Delhi District Court
State vs . Ranjit Singh Atwal on 6 January, 2023
IN THE COURT OF SHRI YASHDEEP CHAHAL
Metropolitan Magistrate01 : New Delhi District
Patiala House Courts : New Delhi.
State Vs. Ranjit Singh Atwal
FIR No. 676/2018
P.S. : Vasant Kunj South
Under Section : 332/461/466A of DMC Act
ID number of the case : 1426/2019 DLND020043812019
Date of commission of : 14.05.2018.
offence
Date of institution of the : 23.02.2019.
case
Name of the complainant : Ms. Nidhi Srivastava, Deputy Commissioner,
South Zone, Green Park, New Delhi.
Name of accused and : Ranjit Singh Atwal, S/o Surender Singh
address Atwal,
R/o A18, Neeti Bagh, Andrews Ganj,
New Delhi110049.
Offence complained of or : U/s 332/461/466A of DMC Act
proved
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 06.01.2023.
FIR No. 676/2018 State Vs. Ranjit Singh Atwal Page No. 1/17
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1.As per case of the prosecution, on 14.05.2018, during inspection of property bearing Khasra No. 35/18 (40) and 23 MIN. (43), Mehrauli, Old Ghitorni Road, Mall Road, Vasant Kunj, New Delhi, Shri Shivang Sharma, Junior Engineer (BuildingII), Green Park Zone noticed unauthorized construction at the ground and first floor and on inquiry he came to know that the said premises was owned by Shri Surender Singh Atwal, and the said unauthorized construction was carried out at the instance of accused without seeking any permission/sanction from the Commissioner, South Delhi Municipal Corporation. Subsequently, a show cause notice was issued to the accused and information in this regard was sent to higher authority. Since no reply was received from the accused, further steps for sealing the property were taken and on the complaint of Deputy Commissioner, the instant FIR was registered.
2. After completion of formalities, investigation was carried out by the officials of Police Station Vasant Kunj South and a charge sheet under Section 332/461/466A of DMC Act was filed against the accused.
3. Notice under Section 332/461/466A of DMC Act was framed against the accused Ranjit Singh Atwal, to which he pleaded not guilty and claimed trial.
FIR No. 676/2018 State Vs. Ranjit Singh Atwal Page No. 2/174. In order to substantiate its case, prosecution has examined three witnesses.
5. PW1 Shri Shivang Sharma, Junior Engineer (BuildingII), Posted at Green Park Zone, South Delhi Municipal Corporation deposed that on 14.05.2018, in discharge of his official duty, an inspection of property bearing Khasra No. 35/18 (40) and 23 MIN. (43), Mehrauli, Old Ghitorni Road, Mall Road, Vasant Kunj, New Delhi was carried out wherein he noticed unauthorized construction at the ground and first floor of aforesaid property. On inquiry, he came to know that the said premises was owned by Shri Surender Singh Atwal and the said unauthorized construction was carried out at the instance of accused without seeking any permission/sanction from the Commissioner, South Delhi Municipal Corporation. Thereafter, PW1 prepared first information report of MCD for issuance of notice to the occupier of the building Ex. PW1/A, bearing his signatures at point A. Subsequently, a show cause notice Ex. PW1/B, under the signatures of concerned A.E at point A, was issued to the accused. He further deposed that on 15.06.2018 he took permission for demolition Ex. PW1/C, bearing his signatures at point A, and thereafter, notice Ex. PW1/D, bearing his signatures at point A and signatures of concerned AE at point B, was served upon accused. Thereafter, demolition order was issued by the concerned A.E. on 26.06.2018. Meanwhile, a show cause notice dated 12.06.2018 for FIR No. 676/2018 State Vs. Ranjit Singh Atwal Page No. 3/17 sealing action under Section 345A of DMC Act was initiated by him which was approved by the concerned D.C. on 05.07.2018 and served upon accused on 11.07.2018. He further deposed that since no reply was received from the owner, the action for sealing was initiated and approved by concerned D.C. on 25.07.2018. He further deposed that action to demolish the property was fixed for 03.07.2018, 06.07.2018, 13.07.2018, 21.12.2018 and 24.12.2018, however, the attempt failed due to shortage of time or nonavailability of force. Thereafter, he initiated action for registration of criminal case against the accused on 09.07.2018 and permission in this regard was granted on 20.07.2018 and same was dispatched through concerned D.C. on 26.07.2018. PW1 further deposed that on the complaint of D.C. instant FIR was got registered. Thereafter, I.O./ASI Vijender Kumar prepared the site plan at his instance on 19.01.2019, Ex. PW1/E, bearing his signatures at point A. Thereafter, I.O. recorded his statement in this regard. PW1 further deposed that he never met the owner/occupier of the property in question.
