Delhi District Court
Cc 93/11 (Rc 1/07) Cbi vs . Ajay Kumar Shrotriya & Anr. 1 on 19 October, 2013
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
SPECIAL JUDGE (PC ACT), CBI-08, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI.
CC No. : 93/2011
RC No. : 01/2007
PS : CBI/EOU-VI/New Delhi
U/s : 120B r/w 217, 420, 465, 468 IPC and 13(2) r/w 13(1)(d)
PC Act 1988 and substantive offences thereof.
Unique ID No. 02401R0046952009
C.B.I.
Versus
1. Ajay Kumar Shrotriya
S/o Shri G.S. Shrotriya
R/o B-578, MIG Flats, Loni Road, Delhi.
2. Jitender Kumar
S/o Shri Suraj Bhan
R/o House No. 299, Bakhtawarpur, Delhi-36
Date of FIR : 23.01.2007
Date of Institution : 31.01.2009
Arguments concluded on : 11.10.2013
Date of Judgement : 19.10.2013
JUDGEMENT
1. As per case of prosecution, a preliminary enquiry No. PE SIJ 2006 E 0003 was registered in CBI EOU-VI, New Delhi on 03.05.2006 against Shri Brij Pal Singh, Executive Engineer, West Zone, MCD and other unknown public servants and private persons in CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 1 compliance to the order dated 20.04.2006 passed by the Hon'ble High Court of Delhi in WP (C) No. 4582/2003 (Kalyan Sanstha Vs. Union of India & Others) to probe the nexus of MCD officers, including suspect with the hierarchy in the Engg. Deptt., builders and the political bosses. The said enquiry was marked to PW17 SI Arvind Kumar and on the basis of his findings, a complaint dated 23.01.2007 (Ex.PW17/A) was forwarded to Superintendent of Police, CBI EOU-VI for registration of FIR u/s 120B IPC r/w Section 13(2) r/w 13(1)(d) of PC Act, 1988 and Section 465 IPC against Ajay Kumar Shrotriya, JE West Zone MCD and other private persons for investigation. An FIR Ex.PW18/A bearing RC 1/2007 was accordingly registered and investigated by PW18 Inspector N. Mahato. Fifteen separate charge-sheets pertaining to 15 different properties in West Zone, MCD have been filed by prosecution. Accused Ajay Kumar Shrotriya, JE along with the owners/builders of the respective 15 properties have been arrayed as accused. It is interesting to notice that the premier investigating agency has only picked up the cases involving Ajay Kumar Shrotriya, JE who was on deputation from DDA to MCD from 06.05.02 to 30.09.03. No other officer from MCD i.e. JE/AE/EE/SE/DC has been charge-sheeted in any case defying the spirit of the order passed by the Hon'ble High Court pursuant to which investigation was commenced. The nexus is deeper but only illusory investigation has been conducted giving a clean chit to many other officials involved.
2. In brief, the contents of complaint dated 23.01.2007 made by SI Arvind Kumar on the basis of preliminary enquiry conducted by him CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 2 may be referred which forms the foundation of registration of FIR and subsequent investigation.
As per the complaint Ex.PW17/A by SI Arvind Kumar enquiries revealed that 15 properties were booked for unauthorized construction by Ajay Kumar Shrotriya, JE West Zone, MCD, New Delhi which are detailed as under:
1) D-16, Fateh Nagar, New Delhi
2) D-15, Fateh Nagar, New Delhi
3) 24/13A, Tilak Nagar, New Delhi
4) 15/11A, Tilak Nagar, New Delhi
5) 16/23, Tilak Nagar, New Delhi
6) 22/23, Tilak Nagar, New Delhi
7) WZ-30, Krishna Park, New Delhi
8) WZ-23, Krishna Puri, New Delhi
9) WZ-150B, Krishna Park, New Delhi
10)4 Industrial Area, Tilak Nagar, New Delhi
11) C-16, Vikas Puri, New Delhi
12)WZ-406R, Janak Park, New Delhi
13)B-3/84, Paschim Vihar, New Delhi
14)A-5/11, Paschim Vihar, New Delhi.
15)Shop No.19, New Market, Ramesh Nagar, New Delhi.
It is further alleged that Ajay Kumar Shrotriya made false notings that partial demolition of the properties had been carried out in pursuance of demolition orders passed in respective files. The fact that notings were false is stated to be corroborated on comparison with the entries made in demolition register maintained in MCD, CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 3 demolition register of concerned police station, log books of the concerned vehicles of the MCD, the relevant letter of requisition for police force. It is further the case of prosecution that the enquiry also revealed that unauthorized construction files relating to above 15 properties were not taken out from the office of Officer In-charge (Buildings) {OI(B)} and entries were forged by Ajay Kumar Shrotriya having knowledge that no demolition had taken place.
As such, it is alleged that accused Ajay Kumar Shrotriya abused his official position to cause undue pecuniary advantage for himself or other private persons. Further, on the basis of Preliminary Inquiry, recommendation was made by SI Arvind Kumar for registration of regular case (FIR) against Ajay Kumar Shrotriya and other persons.
3. In the aforesaid background, on registration of RC (FIR) by CBI, the case was further investigated by PW18 Inspector N. Mahato and charge-sheet was filed u/s 173 Cr.P.C.
In nutshell, the case of prosecution on investigation, is that, property located at WZ-30, Gali No.11, Krishna Park, New Delhi measuring about 75 sq. yards was forcibly occupied by accused Jitender Kumar in the middle of 2002 without the consent of its owners, namely, Vijay Kumar Jain, Sudarshan Kumar Jain and Lalit Kumar Jain. The unauthorized construction in the plot was commenced by Jitender Kumar after occupation from mid 2002 and the same was completed in 2003. The construction was carried at ground floor, first floor and partly second floor against the Building Bye-Laws. The original owners of the plot on coming to know of the CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 4 forcible occupation and construction approached Director (Vigilance) MCD and police authorities. Further, the matter was finally resolved between the owners and accused Jitender Kumar and the plot was shown to have been sold to Jitender Kumar on 11.08.03 vide Sale Deed for an amount of Rs.5.00 lakhs. Subsequently, the flats were sold to various buyers during the year 2004.
It is further the case of prosecution that the property was booked "on completion/on complain" for unauthorized construction in the shape of three rooms, toilet, kitchen, lobby at each floor (i.e. ground and first floor) vide FIR dated 03.02.03 (Ex.PW3/A) by Ajay Kumar Shrotriya, JE. An endorsement was made on the FIR by Shri Vinod Kumar, AE for issuing notice under the DMC Act.
Accordingly, a show-cause notice u/s 344 DMC Act, 1957 dated 03.02.03 (Ex.PW3/B) was issued to the owner/builder under the signatures of Shri Vinod Kumar, AE and thereby they were directed to stop the construction. The notice was served by way of affixation by Ajay Kumar Shrotriya, JE on 04.02.03 after seeking permission from the AE to serve the same by way of affixation. Since reply to notice was not received in the office of MCD, a further notice u/s 343 (1) of DMC Act, 1957 dated 10.02.03 (Ex.PW2/DA) was issued under the signatures of Shri Vinod Kumar, AE thereby directing the owner/builder of the property in question to demolish the unauthorized construction within six days of the receipt of the notice. The aforesaid notice was served by way of affixation on 11.02.03 by Ajay Kumar Shrotriya in the presence of the witnesses after seeking permission from the AE. Finally, as the owner/builder did not respond to the aforesaid notices, a demolition order dated 18.02.03 (Ex.PW18/DZ1) was approved by Shri Vinod Kumar, AE on the proposal being put by CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 5 Ajay Kumar Shrotriya, JE and he (AE) further remarked "demolish as per policy of the department". The file was further marked to OI(B).
It is further the case of prosecution that demolition action was fixed for 19.02.03 in Tilak Nagar area. However, Ajay Kumar Shrotriya, JE mentioned in the noting on the file that "demolition action could not be taken due to non-availability of police force". The file was further put up before the AE(B) Shri Vinod Kumar who remarked "try again" and sent back the file to OI(B).
It is next the case of prosecution that Ajay Kumar Shrotriya, JE fraudulently and dishonestly made an entry dated 27.03.03 in the demolition register to the effect "punctured room at first floor partly" and thereby reflected to have carried out partial demolition in the property in question but did not raise any charges for demolition. Further, no entry relating to the demolition of the property was made in the Unauthorized Construction File of the property. It is also alleged that the entry did not exist at the time of preparation of monthly statement of demolition for the month of March, 2003 which was prepared by Officer-in-Charge (Building). Also the demolition action was not reflected in the monthly action taken report prepared in the department. It is also the case of prosecution that as per records of PS Tilak Nagar, no entry of demolition action in respect of property in question was shown on 27.03.03. Further none visited PS Tilak Nagar for obtaining police force for assistance for carrying demolition action and it was also recorded in the demolition register maintained at PS Tilak Nagar "MCD staff do not reported".
CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 6 It is further the case of prosecution that during investigation the property in question was inspected by team of officers from CPWD and as per report dated 30.01.08 (Ex.PW10/A), it was observed that building is unauthorized and constructed without getting any approval of MCD. Further, the construction existing at site and as permissible under Building Bye-Laws, 1983 was reflected in the report.
