Delhi District Court
State vs . Manohar Lal Sharma on 11 September, 2013
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 81/2011
P.S. Malviya Nagar
U/s 461 DMC Act r/w section 188 IPC
State vs. Manohar Lal Sharma
JUDGMENT :
a. Sl. No. of the case : 151/2
b. Date of Institution : 22.09.2011
c. Date of Commission of Offence : 20.02.2011
d. Name of the complainant : Sh. S.K. Midha
Deputy Commissioner,MCD,
South Zone, New Delhi.
e. Name of the accused and his : Manohar Lal Sharma
parentage and address S/o Dharambir Sharma
R/o K3B, Khirki Extention,
Malviya Nagar, 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 : 11.09.2013
i. Final Order : Acquitted
j. Date of such order : 11.09.2013
1. The accused in this case was sent up for trial for the commission of FIR NO. 81/2011 PAGE 1 OF PAGE 7 PS MALVIYA NAGAR offence u/sec. 461 DMC Act & 188 IPC.
2. The facts in brief are that during the year 2010, at property bearing no. J3/68, Khirki Extention, Malviya Nagar, accused had tampered with the seal affixed by the MCD and occupied the said building despite the same was being sealed on 10.11.2010 by the staff of building department, MCD. 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. 461 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 04.07.2012, 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 five witnesses namely S.K. Midha as PW1, Pankaj Kumar as PW2, Nand Kishore as PW3, HC Ritesh as PW4 and ASI Vijay Singh as PW5.
5. PW1 S.K. Midha has testified that a case was put up to me regarding unauthorized construction at property no. J3/68, Khirki Extention on third and fourth floor. A show cause notice was issued in October, 2010 but no response was received hence the said property was sealed FIR NO. 81/2011 PAGE 2 OF PAGE 7 PS MALVIYA NAGAR on 10.01.2011. PW1 further testified that on 11.01.2011, the seal was found to be broken and consequent to that, an FIR was lodged in February, 2011.
In his cross examination, PW1 has testified that he did not hand over any document with regard to the sealing of said property to the IO during the investigation.
6. PW2 Pankaj Kumar has testified that in the month of December, 2010, he came to know that a case of unauthorized construction was being filed in the Hon'ble High Court of Delhi with regard to some properties of the area. After noting down the properties, he inspected the area of Khirki Extention and found that the seal which was affixed by MCD, South Zone by the then JE Manoj Meena, was tampered with at third floor and fourth floor of property bearing no. J3/68, Khirki Extension. He noticed the said facts to the Executive Engineer to lodge an FIR and reseal the property. On 13.01.2011, he resealed the said property after having the property demolished at the abovesaid floors.
In his cross examination, PW2 has testified that at the time of inspection, he did not verify as to who was the owner of the said property or who was building the said property.
7. PW3 Nand Kishore brought the summoned record with regard to the property bearing no. J3/68, Khirki Extension, New Delhi. Ld. counsel for accused did not prefer to cross examine PW3.
FIR NO. 81/2011 PAGE 3 OF PAGE 7 PS MALVIYA NAGAR
8. PW4 HC Ritesh has testified that on 03.03.2011, he had joined the investigation of the present case FIR with IO/ASI Vijay Singh. On that day, IO had recorded the discosure statement of accused which is Ex. PW4/A. IO had also effected the arrest of accused vide memo Ex. PW4/B. Ld. counsel for accused did not prefer to cross examine PW4 also.
9. PW5 ASI Vijay Singh has testified that on 20.02.2011, on receipt of complaint from DC, South Zone, MCD, he registered the present case FIR. PW5 further testified that on 25.02.2011, he had visited the site i.e property bearing no. J3/68, 3rd and 4th floor, Malviya Nagar, with JE Pankaj Kumar and prepared the site plan at the instance of JE vide memo Ex. PW5/A. PW5 further testified that he gave notice u/s 160 Cr.P.C to accused Manohar Lal. He had interrogated the accused and effected his arrest vide memo Ex. PW5/B. He recorded the disclosure statement of accused. He had also obtained the permission under section 195 Cr.P.C from the D.C, MCD.
In his cross examination, PW5 has testified that during the investigation, he did not ask the accused about the documents with regard to the ownership of the said property nor had he seized any document.
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 FIR NO. 81/2011 PAGE 4 OF PAGE 7 PS MALVIYA NAGAR 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. U/s 345A of DMC Act, the Commissioner of MCD has power to make an order for sealing of any work of unauthorized construction and sub section 3 thereof makes the removal of such seal without the permission of the Commissioner punishable. To prove such an offence, there must be evidence to show that a seal was affixed by the authorized officer of the MCD which was broken or tampered with by the accused in contravention of the provision of section 345 A of DMC Act.
13. In the present case, the prosecution has not led any evidence in the first place to establish that the property was ever sealed. No record in this connection has been brought on record. Infact, no such record was secured by the IO during the investigation. Oral evidence in this behalf is also not sufficient. The JE has been examined as PW2 and he has mentioned in this testimony that the seal was affixed by his Predecessor Manoj Meena at the said property. However the said JE Manoj Meena is not a witness in this case though his testimony was very important to prove the fact of the seal being affixed. Apart from any documentary evidence, no photographs of the sealed property have FIR NO. 81/2011 PAGE 5 OF PAGE 7 PS MALVIYA NAGAR been placed on record.
14. Moreover, the prosecution has relied upon the documents showing the ownership of the accused in the property but these documents have not been proved by producing any proper witness. In any case, being owner of the property is no offence and what the prosecution was required to prove, was that the accused has broken or tampered with the seal. In this respect, no eye witness has been examined by the prosecution. Being owner of the property, does not raise any presumption against accused for having committing the offence. Even the complaint of the concerned official or the FIR does not disclose as to who had removed the seal. In such circumstances, it cannot be said that it was the accused who had removed the seal and committed the offence.
15. Again under section 345A of DMC Act, a duty has been cast upon the MCD to serve proper notice upon the owner or occupier before putting any seal upon the property. In the present case, no such notice seems to have been served upon the accused. Issuing of such notice is a prerequisite for sealing a property and production of such notice in original in the court is essential being a material evidence.
16. The accused has also been charged with the offence under section 188 IPC. However, no proper trial can be held for this offence unless a complaint under section 195 Cr.P.C is lodged with the court. In the FIR NO. 81/2011 PAGE 6 OF PAGE 7 PS MALVIYA NAGAR present case, no such complaint has been made by the concerned officer of the MCD. IO/PW5 in his testimony has stated that he obtained the permission under section 195 Cr.P.C from the D.C, MCD, South Zone. However PW1 has not stated this fact in his testimony. As per law, no permission is required to prosecute the accused and the complaint under section 195 Cr.P.C was to be made directly to the court.
17. All these infirmities in the prosecution evidence seriously reflects on the varacity of prosecution case the benefit whereof must go to the accused.
18. 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 Manohar Lal is acquitted for the offence punishable U/s 345A DMC Act r/w section 188 IPC.
Announced in the Open Court (DEEPAK SHERAWAT)
On 11.09.2013 Metropolitan Magistrate
South East District/New Delhi
FIR NO. 81/2011 PAGE 7 OF PAGE 7
PS MALVIYA NAGAR
FIR No. 81/2011
PS Malviya Nagar
U/s 345A DMC Act r/w section 188 IPC
11.09.2013
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 345A 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/11.09.2013
FIR NO. 81/2011 PAGE 8 OF PAGE 7
PS MALVIYA NAGAR
FIR NO. 81/2011 PAGE 9 OF PAGE 7
PS MALVIYA NAGAR