Delhi District Court
State vs . Mukesh Kumar on 19 September, 2013
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 516/2009
P.S. Malviya Nagar
U/s 461 DMC Act r/w section 188 IPC
State vs. Mukesh Kumar
JUDGMENT :
a. Sl. No. of the case : 103/12
b. Date of Institution : 29.03.2010
c. Date of Commission of Offence : 17.08.2009
d. Name of the complainant : Hisamuddin
AE,MCD, South Zone,
New Delhi.
e. Name of the accused and his : Mukesh Kumar
parentage and address S/o Bhagat Ram
R/o S20, Khirki Extention,
New Delhi.
f. Offence complained of : U/s 461 of DMC Act r/w
section 188 IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 19.09.2013
i. Final Order : Acquitted
j. Date of such order : 19.09.2013
1. The accused in this case was sent up for trial for the commission of FIR NO. 516/2009 PAGE 1 OF PAGE 9 PS MALVIYA NAGAR offence u/sec. 461 DMC Act & 188 IPC.
2. The facts in brief are that on 17.08.2009, accused was found carrying unauthorized construction at property bearing no. S20, Khirki Extension, Malviya Nagar, New Delhi without permission of Commissioner of MCD and order of public servant was violated. On the complaint of complainant, FIR was lodged. During the investigation, statements of witnesses were recorded. Accused was arrested and after completing other formal investigation the challan was presented before the court for trial u/s. 466 DMC Act & 188 IPC against the accused.
3. Accused had appeared in the court and he was informed about the substance of allegations leveled against him and notice was served upon him vide order dated 19.09.2011, U/s.461 DMC Act & 188 IPC to which he pleaded not guilty and claimed trial.
4. To prove its case the prosecution has examined four witnesses namely Isamuddin as PW1, Ravi Kumar Meena as PW2, S.K. Midha as PW3 and SI Vijender Singh as PW4.
5. PW1 Hisamuddin has testified tha he did not remember as the incident is three years back.
PW1 was cross examined by Ld. APP as he was resiling from his earlier statement. In his cross examination, PW1 has testified that he had sent FIR NO. 516/2009 PAGE 2 OF PAGE 9 PS MALVIYA NAGAR the letter dated 05.10.2009 regarding unauthorized construction at Plot no. S20, Khirki Extention, New Delhi which is Ex. PW1/A. He further testified that he had sent the letter as reminder to letter dated 23.07.2009 on which no action was taken by the concerned SHO which is MarkX. PW1 further testified that police never recorded his statement during the course of the investigation. In his cross examination by Ld. Defence Counsel, PW1 has testified that he visited the spot but he did not remember the exact date. PW1 further testified that he had not seen any constructionwork going on at the time of site visit. PW1 further testified that he had not seen the broken seal at the spot.
6. PW2 Ravi Kumar Meena has testified that in the year 2009, he visited the spot i.e. S20, Khirki Extention, Malviya Nagar and found that the seal which was affixed on the said property, had been tampered with and the labour were present there and construction work was going on. Therefore he reported the matter to his higher authorities vide his Noting Mark Y. PW2 further testified that he did not remember but he again put a seal on the propery on the directions of AE.
PW2 was cross examined by Ld. APP as he was resiling from his earlier statement. In his cross examination, PW2 has testified that he visited the said premises on 17.08.2009. PW2 has denied the suggestion to this effect that he found the accused Mukesh Kumar doing unauthorized construction on the said sealed property.
FIR NO. 516/2009 PAGE 3 OF PAGE 9 PS MALVIYA NAGAR
In his cross examination by Ld. Defence Counsel, PW2 has testified that the said property was neither initially sealed in his presence nor the seal was broken in his presence.
7. PW3 S.K. Midha has testified that the property bearing no. S20, Khirki Extention, Malviya Nagar was sealed for unauthorized construction on 18.05.2009. However, during the month of July, it was reported by the JE and AE that the seal had been tampered with and the property had been occupied by the owner namely Mukesh Kumar. PW3 further testified that the said building was resealed again on 25.07.2009. PW3 further testified that again it was reported that the seal had been tampered with and order was given to reseal the same in the month of July, 2010.
PW3 was cross examined by Ld. APP as he was resiling from his earlier statement. In his cross examination, PW3 has testified that the letter referrd for 18.05.2009 is the notice u/s 345 of DMC Act for sealing the said building i.e. S20, Khirki Extention, Malviya Nagar and the said notice was served upon the accused prior to sealing of the property on 18.5.2009.
In his cross examination by Ld. Defence Counsel, PW3 has testified that he did not remember the exact date when he went to the spot to inspect the property but he did go.
8. PW4 SI Vijender Singh has testified that on 26.10.2009, he received a complaint from AE MCD, which is Ex. PW4/A on which he made FIR NO. 516/2009 PAGE 4 OF PAGE 9 PS MALVIYA NAGAR endorsement Ex. PW4/B and got the present case FIR registered. He visited the said property no. S20, Khirki Extention, Malviya Nagar and prepared the site plan vide memo Ex. PW4/C. He obtained the documents i.e permission under section 195 Cr.P.C from the officials of MCD. Accused Mukedh was arrested vide memo Ex. PW4/D. In his cross examination, PW4 has testified that he never recorded the statements of AE or JE at the spot. He prepared the site plan at the instance of AE. PW4 further testified that he did not record the statements of any public person in this case.
9. Thereafter statement of accused was recorded under section 294 Cr.P.C wherein he has admitted the factum of registration of FIR.
10. After closing of prosecution evidence, statements of accused was recorded U/s 281 r/w section 313 Cr.P.C. In his statement, accused has denied to have committed the offence and claimed to have been falsely implicated in this case. However, he did not lead any evidence in his defence.