It is further alleged by the prosecution that the demolition of unauthorized construction was not carried, in conspiracy with co- accused Jitender Kumar and thereby Ajay Kumar Shrotriya abused his official position as public servant.
4. Charge was framed against accused Ajay Kumar Shrotriya and Jitender Kumar u/s 120(B) r/w Section 417/465/468/217 IPC r/w Section 13(2) alongwith Section 13(1)(d) of the Prevention of Corruption Act, 1988. Charge was further framed against accused Ajay Kumar Shartoriya for substantive offences u/s 417/465/468/217 IPC and u/s Sec 13(2) r/w Sec 13(1)(d) of the Prevention of Corruption Act, 1988.
5. In support of its case, prosecution examined eighteen witnesses, namely:
1) Shri Ashok Kumar (the then Vice Chairman, DDA)
2) Shri Vijay Kumar Kadyan
3) Shri Moti Lal
4) Shri Naresh Kumar
5) Shri Dal Chand
6) Ct. Shiv Prasad
7) ASI Jag Ram Singh
8) Shri Vijay Kumar Jain CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 7
9) Smt. Prem Sachdeva
10) Shri Sanjiv Kapoor
11) Shri Jagmohan Swaroop
12) Shri Umesh Singh
13) Shri Lal Chand
14) Ct. Jacob Mathew
15) Shri Lokesh Gauba
16) Shri R.S. Rana, AGEQD
17) SI Arvind Kumar
18) Inspector N. Mahato (IO, CBI)
(a) PW17 SI Arvind Kumar who conducted the preliminary enquiry prior to registration of FIR deposed that he remained posted in EOU-VI from 2005 to 2009 and during his tenure, a preliminary enquiry was registered in CBI on 03.05.2006 in compliance to the orders dated 20.04.2006 passed by the Hon'ble High Court of Delhi in Writ Petition C(C) No. 4582/2003 to probe the nexus of MCD officers in engineering department, builders and political bosses. Further, the said PE was entrusted to him and after enquiring the matter, 15 properties were selected in which it was found that demolition was carried out in papers. After verifying the facts, it was found that reports in MCD records were different than the actual facts. Further, during the enquiry, owners of respective properties were examined along with the record of MCD and respective police stations and it was found that Ajay Kumar Shrotriya JE West Zone MCD forged the documents having knowledge that no demolition had taken place and dishonestly made bogus entries in the relevant records. Further, accused Ajay Kumar Shrotriya being the public servant also abused his official position to cause undue pecuniary advantage for himself or other private person and accordingly, recommendation was made for registering a regular case u/s 120B r/w 13(2) r/w 13(1)(d) of PC Act CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 8 and substantive offence u/s 465 IPC. He further stated that in this respect, a letter dated 23.01.2007 (Ex.PW17/A) comprising of four pages was written by him to the then SP Shri A.K. Ohri whose signatures are at point B on all the pages.
(b) PW1 Shri Ashok Kumar, the then Vice Chairman, DDA (i.e. the competent authority) accorded sanction for prosecution of accused Ajay Kumar Shrotriya, JE u/s 19 of PC Act and proved the sanction order Ex.PW1/A passed by him.
(c) PW3 Shri Moti Lal, the then Officer In-charge (Building) MCD deposed that during the period May 2002 to November, 2004 he was posted as OI (Building) in West Zone and during the aforesaid assignment he was custodian of unauthorized construction files and was maintaining circular files, movement register, demolition register, missalbandh register and also used to make entries regarding unauthorized construction in missalbandh register. Further, during his aforesaid assignment he had made various entries regarding unauthorized construction in missalbandh register maintained in the office.
He further stated that FIR No. B/UC/WZ/03/46 dated 03.02.03 (Ex.PW3/A) in respect of building no. WZ-30, Krishna Park was lodged by the then JE Ajay Shrotriya under his signatures at point A and he {OI(B)} had entered particulars of the FIR in missalbandh register (Ex.PW2/B) at Sr. No.46 at point A and file was handed over to Shri Ajay Shrotriya, the then JE.
He further stated that show cause notice u/s 344 DMC Act (Ex.PW3/B) issued on 03.02.03 was served as per endorsement under CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 9 signatures of Ajay Kumar Shrotriya to the effect "the notice has been pasted in the presence of following persons".
He further stated that as per file (Ex.PW3/C colly) maintained in the office in respect of property in question, demolition order was issued on 18.02.03 under the signatures of Ajay Shrotriya at point A. He further stated that demolition register (Ex. PW2/D) was maintained by him during his tenure in the office which was kept in the office for the purpose of reporting of demolition by concerned JE and making entries. He further proved the entry regarding demolition of property no. WZ-30, Krishna Park available at point A on page no. 66 of Ex.PW2/D (i.e. 27.03.03) but could not identify the signatures existing under the said entry.
He also stated that as per rule the unauthorized construction file of the property should be handed over to him on the same day for the arrangement of police force for demolition but the file was never handed over to him by Ajay Kumar Shrotriya. Further, as per movement register kept in the office, two files regarding property no. 12/21 Tilak Nagar and 68A Mukharji Park were handed over to Ajay Shrotriya for action. He further proved attested copies of the movement register maintained for the period April 2002 to May 2003 (D-8) as Ex.PW3/D. He also proved the acknowledgement by Ajay Shrotriya regarding the aforesaid two files at point A on 19.02.03 in the movement register. He further stated that as per record, on 19.02.03 Ajay Shrotriya had not received file of property no. WZ-30, Krishna Park.
He further proved the endorsement made by Ajay Kumar Shrotriya on 19.02.03 at point B on demolition order to the effect "demolition could not be taken due to non-availability of police CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 10 force".
He further stated that files regarding record of unauthorized building remained in his custody but could not recollect as to how the file of property in question came to him.
He further stated that the programme for demolition used to be chalked out by the concerned XEN and the same were communicated to the concerned JEs/Asstt. Engineer. Further, he used to prepare letter in regard of levy of demolition charges and after procuring the signatures of concerned Asstt. Engineer, he used to send it to the owner/occupier for paying the same. He further stated that he had never sent any letter to the owner/occupier of property No. WZ-30, Krishna Park for the demand of demolition charges as there was no demolition reported by the concerned official at any point of time.
He further stated that request regarding requisition of police force for the assistance in demolition was sent to concerned DCP/SHO of the area.
He also stated that Action Taken Report against the unauthorized construction was used to be prepared by him on the basis of demolition register which is usually written by the concerned JE. Further, the copy of the same used to be kept in his custody for official purposes.
He further stated that he had not made any entry regarding property no. WZ-30 Krishna Park on 27.03.03 available at page 66 of demolition register (Ex.PW2/D).
He further stated that Action Taken Report (Ex.PW2/A) bears his signatures at point B on page Nos. 1, 4, 5, 6, 7 along with the signatures of the then EE, Shri Kadyan at point A. He clarified that he CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 11 used to prepare Action Taken Report on the basis of information provided in demolition register and entries of missalbandh register, which was maintained by him during his official course of duty and the action taken report was sent to concerned Sr. Officers on monthly basis by him.
(d) PW2 Shri Vijay Kumar Kadyan, deposed that during the period May, 2003 to May, 2005, he was posted as Executive Engineer in MCD, West Zone, Rajouri Garden, New Delhi. Further, his duties as Executive Engineer were supervisory in nature which included closing of missalbandh registers pertaining to registration of FIR of unauthorized construction, sending reports to higher authorities regarding working of the building department, demolition programmes to be undertaken as well as which were executed.
He further stated that he used to forward the reports as put before him. Further, the action taken report pertained to the details of demolitions, sealing of properties and action taken U/s 460 (A) of DMC Act etc. which were carried during the particular month and the same were forwarded by him to higher authorities.
He further stated that the action taken reports were put up before him by OI(B) and the same were forwarded to higher authorities for further necessary action and intimation.
He further proved Action Taken Report comprising of 102 pages (Ex.PW2/A) and stated that the reports for the period May 2003 onwards till May 2005 bear his signatures.
He further stated that missalbandh register (Ex.PW2/B) bears his signatures for the period May 2003 onwards till May 2005. Further, FIR No. B/UC/WZ/02/78 dated 27.03.02 (D-3) was entered in CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 12 missalbandh register pertaining to the said year and the relevant entry in this regard was available at point A on missalbandh register.
He further stated that in 2003 office Incharge (Building) Shri Moti Lal used to put his signatures before putting the relevant record before him. Further, initials of Shri Moti Lal appeared at point B on the pages of Action Taken Report (Ex.PW2/A) on pages 1 & 4 to 7.
He further stated that the demolition register remained in possession of OIB (Office Incharge Building) and proved the same as Ex.PW2/D. He also stated that the JE concerned makes the entries regarding the demolition carried as per record in the demolition register.
(e) PW12 Shri Umesh Singh (witness to service of notices u/s 343/ 344 DMC Act) deposed that he was posted in MCD West Zone in 1999-2000 as baildar and as per his duties, he used to accompany the JE concerned to the properties wherein unauthorized construction was carried for purpose of service of notices under the DMC Act. Further, the notices were handed over to the owner/builder, if present at spot and in the absence of the same the notices were pasted as per the directions of the JE concerned.
