Delhi District Court
State (Through Mcd) vs . Babu Saffiquiddin & Mohd. Ishak on 30 April, 2010
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IN THE COURT OF SH. VIVEK KUMAR GULIA
METROPOLITAN MAGISTRATE - 1 (EAST)
KARKARDOOMA COURTS, DELHI
In re:
State (through MCD) Vs. Babu Saffiquiddin & Mohd. Ishak
FIR NO. 13/99
PS STF
U/s.345A/345/461 of DMC Act & 188/448 IPC
1. Sr. No. of the case : 133/2
2. Date of institution : 02/08/1999
3. Name of the complainant : S.Kumaraswamy
4. Date of commission of offence: 15.07.199804.09.1998
5. Name of accused :i) Babu Safiquddin
S/o. Sh. Bashiruddin,
R/o. 766, Suiwalan,
Chandni Mahal, Delhi.
ii) Mohd. Ishaq
S/o. Mohd. Tacoob,
R/o. 1046, Phatak Ram
Kishan Dass Bazar,
Chitali Jama Masjid,
Delhi.
6. Offence complained of : 345A/461 of DMC Act
& 188 /448 IPC
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7. Plea of guilt : Accused pleaded
not guilty
8. Date of reserving the order : 29.04.2010
9. Final order : Acquittal
10.Date of such Order : 30.04.2010
J U D G M E N T
1. The First Information Report No. 13/99 u/s. 345A/461 Delhi Municipal Corporation Act, 1957 and u/s 188/448 Indian Penal Code, 1860 (IPC) was registered on the basis of complaint dated 10.09.1998 made by Dy. Commissioner, MCD, Shahdara (South) Zone, whereby it is alleged that the property no. R176/B, Laxmi Nagar, Delhi ( in short "property") was sealed by MCD along with officers of STF on 15.07.1998 on account of deviation against the sanctioned building plan u/s 345A DMC Act. It was further mentioned therein that during the course of routine inspection, JE (Building) of the area found on 04.09.1998 that seal of the property had been tempered with and broken open illegally and owner/builder of the property has entered the premises and has carrying out the Page no. of 2 of 8 State (through MCD) Vs. Babu Saffiquiddin &Anr.; FIR NO. 13/99 3 construction unauthorizedly. Thereafter, after registration of the case, legal formalities were completed, viz., preparation of site plan and calling of the relevant documents from the concerned MCD Office. During the investigation, the accused persons were found to be owner of the property and as such they were chargesheeted and sent up for facing the trial.
2. Finding a primafacie case, Sh. O. P. Saini, Ld. MM, Shahdara, Delhi, on 01.05.2000, framed charges u/s. 345A/461 DMC Act and u/s.188/448 IPC against accused persons, to which they pleaded not guilty and claimed trial.
3. For proving its case, the prosecution produced three witnesses.
3A. PW1, Sh. R.A. Goel (JE) appeared and deposed that the property no. R176/B, Laxmi Nagar, Delhi was sealed on 15.07.1998 at six points on the ground floor in the presence of MCD and STF Page no. of 3 of 8 State (through MCD) Vs. Babu Saffiquiddin &Anr.; FIR NO. 13/99 4 staff. Further it is mentioned that he did not know who was the owner of the property but later on he came to know that name of the owner is Riyasat Ali s/o. Shokat Ali. Further he deposed that on 04.09.1998, he found the seal broken during survey and he informed this fact to AE (Building).
3B. PW2, HC Harvinder Singh, proved the FIR as Ex.PW2/A. 3C. PW3, B.S. Suman, retired superintendent, MCD, deposed that in the year 1999, STF official obtained documents of property from him. He proved the seizure memo Ex.PW3/A whereby nine documents were seized.