11. I have heard the arguments of Ld. APP for State and Ld. Counsel for accused.
12. Section 332 of DMC Act prohibits erection of any building or execution of any construction work without the previous sanction of the Commissioner of MCD and such violation has been made punishable by FIR NO. 516/2009 PAGE 5 OF PAGE 9 PS MALVIYA NAGAR Section 461 of the Act prescribing the penalties under the twelfth Schedule. Under twelfth schedule, infringement of provisions of section 332 DMC Act carries a punishment of simple imprisonment up to six months and fine.
13. In order to prove the offence, the prosecution, as in any other criminal case, is required to establish beyond reasonable doubt that the accused either erected or commenced to erect any building or any work without the previous sanction of the Authority or in any manner not authorized by the Act. In MCD vs. Prakash, 146 (2008) DLT 587, the Delhi High Court has held forth that what is critical to prove the offence is that the person who is sought to be found guilty should himself have either erected or commenced to erect the unauthorized construction. The mere presence of a person at the spot may not satisfy the requirement.
14. Besides, the prosecution for offence u/s 322 DMC Act can not be held except upon the complaint of or upon information received from some officer of the Corporation not being below the rank of a Deputy Commissioner. Section 467 of the Act bars the trial without such complaint. The term 'complaint' has not been defined under the Act. In these circumstances, the meaning of the term 'complaint' should be taken as defined in Cr.P.C., section 2(d) of which states inter alia that "complaint" means any allegation made orally or in writing to the Magistrate. The effect of the combined reading of all the aforesaid provisions would be that a prosecution for offence U/s 332 of DMC Act FIR NO. 516/2009 PAGE 6 OF PAGE 9 PS MALVIYA NAGAR can be held only on the complaint made to the concerned Magistrate by an officer of the Corporation authorized under the provisions of the Act.
15. In the instance case, the prosecution has failed to follow the procedure as prescribed under section 467 of the Act. The Assistant Engineer, complainant in the case, has made a complaint Ex. PW4/A to the police leading to the FIR and investigation. No complaint ever was made to the court by any officer authorized under the Act. A report to the police does not qualify as a complaint as envisaged by the Act. Needless to say, the prosecution, in present case, itself was impermissible.
16. Coming to the charge, no evidence led by the prosecution establishes that it was accused who carried out the act of unauthorized construction. In the first instance, the complaint of A.E Ex. PW4/A and other evidence are at variance with each other. The prosecution has chosen to lead evidence at its whim and caprice totally ignoring the complaint of the A.E In fact, no investigation seems to have been made with regard to the contents of the complaint. As per Ex.PW4/A, the act of unauthorized construction was detected on 17.08.2009. No evidence has been adduced in this respect. The evidence shows the investigation was carried out for unauthorized construction on 26.10.2009 and not for the day alleged in the complaint. But then no complaint has been made on behalf of the Corporation for unauthorized construction on 26.10.2009 and police, on its own, is not authorized to go forward with FIR NO. 516/2009 PAGE 7 OF PAGE 9 PS MALVIYA NAGAR the investigation for the offence committed on that day. The police can only report the matter to Commissioner u/s 475 of the Act. Thus, the evidence itself excludes the accused of having committed the offence as alleged in the complaint of A.E concerned which is Ex. PW4/A.
17. On merits also the case of the prosecution does not stand the ground. There is nothing on record to prove if any unauthorized construction was being carried out at the spot or to connect the accused with such construction. In the first place, the prosecution has failed to establish any connection between the accused and act of unauthorized construction. He has placed on record no evidence to show that the accused was either the owner of the property or working as a builder. No documentary record from the MCD or any other department has been placed on record in this respect. Besides, no public person has been made a witness to corroborate the official witnesses. Only one witness namely Junior Engineer is alleged to have seen the accused committing the offence but in his testimony before the court he has not supported the prosecution case in any manner. In his testimony he has merely stated that in the year 2009, he has visited the spot and found that unauthorized construction was being carried out. He was cross examined by Ld. APP on several material points. In his cross examination, he has denied the fact that the accused was carrying out unauthorized construction at the site in question. Hence, his testimony does not prove that the unauthorized construction was being carried out by the accused.
FIR NO. 516/2009 PAGE 8 OF PAGE 9 PS MALVIYA NAGAR
18. Further, no complaint under section 195 Cr.P.C has been filed hence trial under section 188 IPC is not permissible.
19. All these infirmities in the prosecution evidence seriously reflects on the varacity of prosecution case the benefit whereof must go to the accused.
20. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused Mukesh Kumar is acquitted for the offence punishable U/s 332/461 DMC Act r/w section 188 IPC.
Announced in the Open Court (DEEPAK SHERAWAT)
On 19.09.2013 Metropolitan Magistrate
South East District/New Delhi
FIR NO. 516/2009 PAGE 9 OF PAGE 9
PS MALVIYA NAGAR
FIR No.516/09
PS Malviya Nagar
U/s 332/461 DMC Act r/w section 188 IPC
19.10.2013
Present: Ld. APP for the State.
Accused on bail with counsel.
Final arguments heard.
Vide my separate judgment dictated and announced in the open court, accused is acquitted for the offence punishable U/s 332/461 DMC Act r/w section 188 IPC.
Accused is released on bail on furnishing personal bond in the sum of Rs.10,000/ with one surety in the like amount. Bail bond furnished. Same is accepted. As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused shall remain bound by the personal as well as surety for a period of six months from today.
Documents, if any, be released to accused as well as surety after cancellation of endorsement on the same.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South East/19.10.2013
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PS MALVIYA NAGAR
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PS MALVIYA NAGAR