Delhi District Court
State vs Kinshuk Goel on 23 February, 2024
IN THE COURT OF SHRI YASHDEEP CHAHAL
M.M.01 : New Delhi District : PHC : New Delhi.
FIR No. 1153/2014
P.S. : Vasant Kunj South
Under Section : 332, 461 & 466A of Delhi Municipal Corporation Act, 1957.
State Vs. Kinshuk Goel
ID number of the case : New No. 46223/2016
DLND020048742015.
Date of commission of : 03.11.2014.
offence
Date of institution of the case : 21.05.2015.
Name of the complainant : Shri Rupesh Kumar Thakur,
Deputy Commissioner,
South Delhi Municipal Corporation,
South Zone, Green Park, New Delhi.
Name of accused and address : Kinshuk Goel,
S/o Mr. Vijay Shanker Goel,
R/o H. No. 5, Channan Singh Park, Kirbey Place,
Delhi Cantonment, New Delhi110010.
Offence Complained of : Under Section : 332, 461 & 466A of the Delhi
Or Proved Municipal Corporation Act, 1957.
Offence charged of : Under Section : 332, 461 & 466A of the Delhi
Municipal Corporation Act, 1957.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of Judgment : 23.02.2024.
BRIEF STATEMENT OF FACTS FOR THE DECISION
FIR No. 1153/2014 State Vs. Kinshuk Goel Page No. 1
1.By this Judgment, I shall dispose of the case of the prosecution against accused Kinshuk Goel for commission of offence punishable under Section 332 read with Section 461 & 466A of the Delhi Municipal Corporation Act, 1957 (hereinafter shall be referred to as 'The DMC Act').
2. It is the case of prosecution that on or before 03.11.2014, accused Kinshuk Goel was found raising construction in the premises situated at H. No. Y1/501, YamunaI D6 Block, Vasant Kunj, New Delhi in an unauthorized manner against the standard plan and without obtaining prior permission from the concerned Deputy Commissioner and therefore, the present complaint came to be filed for the offence punishable under Section 332 read with Section 461 & 466A of DMC Act.
3. Upon receiving complaint from the Deputy Commissioner, South Delhi Municipal Corporation, an FIR was registered at P.S. Vasant Kunj South as the captioned FIR.
4. After registration of FIR, the investigation was launched in the case and charge sheet came to be filed on 21.05.2015. Thereafter, cognizance of the offence was taken and upon appearance of the accused, notice under Section 251 Cr.PC was framed upon accused for the commission of offences as mentioned above.
FIR No. 1153/2014 State Vs. Kinshuk Goel Page No. 25. The matter was then fixed for prosecution evidence wherein the prosecution examined six witnesses to prove its case.
6. The prosecution firstly examined PW1 Shri N.K. Jha, who was posted as Junior Engineer at the relevant point of time. PW1 deposed regarding the inspection conducted by him, wherein he noted the deviation against the standard plan. He also deposed regarding the steps taken by him for initiation of prosecution and also regarding the photograph MarkC, which was taken by PW3 in his presence.
7. In crossexamination, PW1 deposed that he got to know about the deviation on the basis of inspection conducted by him. He could not tell whether any deviation existed in the said premises as on the date of evidence. He further deposed that site plan and photograph on record does not indicate any date or time stamp.
8. Thereafter, PW2 Rajeev Kumar Singh was examined by the prosecution, who brought and exhibited the documents forming part of the unauthorized construction file.
9. PW3 H.C. Ashish was next in line to be examined by the prosecution. He deposed regarding the investigation conducted by him and regarding the photograph clicked by him, which is MarkC. He also deposed that unauthorized construction was pointed out by the concerned Junior Engineer and he had recorded the statement. During cross FIR No. 1153/2014 State Vs. Kinshuk Goel Page No. 3 examination, PW3 accepted that the nature of deviation is not mentioned on any document in the charge sheet. He also accepted that the concerned Junior Engineer stated the nature of deviation in general terms, against the standard plan.