6. During his crossexamination PW1 Shivang Sharma could not tell whether the file for sanctioning of the site plan of the property in question was moved by the owner/occupier or not as he was not posted in that department during relevant time. He also could not tell whether other properties in the vicinity had sanctioned site plan of SDMC or not. PW1 further deposed that he initiated the action regarding demolition of unauthorized construction as well as sealing of property in question. PW FIR No. 676/2018 State Vs. Ranjit Singh Atwal Page No. 4/17 1 further deposed that he is not aware about the order passed by the Hon'ble Supreme Court in Writ Petition (Civil) No. 4677/1985. Even he could not comment on the copy of the order Ex. PW1/D1 as well as letter dated 17.08.2020 Ex. PW1/DA, issued by SDMC regarding de sealing of the property No. 35/2018, 23 Min., Green Avenue, Pocket D3, Vasant Kunj. He further deposed that he is not authorized to tell whether SDMC keeps a record of the applications for sanction of site plan with respect to the property involved in the present case. PW1 denied the suggestion that the present case is infructuous as SDMC does not have authority to take action against the residential properties or that he has deposed falsely.
7. ASI Vijendra Kumar, No. 2679/Security, Posted at Police Security Office, Main Line Vinay Marg, New Delhi appeared as PW2 and deposed that on 30.12.2018 investigation of the present case was marked to him and during investigation he recorded statement of Sub Inspector Vivek Malik under Section 161 of Cr.PC, who had made the endorsement on the complaint of prosecution. He further deposed that on 17.01.2019 he gave a notice under Section 160 of Cr.PC, Ex. PW2/A, bearing his signatures at point A, to Shri Shivang Sharma, Junior Engineer (Building), SDMC to appear at Police Station for preparation of site plan etc. Thereafter, he went to the site and prepared a site plan Ex. PW1/E, at the instance of Junior Engineer which bears his signatures at point B. Thereafter, he took photographs MarkA (Collectively two in FIR No. 676/2018 State Vs. Ranjit Singh Atwal Page No. 5/17 numbers) of the property in question through his mobile phone, bearing his signatures at point A. Thereafter, he recorded statement of Junior Engineer. He further deposed that on 29.01.2019, he along with H.C. Arvind went to the property in question where accused Ranjit Singh Atwal was found present and he served him a notice under Section 91 Cr.PC. Ex. PW2/B and notice under Section 160 of Cr.PC. Ex. PW2/C, both bearing his signatures at point A respectively. He further deposed that in compliance of the notices, the accused produced photocopy of Khatauni and electricity bill of the property in question as well as ID Proof (MarkB to D respectively) and affidavitcumdeclaration letter authorizing him to act on behalf of his father Shri Surender Singh Atwal which were seized vide seizure memo Ex. PW2/D, bearing his signatures at point A. The reply given by the accused on the back side of notice under Section 91 of Cr.PC is Ex.PW2/E. He further deposed that accused was bound down by giving a notice under Section 41A Cr.PC Ex. PW2/F, bearing his signatures at point A. Affidavitcumdeclaration letter authorizing the accused to act on behalf of his father is Ex.PW2/G (Objected to by Ld. Defense Counsel on the ground that witness is not the author of the document). He further deposed that thereafter, he along with H.C. Arvind came back to the Police Station and recorded his statement in this regard and after completion of all the codal formalities he filed the charge sheet in the concerned Court.
