Bangalore District Court
Side And Court Has Posted The Matter vs Denied The Incriminating ... on 16 March, 2022
1 CC 15985 of 2011
IN THE COURT OF XLI (41ST) ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 16th DAY OF MARCH 2022
PRESENT
SRI S.S.BHARATH M.A. LL.M.,
ST
XLI (41 ) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU
CRIMINAL CASE NUMBER 15985 OF 2011
BETWEEN
1. Bangalore Water Supply and Sewage Board,
North4, SubDivision,
Yelahanka Upanagara, Bangalore,
Represented by its
Assistant Executive Engineer.
....COMPLAINANT
( Represented by Sri.B.L.Sanjeev., Advocate)
AND
1. SRI. ANAND RAO,
No.921, LE BOUQUET Apartment,
16th Main, 5th Block,
HMT Extension,
Vidyaranyapura,
Bengaluru City Ward No.9,
Bengaluru560097.
....ACCUSED
( Represented by Sri.B.V.Malla Reddy., Advocate)
2 CC 15985 of 2011
ONE PRIVATE COMPLAINT CAME TO BE SUBMITTED
BY BWSSB, NORTH4 SUBDIVISION, YELAHANKA
NEW TOWN, BENGALURU, THROUGH ASSISTANT
EXECUTIVE ENGINEER ATTACHED TO IT. VIDE
ORDERS DATED 07/05/2011, COGNIZANCE OF THE
OFFENCES PUNISHABLE UNDER SECTION 447 OF IPC
AND SECTION 85 OF BWSS ACT OF 1964 WAS TAKEN.
SUBSEQUENTLY AFTER ADJUDICATION, THE CASE,
TODAY, IS COMING ON FOR DELIVERY OF JUDGMENT
AND THE COURT DELIVERED THE FOLLOWING...
Offences alleged u/s : 447 of IPC and
85 of BWSS Act,1964
Charge sheet filed on : 07052011
Trial commenced on : 25092017
Trial completed on : 21042018
Judgment date : 16032022
Total duration : DaysMonths Years
09 10 10
JUDGMENT
1. Case of the Complainant i.e., the BWSSSB is as follows; It owns sewage lines and water lines. All sewage disposals whether constructed out of municipal funds or otherwise, all works materials shall vest with it. BWSSB (In short, "Board"), maintains and repairs such sewage disposal works across Bengaluru. Subsoil as well shall be deemed to vest with it. Shaft pipes and other appliances connected with sewer works whether constructed or set up with the help of 3 CC 15985 of 2011 corporation shall also belong to it, whether erected prior to establishment of BWSSB Act or subsequent to it. Board has been collecting and constructing the sewer generted across Bengaluru. Accused has been maintaining an unauthorized Sanitary connection with the sewer link of the board. Records maintained with the board disclose that no such sanitary connection has been sanctioned in his favor. No bills have been collected. On spot inspection dated 16/08/2010, it has been learnt that, the accused, who stays at No.921, LE BOUQUET Apartment, 16 th Cross, 5th Block, Vidyaranyapura, HMT Extension, Bengaluru, has been using an unauthorized sanitary connection as above. Spot Mahazar also came to be conducted. It has been done by accused to put the board to monetary loss. Despite sufficient opportunities to get the said unauthorized connection authorized, he has not availed them. His acts is more or less, a trespass into the property of the board etc. 4 CC 15985 of 2011
2. After the said orders dated 07/05/2011, the accused has obtained the bail and subsequently the matter came to be posted for recording of a plea of accused. While recording the plea of accused, he did not choose to plead the guilt alleged and therefore, this court has posted the matter for recording of evidence of concerned witnesses.