10. Thereafter, the prosecution examined Inspector Ugesh Kumar as PW4, who deposed that Duty Officer had handed over the copy of FIR and related documents to him.
11. Thereafter, the prosecution examined Mr. Rupesh Kumar Thakur as PW5, who deposed that the complaint Ex. PW2/G was given by him for registration of FIR. During crossexamination, he deposed that the complaint was filed on the basis of the documents supplied by the concerned Junior Engineer and he has no personal knowledge of the case. PW5 could not tell the meaning of deviation against standard plan in crossexamination.
12. Lastly, the prosecution examined PW6 H.C. Mahesh Kumar, who deposed that he had joined the investigation with PW3 and had participated in the preparation of certain documents forming part of the charge sheet. PW6 denied any personal knowledge in cross examination.
FIR No. 1153/2014 State Vs. Kinshuk Goel Page No. 413. In his statement recorded on 13.02.2022 under Section 294 Cr.PC, the accused admitted registration of present FIR and D.D. No. 63B dated 17.11.2014 as Ex. P1 and P2 respectively.
14. After completion of the prosecution evidence, a statement of the accused under Section 313 Cr.PC was recorded, wherein the entire incriminating material was put to the accused and the accused was given an opportunity to explain the same. In his statement, the accused stated that no inspection was ever carried out at the property and no show cause notice was served upon him. He also stated that he retained the property as received after purchase from the DDA. He also stated that the property has not been occupied by him ever since, 2014 and the same has been rented. He also stated that he is not concerned with the third floor of the property, with respect to which the allegation has been levelled and he is the owner of 5th floor only.
15. The accused examined himself as DW1, wherein he deposed that he has given the premises on rent since 28.03.2014 as per the rentagreement Ex. PW3/D1. He also exhibited subsequent rent agreements Ex. DW1/1 and Ex. DW1/2 respectively. He also exhibited Ex. DW1/3 and Ex. DW1/4 as photographs indicating no deviation or unauthorized construction at the 5th floor. The photographs were exhibited along with the certificate Ex. DW1/5.
FIR No. 1153/2014 State Vs. Kinshuk Goel Page No. 516. Thereafter, the matter was posted for final arguments. During the course of final arguments, Ld. Counsel for accused argued that accused has been falsely implicated in the present case. It is further submitted that the accused did not raise any unauthorized construction in the property in question, as alleged and the prosecution has failed to prove the allegation in this regard.
17. Per contra, Ld. APP for the State argued that the witnesses have invariably supported the case of the prosecution despite elaborate cross examination and the case has been proved beyond reasonable doubt, thereby warranting conviction of the accused persons.
18. I have heard Ld. APP for State as well as Ld. Counsel for accused at length. I have also carefully gone through the material placed on record. I may now proceed to examine the case on merits through appreciation of the evidence on record.
19. The cardinal principle of criminal law dictates that the primary burden to prove the case against the accused rests upon the shoulders of the prosecution. When the prosecution succeeds in discharging its burden, the burden shifts upon the accused who must be afforded a reasonable opportunity to rebut the same or to subject the prosecution evidence to reasonable doubt in the eyes of the Court. Nevertheless, first and foremost, the prosecution evidence is to be sifted and weighed on its own merits and once the prosecution succeeds in FIR No. 1153/2014 State Vs. Kinshuk Goel Page No. 6 proving its case, the burden shifts upon the accused. Notably, no occasion arises for shifting the burden upon the accused if the primary case of the prosecution itself has not been proved. It is also essential to note that the prosecution must prove all the ingredients of the offence i.e. the mens rea, actus reus and the link of causation between the crime and the accused.
20. Before proceeding further, I may reproduce Section 332 of the DMC Act. Section 332 of the Delhi Municipal Corporation Act, 1957 reads as under : Section 332. Prohibition of building without sanction. No person shall erect or commence to erect any building or execute any of the works specified in Section 334 except with the previous sanction of the Commissioner, not otherwise than in accordance with the provisions of this Chapter and of the byelaws made under this Act in relation to the erection of buildings or execution of works.
