Delhi District Court
Cc No.92/11 (Rc No.01/2007) -Cbi vs . Ajay Kumar Shrotriya & Anr. on 30 March, 2013
1
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
SPECIAL JUDGE (PC ACT), CBI-08, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI.
CC No. : 92/2011
RC No. : 01/2007
PS : CBI/EOU-VI/New Delhi
U/s : 120B IPC r/w 13(2) r/w 13(1)(d) of PC Act & Substantive
Offence U/s 465 IPC
Unique ID No. 02401R0046822009
C.B.I.
Versus
1. Ajay Kumar Shrotriya
s/o Shri G.S. Shrotriya
r/o B-578, MIG Flats, Loni Road, Delhi.
2. Seema Verma
w/o Shri Subhash Chand Verma
r/o B-2/136, Paschim Vihar, New Delhi.
Date of FIR : 23.01.2007
Date of Institution : 31.01.2009
Arguments concluded on : 28.03.2013
Date of Judgement : 30.03.2013
JUDGEMENT
As per case of prosecution, a Preliminary enquiry No. PE SIJ 2006 E 0003 was registered in CBI EOU-VI, New Delhi on 3-5-2006 against Sh. Brij Pal Singh, Executive Engineer, West Zone, MCD and other unknown public servants and private persons in compliance to CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
2the 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 PW1 SI Arvind Kumar and on the basis of his findings, a complaint dated 23.01.2007 (Ex.PW1/A) was forwarded to Superintendent of Police, CBI EOU-VI for registration of FIR u/s 120B IPC r/w 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.PW14/A bearing RC 1/2007 was accordingly registered and investigated by PW14 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 chargesheeted 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 No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
3may be referred which forms the foundation of registration of FIR and subsequent investigation.
As per the complaint Ex.PW1/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 Dehi
15.Shop No.19, New Market, Ramesh Nagar, New Delhi.
However, Ajay Kumar Shrotriya made false notings that partial demolition of the properties had been carried out in pursuance of demolition order passed earlier. The fact that notings were false was corroborated by the entries made in demolition register maintained in MCD, demolition register of concerned police station, log books of the concerned vehicles of the MCD, the relevant letter of requisition for police force. The enquiry also revealed that unauthorized construction files relating to above 15 properties were not taken out from the office CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
4of Officer In-charge (Buildings) (OIB) and entries were forged by Ajay Kumar Shrotriya having knowledge that no demolition had taken place. The documents are alleged to have been forged by Ajay Kumar Shrotriya having knowledge that no demolition had taken place and as such abused his official position to cause undue pecuniary advantage for himself or other private persons. Recommendation was further made by SI Arvind Kumar for registration of regular case (FIR) against Ajay Kumar Shrotriya and other persons.
3. In the aforesaid background, the case was further investigated by PW14 Insp. N. Mahato and chargesheet was filed u/s 173 Cr.P.C.
In nutshell, the case of prosecution on investigation is that Shop No. 19, New Market, Ramesh Nagar, New Delhi was originally a 27 sq. mtr plot owned by Smt. Ashu Chawla as per document dated 09.01.1968. Later on the property passed over to Smt. Seema Verma in the year 1997 vide 'sale agreement' dated 09.06.1997. The property was booked on completion for unauthorized construction in the shape of ground floor and first floor vide FIR No. B/UC/WZ/02/78 dated 27.03.2002 Ex.PW4/A by Mohd. Ahmed, the then JE, MCD for taking further action against the unauthorized construction in the property. The FIR further bears the endorsement dated 27.03.02 of Shri D.P. Gupta, the then AE to the effect "issue notices". A show- cause notice u/s 344 of DMC Act Ex.PW4/B under signatures of Shri D.P. Gupta, AE was accordingly issued to the owner/builder of the property and was served by way of affixation at the premises on 07.04.02 by Shri Mohd. Ahmed, JE in the presence of witnesses Rajvir CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
5and Ranbir Singh. Since no reply was received to the aforesaid notice an order to issue notice u/s 343(1) of DMC Act (Ex.PW4/B) was procured by Shri Mohd. Ahmed, JE on 08.04.02 and the same was duly recommended by Shri D.P. Gupta, AE. A show cause notice u/s 343 DMC Act (Ex.PW4/D) was accordingly issued under signatuers of Shri D.P. Gupta, AE and was served by way of affixation by Shri Mohd. Ahmed, JE on 10.04.02 in the presence of witnesses Rajvir and Ranbir Singh (baildars in MCD).