3. A person namely K.Narasanna S/o N.Kambaiah, the Retired Executive Engineer, BWSSB deposed in the court as PW1 and on his examination in chief, his cross examination at the instance of learned advocate for accused also has been done. Vide orders dated 14/03/2022, as no list of witnesses being submitted by the complainant, considering the age of the accused, as he being the senior citizen and considering the age of this case, as it relates to the year 2011, this court has closed the evidence of the complainant's side and court has posted the matter for recording a statement of accused under section 313 of Cr.P.C.
5 CC 15985 of 2011
4. Said statement of accused came to be recorded. Accused denied the incriminating circumstances explained to him. He did not choose to adduce any evidence.
5. This court has heard the proxy counsel appearing for complainant and also heard the learned advocate for accused.
6. Following points arise for determination;
1) Whether the complainant/prosecution proves beyond reasonable doubt that by way of holding an unauthorized Sanitary connection which is being linked with the Sewer line of the board, the accused has dishonestly and with an intention to cause damage to the board, has trespassed into the property of the board and accordingly his act amounts to an offence punishable under section 447 of IPC ?
2) Whether the complainant/prosecution proves beyond reasonable doubt that the accused contravened the provisions of BWSS Act, particularly the Section 66(2), mentioned in the table contemplated in Section 85 of the said act and accordingly he shall be punished etc, ?
6 CC 15985 of 2011
3) what order ?
7. Above points have been answered as under; Points' no.01 & 02: In the Negative Point no.03: As per final orders for the following reasons...;
REASONS The prosecution is duty bound to prove the guilt alleged as above against accused. The burden to prove the aspects stated herein above against the accused, heavily rests upon the prosecution. The points aforementioned have been taken up separtely for discussion.
8. Point No.01; The burden is upon the complainant/prosecution to prove the case beyond reasonable doubt. The complainant/prosecution alleges that, in contravention of the section 66(2) of the said act, the accused has connected his 7 CC 15985 of 2011 unauthorized drain pipe to the pipeline erected by the board, which is a sewer line of the board and therefore, he shall be punished.
9. The complainant being the Retired Executive Engineer of BWSSB, has reiterated the complaint contents, during his examination in chief. Spot mahazar came to be marked as Ex.P1 during his evidence. He has specifically deposed that with respet to LE BOUQUET Apartment, Vidyaranyapura, which is at its 5th Block, an unauthorized sanitation pipe has been enabled and it has been anauthorizedly connected and linked to the sanitary line of the Board. Except the evidence to the said effect, he has not adduced anything much in his examination in chief, as his evidence.
10. As could be seen from his cross examination, he has admitted that to obtain a sanitary facility to LE BOUQUET Apartment, a license has been obtained by 8 CC 15985 of 2011 the owner of the very said apartment. He has pleaded ignorance as to the name of the owner of the said apartment. He further answered that he has not produced any material to show that the accused is the owner of the said apartment and he has not produced any documents atleast to show that the accused is a tenant or otherwise. He has pleaded his ignorance on the point whether the accused has been benefited because of his alleged act. Apart from the above questions nothing much has been done during his cross examination.
11. Ex.P1 is the spot mahazar annexed with the sketch and few photographs, which show the pipeline. Ex.P1 the Spot Mahazar specifies that the accused herein has laid a sanitary line and has linked it to the Sewer line established by the board without taking any permission or license and the same has been done with an intention to put the board to monetary loss and also in violation of the law. 9 CC 15985 of 2011
12. Admittedly the accused lives in an apartment. The complainant/prosecution failed to explain to the court atleast as to how the accused alone shall be made liable with respect to his alleged act, although he lives in an Apartment, whereunder many houses and other occupants, have been living. However, for the sake of arguments even if the case is believed to be true to an effect that, being one of the residents of the said apartment, he has laid an unauthorized pipeline etc, still, how he alone should be made liable with respect to the alleged act, has not been property explained by the prosecution. Moreover no builders, office bearers of the said apartment from whom the apartment has been developed including a developer if any have not been arrayed as accused persons in this case. The suggestion of the learned advocate for the accused to CW1 is that the accused is neither an owner nor a tenant of the premises alleged. But as the application of accused through which he has sought a grant of bail is being silent with respect to his residential 10 CC 15985 of 2011 address, as the accused had come to the court after a due service of summons with respect to said address only, his stay at the said premises can be believed.
