Delhi District Court
State vs . Sanjay Jain on 28 March, 2022
IN THE COURT OF MS. VIDHI GUPTA ANAND
MM-08 (CENTRAL), TIS HAZARI COURTS COMPLEX, DELHI.
State Vs. Sanjay Jain
FIR No. 09/2010
PS : Kamla Market
U/s 448 IPC
Date of Institution : 16.11.2011
Date of reserving of order : 09.03.2022
Date of Judgment : 28.03.2022
JUDGMENT
1. Serial No. of the case : 294632/2016
2. Name of the Complainant : Municipal Corporation of
Delhi(MCD)
3. Date of incident : 27.01.2010
4. Name of Accused person : Sanjay Jain
S/o Sh. N.C. Jain
R/o H. No. 209/1A, Padam Nagar ,
New Delhi.
5. Offences for which charge : Section 448 IPC
has been framed
6. Plea of Accused : Not guilty
7. Final Order : Acquitted
BRIEF REASONS FOR THE DECISION:
FIR No. 09/10 State Vs Sanjay Jain Page 1 of 13
PS: Kamla Market
Factual Matrix and Trial Proceedings
1. The case of the prosecution is that on 27.01.2010 at or before 10:25 PM accused Sanjay Jain forcibly trespassed the property of the MCD at Cup and Saucer Open Air Restaurant at Minto Road, Delhi by tampering the seal and breaking open the lock put by MCD. A complaint in this regard was received by SHO, PS Kamla Market from Assistant Commissioner, City Zone, MCD vide office order no. DC/CZ/2010/550 dt. 27.01.2010 upon which present FIR was got registered and criminal proceedings were initiated against the accused.
2. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court on 14.10.2011 and the Accused was charge-sheeted for the offences punishable under Section 448 IPC and 466A DMC Act.
3. After perusing the record, cognizance was taken on 28.01.2011 of the alleged offences and summons were issued to the Accused. Upon appearance of Accused in the Court, in compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as Cr.P.C.) copies of chargesheet and annexed documents were provided to the Accused on 22.03.2011
4. Thereafter, on 19.02.2013, charge for the offence punishable only under Section 448 IPC was framed against the Accused. With respect to under Section 466A DMC Act IO could not substantiate the allegations and hence no charge was framed upon the accused with respect to this provision.
FIR No. 09/10 State Vs Sanjay Jain Page 2 of 13PS: Kamla Market Charge was read over to the accused to which he pleaded not guilty and claimed trial. Accordingly, the matter was put up for recording Prosecution Evidence.
5. In order to bring home the guilt of the Accused Sanjay Jain, prosecution has examined 11 witnesses. Relevant portions of the testimonies of Prosecution witnesses is given in the following paragraphs for perusal.
5.1. PW-1 SI Mahender Singh was the duty officer in the concerned PS and deposed with respect to the registration of FIR no. 09/10 PS Kamla Market and exhibited its copy on record as Ex.PW1/A. He also stated that he had made an endorsement on the original rukka i.e. Ex.PW1/B. 5.2 PW2 Sh. T.P. Sharma, the then Assistant Commissioner, City Zone, MCD, Delhi exhibited his complaint given to the police on 27.01.2010 with respect to seal tampering and house trespass of Cup and Saucer Open Air Restaurant as Ex.PW2/A. He deposed that as per records, the said restaurant was alloted to M/S Ashima Securities Pvt Ltd vide letter dt. 20.04.2010 (Ex.PW2/B) for a period of five years on 28.02.2002 on license fees basis and accused Sanjay Jain was the Director of the said firm. He also exhibited his letter to the SHO, PS Kamla Market dt. 01.02.2010 seeking copy of the FIR as Ex.PW2/C. During his cross-examination, he admitted that he had never visited the place of the incident and also that he had not seen the order of the sealing prior to giving the complaint regarding of breaking of the seal of the restaurant. He also admitted it to be correct that prior to making a FIR No. 09/10 State Vs Sanjay Jain Page 3 of 13 PS: Kamla Market complaint to the SHO he had not received any intimation in respect of the fact that seal of the premises had been broken by the occupier of the property.
5.3. PW-3 Sh. Pradeep Kumar Mittal, was the staff officer at Licensing Branch, MCD at the time of the incident. He deposed that on 27.01.2009 as per orders of Deputy Commissioner, MCD, premises of Cup and Saucer Open Air Restaurant was sealed and later he came to know that the owner of the said premises i.e. Sanjay Jain, had broken the same. He added that when he visited the said premises along with Area Inspector, MCD, the owner was not found at the restaurant.