21. A perusal of the provision reveals that the offence under Section 332 of DMC Act culminates when any construction work is carried out on a building without obtaining prior sanction from the authorized officer of the Corporation. Notably, the offence under Section 332 is punishable under Section 461 of DMC Act which is a general penal provision under the Act.
22. It may be noted that Section 332 of DMC Act prohibits two acts - (1) Erection of any building and (2) Execution of any work specified in Section 334. The act of erection of building is defined in FIR No. 1153/2014 State Vs. Kinshuk Goel Page No. 7 Section 333 of the DMC Act and other prohibited works are mentioned in Section 334 of DMC Act. It may be noted that Section 334 lists seven categories of works which are prohibited under the Act and for which prior sanction of the concerned Deputy Commissioner is required.
23. Section 334 of the Delhi Municipal Corporation Act, 1957 reads as under : "334. Applications for additions to, or repairs of, buildings. (1) Every person who intends to execute any of the following works, that is to say
(a) to make any addition to a building;
(b) to make any alteration or repairs to a building involving the removal or reerection of any external or partly wall thereof or of any wall which supports the roof thereof to an extent exceeding onehalf of such wall above the plinth level, such half to be measured in superficial feet;
(c) to make any alteration or repairs to a frame building involving the removal or reerection of more than onehalf of the posts in any such wall thereof as aforesaid; or involving the removal or reerection of any such wall thereof as aforesaid to an extent exceeding onehalf of such wall above plinth level, such half to be measured in superficial feet;
(d) to make any alteration in a building involving
(i) the subdivision of any room in such building so as to convert the same into two or more separate rooms, or
(ii) the conversion of any passage or space in such building into a room or rooms;
(e) to repair, remove, construct, reconstruct or make any addition to or structural alteration in any portion of a building abutting on a street which stands within the regular line of such street;
FIR No. 1153/2014 State Vs. Kinshuk Goel Page No. 8(f) to close permanently any door or window in an external wall;
(g) to remove or reconstruct the principal staircase or to alter its position; shall apply for sanction by giving notice in writing of his intention to the Commissioner in such form and containing such information as may be prescribed by bye laws made in this behalf.
(2) Every such notice shall be accompanied by such documents and plans as may be so prescribed.
24. In the present case, the prosecution has relied upon the testimony of PW1, who was the concerned Junior Engineer, upon whose inspection the property was booked. PW1 affirmed that a photograph of the property was clicked by PW3 in his presence, which is MarkC. During crossexamination, PW1 admitted that the photograph does not bear any date or time and does not show any description of the property. The same has to be read with the site plan which is Ex. PW1/A. PW1 has admitted that the site plan also does not indicate the exact position of the property as the bylanes are completely missing from the plan. PW1 could not depose anything regarding the date of inspection, mode and manner of inspection, prior intimation to the occupiers of the premises, details of the persons, who were present at the premises etc. On inquiry, PW1 stated the nature of deviation to be 'deviation against standard plan'. The accused has taken a defence that until and unless the exact nature of deviation is mentioned, the ingredients of Section 332 could not be fulfilled. PW3 and complainant PW5 have also deposed that the nature of deviation was 'deviation FIR No. 1153/2014 State Vs. Kinshuk Goel Page No. 9 against standard plan'. Against specific queries, it is admitted by the PWs that the exact nature of deviation is not specified.
25. It may be noted that the offence under Section 332 either requires erection of building or execution of the works which are specified in Section 334 of DMC Act. The allegation is not that the accused had eracted a building without obtaining permission. The allegation is regarding deviation on an existing building and in order to fulfill the requirements of Section 334, the nature of deviation must be specified. In my view, the prosecution has failed to do so. The nature of deviation is neither specified in the complaint dated 12.11.2014 nor in the oral testimonies of PW1, PW2 or PW5, who are witnesses on behalf of MCD.