13. But the guilt alleged against accused cannot be believed only for the reason that after filing of the case, the complainant has not showed any interest, as it being clear on the basis of the order sheet to prove the guilt alleged against the accused. Inspite of examination of the complainant as PW1, no incriminating evidence has been letin by him against accused, except the mahazar which includes the information regarding the accused.
14. The spot mahazar and sketch both by themselves do not establish the case beyond reasonable doubt. Though the photographs showing connection of a pipeline with the Sewer Pipeline of the board, are produced, still there is no material on record to 11 CC 15985 of 2011 believe that it has been done at the instance of accused only. It is the opinion of the court that to make the accused liable, it presupposes that his nature of occupation in the said premises should be explained to the court without there being any confusion or doubt. Unless the nature of the occupation of the accused in the said premises is established, the aspect which has been attributed against accused cannot be maintained in law and mere production of spot mahazar doesnot form the basis for the conviction of the accused herein. Without examining its witnesses, same cannot render the documents incriminating against the accused herein.
15. It is no doubt true that he resides in the very same premises, but the punishment shall be accorded only if it is proved beyond reasonable doubt that he only has ensured a connection of the unauthorized sanitary line to the Sewer Pipeline of BWSSB. 12 CC 15985 of 2011 Therefore, due to scarcity of evidence and lack of incriminating strength in the evidence of PW1, the case as to trespass and also as to contravention of the provisions of BWSS Act cannot be believed at all. Therefore, Point No.1 is hereby answered in the Negative.
16. Point no.2 : For the reasons stated herein above and also for another reason that in view of private drain alleged to have been connected with Sewer Pipe of the board being not established beyond reasonable doubt as aforesaid, in view of the nature of the possession of acccused being not averred, despite a connection is alleged to have been established with sewer pipe line of the board, particularly, in view of this case being filed only against one of the occupants of the apartment by not arraying others concerned including developers and the person one who sold the apartment premises to accused, as they being not arryed as accused as aforesaid, and no investigation 13 CC 15985 of 2011 being done on it, attributing the illegal act on aforementioned accused alone would not meet the ends to justice. Moreover Section 66(2) of the said act makes it clear that the person, who connects sanitary pipe of his premises illegally with Sewer Pipe line laid by the board, shall be amenable for prosecution and he shall be punished in accordance with the said provision of the act.
17. But in the case on hand, though with the help of Photographs, it can be believed that there has been a connection between Sewer pipeline laid by the board and a line allegedly laid by accused, there is nothing on record to believe that it has been so connected by the accused alone.
18. The prosecution paper is silent as to whether it has been connected with the pipeline aforesaid of the board, whether prior to purchase of premises by the accused or subsequently after his purchase. 14 CC 15985 of 2011
19. Though for the sake of arguments a case can be attributed against the accused to an effect that as he has been enjoying possession over the premises, he shall be made liable for the punishment with respect to said accusations, still as the prosecution has failed to establish that despite repeated remedies he has not put any efforts to get the said unauthorized connection to be one as authorized connection, as there is nothing on record to establish the said aspect, the offence alleged to have been committed by the accused becomes doubtful.
20. Because Section 66(2) of BWSS Act is very clear that any person desirous of availing himself of the provisions as to sub section 1 of Section 66, shall give to the board a notice of proposals and at any time within one month after the receipt thereof, the board may by notice to him, can refuse such permission and if it appears to the board that the drain is such that, making of the communication would be 15 CC 15985 of 2011 prejudicial to the sewerage system itself, and for the purpose of examining the mode of construction and to ascertain the condition of such drain, can conduct inspection.