He further identified his signatures at point B on the back of notice u/s 344 of DMC Act (Ex.PW3/B) and stated that he had affixed the aforesaid notice on the building as per instructions of Ajay Kumar Shrotriya since the owner/builder of the property was not available.
He further deposed that he used to visit the concerned property along with the JE and sign the notice after affixation as per directions of JE.
CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 13 He further stated that notice u/s 343 DMC Act dated 10.02.03 (Ex.PW2/DA) also bears his signatures at point A and signatures of Ajay Kumar Shrotriya at point B.
(f) PW13 Shri Lal Chand posted as Driver in Building Department, West Zone, MCD deposed that he used to ferry the officials and the police force as and when directed by the officers and used to maintain log book of the vehicle (Ex.PW5/A). Further, in case the truck was requisitioned by a particular officer, the same was reflected and the log book was also countersigned by the officer concerned in the relevant column.
He further stated that he had given his statement with respect to the placement of the truck on various dates as inquired by the CBI officials and as per per entry dated 26.08.02 at point A in the Log Book (Ex.PW5/A), the vehicle was taken on requisition of JE Shri A.K. Goel who visited PS Janak Puri to take police force for demolition. Further, the said entry bears his signatures at point B and initials of Shri Goel at point C and on the aforesaid date, he had not taken the vehicle with any other JE.
He further stated that as per entry dated 27.02.03 in the Log Book, the vehicle was taken to workshop for repair and further identified his signatures on the entry at point A and those of Ajay Kumar Shrotriya, JE at point B. He also clarified that the vehicle was not taken for demolition work on the aforesaid date.
He further stated that as per entry dated 27.03.03, the vehicle was booked by Shri Daljit Singh Hooda and the vehicle was taken to Subhash Nagar workshop for repair. Further, the vehicle was not CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 14 taken for any demolition work on the aforesaid date.
He also further deposed with reference to placement of vehicle on 19.09.02, 31.12.02, 03.12.02, 03.03.03 and 31.03.03 which are not relevant to the proceedings in the present case.
He further stated that after his retirement, Dal Chand was deputed as Driver on the aforesaid vehicle.
(g) PW5 Shri Dal Chand who was also deputed as driver in MCD, Building Department, West Zone to drive vehicle no. DDL 4607 (mini truck Nissan) after retirement of driver Lal Chand (PW13) proved the entry dated 09.06.03 in the log book (Ex.PW5/A) whereby vehicle was taken on aforesaid date to Punjabi Bagh Police Station and from there to East Punjabi Bagh and then back to office. He further stated that the vehicle was requisitioned by Shri Mohd. Ahmed, JE on 09.06.03, who had put his signatures in the entry at point A of the log book.
(h) PW10 Shri Sanjiv Kapoor, Senior Architect CPWD and PW11 Shri Jagmohan Swaroop, SE, CPWD proved the report dated 30.01.08 (Ex.PW10/A) which was prepared on inspection of property in question. The report further reflects permissible construction as per Building Bye-Laws, 1983 and construction existing at site in the year 2008.
(i) PW14 Ct. Jacob Mathew deposed that he remained posted as Constable in P.S. Tilak Nagar from 2002 to 2007 and was deputed on Dak duty which included handling of diary dispatch work and delivery CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 15 and acceptance of dak to various offices. He further stated that he was also maintaining demolition register since he was attached with Reader to SHO and the same contained entries regarding dak received from MCD office regarding demolition of unauthorized construction and requirement of police force by MCD office.
He further stated that the requisition of police force by MCD was used to be put up before SHO for necessary action and arrangement and details of same were used to be maintained in demolition register by him or sometimes it used to be entered by the Reader.
He further stated that demolition register maintained at P.S. Tilak Nagar (Ex.PW7A) was maintained by him in regular course of his duties and as per entry at serial no. 7 dated 19.02.2003, a request from MCD was received for requisition of police force for carrying out demolition in the area of PS Tilak Nagar. Further, in the last column against said entry, there were remarks to the effect "not carried out as MCD staff not reported".
(j) PW7 ASI Jag Ram Singh deposed that he was posted in PS Tilak Nagar as HC in 2008 and was performing the duty of Reader to then SHO. Further, demolition register was maintained at the PS with respect to the demolition carried by MCD and entries in the same were made by Ct. Jacob Mathew who was working unde him.
He also stated that the entries for the year 2002 and 2003 in the demolition register have been made by Ct. Jacob Mathew. He further stated that the entry dated 27.03.03 in demolition register (Ex.PW7/A) is in the handwriting of Ct. Jacob Mathew which reflected that MCD staff had not reported with reference to demolition programme fixed CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 16 on 27.03.03 in the area of Tilak Nagar.
(l) PW6 Ct. Shiv Prasad deposed that he was posted as Constable in PS Tilak Nagar in 2005 and worked as Reader to SHO. Further, he had provided certain records to CBI regarding daily diary register from 18.02.03 to 28.03.03 and from 28.03.03 to 08.07.03 in two bunches. He further stated that each sheet bears the signatures of Shri J.K. Sharma, the then ACP at point A and further proved both the bunches as collectively Ex.PW6/A.
(m) PW16 Shri R.S. Rana, AGEQD proved the handwriting report (Ex.PW16/A) comprising of seven pages along with detailed reasons.
He deposed that documents of this case were referred by SP, CBI EOU-VI, New Delhi vide their letter no. 4664/3/1/2007/EOU-VI dated 10.6.08 (Ex.PW16/B) along with annexures. Further, after careful and thorough examination of the documents, he came to the conclusion which was expressed in the form of a report (Ex.PW16/A) comprising of seven pages along with detailed reasons which bears his signatures at point A and signatures of Dr. B.A. Vaid, GEQD at point B who had also examined the case independently and came to the same conclusion. He also stated that the report was sent to CBI office vide letter no. CX-166/2008-1909 dated 31.12.08 and bears signatures of Shri B.A. Vaid at point B on Ex.PW16/A.
(n) PW8 Shri Vijay Kumar Jain deposed that his mother had purchased a property in Krishna Park measuring 150 sq. yards but did not recollect the year of purchase or the name of the seller.
He further stated that he came to know that a part of the said CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 17 plot had been unauthorizedly occupied by some person and who had raised construction consisting of three floors on the part of plot. Further, by the time, the construction had been raised, his mother Smt. Kiran Mala had expired and, thereafter the property became jointly owned by the survivors by way of Will. He further identified the photocopy of the Will (Mark PW8/A) which was executed by his mother late Smt. Kiran Mala by which the property was bequeathed in his favour along with Dr. Sudershan Kr. Jain and Lalit Kumar Jain.
He further identified the photocopy of the Sale Deed (Mark PW8/B) vide which the property no. 30, Out of Khasra No.2, situated in Nangli, Jaleb, Abadi Krishna Park, Delhi as reflected in the Sale Deed dated 14.04.1966 was purchased by his mother.
He further stated that when he came to know about the unauthorized construction in the said plot, a complaint was lodged in the police station and accused Jitender Kumar was one of the persons involved in unauthorized construction and illegal occupation of the part of the plot. Further, a complaint was lodged with Director (Vigilance), MCD but no action was taken by the concerned Authority on the complaint. He further deposed that the matter was ultimately compromised with accused Jitender and other persons who were involved in illegal occupation of the plot and the part of the plot was sold to Jitender Kumar as compromise as per photocopy of sale deed Mark PW8/C. He also stated that the three floors had been raised at the time of sale but the construction was under way and the constructed portion was not reflected in the sale deed as agreed by the parties. He further stated that he was not aware if any notice was served with respect to unauthorized construction in the said plot or CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 18 was ever demolished.
(o) PW9 Smt. Prem Sachdeva deposed that she had purchased ground floor of property no. WZ-30, Gali No.11, Krishna Park, Delhi from Jitender Kumar about 8-9 years back but could not identify him since the property was purchased through builder. She further stated that three floors were constructed in the property at the time of purchase and she had been residing in the property since purchase. She also stated that she did not receive any notice regarding demolition of the property nor the property had ever been demolished since the date of purchase by MCD. Further, no MCD official had ever visited her nor any notice was seen pasted by her outside the premises.
(p) PW15 Shri Lokesh Gauba deposed that the second floor of the premises was purchased by his father from one Shri Jitender Kumar somewhere in 2004 and the property consisted of Ground, First and Second Floor. However, he could not identify accused Jitender Kumar. He further stated that his family had been residing in the said premises after purchasing the same in 2004 and no notice under the DMC Act for demolition or otherwise was served or affixed and no demolition action was taken against the said property.
He further identified the photocopy of GPA dated 19.01.2004 and Will dated 19.01.2004 (Mark PW15/A collectively) which were executed for the sale/purchase of the property.
(q) PW18 Inspector N. Mahato deposed that on 23.01.2007, he was posted at EOU-VI, New Delhi as Inspector and was entrusted CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 19 with the investigation of complaint dated 23.01.2007 which was enquired at preliminary stages by SI Arvind Kumar and thereupon it was entrusted to him under the signatures of the then SP Shri A. K. Ohri at point A on FIR dated 23.01.2007 (Ex.PW18/A). Further, FIR was accompanied with the complaint of SI Arvind Kumar dated 23.01.2007 (Ex.PW17/A) vide which he was asked to investigate regarding unauthorized construction and demolitions carried out by accused A.K. Shrotriya during his posting in building department west zone of MCD New Delhi.
