Delhi District Court
Fir No.60/05, Ps : Hq State vs Dinesh Goel & Anr. on 8 January, 2019
FIR No.60/05, PS : HQ State Vs Dinesh Goel & Anr.
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Dinesh Goel & Anr.
FIR No. 60/2005
PS : Hauz Qazi
U/s 32/34/37 The Administration of Evacuee
Property Act, 1950
Date of Institution : 28.05.2010
Date of reserving of order : 06.12.2018
Date of Judgment : 08.01.2019
CNR No. DLCT020001502010
JUDGMENT
1. Serial No. of the case : 288779/2016
2. Name of the Complainant : Z.U. Siddiqui
3. Date of incident : On or before
03.02.2005
4. Name of accused person :
1.Dinesh Goel S/o Parmeshwar
Swaroop, R/o B28, Soochna
Apartment, Vashundra Enclave, Delhi
2. Mohd. Iqbal Ahmed S/o Late Istiyar
Ahmed R/o 1089, Gopalji Faras Khna,
Lal Kuan, Delhi6
5. Offence for which chargesheet
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FIR No.60/05, PS : HQ State Vs Dinesh Goel & Anr.
was filed : U/s 32/34/37 The
Administration of Evacuee
Property Act, 1950
6. Offence for which charge
has been framed : 32 of the
Administration of
Evacuee Property Act,
1950
7. Plea of accused : Not guilty
8. Final Order : Acquitted
9. Date of Judgment : 08.01.2019
BRIEF REASONS FOR ORDER:
1. Mr. Dinesh Goel and Mr. Mhod. Iqbal Ahmed, the accused herein, have been chargesheeted for committing offences punishable under Section 32 of the Administration of the Evacuee Property Act, 1950 (hereinafter referred to as "Act").
2. The case of the prosecution is that on 03.02.2005, a complaint was given to then then DCP central District Delhi by Mr. Z.U. Siddiqui, Joint Secretary, Law and Building Department regarding unauthorized construction upon Evacuee Property bearing No. VI/1048 49 (OLD) and 1037 (NEW), Lal Kuan, Hauz Qazi, Delhi. On the basis of said complaint, present FIR was registered.
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Investigation was initiated. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused persons were chargesheeted for the offences punishable under Section 32/34/37 of the Administration of the Evacuee Property Act, 1950
3. After perusing the record, cognizance was taken by the Ld. Predecessor and summons were issued to the accused. Accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 32 of the Administration of the Evacuee Property Act, 1950 framed against the accused persons. It was read over to them to which they pleaded not guilty and claimed trial.
4. The prosecution has examined as many as 06 witnesses to prove its case against the accused.
5. PW1 Sujauddin is the public witness. He has deposed that he has no knowledge regarding the property no. 1049, Lal Quan, Ward No. 6, Hauz Qazi. Ld. APP has crossexamined the witness with the permission to the Court. However, he denied all the suggestions given by Ld. Page 3 of 15 MM08(C)/THC/08.1.19 FIR No.60/05, PS : HQ State Vs Dinesh Goel & Anr.
APP.
6. PW2 Sh. S.K. Ahuja (Director at Ministry of Ayush, Govt. of India) has deposed that on 24.08.2009, he was posted as under Secretary, MHA Rehabilitation Wing, Jasalmer House, Maan Singh Road, Delhi. On that day, he had issued one letter No. 12019 (456)/RD/SW/Misc.2007 to the Principal Secretary, Land & Building Department, Government of NCT of Delhi (Evacuee Property Cell), B Block, Vikas Bhawan, IP Estate, New Delhi. He has produced the said letter which is Ex.PW2/A (OSR). By aforesaid letter, he had informed to the aforesaid Pr. Secretary regarding Sanction of Prosecution under Section 38 of the Administration of Evacuee Property Act, 1950 in relation to property number 1037, 104849, Lal Quan, Delhi. The aforesaid sanction was accorded after obtaining the approval of Hon'ble MOS (Home Affairs, Government of India).