During his cross-examination, he admitted it to be correct that he had not gone to the premises for sealing action and stated that he came to know about the sealing of the said premises from the area Inspector and Assistant Commissioner in the office. He also admitted that he had not seen any seal on the said premises as he has not visited the same. Even though, he stated that he visited the premises along with area Inspector after the seal was found broken, he could not depose anything with respect to the date and time of such visit. No photographs of broken seal have been taken in his presence. Most importantly he admitted that he had not seen anyone breaking the seal at the said premises and he was seeing accused Sanjay Jain for the first time in the court itself.
5.4. PW-4 Sh. Raje Lal, the then Superintendent, Licensing Department, MCD deposed that Cup and Saucer Open Air Restaurant was sealed by Enforcement Department, City Zone, MCD upon receiving orders of the court and added that on the same day the seal was broken and was later re-sealed. He stated that the occupier of the said restaurant FIR No. 09/10 State Vs Sanjay Jain Page 4 of 13 PS: Kamla Market is Sanjay Jain. He could not recollect the date of the sealing but admitted that accused Sanjay Jain was not found at the said restaurant. He denied recording of his statement by the police under Section 161 Cr.P.C that is marked 4A.
5.5 PW-5 Sh. Sushil Kumar, the then SE, City Zone MCD deposed that JE and AE, Building and Works Department, went to Cup and Saucer Open Air Restaurant at Minto Road, Delhi under the sealing programme and they sealed the said restaurant. He added that he had also gone to the site to see the sealed restaurant.
Turning hostile to the prosecution case he denied his statement under Section 161 Cr.P.C and stated that the same was never recorded by the IO. Also, he denied the suggestion of Ld. APP for the State that accused had broken the seal and lock put up the Enforcement Department on the concerned premises.
5.6 PW-6 Retired SI Jaipal, deposed that on 27.01.2010 police officials including SI Brijesh, SI Mahesh, HC Devender, Ct. Bijender and Ct. Anil and staff members of MCD were present at Cup and Saucer Open Air Restaurant. He stated that he also reached there as he was on patrolling duty. Further, he stated that as the MCD staff was sealing the restaurant his duty was to maintain law and order. He specifically stated that his statement under Section 161 Cr.P.C was not recorded by the IO.
During his cross-examination he could depose nothing with respect to the officers who had done the sealing and he admitted that he had not signed any document as a witness.
FIR No. 09/10 State Vs Sanjay Jain Page 5 of 13PS: Kamla Market 5.7 PW-7 SI Mahesh Kumar, deposed that on 27.01.2010 he alongwith IO SI Brijesh and MCD officials went to Cup and Saucer Open Air Restaurant where MCD officials vacated the said restaurant and sealed the same. He added that he came to know that accused Sanjay Jain had illegally broken the seal and lock of the MCD under said restaurant and despite search he could not be found.
During his cross-examination he clarified that his deposition as above stated pertained to re-sealing of the said premises and he had no knowledge about the initial sealing of the restaurant.
5.8 PW-8 Sh. Sharafat Ali, the then AE, City Zone, MCD, also deposed with respect to the re-sealing of the Cup and Saucer Open Air Restaurant. He stated that his staff had told him that seal of the MCD had been broken but he had neither seen the broken seal nor the person who had broken the seal. He denied the suggestion of Ld. APP for the State that the seal had been broken by the owner of the restaurant.
5.9 PW-9 Inspector Brijesh Mishra, was the first IO of the matter. He deposed that upon receiving complaint Ex.PW2/A, after registration of FIR, he along with police staff went to Cup and Saucer Open Air Restaurant, where MCD officials were already present and he prepared the site plan Ex. PW9/A. He added that he had recorded the statement of MCD officials present at the spot and he had found that the seal of the restaurant was broken and seal and locks were missing. He further testified that the restaurant was again sealed by the MCD officials.
During his cross-examination he admitted that neither any broken seal nor any broken law have been recovered from the spot of the FIR No. 09/10 State Vs Sanjay Jain Page 6 of 13 PS: Kamla Market incident. He also stated in his cross-examination that since no public persons were present at the spot he did not ask any public person to join the proceeding.