He further stated that during the course of investigation, he obtained the search warrant from Spl. Judge, Tis Hazari Courts u/s 93 Cr.P.C and conducted search in the presence of independent witnesses and other team members at residence and office of Ajay Shrotriya. Further, he also collected various documents from MCD office Rajouri Garden, occupants/ builders of the buildings in question, office of CPWD like copy of missalbandh register (Ex.PW2/B & C), demolition register (Ex.PW2/D), log book (Ex.PW5/A), attendance register of JEs (Ex.PW8/DA), action taken report Ex.PW2/A and demolition register pertaining to PS Tilak Nagar Ex.PW7/A. He also stated that he obtained opinion from GEQD regarding handwriting as per marks on various registers and documents and further the documents were forwarded for opinion in sealed cover vide letter dated 10.06.2008 (Ex.PW16/B) and also the report (Ex.PW16/A) was thereafter obtained.
He further stated that the property in question was also inspected by the officials from CPWD and he had accompanied the officials for aforesaid purpose and obtained report (Ex.PW10/A) from the concerned department.
CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 20 He also stated that the unauthorized construction file was seized consisting of FIR, notices u/s 343/ 344 DMC Act and demolition order along with other relevant documents. Further, he joined the police officials from the concerned PS wherein a separate demolition register was also maintained at some of the Police Stations and relevant documents were collected in this regard.
He further stated that as per investigation, the accused conspired for purpose of fabrication of records and unauthorized construction was not demolished in the property in accordance with law.
6. In his statement u/s 313 Cr.P.C. accused Ajay Kumar Shrotriya denied the case of prosecution and claimed that he had been falsely implicated in this case. He further denied having made any false entry in the MCD record qua demolition action taken in the property. He further took a stand in his written statement u/s 313(5) Cr.P.C. that the staff could visit the site without official vehicle or police force for carrying out part demolition and the file was never closed by virtue of part demolition action. Further, the demolition action was taken by him on 27.03.03 under supervision of Shri Vinod Kumar, AE (since deceased). He also stated that further demolition action could have been carried after his transfer and further no demolition charges were to be claimed for minor demolition. He further examined DW1 Shri Pradeep Kumar Mittal, present OI(B) in defence.
Similarly, accused Jitender Kumar in his statement u/s 313C.P.C. denied the case of the prosecution and claimed that he had been falsely implicated. He denied having met Ajay Kumar Shrotriya CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 21 at any point of time. However, no evidence was led on behalf of accused Jitender Kumar in defence.
DW1 Shri Pradeep Kumar Mittal, OI(B), West Zone, MCD, Delhi proved the period of tenure and ward assigned to Ajay Kumar Shrotriya, Junior Engineer during the period 01.05.2002 to 30.09.2003 as per the available record of building department in the form of chart (Ex.DW1/X collectively). The same consisting of four pages was prepared on the basis of the office orders as available in the Area Distribution Register w.e.f. 01.01.2001.
He also produced a chart reflecting the name of the Junior Engineers and Assistant Engineers (Ex.DW1/Y & DW1/Z respectively) who had worked in the West Zone Building Department during the period 03.05.02 to 30.09.03 bearing his signatures at point A along with Shri A.K. Meena, EE(B) at point B and Shri R.K. Ailawadi, SE at point C. He further deposed that the chart has been prepared on the basis of Area Distribution Register and office records.
The posting of respective Junior Engineer in the concerned wards in which the property booked by MCD were located was also provided by way of chart (Ex.DW1/X1) for the period 03.05.02 to 30.09.03.
He also filed the details of wards and attached colonies as per Ex.DW1/Z1. Further, the record of officers i.e. DC/SE/EE/AE/JE posted during tenure of Ajay Kumar Shrotriya was also furnished in the form of a chart Ex.DW1/Z2.
CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 22
7. Counsel for accused Ajay Kumar Shrotriya assailed the case of prosecution on various grounds detailed below and also filed written submissions on record:
a) That the sanction order Ex.PW1/A had been passed by PW1 Shri Ashok Kumar, Competent Authority against accused Ajay Kumar Shrotriya without application of mind.
b) That Ajay Kumar Shrotriya had no occasion, motive or opportunity to obtain any pecuniary advantage and the investigating agency had malafidely implicated accused Ajay Kumar Shrotriya who was on deputation from DDA with MCD for a short period from 06.05.02 to 30.09.03 ignoring the role of all other JEs/AEs posted in West Zone, MCD.
c) It was also vehemently urged that there was no evidence to prove conspiracy between the accused and the same could not be inferred in the absence of any evidence to show meeting of minds. It was also submitted that no evidence had been led to show of passing of gratification or meeting of accused at any point of time.
d) Counsel for accused Ajay Kumar Shrotriya also urged that demolition charges were not to be claimed by Ajay Kumar Shrotriya since the same was the job of OI(B) and also no demolition charges were generally claimed for carrying out minor demolitions.
CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 23
e) It was vehemently contended that the investigating agency had commenced the investigation only with the motive to fix Ajay Kumar Shrotriya, JE who had been on short period of deputation leaving aside the role of all other officials i.e. JE, AE, EE, SE or DC. It was urged that accused had been already acquitted in CC No.92/11, 111/11, 109/11, 114/11, 117/11, 107/11, 108/11, 116/11, 113/11 & 115/11 wherein the prosecution had miserably failed to point out evidence of conspiracy or that the demolition action had not been taken by the accused. In the aforesaid context, it was pointed out that in the charge-sheet bearing CC No.117/11 arising out of FIR (RC) No.1/2007, the prosecution had relied upon statement of one Ramesh, baildar recorded u/s 161 Cr.P.C. who had admitted the carrying out demolition in property no. A5/11, Paschim Vihar involved in CC No.111/11 but the same was deliberately suppressed by the investigating agency in CC No.111/11 and accused stood acquitted therein considering the infirmities and motivated investigation.
It was also contended that in CC No.92/11 wherein accused has been acquitted by this Court, Ajay Kumar Shrotriya was arrayed as an accused despite the fact that he had been never posted in the Ramesh Nagar Ward wherein the property was alleged to have not been demolished by him and serious lapses were observed in investigation.
f) It was submitted that the proceedings recorded in Unauthorized Construction File on 19.02.03 to the effect that CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 24 demolition action could not be taken due to non availability of police force, could not be doubted merely because the file was not reflected in the File Movement Register as the file had been duly marked to AE(B) Shri Vinod Kumar on aforesaid date and he had also initialed the file and remarked "try again" under his initials dated 19.02.03.
It was also contended that it could not be inferred that partial demolition action was not carried by Ajay Kumar Shrotriya as per noting dated 27.03.03 in demolition register merely because corresponding entry was not reflected in UC file or that the movement of file was not reflected by the OI(B) in the 'File Movement Register'. Reliance was also placed on the cross-examination of PW3 Shri Moti Lal who admitted having missed the making of entries of several cases due to overload of work in the file movement register and other record, wherein demolition had been carried.
It was also submitted that the file never stood closed by mere entry dated 27.03.03 made in the demolition register whereby partial demolition action was taken by Ajay Kumar Shrotriya. It was also contended that investigating agency has not booked the AE or any subsequent JE/AE posted after transfer of Ajay Kumar Shrotriya for failing to take further demolition action since the unauthorized construction file (i.e. UC File) was never closed by mere part demolition action reflected vide entry dated 27.03.03 in demolition register.
g) It was also submitted that there was no bar for the JE to visit the property in question for taking demolition action against the CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 25 unauthorized construction without police force and with the available staff of MCD. It was further urged that Ajay Kumar Shrotriya had visited the property in question on 27.03.03 without police force and taken action in the properties reflected in the demolition register i.e. WZ-183, Punjabi Market, Vishnu Garden; WZ-23, Gali No.7 Krishna Park; 1/17 Tilak Nagar; 16/23 Tilak Nagar; 22/23 Tilak Nagar; WZ-30 Krishna Park but the prosecuting agency had not challenged the demolition action taken without police force in WZ-183, Punjabi Market, Vishnu Garden and 1/17 Tilak Nagar on the aforesaid date.
h) It was also contended that the inference could not be drawn that partial demolition action had not been taken on 27.03.03 on the basis of inspection report of the property conducted in 2008 by CPWD reflecting the existing construction as it could not be ruled out that the repairs/renovation may have been carried of the partially demolished portion in the intervening period of about five years.
i) It was also urged that Ajay Kumar Shrotriya had been posted in the concerned Ward No. 22 for a short duration from 20.06.02 to 02.09.02, 31.12.02 to 31.03.03 & 10.04.03 to 29.05.03 and the investigating agency had made him a scapegoat ignoring the role of the officials posted prior to him and after his transfer from the concerned ward though they failed to initiate any demolition action. It was also pointed out that Shri A.K. Mittal, Shri U.C. Saxena, Shri S.K.Anand and CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 26 Shri R.P.S. Nain who were posted in the intervening periods were given clean chit who failed to initiate any action but Ajay Kumar Shrotriya had been wrongly booked by the investigating agency by disputing the demolition action taken by him.
