Delhi District Court
State vs . Mukesh Kumar on 19 September, 2013
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 359/2010
P.S. Malviya Nagar
U/s 461 DMC Act r/w section 188 IPC
State vs. Mukesh Kumar
JUDGMENT :
a. Sl. No. of the case : 6/3
b. Date of Institution : 28.01.2011
c. Date of Commission of Offence : 28.07.2010
d. Name of the complainant : Sh. S.K. Midha
Deputy Commissioner,
MCD, South Zone,
New Delhi.
e. Name of the accused and his : Mukesh Kumar
parentage and address S/o Bhagat Ram
R/o S20, Khirki Extention,
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 : 19.09.2013
i. Final Order : Acquitted
j. Date of such order : 19.09.2013
FIR NO. 359/2010 PAGE 1 OF PAGE 7
PS MALVIYA NAGAR
1. The accused in this case was sent up for trial for the commission of offence u/sec. 461 DMC Act & 188 IPC.
2. The facts in brief are that on 28.07.2010, at property bearing no. S20, Khirki Extension, Malviya Nagar, accused had tampered with the seal affixed by the MCD and occupied the said building despite the same was being sealed on 07.07.2010 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 19.09.2011, 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 four witnesses namely Pankaj Kumar as PW1, HC Babu Lal as PW2, Nand Kishore as PW3 and ASI Vijay Singh as PW4
5. PW1 Pankaj Kumar has testified that he did not remember anything about the case.
FIR NO. 359/2010 PAGE 2 OF PAGE 7 PS MALVIYA NAGAR
PW1 was cross examined by Ld. APP as he was resiling from his earlier statement. In his cross examination, PW1 has testified that during the year 2010, he made demolitions in the area of Khirki Extension. PW1 further testified that on 07.07.2010, the property bearing no. S20, Khirki Extension, second floor and third floor, might had been sealed. He further testified that on 28.07.2010, while doing routine inspection, he had found that owner of the said property namely Mukesh Kumar had entered the said premises after tampering the said seal. PW1 further testified that he had never seen accused Mukesh entering in the said premises. In his cross examination by Ld. Defence counsel, PW1 has testified that he had visited the spot at the time of resealing but he did not remember the said dated. He did not seal the property. PW1 further testified that police never recorded his statement in this case.
6. PW2 HC Babu Lal has testified that on 24.08.2010, on receipt of rukka through ASI Vijay Singh, he recorded the present case FIR which is Ex. PW2/A. He also put his endorsement on rukka vide Ex. PW2/B. Ld. counsel for accused did not prefer to cross examine PW2.
7. PW3 Nand Kishore brought the original of document dated 09.12.2010 which is Mark A and also brought the original of watch and ward notice given by the then SHO which is Mark B. FIR NO. 359/2010 PAGE 3 OF PAGE 7 PS MALVIYA NAGAR Ld. counsel for accused did not prefer to cross examine PW3.
8. PW4 ASI Vijay Singh has testified that on 24.08.2010, on receipt of complaint of DC, MCD, South Zone, he registered the present case FIR and further investigation was carried out by him. He made endorsement on his complaint vide Ex. PW4/A. During the investigation, he prepared the site plan which is Ex. PW4/B of property bearing no. S20, Khirki Extention Malviya Nagar, New Delhi at the instance of JE Pankaj Kumar. PW4 further testified that accused Mukesh Kumar present in the court was arrested vide memo Ex. PW4/C and personal search was carried out vide memo Ex. PW4/D. He took the permission under section 195 Cr.P.C from DC, South Zone.
In his cross examination, PW4 has testified that when he visited the site, no construction work was being carried out there.
9. 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 implicated in this case. However, he did not lead any evidence in his defence.
10. I have heard the arguments of Ld. APP for State and Ld. Counsel for accused.
FIR NO. 359/2010 PAGE 4 OF PAGE 7 PS MALVIYA NAGAR
11. 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 345A of DMC Act.
12. 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 PW1 and he has mentioned in this testimony that he had affixed the seal but he has not given the period when the seal was affixed. He has also not disclosed about the sealing proceedings. He has been cross examined by the prosecutor on several material aspects of the case but he has not supported the prosecution case and has been confronted on a number of points which he resiled from his earlier statement. Apart from any documentary evidence, no photographs of the sealed property have been placed on record.
FIR NO. 359/2010 PAGE 5 OF PAGE 7 PS MALVIYA NAGAR
13. 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.
14. 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.
15. Further, no complaint under section 195 Cr.P.C has been filed hence trial under section 188 IPC is not permissible.
FIR NO. 359/2010 PAGE 6 OF PAGE 7 PS MALVIYA NAGAR
16. All these infirmities in the prosecution evidence seriously reflects on the varacity of prosecution case the benefit whereof must go to the accused.
17. 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 Mukesh Kumar is acquitted for the offence punishable U/s 345A DMC Act r/w section 188 IPC.
Announced in the Open Court (DEEPAK SHERAWAT)
On 19.09.2013 Metropolitan Magistrate
South East District/New Delhi
FIR NO. 359/2010 PAGE 7 OF PAGE 7
PS MALVIYA NAGAR
FIR No.359/2010
PS Malviya Nagar
U/s 345A DMC Act r/w section 188 IPC
19.09.2013
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.15,000/ 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/19.09.2013
FIR NO. 359/2010 PAGE 8 OF PAGE 7
PS MALVIYA NAGAR
FIR NO. 359/2010 PAGE 9 OF PAGE 7
PS MALVIYA NAGAR