5.10 PW-10 ASI Vinod, deposed that he had joined the IO SI Mahender Singh for investigation of the present matter on 13.11.2010 and he had witnessed the arrest and personal search of accused Sanjay Jain by the IO vide memos Ex.PW10/A and Ex.PW10/B. He added that accused was released by the IO on police bail.
5.11 PW-11 ASI Devender Kumar, deposed that on 27.01.2010 he along with SI Brijesh, SI Mahesh and officials of MCD went to Cup and Saucer Open Air Restaurant and searched for the accused but he could not be found. He added that at that time restaurant was opened and in running condition. He further stated that MCD officials re-sealed the said restaurant as the seal had been broken by the accused.
5.12 It is pertinent to note that witness namely Suman Majumdar was dropped from list of witnesses on 27.10.2018 as he remained unserved despite making attempts to serve him through DCP concerned.
6. After due examination and cross examination of all the witnesses, as aforesaid, the prosecution evidence was closed. Accused was examined under Section 313 Cr.P.C. on 26.02.2020 whereby substance of incriminating evidence was put to him. Accused denied all the incriminating evidence against him and pleaded his innocence, stating that he has been falsely implicated. Further, he stated that he did not even know about the fact that said premises had been sealed.
FIR No. 09/10 State Vs Sanjay Jain Page 7 of 13PS: Kamla Market
7. When questioned as to whether he wanted to lead any evidence in his defence, the Accused answered in affirmative. However, vide his separate statement dt. 03.12.2021 accused stated that he did not intend to lead Defence Evidence. Therefore, matter was fixed for final arguments.
8. Final arguments have been duly addressed by Ld. APP for the State as well as Ld. Counsel for the Accused.
Ld. APP for the State pressed upon holding the Accused guilty for criminal trespass stating that Accused has not only entered the premises of the MCD without license but has also broken the lawfully put seal/locks on the same and therefore, he deserves to be convicted. Ld. APP for the State argued that all the Prosecution witnesses have supported the Prosecution case and successfully proved the guilt of the Accused.
On the other hand, Ld. Counsel for the Accused vehemently argued for acquittal of the Accused stating that none of the Prosecution witnesses have testified with respect to the sealing of the premises by the MCD and also there is not even a single eye-witness with respect to alleged breaking of the seal/lock by the Accused. Ld. Counsel for the Accused also argued that no independent public witnesses have been joined in investigation which itself suggests lack of fairness in investigation. Hence, Ld. Counsel for the Accused argued that accused is innocent and deserves to be set free from the charges leveled upon him.
9. This court has heard the rival submissions of the parties and carefully perused the material available on record.
FIR No. 09/10 State Vs Sanjay Jain Page 8 of 13PS: Kamla Market As per settled principles of criminal law, Accused is presumed to be innocent until proven guilty. The prosecution case has to stand firm on its own legs to point out the guilt of the Accused by bringing cogent and reliable evidence. On the other hand, Accused can create doubts in the Prosecution case by cross-examining the prosecution witnesses to create doubts on their credibility.
In the case at hand, Prosecution has examined as many as 11 witnesses to prove its case, however, whether Prosecution has successfully established the guilt of the Accused or not shall be determined after evaluation of the testimonies mentioned above in the light of the relevant legal provisions.
Accordingly, the provisions of law attracted herein, the relevant authorities elucidating the law as well appreciation of evidence has been discussed in the following pages.
Appreciation of evidence in the light of Legal Provisions
10. In the present case, the Accused has been charged for the offence punishable under Section 448 IPC. Section 448, IPC prescribes punishment for "House Trespass". Section 442,IPC defines House Trespass as follows:
Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass". Explanation.--The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.
A bare perusal of the provision brings forth that the pre-requisite FIR No. 09/10 State Vs Sanjay Jain Page 9 of 13 PS: Kamla Market for completion of this offence is the commission of Criminal Trespass. As to what is criminal trespass has been defined in Section 441, IPC as follows:
Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
In view of the above provision, the first pre-requisite for completion of this offence is that the Complainant must have been in the possession of the property in which alleged trespass has taken place. Second pre-requisite is that the Accused must have entered the premises of the Complainant with an intent to commit an offence or to insult or annoy the complainant.