It is further the case of prosecution that since the owner/builder of aforesaid property did not respond to notice, Shri Mohd. Ahmed, proposed for issuing demolition order in respect of unauthorized construction carried in the property. The same was approved by Shri D. P. Gupta, AE on 17.04.2002 and accordingly the demolition order (Ex.PW4/E) was issued.
It is further the case of prosecution that no demolition action in the aforesaid property is reflected in the unauthorized construction file or on the demolition order dated 17.04.02. However, Shri Ajay Kumar Shrotriya, JE made a false entry dated 03.03.2003 in the demolition register maintained by MCD relating to part demolition of property in question with an intention of saving the property from demolition. Also no charges were raised for carrying demolition in the said property as the demolition action had never been taken. The same is also stated to have not been reflected in the action taken report prepared by MCD for the month of March, 2002. It is also the case of prosecution that the unauthorized construction file relating to property was never obtained CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
6by Ajay Kumar Shrotriya from Officer Incharge (Building) (OIB) Shri Moti Lal (PW6) on the date of alleged taking of demolition action. The aforesaid property is also stated to have been construction without obtaining any sanction building plan from MCD and the said false entry is alleged to have been made in furtherance of criminal conspiracy hatched with Smt Seema Verma (A-2), who happens to be the owner of the property.
It may also be mentioned that during investigation, the aforesaid property was got inspected by team of officers from CPWD and vide report dated 25.01.2008, it was observed that the said building was unauthorized and constructed without getting approval of MCD.
4. Charge was framed against accused Ajay Kumar Shrotriya and Seema Verma u/s 120(B) r/w Sec 417/465/468/217 IPC r/w Sec 13(2) alongwith Sec 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 fourteen witnesses:
i. SI Arvind Kumar
ii. Shri Ashok Kumar
iii. Shri Jagmohan Swaroop
iv. Shri D.P. Gupta
v. Shri Lal Chand
vi. Shri Moti Lal
vii. Mohd. Ahmed
viii. Shri Sanjiv Kapoor
CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
7 ix. Shri Brij Pal Singh
x. Shri Subhash Chandra Verma
xi. Shri R.S. Rana
xii. Shri B.D. Bansal
xiii. Shri Rajbir Singh
xiv. Insp. N. Mahato
(a) PW1 SI Arvind Kumar conducted the preliminary enquiry
prior to registration of FIR. He 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 20.05.2006 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. Accordingly, recommendation was made for registering a regular case u/s 120B r/w 13(2) r/w 13(1)(d) of PC Act and substantive offence u/s 465 IPC and in this respect, a letter dated CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
823.01.2007 (Ex.PW1/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) PW2 Shri Ashok Kumar, the then Vice Chairman, DDA i.e. the competent authority accorded sanction for prosecution of accused Ajay Kumar Shrotriya, JE vide sanction order Ex.PW2/A.
(c) PW3 Shri Jagmohan Swaroop, SE, PW8 Shri Sanjiv Kapoor, Senior Architect CPWD, PW12 Shri B.D. Bansal, SE(P) are the witnesses to the inspection and preparation of report as to existing construction in the property in question after the FIR was registered by CBI. The aforesaid witnesses proved the report Ex.PW3/A. PW3 Shri Jagmohan Swaroop, retired SE, CPWD proved the report (Ex.PW3/A) in respect of shop no.19, Ramesh Nagar, New Delhi and identified his signatures at point A, Shri D.C. Gupta at point C, Shri B.D. Bansal at point D and Shri Sanjiv Kapoor at point B. He further stated that the covering letter dated 25.01.2008 (Ex.PW3/B) addressed to SP, CBI also bears his signatures at point A1.