j) It was also contended that there was no requirement or procedure that demolition action could not be carried without obtaining the police force and in fact on 27.03.03 the action was taken by him without police force and there was no question of obtaining the police force from PS Tilak Nagar since the truck was out of order and the same was also reflected in the demolition register as well as in the log book. Further, on aforesaid date the demolition action was fixed in the area of PS Tilak Nagar under Shri Dil Bagh Singh Hooda, JE as reflected in the demolition register of MCD.
k) It was also vehemently contended by counsel for accused that no evidence has been led by prosecution to show that the demolition action had not been taken by the accused on 27.03.03 and merely because a corresponding entry was not made in the unauthorized construction file, it could not be presumed that the entry in the demolition register had been fabricated. It was submitted that the UC file never stood closed by a mere entry of partial demolition action which was taken and reflected in the demolition register and was missed to be mentioned in the UC file. Further, there was no bar for the succeeding JEs/AEs posted after transfer of Ajay Kumar Shrotriya to initiate demolition action as per law on the basis of CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 27 factual position reflected in the UC file which required further demolition action to be taken.
l) Counsel for accused Ajay Kumar Shrotriya also relied upon John Pandian Vs. State Rep. by Inspector of Police, T. Nadu, MANU/SC/1025/2010 : 2011(1) JCC 193 in support of the contentions made by him.
m) Counsel for accused also contended that the motivated investigation is even reflected from the fact that none of the JEs/AEs/EE had been booked during whose tenure the unauthorized construction of second floor had further come up as reflected in CPWD report which was not existing at the time of booking of FIR.
Counsel for accused Jitender Kumar submitted that there could not have been any conspiracy with Ajay Kumar Shrotriya in particular since different JEs were posted prior to booking of the alleged construction by MCD and after passing of demolition order and no evidence has been led on record to show the meeting of minds with Ajay Kumar Shrotriya in particular or any other MCD official. It was also contended that there is absolutely no evidence to reflect that the accused was known to Ajay Kumar Shrotriya, JE or had ever met him or if any gratification had been passed. It was also contended that the accused Jitender Kumar had absolutely no role in making of any entries in the records of MCD which are in possession of the MCD officials. However, the partial demolition action claimed to have been carried in the property in question on 27.03.03 was supported by the CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 28 accused but it was submitted that he was unaware of the service of notices u/s 343/344 DMC Act, 1957.
On the other hand, ld. PP for CBI vehemently contended that the entry dated 27.03.03 in the demolition register was falsely made in conspiracy by Ajay Kumar Shrotriya in order to help accused and save the property from demolition. It was further contended that the contradictions in the testimony of witnesses were of minor nature and did not discredit the statement of the witnesses in entirety. It was also submitted that the entry dated 27.03.03 pertaining to carrying of partial demolition was forged and fabricated in MCD records by Ajay Kumar Shrotriya as it is not supported by the corresponding record.
Apart from above, reliance was also placed on the inspection report prepared by CPWD in the year 2008 after the registration of FIR/RC by CBI which reflected the unauthorized construction carried in the property.
8. I have heard Shri Y. Kahol, Advocate for accused Ajay Kumar Shrotriya, Shri Pradeep Chaudhary, Advocate for accused Jitender Kumar and ld. PP for CBI at length and perused the record.
Before deliberating upon the evidence on merits, the scope of Section 120B IPC may be briefly noticed, as the foundation of the prosecution case is that the entry dated 27.03.03 was forged by Ajay Kumar Shrotriya in furtherance of conspiracy with co-accused and it was wrongly reflected that the demolition action had been partly taken in the property, to safeguard the same from demolition. It is also necessary to find out in this case as to whether the accused Ajay CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 29 Kumar Shrotriya abused his position and acted dishonestly or with a corrupt or oblique motive.
Criminal conspiracy has been defined in Section 120A of the Indian Penal Code and Section 120B provides punishment for the same. A conspiracy must be put to action, inasmuch as, so long a crime is generated in the mind of the accused, it does not become punishable. The offence is said to have been committed only when the thoughts take concrete shape of an agreement to do or cause to be done an illegal act or an act although not illegal by illegal means. The gist of the offence of the conspiracy lies in agreement being the essential element and mere knowledge of the plan is not per se enough. It also needs to be taken into account that the acts or the conduct of the parties must be cautious and clear enough to infer their concurrence as to common design and its execution. Also the incriminating circumstances must form a chain of events from which conclusion about the guilt of the accused could be drawn.
For the purpose of bringing the charge of criminal conspiracy read with other sections for which the accused has been charged, the prosecution is required to show the circumstances on which it could be inferred that the accused had hatched a conspiracy. Though often the conspiracy is hatched in secrecy and for proving the offence direct evidence may not be possible to obtain but in aforesaid eventuality the circumstances need to be proved which may lead to an inference that the accused acted in conspiracy. It has to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew leading to the commission of a CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 30 crime by one or more persons to the agreement, of that offence.
The principles laid down for ascertaining the conspiracy as referred in para 40 & 41 of (2009) 8 Supreme Court Cases 617 State of Madhya Pradesh vs. Sheetla Sahai and Others may aptly be quoted:
"40. In Kehar Singh v. State (Delhi Admn.), this Court has quoted (at SCC p. 731, para 271) the following passage from Russell on Crimes (12th Edn., Vol.1) The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.
41. In State (NCT of Delhi) v. Navjot Sandhu this Court stated the law thus: (SCC p.691, para 101) One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution."
CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 31
9. Since accused Ajay Kumar Shrotriya is also alleged to have abused his position and by corrupt or illegal means obtained pecuniary advantage, it may be relevant to refer to observations made by the Hon'ble Apex Court in S.K. Kale vs. State of Maharashtra AIR 1977 Supreme Court 822 with reference to Section 5(1)(d) of the Prevention of Corruption Act, 1947. It was therein held that the abuse of position in order to come within the mischief of the section must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department. It was further held that it is for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person.
In the aforesaid context, since the conspiracy has been inferred on circumstantial evidence, it may be apt to refer to the observations of the Hon'ble Supreme Court in para 21 & 22 of S.P. Bhatnagar and Another vs. The State of Maharashtra AIR 1979 Supreme Court
826.
"21.................It would be well to bear in mind the fundamental rule relating to the proof of guilt based on circumstantial evidence which has been settled by a long line of decisions of this Court. The rule is to the effect that in cases depending on circumstantial evidence there is always the danger that conjecture or suspicion may take place of legal proof. In such cases the mind is apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 32 form parts of one connected whole; and the more ingenious the mind of the individual, the more likely it is, considering such matters, to over-reach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete.
22. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
10. Now, adverting to the charge-sheets filed by the prosecution, the evidence fairly needs to be assessed in the background that though the directions issued by the Hon'ble High Court in WP(C) 4582/2003 directed to probe the nexus of MCD officers including suspects with the hierarchy in the Engineering Department, builders and political bosses but the investigation has been intentionally confined to the cases involving accused Ajay Kumar Shrotriya, the then JE on deputation from DDA to CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 33 MCD for a period of less than one and a half years. The posting of Ajay Kumar Shrotriya in the respective wards in the West Zone involving the 15 properties investigated by CBI has been for short periods revolving for few weeks to few months. The role of the other JEs, AEs, EE during whose tenure some of the properties may have substantially come up and who failed to take any further demolition action after transfer of Ajay Kumar Shrotriya from concerned ward has been completely overlooked by the investigating agency and investigation has been focused only in respect of the entries of partial demolition action made by Ajay Kumar Shrotriya in respect of the aforesaid 15 properties. It is pertinent to note that the files never stood closed by entries made by Ajay Kumar Shrotriya reflecting partial demolition action during his postings in respective wards. The further demolition action required to be taken has been completely ignored by the succeeding JEs including the AEs & EE who were equally responsible to take the demolition proceedings to logical end.
The investigation and circumstances reflect a clear partisan role taken by the investigating agency in picking up selective cases pertaining to Ajay Kumar Shrotriya and ignoring all other aspects of investigation in blatant violation of the directions for investigation issued by the Hon'ble High Court.
However, the same does not lessen the responsibility of Ajay Kumar Shrotriya, JE and each respective case requires to be scrutinized independently to assess if the entries for partial demolition were forged by him in conspiracy.
It may also be relevant to observe at this stage that accused CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 34 Ajay Kumar Shrotriya has already been acquitted in CC No.92/11, 111/11 & 109/11, 117/11, 114/11, 107/11, 108/11, 116/11, 113/11 & 115/11 wherein the prosecution failed to prove conspiracy beyond reasonable doubt or that the entry of partial demolition action had been forged by him. In CC No.92/11, Ajay Kumar Shrotriya was arrayed as an accused by investigating agency despite the fact that he had never been posted in Ramesh Nagar Ward and the prosecution miserably failed to prove that demolition entry in respect of property concerned was forged by him.
It may also be noticed that thereafter prosecution has also filed applications for withdrawal of six cases against Ajay Kumar Shrotriya & others under Section 321 Cr.P.C. at final stages but the same were declined as the applications were not filed in four other similar cases based on analogous evidence and were contested by prosecution.