26. In the present case, the accused has taken a specific defence that no verification or inspection of the premises was done in his presence. The same is corroborated from the testimony of PW1. He further states that he never resided in the said flat and he was only occupying the flat situated at 5th Floor of the same building as a tenant. It may be noted that the photograph MarkC indicates that the building is a multifloor building. Although, the photograph is not supported by a requisite certificate under Section 65B of the Indian Evidence Act and as such inadmissible in law, however, even if the photograph is taken on FIR No. 1153/2014 State Vs. Kinshuk Goel Page No. 10 its face value, it does not further the case of the prosecution. On the contrary, the photograph runs in favour of the accused. The documents relied upon by the prosecution reaffirm the defence taken by the accused that he was only occupying 5th floor of the building and no deviation was in existence on the 5th Floor. Notably, the documents prepared by the MCD do not mention the floor with respect to which the allegation was levelled by MCD. However, there is one document which has been placed on record by the accused which mentions that the accused was occupying the fifth floor of the building. The possession slip dated 10.11.2012 also indicates the same. The said document has been exhibited by the accused in defence evidence. Although, the said document is relevant for the determination of the fact in issue, the same is inadmissible as it is a photocopy document and has been self attested by the accused.
27. Even if reliance is not placed on the said document, oral testimony of DW1 raises reasonable doubts on the case of the prosecution. It reaffirms the failure of the prosecution to indicate the nature of deviation as well as the floor on which deviation was found. Furthermore, it is settled law that for the culmination of offence under Section 332 of DMC Act, it is essential to prove that the accused was carrying out unauthorized construction. Mere existence of unauthorized construction, without demonstrating a live link of the said construction FIR No. 1153/2014 State Vs. Kinshuk Goel Page No. 11 with the accused, is not sufficient for proving the offence. The law in this regard has been settled by the Hon'ble Delhi High Court in MCD Vs. Prakash, 2008 (148) DLT 587. None of the prosecution witnesses, including PW1 and PW3, who purportedly carried out investigation on the ground, have deposed that they had observed any construction in progress. It is surprising that an entire constrution activity was carried out and the same could not come to the knowledge of MCD. However, later an inspection was carried out and the accused was booked for the said construction, which was not even in existence on the date of booking. In such circumstances, it was incumbent upon the prosecution, to have established that the construction was carried out by none other than the accused. In my considered opinion, the prosecution has failed to do so.
28. Ld. Counsel has also relied upon Section 467 of DMC Act to assail the case of the prosecution on the argument that the said provision required a complaint to be filed in the Court by the concerned Deputy Commissioner. It is stated that in the absence of any complaint, the prosecution shall stand vitiated. In my considered view, the said argument is not acceptable as the charge sheet supplied to this Court was accompanied by a copy of the complaint, sent by the Deputy Commissioner. Moreover, on the registration of FIR, the copy of FIR was also supplied to the jurisdictional Magistrate under Section 157 FIR No. 1153/2014 State Vs. Kinshuk Goel Page No. 12 Cr.PC. Be that as it may, since the case of the prosecution has fallen flat on the merits of the case, I do not propose to dilate further on this issue as the outcome of this case does not turn on the same.
29. In light of the above discussion, the prosecution has miserably failed to establish the guilt of the accused beyond reasonable doubt. Accordingly, the accused stands acquitted from the charges framed/levelled against her. Previous bail bond of the accused stands extended for a period of six months, during the period of appeal, if any, to be preferred by the State.
30. Let document, if any, be released in favour of rightful owner/claimant.
31. File be consigned to Record Room after necessary compliance.
32. This judgment is contained in 13 pages and all pages have been signed by me at the bottom.
YASHDEEP Digitally signed by YASHDEEP
CHAHAL
CHAHAL Date: 2024.02.23 16:09:00
+0530
Announced in the open Court (YASHDEEP CHAHAL)
rd
On 23 February, 2024. Metropolitan Magistate.01 : NDD : PHC New Delhi.
FIR No. 1153/2014 State Vs. Kinshuk Goel Page No. 13