4. When all the incriminating evidence, brought on record by prosecution side, was placed before the accused persons to know their explanation u/s. 313 Criminal Procedure Code (Cr.P.C.), they stated that the premises was never sealed by MCD and further mentioned that they have been falsely implicated in this case. However, they opted not to lead evidence in their defence. Page no. of 4 of 8 State (through MCD) Vs. Babu Saffiquiddin &Anr.; FIR NO. 13/99 5
5. I have heard the State through Ld. APP Sh.V.K. Goel and Sh. S.C. Mittal, Learned defence counsel.
6. It is argued by the prosecution side that PW1 & PW3 have fully supported the case of prosecution and as such accused persons may be held guilty of the offences alleged against them.
7. Per Contra, it is argued by Ld. Counsel for the accused that they had no role to play in the alleged commission of offence and they deserve acquittal. Further it is pointed out by the Ld. defence counsel that the two most important witnesses, i.e., complainant Dy. Commissioner, MCD, and investigating officer have not been produced by prosecution side and therefore, benefit of doubt should be given to accused persons.
8. Further, it is argued that no unauthorized construction was raised by accused persons at the property. Ld. Defence Counsel also emphasized that though PW1 has deposed that the property was Page no. of 5 of 8 State (through MCD) Vs. Babu Saffiquiddin &Anr.; FIR NO. 13/99 6 sealed in his presence, however, there is no documentary evidence on record to prove this fact. It is noteworthy that except the complaint dt. 10.09.1998 filed by Dy. Commissioner, MCD, on the basis of which case was registered, no other document has been filed in original on record. Though PW3, in his testimony, referred to so many documents, viz., report with regard to unauthorised construction, show cause notice issued by JE (Building), demolition notice and demolition order, but all are placed on record as photocopies and none of these was exhibited. In absence of the original records, the photocopies cannot be considered to prove the relevant facts mentioned therein.
9. Ld. APP failed to rebut the arguments advanced by Ld. defence counsel that prosecution has not been able to prove the ownership of the property. It is surprising that PW1 has mentioned that on inquiry he came to know that owner of the property was Riyasat Ali who has nothing to do with this case and it has not been made clear as to on what basis the accused persons were Page no. of 6 of 8 State (through MCD) Vs. Babu Saffiquiddin &Anr.; FIR NO. 13/99 7 implicated in the present case. Further, it is noteworthy that though the complaint was filed in DCP Office on 10.09.1998 but the present FIR was registered on 05.03.1999. This long delay has not been explained by prosecution side.
10. In view of above discussion, there is no doubt in any manner that prosecution has failed to prove the fact of sealing of property on 15.07.1998 as alleged. Now, when the sealing of property is not proved, no question can arise in respect of tress passing the property after breaking open the seals illegally constituting offence u/s. 448 IPC or violating the order duly promulgated by public servant constituting offence u/s. 188 IPC. Otherwise also, prosecution has failed to bring on record any evidence to show that accused persons had broken open the seals illegally and tresspassed thereupon. On the whole, the sine qua non link of accused persons with the property remains missing. Page no. of 7 of 8 State (through MCD) Vs. Babu Saffiquiddin &Anr.; FIR NO. 13/99 8
11. The upshot of the above discussion is that the prosecution has failed to prove the charges levelled against the accused persons in this case. The accused persons, therefore, deserve acquittal. I order accordingly.
Announced in the open court ( Vivek Kumar Gulia ) MMI (East) h On 30 Day of April, 2010 (Total eight pages) Karkardooma Courts,Delhi.
Page no. of 8 of 8 State (through MCD) Vs. Babu Saffiquiddin &Anr.; FIR NO. 13/99 9 FIR NO. 13/99 PS STF 30.04.2010 Present : Ld. AMP for MCD.
Both accused on bail with counsel.
Vide separate judgment of the even date, both the accused persons are acquitted.
Bail bond is cancelled. Endorsement, if any, be cancelled. Documents be returned back against written acknowledgment.
File be consigned to Record Room.
( Vivek Kumar Gulia ) MMI (East) Karkardooma Courts, Delhi.
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