11. Keeping in view the principles referred to in the preceding paragraphs, observations made in para 10 above and the period of posting of Ajay Kumar Shrotriya in the ward in question, the circumstances relied upon by the prosecution may now be assessed to see whether they factually exist and, if so, whether they are of a character to be wholly incompatible with the innocence of the accused and consistent with their guilt.
Evidence has been led on record in defence in several cases including CC No.119/11 & 93/11 whereby the posting of Ajay Kumar Shrotriya and other JEs in the concerned ward wherein property in question is located has been revealed for the period 2002-03 as under:
CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 35 Ward Name of JE's Tenure of JE's in said No. Ward Sh. Ajay Kumar Shrotriya 20.06.02 to 02.09.02 Sh. A.K. Mittal 02.09.02 to 14.012.02 21-22 Sh. U.C. Saxena 14.12.02 to 31.12.02 Sh. Ajay Kumar Shrotriya 31.12.02 to 31.03.03 Sh. S.K. Anand 31.03.03 to 10.04.03 Sh. Ajay Kumar Shrotriya 10.04.03 to 29.05.03 Sh. R.P.S. Nain 29.05.03 onwards The aforesaid chart clearly reflects that Ajay Kumar Shrotriya was posted only for a short period from 20.06.02 to 02.09.02, 31.12.02 to 31.03.03 & 10.04.03 to 29.05.03. The property in question was booked for unauthorized construction on 03.02.03 by Ajay Kumar Shrotriya and it was reflected on FIR "on completion/on complain". The unauthorized construction was further reflected in the shape of "three rooms, toilet, kitchen, lobby at each floor at GF & FF, staircase". The building was further reflected to be constructed at GF, First Floor and Second Floor. The controversy has been narrowed down by the investigating agency to entry dated 27.03.03 whereby partial demolition action is shown by Ajay Kumar Shrotriya to have been carried and overlooking the role of other JEs/AEs during whose tenure the unauthorized construction had come up. Further, even the role of succeeding JEs/AEs/EE has been ignored though they failed to initiate the demolition action against unauthorized construction after transfer of Ajay Kumar Shrotriya and though the file never stood closed vide entry dated 27.03.03 made in the demolition register.
12. It may next be observed that notice u/s 344 (1) DMC Act, 1957 CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 36 dated 03.02.03 (Ex.PW3/B) as well as 343 DMC Act, 1957 dated 10.02.03 (Ex.PW2/DA) were issued under the signatures of Shri Vinod Kumar, AE as per record of MCD. The aforesaid notices were further served on the owner/builder of the property by way of affixation by Ajay Kumar Shrotriya, JE after obtaining the approval from Shri Vinod Kumar, the then AE. The demolition order was thereafter passed on 18.02.03 (Ex.PW18/DZ1) as proposed by Ajay Kumar Shrotriya and approved by Shri Vinod Kumar, AE. The proceedings till aforesaid stage have not been disputed by the investigating agency.
The investigating agency has only disputed entry dated 27.03.03 made by Ajay Kumar Shrotriya in demolition register whereby partial demolition action is reflected and entry dated 19.02.03 made by him in UC file whereby it was observed on the demolition order (Ex.PW18/DZ1) to the effect "demolition action could not be taken due to non availability of police force". The case of the prosecution is that the aforesaid entry dated 19.02.03 made in UC file on Ex.PW18/DZ1 has been wrongly made since the demolition action was fixed at PS Tilak Nagar wherein it was recorded in the demolition register maintained at PS Tilak Nagar to the effect "not carried out/MCD staff not reported". It is submitted by prosecution that the demolition had not been carried out since the MCD staff had not reported and not due to non availability of police force.
At the outset, it may be observed that so far as aforesaid entry dated 19.02.03 in the UC file is concerned, the proceedings undertaken on aforesaid date cannot be disputed since the same CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 37 stand countersigned by Shri Vinod Kumar, AE(B). In case there was any doubt as to the non availability of police force, the same would also have been commented upon by Shri Vinod Kumar, AE(B) but he simply remarked "try again". The fact that the MCD officials visited police station Tilak Nagar on the aforesaid date stands corroborated by the entry dated 19.02.03 made in the log book by Shri Lal Chand (PW13). As per entry dated 19.02.03 in the log book, the vehicle was taken on the requisition of the then AE Shri A.K. Mittal who visited PS Tilak Nagar to take police force for demolition but later on they returned back without carrying demolition action because police force was not made available by the concerned authorities. Deposition to aforesaid extent was made by Shri Lal Chand (PW13) in CC No.113/11 which has been decided earlier by this Court. The fact that the demolition was also fixed on the aforesaid date by Shri A.K. Mittal, JE along with Ajay Kumar Shrotriya, JE also stands corroborated from the entry dated 19.02.03 made in the demolition register wherein the name of Shri A.K. Mittal also stands recorded. The fact that the log book also stands initialed against entry dated 19.02.03 also corroborates that the police force was unavailable. In case any such entry was wrongly made, then obviously Shri A.K. Mittal as well as PW13 Lal Chand should also have been charge-sheeted by the investigating agency. In the facts and circumstances, merely on the basis of entry reflected in the demolition register at PS Tilak Nagar, it cannot be concluded that the demolition action was intentionally not carried out on 19.02.03 and a false entry was recorded by Ajay Kumar Shrotriya. It may also be observed that in the aforesaid entry, the remarks "MCD CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 38 staff not reported" have been recorded in a different blue ink though the remarks in the remaining portion are in different impression of blue and red ink and it is not free of doubt if the same was recorded on the same date. It is also pertinent to note that PW14 Ct. Jacob Mathew in his cross-examination also submitted that he had no personal knowledge regarding the entries made in the remarks column as the same were made as per the instructions of the Reader but the investigating agency has not cited the Reader posted at aforesaid time at PS Tilak Nagar.
The fact that the proceedings were taken on the aforesaid date by Ajay Kumar Shrotriya cannot be doubted since the file was marked on 19.02.03 to the AE(B) Shri Vinod Kumar who remarked on the noting "try again". In case the file had not been handed over by OI(B), the aforesaid noting by Ajay Kumar Shrotriya, JE and further observations by AE(B) could not have been recorded on 19.02.03. As such, the stand of the prosecution that the file was not handed over by OI(B) on 19.02.03 does not find corroboration from record. Even otherwise, no complaint was made by OI(B), in case the file was not handed over by him to JE on 19.02.03. It may also be noticed that Shri Vinod Kumar, AE was reported by the prosecution to have expired and, as such, has not been examined. In the facts and circumstances, the prosecution has failed to prove that the proceedings on 19.02.03 were fabricated by Ajay Kumar Shrotriya, JE.
13. The investigating agency has further disputed the entry dated 27.03.03 made by Ajay Kumar Shrotriya, JE in demolition register during his tenure in the ward from 31.12.02 to 31.03.03 whereby CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 39 partial demolition action was stated to have been carried by him and noting was made to the effect "punctured room at first floor partly"
though no corresponding entry was made in the unauthorized construction file. The said entry dated 27.03.03 is alleged by prosecution to be concocted without actually carrying the demolition.
The entire blame and investigation by prosecution only centres around entry dated 27.03.03 which is claimed by prosecution to have been forged in conspiracy with the co-accused. It is imperative to notice that further demolition action has not been taken by any other JE/AE after transfer of Ajay Kumar Shrotriya and the conspiracy obviously would also have been with the JE/AE/EE posted during aforesaid time and after transfer of Ajay Kumar Shrotriya rather being only confined with Ajay Kumar Shrotriya. The evidence on the point of conspiracy shall be discussed in detail in the subsequent paras but suffice to point out that there is no conclusive evidence on record to show as to the meeting of minds between Ajay Kumar Shrotriya and co-accused Jitender Kumar and the inference as to conspiracy with Ajay Kumar Shrotriya is only based upon entry dated 27.03.03. The root of the prosecution case, as such, appears to be on a slippery ground.
It may also be observed that on 27.03.03 Ajay Kumar Shrotriya had made entries as to partial demolition action taken without police force in property numbers WZ-183, Punjabi Market, Vishnu Garden; 1/17 Tilak Nagar and 15/35B along with property numbers WZ-23, Gali No. 7, Krishna Park (involved in CC No.112/11), 16/23 Tilak CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 40 Nagar (involved in CC No.119/11), 22/23, Tilak Nagar (involved in CC No.110/11) and WZ-30, Krishna Park (involved in CC No.93/11) but the investigating agency has not disputed or challenged the action taken by him in property numbers WZ-183, Punjabi Market, Vishnu Garden; 1/17 Tilak Nagar and 15/35B for undisclosed reasons. There is no reason to presume that he could have legally taken action without police force in aforesaid properties WZ-183, Punjabi Market, Vishnu Garden; 1/17 Tilak Nagar and 15/35B but could not have taken the same in remaining four properties wherein he has been chargesheeted.
