakpuri. These entries might have been left out due to over burden of work."
It is also pertinent to note that during cross-examination of CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 46 PW2 Moti Lal in the present case, the counsel for accused also pointed out the missing entries in the file movement register and the action taken report which were admitted by PW2 Moti Lal to have been missed by him due to overload of work. In the aforesaid context, cross-examination of PW2 Moti Lal dated 23.02.2012 on page no.9 may be noticed:
"It is correct that the entries mentioned in demolition register Ex.PW2/D for 09.10.02 pertaining to property no. 23, Punjabi Bagh for 17.10.02 (pertaining to property No. C-40 Kirti Nagar) is not entered in the movement register Ex.PW3/D (exhibited in CC No.93/11). It is correct that in spite of the aforesaid missing entries in the movement register, the demolition is shown to have been carried and as such the demolition register could have been obtained without the corresponding entries in the movement register. (Vol. The said entries may have been missed due to overload of work)." He also admitted on page 11 of the cross- examination dated 23.02.2012 to the effect "It is correct that entry dated 07.11.2002 pertaining to property no. C-3/396, Janak Puri in the demolition register is not mentioned in the Action Taken Report for the month of November, 2002. It is also correct that entry dated 25.11.02 pertaining to property no. C-5C-19 Janak Puri, C-5C-36A, Janak Puri and C-3/375, Janak Puri in the demolition register is not mentioned in the action taken report for the month of November, 2002. There is a possibility that there may be further entries in the demolition register which may CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 47 not have been mentioned in the action taken report. I cannot say in case the said entries may be numbering about 150 over a period of 6 months."
As such, it cannot be ruled out that the entries may be missed in the monthly 'action taken report' by OI(B) and the same may not be conclusive to infer that the entry dated 27.02.03 is forged and the demolition action had not been carried by the JE.
16. Ld. PP for CBI has next contended that since the 'demolition charges' were not raised in respect of the property in question and claimed from the owner, the entry for partial demolition action was forged.
The contention has been vehemently opposed by counsel for accused Ajay Kumar Shrotriya and it has been pointed out that it is the job of OI(B) to prepare the letter of demand/bill for the demolition charges as per the entries in UC file or in the demolition register and thereafter the said letter/bill is sent to the owner/builder under the signatures of AE. It is also contended by counsel for accused that JE has in fact no role to play in recovery of said charges.
It may be noticed that similar contention has also been raised in other cases decided by this Court. In CC No. 114/11, Shri Brij Pal Singh, EE was examined by the prosecution and in the aforesaid case, he stated in cross-examination dated 30.04.12 (page 3 and 4 ) to the effect:
"The demolition charges are to be claimed by the CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 48 OI(B) and the necessary documentations is also to be made by him for aforesaid purpose. The said charges are forwarded to the House Tax Deptt for recovery from the concerned Assessee. It is not the duty of JE to claim the demolition charges."
PW16 Shri J.S. Yadav, AE in the aforesaid context in CC No.114/11 also clarified during cross- examination that for minor demolitions, the demolition charges are not normally raised.
It was also admitted by PW16 Insp. N. Mahato (IO) in the present case (i.e.CC No.113/11) in his cross-examination dated 20.09.12 page 4 that "the demolition charges in respect of action taken by MCD are required to be collected by AE and not by the JE."
In the aforesaid context, it may also be noticed that since the posting of Ajay Kumar Shrotriya, JE was till 31.03.03 the further action in this regard, if any, could also be taken by the succeeding JE or the AE and merely on this ground it cannot be inferred that the entry dated 27.02.03 carrying partial demolition action had been forged.
17. Ld. PP for CBI has next relied upon report prepared by CPWD on inspection of property in 2007/08 and contended that unauthorized construction reflected in the report leads to inference that the CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 49 demolition action had not been carried on 27.02.03.
I am of the considered view that aforesaid report may be relevant to show that the unauthorized construction had been carried in the property but merely on the basis of construction reflected in the CPWD report made in the year 2008 after registration of FIR by CBI, it cannot be inferred that partial demolition action dated 27.02.03 is forged. It cannot be ruled out that the property may have been renovated or repaired after the said partial demolition action carried on 27.02.03. It is pertinent to observe that on the date of booking of FIR i.e. 27.01.03, the unauthorized construction in the property was observed as basement and raising of wall of ground floor and the construction was observed to be old as noted on the top of the FIR. However, subsequently on inspection of the property n 2008, the premises was also found to be built up on first floor, second floor and third floor which clearly reflects that the construction in the property had been carried after the partial demolition action reflected in noting dated 27.02.03. The entire building could not have come up within a period of one month after the registration of FIR by MCD. The role of the Jes/AEs/EE during whose tenure the construction had subsequently come up and no action for demolition had been taken has been completely ignored by the investigating agency. In the facts and circumstances, it cannot be concluded on the basis of CPWD report prepared in 2008 that the entry dated 27.02.03 had been forged by Ajay Kumar Shrotriya though the fact that unauthorized construction was raised at the time of booking of FIR in the property cannot be doubted.
CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 50
18. Learned PP for CBI has also vehemently contended that there is sufficient evidence to infer conspiracy since accused Ajay Kumar Shrotriya, JE had forged the entry dated 27.02.03 to benefit the owner/builder.
To assess the aforesaid contention, it may be outrightly noticed that there is absolutely no evidence on record to show meeting of accused during the relevant period or passing of gratification. PW16 Inspector N. Mahato during his cross- examination dated 16.08.12 (page 16) stated that the owners of the property had informed him that Ajay Shrotriya had not met them during 2002/03. The inference as to conspiracy is merely drawn since the owner/builder of the property may be benefited, even in the absence of any corroboratory evidence of conspiracy. The same is clear from the fact as PW16 admitted in his cross- examination dated 16.08.12 on page 16 that there was no direct evidence of conspiracy but the same was inferred since the owner/builder were the beneficiary. The inference as to conspiracy has been drawn merely on the presumption that the entry dated 27.02.03 had been falsely introduced which itself has not been proved beyond reasonable doubt.
For the purpose of offence of conspiracy, the evidence should clearly reflect the meeting of the minds between the accused for achieving the intended object which is completely missing in this case. It is also imperative to notice that by merely making entry dated 27.02.03 the property of the owner/ builder could not have been saved from further demolition action. The CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 51 duty for further complete demolition action lay on the shoulders of succeeding officers (JE/AE) under the supervision of other senior officers in hierarchy after transfer of Ajay Kumar Shrotriya on 31.03.03. If any such conspiracy existed, then the officers posted after transfer of Ajay Kumar Shrotriya were also equally responsible for failing to take demolition action but have not been chargesheeted by the investigating agency. It may also be observed that testimony of PW4 Shri D.N. Rehani and PW14 Shri Narender Pal Singh examined on behalf of prosecution is of little assistance to further the case of prosecution since PW4 had purchased the property in the year 2004 and PW14 Narender Pal Singh appears to be a occupier of a separate portion measuring about 350 sq. yds. which was purchased from one Hitender Kumar. During cross-examination, he further clarified that he was not aware if any demolition action had been taken in adjoining properties of Plot No.4, Industrial Area, Tilak Nagar.
In the facts and circumstances and evidence led on record, I am of the considered view that the circumstances relied by prosecution do not establish conspiracy beyond reasonable doubt or if the entry dated 27.02.03 had been concocted by Ajay Kumar Shrotriya, JE in conspiracy with co-accused.
19. I am also constrained to point out that the investigating agency at its whims and fancies carried the investigation ignoring the role of any other JE posted prior to or after Ajay Kumar Shrotriya in the concerned ward and a clean chit has been given to the AE,EE,SE and DC without bothering to investigate their role.
CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 52 The premier investigating agency (CBI) was expected to thoroughly investigate the case since the FIR was registered by CBI and the investigation commenced on the directions issued by the Hon'ble High Court in WP (C) No.4582/2003 to probe the nexus of MCD officers, including suspect with the hierarchy in the Engg. Deptt., builders and the political bosses. However, the investigation has merely been confined to role of Ajay Kumar Shrotriya who was on deputation from DDA to MCD from 06.05.02 to 30.09.03 ignoring the role of other officers who appear to be also equally responsible for ensuing complete demolition action in the properties in question.
The dumping of the files by succeeding JE/AE/EE without initiating further necessary action in accordance with law leads to the only inference that the same was either in collusion or the role of subordinate officers was deliberately ignored. There also has been clear lack of supervision by the SE & DC concerned posted at relevant time.
20. For the foregoing reasons, the prosecution has failed to bring home the charge against both the accused beyond reasonable doubt. Both the accused are accordingly acquitted of all the charges.
Announced in the (Anoop Kumar Mendiratta) open Court on Special Judge (PC Act) CBI-08 13th September, 2013 Central District, THC, Delhi. CC 113/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 53