PW8 Shri Sanjiv Kapoor, Senior Architect, CPWD similarly proved the report Ex.PW3/A and identified the signatures on the report. He further stated that the report Ex.PW3/A also describes the permissible construction as per bye-laws of 1983 and actual coverage at site.
PW12 Shri B.D. Bansal, SE(P), NDZ-II, Nirman Bhavan, New CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
9Delhi also deposed on similar lines and proved the report Ex.PW3/A.
(d) PW4 Shri D.P. Gupta, AE, MCD deposed that he worked as AE(B) in West Zone from November, 2001 till September, 2002 and during that period, he was looking after the work of unauthorized construction and their demolitions as reported by the concerned JE of the area. Further, as per procedure, file for demolition was to be taken by the concerned JE from OI(B) as per the programme fixed by the XEN and OI(B) in advance as per monthly schedule and thereafter, after carrying such demolition the file was used to be put up before him for its confirmation and the same was to be marked to concerned OI(B). He further identified FIR dated 27.03.2002 B/UC/WZ/02/78 (Ex.PW4/A) bearing signatures of the then JE Mr. Ahmed at point B alongwith his signatures at point A. He further proved show cause notice under 344 of DMC Act dated 27.03.2002 Ex.PW4/B bearing his signatures at point A which was issued on the basis of FIR registered in this case for unauthorized construction at shop no. 19, New Market, Ramesh Nagar, New Delhi. He also stated that there is an endorsement at point C at the back of show cause notice dated 27.03.2002 (Ex.PW4/B) by the then JE Shri Ahmed reflecting pasting of the notice.
He further stated that order to issue notice u/s 343(1) of DMC Act dated 08.04.2002 (Ex.PW4/C) bearing his signatures at point A was put up before him by Mr. Ahmed and on the basis of Ex.PW4/C, second show cause notice u/s 343 of DMC Act dated 08.04.2002 (Ex.PW4/D) was issued under his signatures at point A. He further stated that there is an endorsement at point D by the JE concerned on the back of the said notice seeking permission to paste the same.
CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
10He further proved demolition order dated 17.04.2002 (Ex.PW4/E) regarding shop no. 19, New Market, Ramesh Nagar, New Delhi bearing his signatures at point A and signatures of JE at point X. He also stated that he was not present at site at the time of execution of notices u/s 344 & 343 DMC Act and further as per demolition order, there is no noting of any demolition carried out in shop No.19, New Market, Ramesh Nagar.
(e) PW7 Shri Mohd. Ahmed, JE South Project, MCD deposed that he remained posted as JE from July, 2000 till February, 2006 and during his posting, he was assigned the charge of Ramesh Nagar area. Further, during his tenure, he was assigned duty to detect and stop unauthorized construction, book unauthorized construction and carry out demolitions of unauthorized construction. Further, FIR dated 27.02.2002 bearing number B/UC/WZ/02/78 (Ex.PW4/A) pertaining to shop no. 19, New Market, Ramesh Nagar was issued by him under his signatures at point B and was put up before the then AE Shri Deepak Gupta whose signatures and endorsement is at point A. Thereafter, on the same day, a notice u/s 344 DMC Act dated 27.03.2002 (Ex.PW4/B) was issued under the signatures of AE Shri Deepak Gupta. He further stated that an endorsement on the back of the said notice at point C was made by him seeking permission for pasting the aforesaid notice and, thereafter, the said notice was affixed at the building and endorsement was made at point D. Further, as per procedure followed in the office, three working days were to be given to the owner/occupier for responding to show- cause notice. On 08.04.2002, order for issuance of notice u/s 343 (1) of CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
11DMC Act (Ex.PW4/C) was put up before the AE for taking permission to issue notice u/s 343 DMC Act and the same bears his signatures at point B and signatures of AE Shri Deepak Gupta at point A. Thereafter, notice u/s 343 DMC Act dated 08.04.2002 (Ex.PW4/D) was issued under the signatures of Shri Deepak Gupta which also bears his signatures at point B. He further proved the endorsement at the back of show-cause notice dated 08.04.2002 at point D seeking permission to paste the notice under his signatures at point X which was countersigned by AE Shri Deepak Gupta. He further proved the endorsement at point E to the effect that notice was pasted at the building on 10.04.2002 under his signatures at point B. He further stated that on each occasion, at the time of issuance of notice u/s 344/343 DMC Act, the file is put up before OI(B) for making necessary entries in missalbandh register. He further clarified that after the issuance of notice u/s 343 DMC Act, six days period is given to the occupant/owner of the building to respond to said notice. Further, in case of non-receipt of any appropriate response to the notice u/s 343 DMC Act, a demolition order is issued to carry out demolition at the site. He further proved the demolition order issued on 17.04.2002 (Ex.PW4/E) bearing his signatures at point X and approval of the then AE Shri Deepak Gupta at point A. He further stated that as per demolition order, there is no such noting in respect of carrying out any further action on this property.
