Delhi District Court
State vs Tariq Raza on 10 July, 2024
IN THE COURT OF SHRI ANUJ KUMAR SINGH
ADDITIONAL CHIEF JUDICIAL MAGISTRATE-02
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLCT020043182015
FIR No. 132/2014
PS: Bara Hindu Rao
State Vs. Tariq Raza
U/s: 188 IPC & 461 DMC Act
JUDGMENT
(a) CIS No. 294043/2016
(b) Date of offence 03.05.2010
(c) Complainant Tilak Raj, Assistant Engineer
(Building), North DMC (now
MCD)
(d) Accused Tariq Raza S/o Sh. Abid Raza, R/o
H. No. 8036, Gali Tyre Wali, Bara
Hindu Rao, Delhi.
(e) Offence 188 IPC & 461 DMC Act
(f) Plea of accused Pleaded Not guilty
(g) Final Order Acquitted
(h) Date of Institution 30.01.2015
(I) Date when judgment 29.06.2024
was reserved
(j) Date of judgment 10.07.2024
1. Vide this judgment, this court shall dispose of the present case u/s 188 Indian Penal Code and 461 Delhi Municipal Corporation Act.
2. The story of the prosecution is that an order u/s 345A of DMC Act was duly issued on 03.05.2010, by Dy. Commissioner, State Vs Tariq Raza FIR No. 132/2014 PS Bara Hindu Rao Page 1 of 10 Civil Line Zone, MCD, Delhi for the sealing of property No. 9629-34, Gali Zameerwali, Nawabganj, Delhi and the same being violated by accused and the accused tapered/broke open the seal put by order of Dy. Commissioner, MCD, Civil Line Zone vide order No.159/B/Seal/CLZ/2010 dated 03.05.2010 and unauthorizedly carried construction therein and thereby tried for offence punishable u/s 188 IPC and 461 DMC Act and within the cognizance of this Court. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused in the court. Copy of chargesheet and other scrutable documents were supplied to the accused and thereafter charge under Section 188 Indian Penal Code and 461 DMC Act was framed against him vide order dated 07.12.2021 to which he pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution examined three witness:-
5. PW-1/Tilak Raj, Assistant Engineer (DEMS), MCD deposed that on 28.07.2014, he was posted as Assistant Engineer (Building), Civil Line Zone, Delhi. On that day, he moved a complaint which is Ex.PW1/A bearing his signatures at point A wherein it was mentioned that the occupier/builder/owner of the property no.9629 to 9634, Nawab Ganj, Delhi had broken/tempered the seal affixed by MCD upon above said properties. He had moved the complaint on the basis of report State Vs Tariq Raza FIR No. 132/2014 PS Bara Hindu Rao Page 2 of 10 submitted by the Area JE (Building). He received notice u/s 91 CrPC from IO to provide the certified copies of the files/documents qua the said buildings along with the sealing file. Pursuant to the said notice, he had handed over the certified copies of documents/sealing file of the above said buildings to the IO vide Seizure Memo Ex.PW1/B bearing his signatures at point A. The certified copies of the sealing file along with allied documents are Ex.PW1/C (colly) bearing his signatures at point A on each page. He had also handed over documents qua said property to the IO and IO seized the same vide Seizure Memo Ex.PW1/D bearing his signatures at point A. During his cross examination, he deposed that it is correct that he had not visited the properties in question. It is also correct that he had not seen whether the seals of MCD, if any were tempered/broken by the accused or not. He denied the suggestion that he had moved false and frivolous complaints against the accused on the basis of forged and fabricated documents/photographs. He did not remember whether the compliance of order of Ld. Appellate Tribunal, MCD was done or not by the MCD. He denied the suggestion that the said properties were not sealed by the MCD after the order of Ld. Appellate Tribunal.
6. PW-2/A.K. Chaturvedi, Assistant Engineer (Maintenance), MCD deposed that on 26.11.2014, he was posted as Junior Engineer (Maintenance) in Central Zone, Lajpat Nagar, New Delhi. From the year 2013-2014, he was posted as JE (B), Civil State Vs Tariq Raza FIR No. 132/2014 PS Bara Hindu Rao Page 3 of 10 Line Zone, Delhi and he was looking of ward with jurisdiction of Nawab Ganj. After receiving the complaint, he inspected the site i.e. property No.9629 to 9634, Nawab Ganj, Delhi and found the seals affixed by MCD tampered with/broken. He submitted his report with the office.
During his cross examination he deposed that it is correct that he did not have personal knowledge about the present case. It is correct that his report which he submitted to office is not on judicial record. He denied the suggestion that he deposed falsely.
7. PW-3/Retd. SI Mahender Singh deposed that on 01.08.2014, he was posted as ASI at PS Bara Hindu Rao. On that day, he received a complaint from complainant Sh. Tilak Raj, AE Civil Line Zone which is already Ex.PW1/A. The said complaint received through proper channel in PS and same was marked to him. After discussion with the senior officials on 28.08.2014, he made endorsement upon complaint which is Ex.PW3/A bearing his signatures at point A and handed over to DO for registration of FIR already exhibited as Ex.A1. During the course of investigation, he served a notice u/s 91 Cr.PC to the complainant which is Ex.PW3/B bearing his signatures at point A. Thereafter, complainant Tilak Raj had provided documents pertaining to property no. 9629 to 9634 and same was seized vide seizure memo already Ex.PW1/B and Ex.PW1/D also recorded his statement u/s 161 Cr.PC. Thereafter, he examined A.K. Chaturvedi, JE, Civil Line Zone who inspected the aforesaid property and prepared a report regarding tempering of seal of the State Vs Tariq Raza FIR No. 132/2014 PS Bara Hindu Rao Page 4 of 10 above said property and recorded his statement u/s 161 Cr.PC. The said report was filed with AE, Civil Line Zone. During the course of investigation, he came to know accused Tariq Raza was the owner of the above said property. He correctly identified accused in the court. He interrogated the accused in present case. After competition of the investigation in the present case, he prepared the police report and same was forwarded before Hon'ble Court.