7. PW03 Inspector Devender Kumar Singh has deposed that on 18.07.2008, further investigation of this case was marked to him by the directions of concerned SHO. Previous IO had already prepared the draft chargesheet of this case. The requisite prosecution Sanction under Section 38 of the Relevant Act was not Page 4 of 15 MM08(C)/THC/08.1.19 FIR No.60/05, PS : HQ State Vs Dinesh Goel & Anr.
available on the file. The notification regarding his property as evacuee property was also not available on the file. He had requested to the competent authority for granting the afoaresaid prosecution sanction. DCP concerned had also written DO letter to the competent authority for prosecution sanction. Till 24.07.2009, investigating agency had not received the requisite prosecution sanction. After discussions with the Sr. Police Officials, a closure report was prepared and filed. On 15.09.2009, they had received the requisite prosecution sanction. He has sent some letters to the Land & Building Department, Vikas Bhawan for obtaining the notification for the property in question. The concerned department had replied that they would file the notification before the Court concerned. Thereafter, chargesheet against accused Dinesh Goel and Iqubal was prepared.
8. PW04 Z.U. Sidhiqui has deposed that on 03.02.2005, he was posted as Joint Secretary, Land & Building Department, Government of Delhi. He had received a complaint from the resident of Lal Kuan and one person namely Iquabl was carrying out an unauthorized construction of shops and flat at Property no. 1049, Lal Kuan without approval of competent authority Page 5 of 15 MM08(C)/THC/08.1.19 FIR No.60/05, PS : HQ State Vs Dinesh Goel & Anr.
which is Ex. PW4/A. Thereafter, he directed Ishwar Dass, Kanoongo of Evacuee Property Cell of L & B Department to conduct an Inspection at the said property and submit a report. The said Kanoongo inspected the site under reference and submitted a report that Sh. Iqbal was found constructing shops and flats by demolishing the old structure without any authorization from the government vide report Mark X2. Thereafter, He moved a letter to M.M. Oberoi, Deputy Commissioner of Police to take necessary action to stop that illegal construction vide DO letter No. 19043 dated 03.02.2005 Ex.PW4/B. Thereafter, the Deputy Commissioner had started the investigation.
9. PW 5 Sh. H.P. Gupta has deposed that he was posted as Managing Officer when the file of the present case was submitted to him by the then subordinate Tehsildar for the purpose of forwarding the letter to the then Joint Secretary who was his senior at that time. The said letter was supposed to obtain approval from the then Joint Secretary and the record approval was obtained from the then Joint Secretary. Thereafter, he also endorsed his signature on the same letter and forwarded to it for concerned authority. He has shown the judicial file. After seeing the same he has identified the letter which was Page 6 of 15 MM08(C)/THC/08.1.19 FIR No.60/05, PS : HQ State Vs Dinesh Goel & Anr.
forwarded to him by the then Tehsildar and also bearing his signature at point A, the same is Ex.PW5/A (running into 3 pages).
10. PW06 Statement of Inspector Vinay Malik has deposed that on 10.02.2005, he received a complaint from Sh. Z.U. Sidiqui, Joint Secretary, Land and Building Department, GNCT of Delhi. He made endorsement at point X to X.1 on this complaint, which is Ex. PW4/B and got the aforesaid case registered. Thereafter, he carried out the investigation. He visited the spot i.e., 140849, Lal Quan, Hauz Qazi, Delhi and prepared the site plan, which is Ex. PW6/A. He sent a letter to complainant's Office over which he received information vide letter no. M.O/E.P.Cell/ L & B/21866 dated 22.03.2005, which is Ex. PW 5/A. He recorded the statement of witnesses. He arrested accused Md. Iqubal Ahmed on 09.05.2006 vide arrest memo Ex. PW 6/B and he was released on bail as he already on anticipatory bail, which is Ex.PW6/C. Accused Dinesh Goel was arrested on 09.08.2005 vide arrest memo Ex. PW 6/D. His personal search was conducted vide memo Ex. PW6/E. Accused was got medically examined and produced before the Court on 10.08.2005. Thereafter, he was transferred and handed over the case Page 7 of 15 MM08(C)/THC/08.1.19 FIR No.60/05, PS : HQ State Vs Dinesh Goel & Anr.
file to MHC (R), PS : Hauz Qazi.