(f) PW13 Shri Rajbir Singh, baildar deposed that in March, 2002, he was posted in West Zone, MCD as baildar and he had visited Ramesh Nagar for purpose of service of notice u/s 344 DMC Act CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
12alongwith Shri Mohd. Ahmad, JE. Further, he identified his signatures at point Z on notice Ex.PW4/B. He further deposed that apart from JE Shri Mohd. Ahmad, another baildar Ranvir Singh was also present who had signed on the notice. He further stated that the original notice was affixed on the premises and the copy of the same is retained on record.
He also proved the execution of notice u/s 343 of DMC Act and identified his signatures at point Z on notice Ex.PW4/D alongwith signatures of JE Shri Mohd. Ahmed at point B and signatures of Ranvir Singh, baildar (who has since expired). He also stated that the notice u/s 343 DMC Act was affixed as per instructions of JE and a copy of the same was signed in token of affixation.
(g) PW9 Shri Brij Pal Singh, Executive Engineer, Central Zone, MCD deposed that he remained posted as EE from 16.04.02 till 09.05.03 in West Zone, Rajouri Garden, New Delhi and during that period he was looking after building department in the supervisory/administrative capacity. The office was maintaining missalbandh register through OI(B) on daily basis in which entries regarding unauthorized construction were maintained on the basis of feed back given by the concerned JE/AE of the area. The missalbandh register used to be put up before him for formal closing on day to day basis and he used to put his signatures. Further, monthly report was used to be sent to the higher authorities for their information regarding day to day working and monthly progress. Programme regarding demolition of unauthorized construction was to be prepared by OI(B) on urgent basis and same was put up before him or concerned DC/Zone for the intimation to concerned police station for the requisition of CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
13police force for the assistance in carrying out the demolition. While sending monthly report to higher authorities it used to contain information regarding opening balance of month in regard to unauthorized constructions, information about the demolitions/ sealing actions carried out during the previous month and booking of properties under 345 ( A) of DMC Act and action taken against the properties under Section 344 of DMC Act. All the information used to be provided by OI(B) and the same was further countersigned by him (EE) for sending it to the higher authorities. He further stated that the Action Taken Report (Ex.PW-6/D) for the period from January to May 2003 except February 2003, April, 2002 to December, 2002 and October, 2002 were sent by him under his signatures at point A. Further, the reports were forwarded by him and the same were put up before him by the concerned OI(B) Sh. Moti Lal which were prepared on the basis of original demolition register.
He further stated that an entry regarding particular demolition is made in UC file. Further, the same is put up before concerned AE and after its due ratification by the AE, the UC file goes back to OI(B).
He further stated that as per UC file (D-3) and demolition order available on page 5 Ex.PW4/E, there is marking of concerned file to AE (B) at entry available at point A dated 17.04.2002 and the file was further marked to OI(B). He also stated that as per Action Taken Report for the month of March, 2003 available in D-13 (Ex.PW6/E), there is no mention of demolition of shop no. 19, New Market, Ramesh Nagar in such report and its annexures. Further, the reports used to be sent by Mr. Moti Lal, O.I. (B) on the basis of demolition register and missalbandh register, for the concerned period and after verifying from CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
14the records.