8. During his crossexamination PW2 ASI Vijendra Kumar FIR No. 676/2018 State Vs. Ranjit Singh Atwal Page No. 6/17 deposed that he started investigation in the present case as per instructions received from the SHO concerned. He further deposed that he is not aware whether the property in question was sealed by the Monitoring Committee appointed by the Hon'ble Supreme Court or not. He further deposed that he is not aware whether the property in question was desealed subsequently, as per the orders of Hon'ble Supreme Court vide order dated 14.08.2020 (already Ex. PW1/D1. He further deposed that he is not aware whether subsequently, SDMC vide its order dated 17.08.2020, desealed the property in question in compliance of Judgment Ex. PW1/D1 (notice is already Mark PW1/DA). He further deposed that he is not aware whether the property in question falls under the low density residential area or not. He further deposed that he was not aware about the Master Plan etc. and the low density residential area policy and that he acted upon the complaint received from the D.C. SDMC. He further deposed that he had not investigated from the SDMC whether any plan for the above said property was sanctioned/issued or not. He denied the suggestion that the site plan was sanctioned against the above said property by the SDMC or that he deliberately not brought the same on record.
9. During his crossexamination PW2 affirmed that he had not cited the original Khatauni to show that the accused was the owner of the above said property nor any witness to prove the same. He further affirmed that he did not get it verified from the concerned authority about FIR No. 676/2018 State Vs. Ranjit Singh Atwal Page No. 7/17 the authenticity of the above said Khatauni. However, he denied the suggestion that he had investigated in this regard to falsely implicate the accused. PW2 further affirmed that he had not cited the Notary Public, who attested the affidavit/declaration Ex.PW2/G, to prove the same. He further affirmed that affidavit/declaration Ex. PW2/G was not authored or signed by him. He further affirmed that he had not examined any of the neighbour of the vicinity to ascertain that the property in question stands in the name of accused. He further affirmed that photograph Mark A nowhere shows the 'property details' of the property visible in the said photographs. He further affirmed that it cannot be ascertained by looking at the photographs whether these photographs are of the property in question or not. He further affirmed that he had not filed the negatives or the instrument/Mobile used for taking these photographs to show the authenticity of the above said photographs. Though, he denied the suggestion that he had placed the photographs of some other property just to make out the case. He further affirmed that he had not examined any independent witness during investigation to show the genuineness of the proceedings. He further affirmed that he had not cited the Section Officer or Authorized Officer of SDMC to bring the original unauthorized construction file to prove the documents placed from the said file on record. He denied that he deliberately did not cite the said authorized person as PW as no such proceedings had taken place against the property in question. PW2 further deposed that he prepared the site plan Ex. PW1/E. He further deposed that whole construction going on at the FIR No. 676/2018 State Vs. Ranjit Singh Atwal Page No. 8/17 above said property was unauthorized as per complaint of D.C. SDMC, specifically ground and first floor were being built. He denied the suggestion that there was no unauthorized construction being carried out at the property in question. He further affirmed that as per complaint, the offence was of 14.05.2018 and the charge sheet was filed in February, 2019. He denied the suggestion that he has deposed falsely.
10. ASI Arvind posted at Special Cell, SWR, Janak Puri, New Delhi appeared as PW3 and deposed that on 29.01.2019 he was posted at P.S. Vasant Kunj South as Head Constable. On that day he joined the investigation in the present case and visited the property in question i.e. Khasra No.35/18 (40) and 23 Min. (43), Mehrauli, Old Ghitorni Road, Mall Road, Vasant Kunj, New Delhi along with ASI Vijender, where accused Ranjeet Singh Atwal was found present and I.O. served him notice under Section 91 of Cr.PC and notice under Section 160 of Cr.PC. PW3 further deposed that in compliance of the same accused produced photocopy of Khatauni, electricity bill of the property in question, photocopy of ID proof and affidavit/declaration letter for authorizing the accused on behalf of his father, which were seized by him vide seizure memo, Ex. PW2/D, bearing his signatures at point B. He further deposed that thereafter, the accused gave his reply to the notice under Section 91 of Cr.PC, on the back side of the notice and thereafter, I.O. made the accused bound down by giving a notice under Section 41A of Cr.PC. PW3 further deposed that accused in his reply told that the property FIR No. 676/2018 State Vs. Ranjit Singh Atwal Page No. 9/17 stands in the joint name of his father, namely, Surender Singh Atwal and himself. He further deposed that accused told that his father is about 78 years and remains ill and, therefore, he takes care of the property and maintains it for which he was authorized through the affidavit by his father. He further deposed that thereafter, he along with ASI Vijender came back to the Police Station where I.O. recorded his statement in this regard. Accused present in the Court was correctly identified by the witness.