The Hon'ble Himachal Pradesh High Court in the matter titled as Sant And Anr. vs The Union Of India [AIR 1962 HP 1] , referring to first part of criminal trespass as defined above, held that:
10. On analysis the following appear to be essential ingredients of that part: (1) Entry into or upon property in the possession of another. (2) Such entry should be with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property.
11. Coming now to the facts of the case, MCD has alleged that they had put their seal and lock on the Cup and Saucer Open Air Restaurant which was allegedly broken by the Accused and hence, he committed the offence u/s 448 IPC. From the bare perusal of the depositions of Prosecution witnesses, serious doubts are created in the Prosecution FIR No. 09/10 State Vs Sanjay Jain Page 10 of 13 PS: Kamla Market story. For proving breaking of the seal and lock, at first the sealing of the property and taking possession of the same should have been proved by Prosecution but they dismally failed to do so. Following points culled out from the testimonies of prosecution witnesses damage the Prosecution case beyond repairs.
11.1. Sealing and subsequent possession not proved: All the prosecution witnesses have deposed that they were told that premises had been sealed by the MCD, however, nothing has been brought on record as to when were the premises sealed, who sealed it, with whose order was it sealed etc. Not even a single photograph or video of the sealing action has been brought on record to prove sealing of the premises. There is not even a single eye-witness on record to prove the factum of sealing. Rather PW11 has stated that when he reached the restaurant in search of the Accused, he saw that the same was in running condition which again implies that the restaurant was in fact never sealed by the MCD. Hence, the very first pre-condition of section 448 IPC i.e. possession of the property by the Complainant has not been proved by the Prosecution. 11.2. No public witness: There is not even a single independent public witness to the entire sealing or re-sealing proceedings. Further, even during the alleged breaking of the lock by the Accused there is not even a single eye-witness. The MCD officials have themselves stated in their testimonies that they have not seen the seal on the premises and not even witnessed the breaking of the seal.
11.3. MCD officials turned hostile: The biggest damage to the Prosecution case has been caused by the officials of the Complainant corporation who have denied that it was the accused who had broken the FIR No. 09/10 State Vs Sanjay Jain Page 11 of 13 PS: Kamla Market seal of the aforesaid premises. PW4 and PW5 have denied their statements u/s 161 Cr.P.C. and stated that the same were never recorded by the IO. PW5 has specifically denied the suggestion of Ld. APP for the State that accused had broken the seal and the lock put by the enforcement department. PW8 has stated that he can depose nothing in regard to whether seal was broken by the Accused or not.Hence, the most important prosecution witnesses i.e. MCD officials have themselves not lent required support to the Prosecution case.
11.4. The vagueness of the complaint: The very inception of the case has taken place on the basis of a very unspecific complaint. It appears that the entire proceedings transpired only because the complaint was given by a public servant without looking into the merits of it. The complaint mentions that previous occupier has now tampered with the seal and broken the locks and forcibly trespassed in our property. There is no name of the trespasser and no date/time when such act was allegedly conducted by the accused. There is no eye-witness who has seen the Accused breaking any seal or lock. There is no photograph to substantiate the claim of MCD.
12. From the above discussion, there remains no scope of doubt that Prosecution has utterly failed to prove the possession of Cup and Saucer Open Air Restaurant at Minto Road, let alone its trespass.
Conclusion
13. In view of the discussion held above, on account of lack of consistency in the testimonies of the Prosecution witnesses and lack of sufficient proof of breaking of the lock/seal of the MCD By the Accused, FIR No. 09/10 State Vs Sanjay Jain Page 12 of 13 PS: Kamla Market this court has no hesitation in holding that Prosecution has not been able to prove criminal trespass by the accused.
14. Therefore, keeping in view the overall facts and circumstances of this case, this court is of the considered view that the Prosecution has failed to discharge the burden imposed upon it by law of proving the guilt of the Accused beyond reasonable doubts. Accordingly, Accused Sanjay Jain is held not guilty and hereby acquitted of the charges framed against him U/s 448 IPC in the present case.
Digitally signed
VIDHI by VIDHI
Announced in the open GUPTA
GUPTA ANAND
Date:
court on 28.03.2022 ANAND 2022.03.28
17:33:10 +0530
(VIDHI GUPTA ANAND)
Metropolitan Magistrate-08 (Central)
Tis Hazari Courts, Delhi.
This judgment contains 13 signed pages.
This judgment has been directly typed to dictation.
FIR No. 09/10 State Vs Sanjay Jain Page 13 of 13PS: Kamla Market