(h) PW5 Shri Lal Chand was posted as Driver in MCD department (Building), West Zone, Delhi and used to ferry the officials and the police force as and when directed by the officials and used to maintain log book (Ex.PW5/A). He deposed that 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 in the log book. Further, he had given his statement with respect to the placement of the truck on various dates as inquired by the CBI officials and confirmed the location of the truck on 03.03.03. He further stated that the log book was maintained by him for vehicle no. DDL 4607 driven by him on various dates and the entries on various dates on which he was deputed in the vehicle are in his handwriting. He further deposed that entry dated 03.03.03 in the log book is in his hand and he had taken the vehicle on the requisition of the then JE Ajay Kumar Shrotriya vide entry on page 151. He also stated that in log book, there is no entry regarding movement of truck No. DDL 4607 on 28.02.03 and on aforesaid date the vehicle was neither booked by anybody nor he had taken the same to any place on that day.
(i) PW6 Shri Moti Lal, Superintendent House Tax Branch, Najafgarh Zone, 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 registers and also used to CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
15make entries regarding unauthorized construction in missalbandh registers. Further, during his aforesaid assignment he had made various entries in missalbandh registers regarding unauthorized construction maintained in his office. Further, FIR No. B/UC/WZ/02/78 dated 27.03.02 (Ex.PW4/A) regarding Shop No.19, New Market, Ramesh Nagar was lodged by the then JE Mohd. Ahmed under his signatures at point B. He identified his initials at point C and endorsement by Shri D.P. Gupta, AE(B) at point A "issue notices" on Ex.PW4/A. He further stated that he had entered particulars of the FIR in missalbandh register (Ex.PW-6/A) at Sr. No.78 at point A and file was handed over to Shri Mohd. Ahmad, the then JE who issued show cause notice (Ex.PW4/B) dated 27.03.02 u/s 344/343 DMC Act.
He also identified the endorsement made by Shri Mohd. Ahmad, JE on the notice at point C seeking permission to paste the notice. He further identified the endorsement on the aforesaid notice Ex.PW4/B at point D regarding affixation in presence of two departmental witnesses. He stated that another notice under section 343 (i) of DMC dated 08.04.2002 (Ex.PW4/D) was issued under the signatures of Shri D. P. Gupta, AE(B) on the basis of order dated 08.04.2002 (Ex.PW4/C) which also bears the signatures of Shri D. P. Gupta and Shri Mohd. Ahmed at point A and B respectively. Further he identified endorsement dated 09.04.02 on notice Ex.PW4/D under signatures of Mohd. Ahmad at point D to the effect "I went to site to serve the notice but party refused to receive the same. Hence, the permission for paste the notice may please be given". H elaso identified the endorsement dated 10.09.2002 on notice Ex.PW4/D under the signatures of Shri Mohd. Ahmad to the effect "The notice has been pasted at site in the CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
16presence of two departmental witnesses". He also stated that demolition register ( Ex.PW-6/B) was maintained by him during his tenure in the office and used to be kept in the office for the purpose of reporting of demolition by concerned JE and making entries in this regard in the register maintained for this purpose. Further he proved the entries regarding demolition of property with reference to file number B/UC/WZ/02/78 dated 28.02.03 at point A on page No.64 of the demolition register, wherein it is recorded "punctured the roof of ......... partly". He further stated that the date 28.02.03 with reference to above file number appears to be incorrect as the numeral '02' in the file number indicates the year in which the unauthorized construction was booked and so the corresponding date should be 28.02.02 instead of 28.02.03. He also stated that in case the file number reflects the date of booking for some other year, the corresponding date would match the said year. He further deposed that all the entries dated 03.03.2003 in the demolition register are in the hand of Shri Ajay Kumar Shrotriya, JE.