11. During his crossexamination PW3 affirmed that he did not have any personal knowledge about the case. He further affirmed that only he accompanied the I.O. to the property in question. He further affirmed that no unauthorized construction was being carried out when they visited the same. He denied the suggestion that no unauthorized construction was ever carried out on the above said property. PW3 during his crossexamination volunteered that certain part of the property was already built up and in half built up stage. He denied the suggestion that he has deposed falsely.
12. In his statement under Section 294 of Cr.PC, accused admitted registration of present FIR, complaint dated 26.07.2018 and endorsement on the same by S.I. Vivek Malik dated 30.12.2018 (Ex. A1 to A4 respectively) without admitting contents thereof. Hence, examination of PWs H.C. Ajeet Singh/Duty Officer, S.I. Vivek Malik FIR No. 676/2018 State Vs. Ranjit Singh Atwal Page No. 10/17 and Ms. Nidhi Srivastava, D.C. South Zone, SDMC were dispensed with.
13. Subsequently, statement of accused Ranjit Singh Atwal was recorded Under Section 281 of Cr.PC wherein all the incriminating circumstances were put to him which he denied and pleaded his false implication. However, he did not choose to lead any evidence in his defence. Thereafter, final arguments were heard.
14. I have heard Ld. APP for the State and Ld. Defence Counsel and have perused the case file.
15. Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the crossexamination and there is no reason to doubt their testimonies.
16. On the other hand, Ld. Counsel for accused has argued that material contradictions have appeared in the testimonies of PWs and prosecution has not been able to prove the guilt of accused beyond reasonable doubt. Hence, benefit of doubt must be given to the accused.
17. I have considered the rival submissions and perused the material available on record.
18. As per case of prosecution, the accused was found in FIR No. 676/2018 State Vs. Ranjit Singh Atwal Page No. 11/17 possession of the property in question wherein unauthorized construction was being raised. Hence, he was charged with for the offence punishable under Section 332/461/466A of the DMC Act.
19. In a criminal trial, the burden of proving everything essential for establishment of a charge against an accused always rests on the prosecution and there is always a presumption of innocence in favour of accused until contrary is proved. Criminality is not to be presumed, subject to course of some statutory exceptions.
20. It was observed in Partap v. State of U.P., (SC) 1976 A.I.R. (SC) 966 that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability.
21. In Vijayee Singh v. State of U.P., (SC) 1990 (3) S.C.C. 190 it was again held that in criminal cases burden is always is on prosecution and never shifts.
22. Section 471 of the Delhi Municipal Corporation Act, 1957 reads as under:
71. Limitation of time for prosecution No person shall be liable to punishment for any offence against this Act or any rule, regulation or byelaw made thereunder, unless complaint of such offence is made before a municipal magistrate within FIR No. 676/2018 State Vs. Ranjit Singh Atwal Page No. 12/17 six months next after--(a) the date of the commission of such offence, or (b) the date on which the commission or existence of such offence was first brought to the notice of the complainant.
23. In Municipal Corporation of Delhi Vs. Ravindra Kumar Mahindra, Crl. Appeal No. 34 of 1988, passed by Hon'ble Delhi High Court, it was held that for the purpose of limitation Section 471 of DMC Act alone will be applicable to all the offences under the said Act and not Section 468 of Cr.P.C.
24. At the outset, it must be noted that the present case is barred by limitation. As per the case record, it is revealed that the complaint has been filed on 26.07.2018 by the complainant. It would mean that the officials of MCD became aware about the commission of offence on or before 26.07.2018 itself. However, the chargesheet was filed in the present case on 23.02.2019 i.e. after the expiry of almost six months from the date of receipt of information about commission of offence/filing of complaint by the complainant. Hence, the present case is barred by limitation as provided under Section 471 of DMC Act. Therefore, the case is bound to result in acquittal as criminal liability cannot be fastened on the foundation of a time barred case.
