Delhi District Court
State vs Puneet Sharma on 16 January, 2013
IN THE COURT OF SH. GAGANDEEP SINGH
METROPOLITAN MAGISTRATE, DELHI
FIR NO 580/03
PS KOTWALI
U/S: 466 A DMC ACT
STATE VS PUNEET SHARMA
:JUDGMENT:
Date of commission of offence 1377/1
Date of commission of offence 15.10.2003
Name of the complainant Municipal Corporation of Delhi
Minto Road, New Delhi.
Name, parentage and address Puneet Sharma
of accused S/o Sh Lalit Sharma
R/o 26 B Sunder Apartment
Paschim Vihar, Delhi.
Offence complained off U/S: 466 A DMC ACT
STATE VS PUNEET SHARMA FIR. 580/03
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Plea of accused Pleaded not guilty
Final order Acquitted
Date of order 16.01.2013
Date of final arguments heard 16.01.2013
BRIEF FACTS AND REASONS FOR DECISION :
1. The facts of the case in brief are that the property bearing No 1801, Bisumal Colony, Bhagirath Place, Delhi within the jurisdiction of PS Kotwali Delhi, the inspection of premises was conducted by MCD officials. The accused being the owner was found carrying out unauthorized construction without valid permission at above said place. Thus he was found having committed an offence punishable u/s 332 DMC Act read with Schedule 12 of DMC Act. Accordingly charge sheet was filed against him.
2. The chargesheet against the accused was filed on 19.02.2004 and prima facie case being made the accused was summoned. The notice u/s 332 DMC Act read with schedule 12 of DMC Act was issued against the Puneet Sharma on 26.04.2006, to which he pleaded not guilty and claimed trial.
3. The prosecution has examined only six witnesses to proving their case.
STATE VS PUNEET SHARMA FIR. 580/03 2/9
4. The PW1 Shashi Kant Mehrotra is the complainant/Deputy Commissioner MCD of Delhi. He has deposed that on 15.10.2003 he made a complaint to DCP (North District) regarding taking action against the accused person under Section 446 A of DMC Act with respect to unauthorized construction at property No 1801, Bisumal Colony, Bhagirath Place, Delhi. He also directed the building department to stop the ongoing unauthorized construction and demolish the same. He also requested for prosecution against the owner of the building. His complaint is Ex PW 1/A. Copy of the complaint sent to SHO PS Kotwali , SE (City Zone), EE (Building) city zone. His complaint was based upon the information letter Ex PW 1/B.
5. The PW2 HC Dhyan Singh deposed that on 16.10.2003 IO SI Mahaveer Singh received the complaint regarding the unauthorized construction at 1801, Bhagirath Place. He joined the investigation alongwith the IO. He alongwith the IO went to the place of incident at 1801, Bhagirath Place. IO prepared the rukka and handed over him for registration of FIR. He registered the FIR and came back at the spot. After that IO tried to search the accused but he was not found. They came back at the PS. IO recorded his statement.
6. The PW3 Ct. Sita Ram deposed that on 11.10.2003 he joined the investigation in case FIR No 580/03. Accused Puneet Sharma was inquired about the incident and he produced the documents regarding property No 1801 which were seized vide seizure memo Ex PW 3/A. The accused was arrested vide arrest memo Ex PW 3/B. His personal search was conducted vide memo Ex PW 3/C. STATE VS PUNEET SHARMA FIR. 580/03 3/9
7. The PW4 Inspector Shashi Bala is the duty officer. She deposed that on 16.10.2003 she received a rukka and on the basis of which she registered FIR which is Ex PW 4/A.
8. The PW5 M. G. Aggarwal deposed that in the year 2004 the police officials of PS Kotwali visited their office regarding this case. They sought information about the present case and the documents. Thereafter in response to the said requisition, he wrote the letter dated 10.02.2004 to SHO PS Kotwali and informed that the demolition order which was passed by MCD was challenged before Appellant Tribunal Delhi vide appeal No 263/2 regarding demolition. Another appeal was filed by the owner vide appeal No 379 for de sealing. The letter is Ex PW 5/A. The Appellant court remanded back to the matter to AE, Building City Zone with the directions to decide the matter afresh vide order dated 03.12.2004. On 10.02.2004 he also handed over the photocopies of the documents namely FIR, Show cause notice, demolition order and copy of appeal order. The same were seized vide seizure memo Ex PW 5/B. The FIR is Ex PW 5/C. The show cause notice is Ex PW 5/D. The report of the JE is Ex PW 5/E. The demolition order is Ex PW 5/E. The order of Appellant Tribunal is Ex PW 5/G.
9. The PW6 Atar Sharma is the photographer. The photographs and negatives are collectively Ex P1.
10.That on 14.03.2012 the prosecution evidence was closed as matter being pending since the year 2006 and prosecution failed to produce all the material witnesses despite opportunities. That on 24.04.2012 the statement of accused was recorded and he denied all the allegations levelled against STATE VS PUNEET SHARMA FIR. 580/03 4/9 him. He further stated that the said construction on the property already existed and no fresh construction was got done. He preferred not to lead defence evidence.
11.I have heard the Ld. counsel for the accused and gone through the record. The main allegation which is there against the accused is that accused was found carrying out unauthorized construction at premises bearing No 1801, Bishumal colony, Bhagirath Place, Delhi without having any valid permission of MCD.