21. Though there is a mahazarEx.P1, it does not specify anything as to whether connecting the pipeline of the accused to a line laid by the board is detrimental to the entire sewerage system or otherwise.
22. For the purpose of clarity Sections 66(1) an 66(2) of BWSS Act are reproduced as hereinbelow;
66. Application by Owners and occupiers to drain into Board Sewer.
(1) Subjet to such conditions as may be prescribed by regulations made in this behalf, the owner or occupier of any premises having a private drain, or the owner of any private drain withing the Bangalore Metroplitan Area may apply to the Board to have his drain made to communicate with the Board Sewers and thereby to discharge foul water and surface water from those premises or that private drain:
16 CC 15985 of 2011 Provided that nothing in this subsection shall entitle any person to discharge directly or indirectly into any Board Sewer
(i) any trade effluent from any trade premises except in accordance with the regulations made in this behalf of
(ii) any liquid or other matter the discharge of which into Board Sewers is prohibited by or under this act or any other law.
(2) Any person desirous of availing himself ot the provisions of subsection(1) shall give to the Board notice of his proposals, and at any time within one month after receipt thereof, the Board may by notice to him refuse to permit the communication to be made, if it appears to it that the mode of construction or condition of the drain is such that the purpose of examining the mode of construction and condition of the drain it ay, if necessary, required it to be laid open for inspection.
23. There is nothing on record which may show that the connection so establsihed allegedly is detrimental to the entire Sewer System. There is nothing on record which may certify the quality of its construction as well. Therefore, the nature of the case itself, in the opinion of this court, renders the entire case fishy. 17 CC 15985 of 2011 Because it is certainly impossible to anybody being one of the residents of an apartment to lay a pipe line connecting the same illegally to the pipeline laid by the board without there bieng any assistance of developers or of any other authorized persons of the board.
24. Therefore, in view of the case of the complainant itself is being present to an effect that, without a permission of BWSSB, a Pipe line has been laid and connected as above etc, as it being not the case of the prosecution/Complainant that the construction itself is very poor or the same is detrimental to entire Sewer system etc, as it being not a case of the complianant that the other premises of other residents also have been inspected and has been found proper etc, therefore, in view of evidence being not adduced by the complainant/prosecution to prove the case beyond reasonable doubt, in view of the nature of the initiation of the proceedings on accused alone itself is 18 CC 15985 of 2011 being stated to be not proper, for the reasons stated hereinabove and as there is nothing on record which would show that a private drain at the instance of accused alone has been connected with the Sewer Pipeline laid by the board, it is not appropriate and it is unsafe in the absence of evidence against accused beyond reasonable doubt, to punish him, keeping in mind, all the reasons stated hereinabove, including the reasons stated while answering the previous point as well, Point No.2 aforementioned is hereby answered in the Negative.
25. Point no.3; The circumstances warrant the following operative portion for the foregoing reasons;
OPERATIVE PORTION Invoking section 248(1) of Cr.P.C, accused is hereby acquitted of the offences punishable U/s. 447 of IPC and Section 85 of Bangalore Water Supply and Sewerage Act,1964.
19 CC 15985 of 2011 The bail bond and surety bond of the accused will be in force till completion of the appeal period, thereafter, they shall stand cancelled. (Dictated to the stenographer, typed by him, corrected by me and then pronounced in the open court today, that is on 16032022) S.S.BHARATH XLI (41ST) ACMM, BENGALURU 20 CC 15985 of 2011 ANNEXURES List of witnesses examined on behalf of prosecution: PW.1 : K.Narasanna List of documents marked on behalf of the Prosecution: Ex.P.1 : Mahazar Ex.P.1(a) : Signature of PW1 Ex.P.2 : Sketch Ex.P.2(a) : Signature of PW1 Ex.P.3 & 4: Photographs List of witnesses examined on behalf of accused : NIL List of documents marked on behalf of the accused : NIL S.S.BHARATH XLI (41ST) ACMM, BENGALURU