He further stated that as per rule the file should be handed over to him on the same day for the arrangement of police force for demolition and as per movement register (Ex.PW6/C) kept in the office, no file pertaining to property no. 19, Ramesh Nagar was taken by Ajay Kumar Shrotriya from him for taking any action with respect to unauthorized construction on 03.03.2003. Further, the files with respect to other properties i.e. U/C file of flat no. 200, 196 & 197, SFS, Madipur, 32-A, N.A. Road, Punjabi Bagh, 75/41 Punjabi Bagh (West), A-373 & A-374, Madipur J.J. Colony, 17/35, Punjabi Bagh (West), 20- NWA, West Punjabi Bagh, 8/69 Punjabi Bagh (West), C-39A, Shivaji CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
17Park were taken by Shri Ajay Kumar Shrotriya on said date i.e. 03.03.2003 and entry in this respect is at point A in movement register. Further, as per entries made in the demolition register on 03.03.2003, the demolition in respect of property no. 197, SFS Madipur, Flat 200 SFS Madipur, 196 SFS Madipur, has been recorded besides file number B/UC/WZ/02/78 dated 28.02.03. He further stated that the action in respect of the remaining properties has not been reflected in the demolition register.
He also stated that there are also four entries in respect of four other properties in demolition register in entry dated 03.03.03 i.e. 34 Central Market, 19/78, Punjabi Bagh, 18/71 Punjabi Bagh, 1/72 Punjabi Bagh which are not reflected in movement register. Further, in the entries dated 03.03.2003 in demolition register, signatures of Ajay Kumar Shrotriya appear on two points X and Y which have been encircled in red.
He further stated that the programme for demolition was used to be chalked out by the concerned XEN and the same was 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 also deposed that he never sent any letter to the owner/occupier of property No.19, Ramesh Nagar for the demand of demolition charges.
He also stated that request regarding requisition of police force for the assistance in demolition was sent to concerned DCP/SHO of the area. Further, Action Taken Report against the unauthorized construction was used to be prepared by him on the basis of demolition CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
18register which is usually written by the concerned JE.
He also proved Action Taken Report (Ex.PW-6/D) bearing his signatures at point B on page No. 1, 4,5 6, 7 along with the signatures of the then EE, Sh. Kadyan at point A. He further stated that he used to prepare Action Taken Report on the basis of information provided in demolition register and missalbandh register which was maintained by him during his official course of duty. Further, the action taken report was sent to concerned Sr. Officers on monthly basis by him. He further stated that there is no reference in the Action Taken Report (Ex.PW6/E) for the month of March, 2003 with respect to demolition action in respect of property No.19, Ramesh Nagar, New Delhi and the same bears the signatures of Sh. Brij Pal Singh at point A and there is only reference with respect to demolition action of the three properties 196, 197 and 200, SFS Flats, Madipur which were demolished on 03.03.2003. He also stated that there is no entry of demolition in the missalbandh register against the property no. 19, Ramesh Nagar, New Delhi at Sr. No. 78 at point A. Further, the entries are only with respect to registration of FIR and issuance of Show Cause Notice / demolition order.
He also stated that the duty to return the file was of the JE/AE who took over the possession of the file and normally the file used to be returned on the same day after the action had been taken. Further, the file was to be again taken by JE in case the action was to be again/ subsequently taken.
He also stated that police requisition file is maintained in the office and as per letter dated 24.02.2003 (Ex.PW6/F) in the said file bearing signatures of Shri B.P. Singh at point A, DCP West Zone was CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
19requested for issuing necessary directions for arrangement of police force to the specific police stations for the assistance of MCD and carrying out demolition in respective areas. Further, as per the letter (Ex.PW6/F) on 03.03.2003, there was request to DCP for arrangement of police force in the area of Tilak Nagar for carrying out demolition in the said area.
(j) PW10 Shri Subhash Chand Verma (husband of accused Seema Verma) deposed that shop No 19, New Market, Ramesh Nagar is owned by his wife (accused Smt. Seema Verma). Further, the same was purchased in 1997-98 vide photocopy of agreement to sell Mark PW10/A. He further identified the signature of his wife at point A and her photograph on Mark PW10/A, the photocopies of house tax receipt pertaining to the said shop mark PW10/B & B1 and the copy of the site plan of the shop mark PW10/C, the copy of objection regarding proposed rateable value of the shop mark PW10/D and the notice u/s 126 of DMC Act mark PW10/E. He further stated that when the property was purchased the same consisted of basement, ground floor and first floor and as there was time gap between the date of agreement and date of registration, the roof of basement was demolished. Further when the possession of the property was handed over, the said demolished portion was repaired by the previous owners.