11. The accused have admitted a document under Section 294 Cr.P.C., i.e., FIR No. 60/05, PS : Hauz Qazi, which is Ex. A1.
12. Thereafter, The prosecution evidence was closed. Accused were examined U/s 313 Cr PC r/w Section 281 Cr. PC. The accused persons denied all the incriminating evidence. They would state that they were falsely implicated in the present case. Accused Dinesh Goel has stated that the report of Kanoongo is fabricated and not verified. No construction was ever going on. All the prosecution witness are interested witnesses. The independent witness Suajddin did not identify him. He was innocent. He had nothing to do with the present case.
13. Accused Iqbal Ahmed would stated that he was no present at the site. He had no concern with the said property. He is a tailor by profession. The kanoongo never met him. False allegations are made against him. He had never done any construction.
14. The accused persons did not lead any defence evidence. Therefore, matter was fixed for final arguments.
15. Ld. APP for the State would argue that the prosecution has proved its case against both the accused Page 8 of 15 MM08(C)/THC/08.1.19 FIR No.60/05, PS : HQ State Vs Dinesh Goel & Anr.
beyond reasonable doubts. The guilt of the accused persons has been proved beyond reasonable doubts. Hence, it is prayed that accused persons may be convicted.
16. Ld. counsel for the accused persons, on the other hand, would argue that the accused persons are innocent and they have been falsely implicated. It has been argued that there is not even a single piece of evidence to incriminate any of the accused. There are various discrepancies in the testimonies of the prosecution witnesses. It is prayed that the accused persons may be given benefit of reasonable doubts and they may be acquitted.
17. I have heard the rival submissions and carefully perused the material available on record.
18. In a criminal case the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence. It is trite that in criminal jurisprudence, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubts on the Page 9 of 15 MM08(C)/THC/08.1.19 FIR No.60/05, PS : HQ State Vs Dinesh Goel & Anr.
basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be given to the accused. It is also settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court
19. The accused herein have been charged for an offence punishable under section 32 of the Administration of Evacuee Property Act, 1950. The abovementioned Act had been enacted after partition of India for the custody, management and disposal of evacuee property left behind by the person who had migrated to Pakistan after partition. Section 2 (d) of the Act defines the terms evacuee while evacuee property is defined under Clause
(f) of Section 2 of the Act. The act provides that evacuee property means any property of an evacuee (whether held by me as owner or as a trustee or as a beneficiary or any tenant or in any other capacity) and includes any property which has been obtained by a person from an evacuee after the 14th day of August 1947 by any mode of transfer which is not effecting by reason of provisions contained in Section 40. Section 7 of the Act provides for notification of a property as evacuee property.
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20. Section 38 of the Act provides that no prosecution for any offence punishable under the Act shall be instituted except with the previous sanction of the Central Government or of any Officer authorized in this behalf, by general or Special order, by the Central Government. In the present case, the order of Sanction for prosecution is brought on record which is Ex.PW2/A (OSR). Hence, the accused persons can be prosecuted for the offence for which they have been charged.
21. In the present case, one of the defence taken by the accused persons that there is nothing on Court record to show that the property in question was evacuee property.