During his cross examination, he deposed that it is correct that tempering with the seal was not done in his presence. It is also correct that no eye-witness in this case was found with regard to the tampering of the seal. It is correct that he had not given any notice to join the investigation to any public person. It is correct that he did not prepare the interrogation report of the accused. He denied the suggestion that he did not conduct and fair and proper investigation in the present case. He denied the suggestion that the accused was falsely implicated in the present case at the instance of MCD officials. It is correct that he did not collect the above mentioned report which was submitted by A.K. Chaturvedi in the office of AE, Civil Line Zones. He denied the suggestion that he did not visit the spot to verify the facts of tampering with the seal. It is correct that he did not prepare the site plan in the present case. It is correct that there were two owners of the said property and he did not examine the other owner of the said property. He denied the suggestion that he deposed falsely in the present case.
State Vs Tariq Raza FIR No. 132/2014 PS Bara Hindu Rao Page 5 of 108. Vide separate statement under Section 294 CrPC, accused admitted FIR No. 132/2014 PS BHR and Certificate under Section 65B of the Indian Evidence Act. Same are Ex. A-1 and A-2 respectively. They shall be read in evidence without their formal proof.
9. Statement of accused was recorded wherein the incriminating evidence was put to the accused. In the said statement, accused has stated that he is innocent and has been falsely implicated in the present matter. Accused had not led any evidence in his defence.
10. I have heard the arguments addressed by the Ld. APP for state and ld. Counsel for the accused and carefully perused the documents on record and have also gone through the written arguments filed on behalf of the accused.
11. Section 345A of the DMC Act, 1957 empowers the Commissioner, at any time, before or after making an order of demolition under Section 343 or of the stoppage of the erection of any building or execution of any work under Section 343 or under Section 344, to make an order directing the sealing of such erection or work or of the premises in which such erection or work is being carried on or has been completed and violation of sealing has been made punishable by Section 461 of the Act prescribing the penalties under the twelfth Schedule. Under twelfth schedule, infringement of provisions of Section 345 State Vs Tariq Raza FIR No. 132/2014 PS Bara Hindu Rao Page 6 of 10 DMC Act carries a punishment of simple imprisonment up to si X months and fine.
12. In order to prove the offence, the prosecution, as in any other criminal case, is required to establish beyond reasonable doubt that the accused tempered/broke open the seal put by the MCD and carried unauthorized construction therein. 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.
13. Besides, the prosecution for offence u/s 345A 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 345 of DMC Act 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.
State Vs Tariq Raza FIR No. 132/2014 PS Bara Hindu Rao Page 7 of 1014. In the instant 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.PW1/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.
15. Coming to the charge, no evidence led by the prosecution establishes that it was accused who broke open/tempered with the seal. In the first instance, the complaint of A.E (E X.PW1/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.PW1/A, the act of unauthorized construction was detected at property no.9629-34, Gali Zameer Wali, Nawabganj, Delhi, however no date of detecting unauthorized construction has been mentioned in the said notice. No evidence has been adduced in this respect and police, on its own, is not authorized to go forward with 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. PW1/A. State Vs Tariq Raza FIR No. 132/2014 PS Bara Hindu Rao Page 8 of 10
16. On merits also the case of the prosecution does not stand the ground. There is nothing on record to prove that accused broke open or tempered with the seal and thus violated the order of public servant. In the first place, the prosecution has failed to establish any connection between the accused and act of breaking open/tempering the seal. Besides, no public person has been made a witness to corroborate the official witnesses. Only one witness i.e. PW-2/A.K. Chaturvedi, Assistant Engineer (Maintenance), MCD deposed that he found the seal affixed by MCD tempered/broken, however he has not seen the accused tempering with/breaking the seal. In his testimony he has merely stated that he inspected the site and found the seals affixed by MCD tampered with/broken. In his cross eXamination, PW2 admitted that his report which he submitted to the office is not on judicial record. Hence, his testimony does not prove that seals affixed by MCD was found tampered with/broken by the accused.
17. Further, no complaint under section 195 Cr.P.C has been filed, hence trial under section 188 IPC is not permissible.
18. All these infirmities in the prosecution evidence seriously reflects on the varacity of prosecution case the benefit whereof must go to the accused.
19. In view of above, 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 Tariq Raza is State Vs Tariq Raza FIR No. 132/2014 PS Bara Hindu Rao Page 9 of 10 acquitted for the offence punishable U/s 188 IPC and 461 DMC Act.
20. File be consigned to Record Room after due compliance.
Announced and Signed in the Open Court on 10.07.2024 Digitally signed ANUJ by ANUJ KUMAR KUMAR SINGH Date: 2024.07.20 SINGH 16:48:36 +0530 (ANUJ KUMAR SINGH) Addl. Chief Judicial Magistrate-02 Central/Tis Hazari Courts/Delhi (m) State Vs Tariq Raza FIR No. 132/2014 PS Bara Hindu Rao Page 10 of 10