This witness was cross-examined by ld. PP for CBI as he did not support the case of prosecution and resiled from his statement u/s 161 Cr.P.C. It is pertinent to note that during cross-examination the witness clarified that the property was owned and possessed by Seema Verma in the year 2002/03 and the same was further claimed to have been sold in CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
202005.
It may be appropriate to observe with reference to statement of PW10 at this stage itself that he referred to demolition of basement constructed during 1997-98 at the time of purchase of the shop by the seller himself. However, he did not produce any document to show if any demolition was carried by MCD in 1997-98. It is pertinent to note that the proceedings in the present case pertain to the year 2002 when the property was booked for unauthorized construction on 27.03.02. It is also pointed out by ld. PP that the possession of the shop was with Seema Verma even prior to June 1997 as recorded in the agreement Mark PW10/A itself. The testimony of this witness being an 'interested witness' appears to be untrustworthy and unreliable.
(k) PW11 Shri R.S. Rana, GEQD proved the report (Ex.PW11/B) comprising of seven pages alongwith detailed reasons. He further stated that the same bears his signatures at point B and signatures of Dr. B.A. Vaid, GEQD who had also examined the case independently and came to the same conclusion.
(l)PW14 Insp. N. Mahato deposed that on 23.01.2007, he was posted at EOU-VI, New Delhi as Inspector and was entrusted 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.PW14/A). Further, FIR was accompanied with the complaint of SI Arvind Kumar dated 23.01.2007 (Ex.PW1/A) vide which he was asked to investigate regarding unauthorized CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
21construction 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 missalband register (Ex.PW2/B & C) in CC No.93/11, demolition register (Ex.PW2/D) in CC No.93/11, log book (Ex.PW5/A) in CC No.93/11, attendance register (Ex.PW8/DA) in CC No.93/11 and action taken report Ex.PW6/D. 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.PW11/A) and also the report (Ex.PW11/B) 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.PW3/A) from the concerned department.
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 had also 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 deposed that as per investigation, the accused conspired for purpose of fabrication of CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
22records and unauthorized construction was not demolished in the property in accordance with law.
6. In her statement u/s 313 Cr.P.C. accused Seema Verma denied the case of prosecution and service of notices u/s 343/344 DMC Act. She further took a stand that entry dated 03.03.03 relates to property no. 15/61, West Punjabi Bagh. She also filed written statement u/s 313(5) Cr.P.C. However, no evidence was led in defence.
Similarly, accused Ajay Kumar Shrotriya also denied the case of the prosecution. He also filed statement u/s 313(5) Cr.P.C. but did not lead any evidence in defence. Accused further took a stand in statement u/s 313 Cr.P.C that he was made a scapegoat and none of the officers during whose tenure unauthorized construction was carried or those who had not taken action after his transfer had been booked or interrogated by CBI. He further stated that entry dated 03.03.03 alleged to have been forged in fact pertains to 15/61, Punjabi Bagh, New Delhi where the demolition action had been carried out.
7. Counsels for accused assailed the case of prosecution on various grounds:
a) That Ajay Kumar Shrotriya had no occasion, motive or opportunity to obtain any pecuniary advantage since he was not posted in Ramesh Nagar ward wherein property in question is situated.
b) That Ajay Kumar Shrotriya was neither responsible for booking unauthorized construction in Shop No.19, New Market, Ramesh Nagar, New Delhi nor had recommended any CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.23
demolition action.
c) That entry dated 03.03.03 in demolition register pertains to property no. 15/61, Punjabi Bagh and could not in any manner relate to property no. 19. New Market, Ramesh Nagar, New Delhi. Further, the particulars in entry dated 03.03.03 matched with the action taken in property no. 15/61, Punjabi Bagh wherein the demolition action was fixed.
d) Counsel for accused Ajay Kumar Shrotriya also contended that 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.
e) Counsel for accused Ajay Kumar Shrotriya also contended that the sanction had been granted by PW2 Shri Ashok Kumar, Competent Authority against accused Ajay Kumar Shrotriya without application of mind.