22. I have considered the submissions. The IO alongwith the chargesheet has filed a letter no. MO/EP Cell/L &B/21866 dated 22.03.2005 wherein it is mentioned that after checking the record it was found that the property number VI/104849 (Old) and 1037 (New) was evacuee property. The prosecution has examined PW 5 Sh. H.P.Gupta who has proved this document as Ex. PW5/A. However, the copy of the said notification by which the present property was declared evacuee property is not brought on record. Thus, there is no document on Page 11 of 15 MM08(C)/THC/08.1.19 FIR No.60/05, PS : HQ State Vs Dinesh Goel & Anr.
record to prove beyond reasonable doubts that the property in question was an evacuee property as notified under Section 7 of the Act.
23. In any case, there is nothing on Court record to prove beyond reasonable doubts that any of the accused at any point of time had willfully destroyed or caused damage to evacuee property or that any of them unlawfully converted to his own use such evacuee property.
24. Present FIR had been registered on the basis of complaint made by Z.U. Sidiqui. The said official had been examined by the prosecution as PW4. He has proved the complaint as Ex. PW4/A. He has stated that he had made the said complaint on the basis of receiving complaint for the public persons of the locality and on the basis of report of Kanoongo. In his crossexamination PW4 has stated that he has never visited the property personally and therefore he did not have any knowledge whether any unauthorized construction was going on in the said property. No document has been brought on record to show that he had given any direction to the kanoongo to inspect the property and to file a report. In his cross examination PW4 has submitted that he had given oral Page 12 of 15 MM08(C)/THC/08.1.19 FIR No.60/05, PS : HQ State Vs Dinesh Goel & Anr.
instructions to that effect. In these circumstances, I am of the considered opinion that the testimony of PW4 is not relevant to decide whether the accused persons had committed any offence or not.
25. Witness PW5 Sh. H.P. Gupta is also a formal witness who had forwarded the letter Ex.PW5/A.
26. PW3 Inspector Devender Kumar Singh was the second IO who had obtained the sanction and thereafter filed the charesheet. He had also not conducted any relevant investigation. PW2 Sh. S.K. Ahuja is also a formal witness and he also does not have any personal knowledge of the facts at the spot at the relevant time.
27. There are two material witnesses examined by the prosecution to prove the ingredients of the charge. PW1 Sujauddin was cited as an eye witness who had allegedly made complaint against the accused. However, in his testimony he has turned hostile. He has stated that he has not any knowledge regarding property in question. During his crossexamination by the Ld. APP also he did not support the case of the prosecution. He also did not identify the accused Iqubal in the Court. He had not made Page 13 of 15 MM08(C)/THC/08.1.19 FIR No.60/05, PS : HQ State Vs Dinesh Goel & Anr.
any allegations against accused Dinesh Goel in his alleged complaints.
28. The present case was investigated by PW6 Inspector Vinay Malik. He has stated that after registration of FIR he had visited the spot and prepared the site plan. No where he has stated that he had taken any photographs of the spot. None of the accused was admittedly arrested from the spot. In the entire evidence of the IO there is not even a single iota of evidence to show that any of the accused had been doing any construction in the property in question so as to commit the offence punishable under Section 32 of the Act.
29. In the light of the discussions hereinabove, prosecution has failed to prove beyond reasonable doubts that the property bearing no. 1049, Lal Quan was an evacuee property. The prosecution has also failed to prove against any of the accused beyond reasonable doubts that any of the accused had been doing any construction in the said property and thereby willfully destroying or causing damage to the said property. There is also nothing on record to prove beyond reasonable doubts that any of the accused had unlawfully converted to his own use the said property. No photographs of the alleged illegal Page 14 of 15 MM08(C)/THC/08.1.19 FIR No.60/05, PS : HQ State Vs Dinesh Goel & Anr.
construction have been brought on record as mentioned in the complaint Ex. PW4/A. No public witness has come in Court to depose that any of the accused was doing any such activities in the abovementioned property. The accused persons are entitled to benefit of reasonable doubts. They are therefore acquitted.
30. The accused have already furnished bonds under Section 437A, with one surety along with photographs and copies of addresses proof.
Pronounced in the open Court on (Dinesh Kumar) this 08th day of January 2019 MM08 (Central) Tis Hazari Courts, Delhi.
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