All the aforesaid four cases involving property number WZ-23, Gali No. 7, Krishna Park (CC No.112/11), 16/23 Tilak Nagar (CC No.119/11), 22/23, Tilak Nagar (CC No.110/11) and WZ-30, Krishna Park (CC No.93/11) involving the aforesaid entry dated 27.03.03 have been taken up together for arguments. It is interesting to note that the prosecution had filed application for withdrawal of cases u/s 321 Cr.P.C. at final stages in CC No.119/11 and 110/11 but did not file any such application in CC No.93/11 & 112/11 though entry dated 27.03.03 is similarly involved in all the four cases wherein partial demolition action was reflected in the demolition register. The aforesaid application for withdrawal of case was declined by this Court since the cases are based on analogous evidence but appear to be selectively prosecuted.
It may also be noticed that accused Ajay Kumar Shrotriya stands acquitted in similar cases involving entry dated 27.02.03 in demolition register whereby partial demolition action was reflected in demolition register in CC No.116/11, 113/11 & 115/11 and CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 41 corresponding entry had been missed in the unauthorized construction files, since the prosecution failed to prove conspiracy and also considering the fact that the properties involved therein could not be saved from further demolition action merely on the basis of aforesaid entry as the files never stood closed and the burden equally lay on the succeeding JE/AE to take the demolition action after transfer of Ajay Kumar Shrotriya. Also it could not be proved beyond reasonable doubt if the entries dated 27.02.03 recorded as to partial demolition action in demolition register in respect of properties concerned in CC No.116/11, 115/11 & 113/11 were wrongly recorded. It had also come up on record that the JE could not close the unauthorized construction file. It further came up on record in aforesaid cases that the labourers alongwith the MCD staff can also travel by private vehicle to the property in case the government vehicle is not available. Even in the aforesaid cases bearing CC No.113/11, 115/11, Shri Vinod Kumar was the concerned AE posted in Ward no. 22 at relevant time but could not be examined due to his death prior to commencement of trial.
14. It may also be appropriate to point out that in connected cases decided by this Court including CC No.114/11 (CBI vs. Ajay Kumar Shrotriya/Krishna Pahwa) in which the accused has been acquitted, it has also come on record in testimony of Brij Pal Singh, the then EE that demolition action could be carried by JE concerned without police force in an ongoing unauthorized construction. In the aforesaid case, it has also been brought on record in testimony of Umesh Singh, Baildar that they used to demolish the unauthorized construction even without the aid of police force wheresoever it was directed by JE concerned and they also used to visit the property by their personal CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 42 conveyance as it was not necessary to commute in official vehicle provided by MCD. Shri Umesh Singh, Baildar examined as PW1 in CC No.109/11 by prosecution also made a similar statement to aforesaid extent in said case. Even in the present case i.e. CC No. 93/11, PW12 Shri Umesh Singh deposed during cross-examination that he had visited WZ-30 Krishna Park along with Ajay Kumar Shrotriya for purpose of demolition action.
In aforesaid context, PW 2 Shri Vijay Kumar Kadyan, then Executive Engineer in the present case (i.e. CC No.93/11) in his cross- examination dated 03.01.12 also clarified that demolition may be carried by JE without police assistance.
In view of above, merely because the JE visited the property without the police aid, it cannot be presumed that the entry was forged or the partial demolition action had not been carried out as inferred by the Investigating Agency. More so over, for the reason that the conspiracy with co-accused has not been proved beyond reasonable doubt.
Also, PW2 Shri Vijay Kumar Kadyan, the then EE(B) in this case (CC No.93/11) also corroborated the above fact in his cross- examination dated 03.01.12 (page 2) that the unauthorized construction file is not closed by mere part demolition and complete unauthorized construction is to be removed within the purview of Building Bye-laws. He also deposed that demolition action can be taken by a JE even without taking the file relating to unauthorized construction at spot in cross-examination dated 03.01.12 on page 1.
It has also come up in evidence of Shri Vijay Kumar Kadyan, CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 43 EE (B) in CC No. CC No.116/11 (on page 7 of cross-examination dated 11.04.12) as well as in CC No.112/11 (on page 7 of cross- examination dated 15.02.12) that the Incharge of demolition squad is AE and it is the duty of AE at site what action is to be taken with respect to unauthorized construction at site and the responsibility of taking the complete demolition action lies with the AE. He also clarified therein on page 9 of his cross-examination dated 15.02.12 in CC No.112/11 as well as in CC No.116/11 that there has to be specific order for closing of the file by AE concerned and the file is not closed till demolition action is taken against the unauthorized construction or the same is regularized.
It may also be noticed that PW Vijay Kumar Kadyan examined in other cases including CC No.107/11 deposed on similar lines and also clarified that JE is not the officer authorized to close the file and the same is closed by AE.
The testimony of other JEs examined on behalf of prosecution in other cases is also to similar effect. PW7 Shri Umesh Chand Saxena, the then JE(B) in CC No.107/11 also stated in his cross- examination dated 19.04.12 (page 4) in aforesaid case that till the time unauthorized construction file is closed, the action for demolition can be again taken.
In the light of evidence led on record, it can be safely inferred that the unauthorized construction file never stood closed by the aforesaid noting dated 27.03.03 made by Ajay Kumar Shrotriya in the demolition register whereby partial demolition CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 44 action was taken. Thus, on the basis of aforesaid entry, it cannot be concluded in the facts and circumstances that the proceedings had been fabricated by Ajay Kumar Shrotriya or that the property was saved from further demolition action.
15. It is also imperative to point out that mere reflection of movement of files by OI(B) in the 'file movement register' for purpose of demolition action on the date fixed for demolition does not appear to be conclusive to determine that the demolition action had not been taken. As per contention made by ld. PP for CBI, the movement of the files was recorded in the file movement register only in case the demolition action was scheduled with police force as per monthly programme. In view of above, the movement of files on the dates other than fixed for scheduled demolition was not recorded and the the UC files in custody of OI(B) could have been taken by the JEs/AEs for any other proceedings without recording in the file movement register. The possession of the UC file being obtained by JE without entry in the movement register since he did not visit the site as scheduled is probable and no adverse inference can be drawn merely because the movement of file was not reflected in the file movement register. It may also be noticed that the custody of the files and demolition register maintained by MCD remains with OI(B) but no explanation has come as to how the files could have been accessed by Ajay Kumar Shrotriya if the same remained in possession of OI(B). Further, no complaint was lodged by AE(B) or EE in case the demolition action had been wrongly shown by Ajay Kumar Shrotriya in the file.
CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 45 It may also be mentioned that only the attested copies of file movement register have been produced by the investigating agency and the original register has not been brought on record.
16. It may also be noticed that a mere non entry of the file in the movement register or the action taken report or the missalbandh register or demolition claim charge register does not automatically lead to an inference that the entries for partial demolition action had been forged by the JE. The same needs to be assessed in the light of other circumstances and evidence on record.
It is imperative to note that during cross-examination of PW3 Moti Lal {the then Officer Incharge (Buildings)}, it has been brought on record that various entries existing in the demolition register were not supported by corresponding entry in the missalbandh register, file movement register, demolition charge register which may be due to negligence or oversight by OI(B) but were not disputed or charge-sheeted by Investigating Agency. The aforesaid aspect has been admitted by PW Moti Lal in his cross-examination in other connected cases including CC No.115/11 wherein he deposed to the effect that:
"There is an entry in demolition register dated 19.03.03 in respect of properties no. 14/9 and 10/62 Punjabi Bagh but there is no corresponding entry in missalbandh register, file movement register, demolition charge register. I cannot say anything about the entry in ATR since the same for the said period is not available on judicial record. Similar is my CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 46 reply in respect of property no. D-12 Rajouri Garden, 10/62 West Punjabi Bagh, 21/98 West Punjabi Bagh, 34/75 West Punjabi Bagh, 2A/DG2 Vikaspuri-II, B-98 Kirti Nagar, 9/50 Kirti Nagar, X-5 Kirti Nagar and B-2/133 Janakpuri. These entries might have been left out due to over burden of work."
It is also pertinent to note that during cross-examination of PW3 Moti Lal in the present case i.e. CC No.93/11, the counsel for accused also pointed out the missing entries in the file movement register and the action taken report which were admitted by PW3 Moti Lal to have been missed by him due to overload of work. In the aforesaid context, cross-examination of PW3 Moti Lal dated 05.01.2012 on page no.3 may be noticed:
"It is correct that the entries mentioned in demolition register Ex.PW2/D for 09.10.02 pertaining to property no. 23, Punjabi Bagh for 17.10.02 (pertaining to property No. C-40 Kirti Nagar) is not entered in the movement register Ex.PW3/D (exhibited in CC No.93/11). It is correct that in spite of the aforesaid missing entries in the movement register, the demolition is shown to have been carried and as such the demolition register could have been obtained without the corresponding entries in the movement register. (Vol. The said entries may have been missed due to overload of work)." He also admitted on page 5 of the cross- examination dated 05.01.2012 to the effect "It is correct that entry dated 07.11.2002 pertaining to property no. C-3/396, Janak Puri in the demolition register is not CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 47 mentioned in the Action Taken Report for the month of November, 2002. It is also correct that entry dated 25.11.02 pertaining to property no. C-5C-19 Janak Puri, C-5C-36A, Janak Puri and C-3/375, Janak Puri in the demolition register is not mentioned in the action taken report for the month of November, 2002. There is a possibility that there may be further entries in the demolition register which may not have been mentioned in the action taken report. I cannot say in case the said entries may be numbering about 150 over a period of 6 months."