25. However, perusal of the chargesheet and evidence of the I.O. shows that he has conducted a shoddy and an extremely FIR No. 676/2018 State Vs. Ranjit Singh Atwal Page No. 13/17 unsatisfactory investigation in the present case. I deem it fit to highlight the same before I propose necessary action -
(i) The complainant in this case was made to the concerned P.S. on 26.07.2018. As per the statement of the I.O., the investigation was marked to the I.O. on 30.12.2018 i.e. after a lapse of 5 months. It is extremely disappointing that in an offence carrying the limitation period of 6 months, the concerned SHO/I.O. chose to take up investigation after 5 crucial months had already elapsed. Even after that, the I.O. proceeded to give a notice to the accused only on 17.01.2019 and ASI joined the investigation on 29.01.2019. The chain of circumstances clearly indicate a conscious call on the part of the I.O. to not proceed in an expeditious manner, despite time being of the utmost essence. This, in itself, points towards the foul intent and this Court would be failing in its duty if strict cognizance is not taken against the same.
(ii) The photographs of the building annexed with the charge sheet do not show any description of the property. In his cross examination, I.O. has also affirmed the same. It is beyond contemplation that the investigating officer is not aware that description of the property ought to be there in the photographs, thereby indicating a foulplay in the investigation.
(iii) The photographs, even from a layman's perspective, are unworthy of acceptance in a court of law. The photographs have been placed on record without any description of the device using which they captured, the circumstances in which they were captured. At best, they FIR No. 676/2018 State Vs. Ranjit Singh Atwal Page No. 14/17 are random photographs of a building, which may or may not be the property in question.
(iv) There is no explanation as to why the owner of the property was not prosecuted in the case despite there being a clear authorization from his behalf to carry on the unauthorized construction. Even otherwise, the owner as well as the person in possession are liable under the law.
(v) Further, the property in question is stated to be in joint ownership. When there was some confusion over the identity of owner/occupier of the property in question, I.O. should have recorded the statements of the public witnesses/neighbours who were residing in the said locality. Not even a single public witness was examined by the I.O. in the present case, that too without an explanation.
(vi) The I.O. never investigated whether the accused had applied for sanction from SDMC for undertaking the construction in question. No inquiry, whatsoever, has been made by the I.O.
26. I also take note of the conduct of the Junior Engineer involved in this case. The Junior Engineer got notice of the offence in question on 14.05.2018. The time period under Section 332 of DMC Act starts ticking the moment, the complainant receives the knowledge of the commission of offence. Despite that, the concerned Junior Engineer did not proceed to send a complaint to the concerned Police Station for investigation for almost two months. The complaint was eventually sent FIR No. 676/2018 State Vs. Ranjit Singh Atwal Page No. 15/17 only on 26.07.2018, thereby causing the delay. Moreover, the Junior Engineer deposed that various dates were fixed for demolition, however, it could not be carried out due to shortage of force or shortage of time. The Junior Engineer denied any knowledge of actual demolition.
27. The circumstances of the case indicate a concerted effort on the part of the officials of the Corporation and of Vasant Kunj South Police Station to make a mockery of the process of law, as discussed above. I deem it fit to take cognizance of the same and direct Worthy DCP (South West) to look into this matter, fix appropriate responsibility on the erring officials, and file a compliance report in this Court by 14th February, 2023. Let a copy of this order be sent to Worthy DCP (South West) for necessary action.
28. Let a copy of this order also be sent to Worthy Deputy Commissioner, South Zone, New Delhi for looking into the conduct of the concerned Junior Engineer and also for evolving practices to reduce unwarranted delays in matters which are bound by the limitation period under Section 471 of DMC Act.
29. In view of the above discussions and findings, I am of the considered opinion that the prosecution has miserably failed to prove the guilt of accused for the alleged offence beyond reasonable doubt. Hence, accused Ranjit Singh Atwal stands acquitted for the offence punishable FIR No. 676/2018 State Vs. Ranjit Singh Atwal Page No. 16/17 under Section 332/461/466A of DMC Act. His previous bail bond is extended for next six months during the period of appeal, if any, to be preferred by the State.
30. File be consigned to Record Room after necessary compliance.
Digitally signed by YASHDEEP YASHDEEP CHAHAL
CHAHAL Date: 2023.01.19
14:31:46 +0530
Dictated directly into the computer (YASHDEEP CHAHAL)
and announced in the open Court, M.M.01 : New Delhi District
On 6th January, 2023. Patiala House Courts : New Delhi.
FIR No. 676/2018 State Vs. Ranjit Singh Atwal Page No. 17/17