12.The Section 343 of the Act prohibits erection of any building or execution of any work contrary to the sanction/condition referred in Section 336 or any byelaws made there under. The Commissioner shall upon this can issue the show cause notice for demolition of unauthorized construction and thereafter can pass the appropriate order for such work. Further the violation of said such sanction/condition of the sanction and byelaws has been made punishable u/s 461 of DMC Act. The liability of such violation has been fixed upon the owner/occupier or the builder of such property whoever executes such work.
13.The material witnesses who have been examined by the prosecution are PW5 and PW1. The PW1 is the DC of MCD who is authorized to lodge the complaint in terms of section 467 of DMC Act. As per his testimony he received the complaint from SDM Kotwali regarding unauthorized construction at 1801, Bhagirath Place, Delhi. On the basis of said information he lodged the complaint Ex PW 1/A. Therefore the PW1 can not be termed as material witness as he never went to the spot so as to verify the STATE VS PUNEET SHARMA FIR. 580/03 5/9 unauthorized construction being done by the accused nor he got it verified through his own office. The original complainant the SDM Kotwali was never produced by the prosecution to prove the fact of unauthorized construction. The FIR Ex PW 5/C registered by MCD is perused. As per the said FIR the JE who inspected the premises and issued the said FIR was never examined by the prosecution. He was the alone witness to the factum of unauthorized construction which has thus remained unproved.
14.The PW5 proved the various documents of MCD regarding demolition and prosecution of the accused in the present case. He further stated that he wrote a letter dated 10.02.2004 Ex PW 5/A regarding appeal being filed by the owner before the Hon'ble Appellate Tribunal MCD. The matter was remanded back vide order dated 03.12.2003 to AE (Building ) City Zone. The order of the Hon'ble Appellate Tribunal Ex PW 5/G is perused. In the said order, the appellant took a plea that due to lapse of time the condition of property in question detiorated for which only the repair work was carried out by the owner. Thereby the show cause notice was set aside and matter was remanded back to AE (Building) City Zone. The order of AE (Building) City Zone is Ex PW 5/DA is perused. The said order was put to PW5 who never denied its content and authenticity. The accused in the present case appeared before the AE and filed certain documents. The AE of MCD concluded that the portion of the building was demolished as being dangerous on 20.08.2001. He further concluded that the building in question became dangerous and a portion also collapsed. The owner had subsequently carried our necessary repair permissible under BBL 0.4.1. No new construction was found to be constructed by the owner. Accordingly the show cause notice was discharged by him vide order dated 12.03.2004.
STATE VS PUNEET SHARMA FIR. 580/03 6/9
15.The said order of AE was never challenged by the prosecution before the appropriate authority nor it was brought to the notice of the court that the MCD reheard the matter, so as to justify prosecution of accused. Therefore the basis of prosecution in the present case against the accused as described in show cause notice Ex PW 5/D was itself set aside by the issuing authority. In these circumstance nothing survived for the prosecution to have instituted a prosecution in the present case.
16.The manner of investigation in the present case requires a critical evaluation. The PW5 stated that he informed the SHO PS Kotwali vide letter dated 10.02.2004 Ex PW 5/A of the order of the Hon'ble Appellant Tribunal dated 03.12.2003. Therefore the burden was upon the investigating authority to investigate the further course of action in terms of the order of Hon'ble Appellate Tribunal. The conduct of the investigating authority shows its casual and mechanical approach towards their duty. No effort was made by the them to find out as to the consequence of the said order. That instead of waiting for the order of AE who was to hear the matter afresh they mechanically filed the present charge sheet against the accused on 19.02.2004. The said act on the part of investigation authority resulted in undue harassment of accused for eight long years and wasted the precious time of the court on a case which right from the beginning was bound to fail.
17.It is a cardinal principal of criminal law that the prosecution has to prove their case against accused beyond reasonable doubt and benefit of the doubt has to be given to the accused. All these facts leads to one conclusion that the prosecution has miserably failed to prove their case against the accused STATE VS PUNEET SHARMA FIR. 580/03 7/9 and sufficient doubt is there in his favour.
18.In view of the above stated reasons, accused Puneet Sharma is acquitted u/s 466 A DMC Act/332 DMC Act read with Schedule 12 of DMC Act. Bail bond and surety bond stands discharged.
File be consigned to Record Room.
(Announced in the open court)
Dated: 16.01.2013 (GAGANDEEP SINGH)
MM:NORTH(01)
TIS HAZARI DELHI
STATE VS PUNEET SHARMA FIR. 580/03
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FIR NO 580/03
PS KOTWALI
U/SEC 466 A DMC ACT
STATE VS. PUNEET SHARMA
16.01.2013
Present: Ld APP Sh Manan Munjal for the State
Accused in person with Ld counsel.
Final arguments heard.
Vide my separate detailed judgment of the even date accused Puneet Sharma is acquitted for the offence u/s 466 A DMC Act/332 DMC Act read with schedule 12 of DMC Act. The accused wishes to adopt previous bail bond. Previous bail bond and surety bond stand adopted for the purpose of Section 437A of Cr.PC. They shall remain valid for period of six months from today. Original documents returned as per rules.
File be consigned to Record Room.
(GAGANDEEP SINGH)
MM01/NORTH DELHI
16.01.2013
STATE VS PUNEET SHARMA FIR. 580/03
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