As such, it cannot be ruled out that the entries may be missed in the monthly 'action taken report' by OI(B) and the same may not be conclusive to infer that the entry dated 27.03.03 is forged and the demolition action had not been carried by the JE.
17. Ld. PP for CBI has next contended that since the 'demolition charges' were not raised in respect of the property in question and claimed from the owner, the entry for partial demolition action was forged.
The contention has been vehemently opposed by counsel for accused Ajay Kumar Shrotriya and it has been pointed out that it is the job of OI(B) to prepare the letter of demand/bill for the demolition charges as per the entries in UC file or in the demolition register and thereafter the said letter/bill is sent to the owner/builder under the signatures of AE. It is also contended by counsel for accused that JE has in fact no role to play in recovery of said charges.
CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 48 It may be noticed that similar contention has also been raised in other cases decided by this Court including CC No.119/11 (CBI vs. Ajay Kumar Shrotriya, Bhagwant Singh & Anr.) which has been taken up for arguments along with present case. In CC No. 119/11, Shri Brij Pal Singh, EE (PW5) was examined by the prosecution and in the aforesaid case, he stated in cross-examination dated 14.03.12 (page 3 and 4 ) to the effect:
"The demolition charges are to be claimed by the OI(B) and the necessary documentation is also to be made by him for aforesaid purpose. The said charges are forwarded to the House Tax Deptt. for recovery from the concerned Assessee. It is not the duty of JE to claim the demolition charges."
Similar deposition has also been made by Shri Brij Pal Singh, EE in CC No.114/11 on page no. 3 & 4 of his cross-examination dated 30.04.12.
PW16 Shri J.S. Yadav, AE in the aforesaid context in CC No.114/11 also clarified during cross- examination that for minor demolitions, the demolition charges are not normally raised.
It was also admitted by PW18 Inspector N. Mahato (IO) in the present case i.e. CC No.93/11 in his cross-examination dated 17.08.12 page 11 that "the demolition charges in respect of action taken by MCD are required to be collected by Assistant CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 49 Engineer and not by the JE."
In the aforesaid context, it may also be noticed that since the posting of Ajay Kumar Shrotriya, JE was till 31.03.03 and the Ward was transferred from his jurisdiction merely within four days of entry dated 27.03.03, the further action in this regard, if any, could also be taken by the succeeding JE or the AE. In view of above, merely on this ground it cannot be inferred that the entry dated 27.03.03 carrying partial demolition action had been forged.
18. Ld. PP for CBI has next relied upon report prepared by CPWD on inspection of property in 2007/08 and contended that unauthorized construction reflected in the report leads to inference that the demolition action had not been carried on 27.03.03.
I am of the considered view that aforesaid report may be relevant to show that the unauthorized construction had been carried in the property but merely on the basis of construction reflected in the CPWD report made in the year 2008 after registration of FIR by CBI, it cannot be inferred that entry regarding partial demolition action dated 27.03.03 in the demolition register is forged. It cannot be ruled out that the property may have been renovated or repaired after the said partial demolition action carried on 27.03.03. The testimony of PW9 Smt. Prem Sachdeva does not further the case of prosecution in any manner since she claimed to have purchased the ground floor of the property from Jitender Kumar about 8-9 years prior to her deposition and it has not come on record if she was in possession of property prior to 27.03.03 on which date the alleged demolition action CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 50 is claimed to have been carried by Ajay Kumar Shrotriya. Similarly, PW15 Shri Lokesh Gauba deposed that the second floor of the premises was purchased by his father in 2004 and was not aware as to the proceedings conducted in the property prior to 2004. In the facts and circumstances, it cannot be concluded on the basis of CPWD report prepared in 2008 that the entry dated 27.03.03 had been forged by Ajay Kumar Shrotriya though the fact that unauthorized construction was raised at the time of booking of FIR in the property cannot be doubted.
19. Learned PP for CBI has also vehemently contended that there is sufficient evidence to infer conspiracy since accused Ajay Kumar Shrotriya, JE had forged the entry dated 27.03.03 to benefit the owner/builder.
To assess the aforesaid contention, it may be outrightly noticed that there is absolutely no evidence on record to show meeting of accused during the relevant period or passing of gratification. PW18 Inspector N. Mahato during his cross- examination dated 17.08.12 (page 1) stated that the owners of the property had informed him that Ajay Shrotriya had not met them during 2002/03. The inference as to conspiracy is merely drawn since the owner/builder of the property may be benefited, even in the absence of any corroboratory evidence of conspiracy. The same is clear from the fact as PW18 admitted in his cross- examination dated 17.08.12 on page 2 that there was no direct evidence of conspiracy but the same was inferred since the owner/builder were the beneficiary. The inference as to CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 51 conspiracy has been drawn merely on the presumption that the entry dated 27.03.03 had been falsely introduced which itself has not been proved beyond reasonable doubt.
For the purpose of offence of conspiracy, the evidence should clearly reflect the meeting of the minds between the accused for achieving the intended object which is completely missing in this case. It is also imperative to notice that by merely making entry dated 27.03.03 the property of the owner/ builder could not have been saved from further demolition action. The duty for further complete demolition action lay on the shoulders of succeeding officers (JE/AE) under the supervision of other senior officers in hierarchy after transfer of Ajay Kumar Shrotriya on 31.03.03. If any such conspiracy existed, then the officers posted after transfer of Ajay Kumar Shrotriya were also equally responsible for failing to take demolition action but have not been charge-sheeted by the investigating agency. It may also be observed that testimony of PW15 Shri Lokesh Gauba does not further the case of prosecution in any manner as he claimed that his father had purchased the property in 2004. Obviously, since the property was purchased by his father in 2004, he could not have been a witness to demolition proceedings carried by Ajay Kumar Shrotriya on 27.03.03. Similarly, PW9 Smt. Prem Sachdeva has not specified the date of purchase of ground floor of the property and simply stated that ground floor of the property was purchased about 8-9 years back prior to date of deposition. As such, in the absence of any positive evidence that she was in possession of ground floor of the property on 27.03.03, it cannot be CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 52 presumed that she could be a witness to the proceedings carried by Ajay Kumar Shrotriya on 27.03.03. It may also be observed that even the FIR in the present case was lodged by Ajay Kumar Shrotriya though the construction may have commenced prior to his posting in the ward and the role of the other JEs/AEs during whose period the construction had commenced was not looked into and have been given a clean chit by the investigating agency.
In the facts and circumstances and evidence led on record, I am of the considered view that the circumstances relied by prosecution do not establish conspiracy beyond reasonable doubt or if the entry dated 27.03.03 had been concocted by Ajay Kumar Shrotriya, JE in conspiracy with co-accused.
20. I am also constrained to point out that the investigating agency at its whims and fancies carried the investigation ignoring the role of any other JE posted prior to or after Ajay Kumar Shrotriya in the concerned ward and a clean chit has been given to the AE,EE,SE and DC without bothering to investigate their roles.
The premier investigating agency (CBI) was expected to thoroughly investigate the case since the FIR was registered by CBI and the investigation commenced on the directions issued by the Hon'ble High Court in WP (C) No.4582/2003 to probe the nexus of MCD officers, including suspect with the hierarchy in the Engg. Deptt., builders and the political bosses. However, the investigation has merely been confined to role of Ajay Kumar Shrotriya who was on deputation from DDA to MCD from CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 53 06.05.02 to 30.09.03 ignoring the role of other officers who appear to be also equally responsible for ensuring complete demolition action in the properties in question.
The dumping of the files by succeeding JE/AE/EE without initiating further necessary action in accordance with law leads to the only inference that the same was either in collusion or the role of subordinate officers was deliberately ignored. There also has been clear lack of supervision by the SE & DC concerned posted at relevant time.
21. Considering the fact that the nexus between the builders, their political bosses and officials from MCD is deeper and unauthorized constructions continue unabated even today, it may be observed that the acquittal of the accused wheresoever in the 15 cases prosecuted by CBI in RC No.1/07 does not protect the unauthorized construction from demolition. Also, departmental action be taken by Commissioner, North Delhi Municipal Corporation / concerned Commissioner, MCD in respective cases against the JEs/ AEs (other than Ajay Kumar Shrotriya) who are found liable for failing to take demolition action in the properties in question investigated by CBI after the same were booked for unauthorized construction by MCD and action was not taken after transfer of Ajay Kumar Shrotriya from the concerned Ward. A copy of this judgement be accordingly forwarded to Deputy Commissioner, MCD West Zone and Commissioner, North Delhi Municipal Corporation, for compliance and placing the action taken report on record within eight weeks.
CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 54
22. For the foregoing reasons, the prosecution has failed to bring home the charge against both the accused beyond reasonable doubt. Both the accused are accordingly acquitted of all the charges.
Announced in the (Anoop Kumar Mendiratta) open Court on Special Judge (PC Act) CBI-08 19th October, 2013 Central District, THC, Delhi. CC 93/11 (RC 1/07) CBI vs. Ajay Kumar Shrotriya & Anr. 55