f) It was also contended that the investigating agency never looked into the files relating to 15/61, Punjabi Bagh though the entry dated 03.03.03 relied by the prosecution related to the demolition action in the said property.
g) It was further submitted that since the entry dated 03.03.03 in demolition register related to demolition action taken in 15/61, Punjabi Bagh, the stand of prosecution that files relating to 19, New Market, Ramesh Nagar, New Delhi were not taken by Ajay Kumar Shrotriya is of no consequence. Similarly, it was contended that the contention of prosecution that the CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
24truck was not deputed on 03.03.03 to Ramesh Nagar is of no merit as the demolition action was taken by Ajay Kumar Shrotriya in the area of Punjabi Bagh and the entry dated 03.03.03 did not relate to 19, New Market, Ramesh Nagar, New Delhi.
h) It was also vehemently urged that there is no evidence to infer conspiracy between accused, as Ajay Kumar Shrotriya could not have benefited accused Seema Verma in any manner since he was not posted in the area of Ramesh Nagar during the relevant period when the proceedings were taken and no noting had been recorded regarding taking of demolition action in U/C file or missalband register.
i) Counsel for accused Ajay Kumar Shrotriya also urged that no demolition charges were to be claimed by Ajay Kumar Shrotriya since the same was the job of OI(B). It was also submitted that no demolition charges were made for carrying out minor demolitions and in this case no demolition charge was to be made from Seema Verma since the entry dated 03.03.03 related to 15/61, Punjabi Bagh. It was also submitted that since the entry dated 03.03.03 related to 15/61, Punjabi Bagh, there was no question of reflecting of property no. 19, New Market, Ramesh Nagar, New Delhi in action taken report.
j) 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.
k) Counsel for accused Seema Verma relied upon 197 (2013) DLT 608 (DB) State Vs. Kumari Mubin Fatima & Ors.; 1982 CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
25(2) SCC 72 Manzoor Vs. State of U.P.; 1993 Supp. (3) SCC 745 Varkey Joseph Vs. State of Kerala; 2006 (1) SCC (Cri.) 401 T. Subramanian Vs. State of T.N.; 2000 (3) SCC 454 Rang Bahadur Vs. State of U.P.; 2001 (3) SCC 620 Sohan Vs. State of Haryana; 1974 (3) SCC 653 Aher Bhagu Vs. State of Gujarat; AIR 2008 SC 1260 Babu Ram Vs. State of Punjab; AIR 2004 SC 26 Badam Singh Vs. State of M.P. AND 188 (2012) Delhi Law Times 661 Parmanand Kansotia Vs. Seetha Lath & Anr. in support of submissions made by him.
On the other hand, ld. PP for CBI vehemently contended that the entry dated 03.03.03 in the demolition register reflected that the same was made in order to help the accused Seema Verma as she was to be benefited by the same. It was also submitted that FIR number in entry dated 03.03.03 in the demolition register did not lead to the inference that it pertained to 15/61, Punjabi Bagh since the same had not been entered with date of registration of FIR but with reference to date of passing of demolition order. It was also urged that the aforesaid entry pertains to Shop No.19, New Market, Ramesh Nagar, New Delhi and in the aforesaid context the testimony of Officer In-charge (Buildings) Shri Moti Lal, Shri Lal Chand, driver of vehicle no. DDL 4607 assume significance since no demolition was fixed for the area of Ramesh Nagar on 03.03.03. 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.
8. I have heard Shri Y. Kahol, Advocate for accused Ajay Kumar CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
26Shrotriya, Shri Varun Goswami, Advocate for accused Seema Verma, ld. PP for CBI and perused the record. Written submissions were also filed on behalf of accused Ajay Kumar Shrotriya. Before proceeding to consider the contention on merits, it may be observed that there is no dispute on the propositions of law referred to in the citations relied by counsels for accused as referred to in preceding paragraph.
9. Before further deliberating upon the evidence on merits, the scope of Section 120B IPC may be briefly referred to, as the foundation of the prosecution case is that the entry dated 03.03.03 was forged by Ajay Kumar Shrotriya in furtherance of conspiracy with co-accused Seema Verma and it was wrongly reflected that the demolition action had been partly taken though no such proceedings had been actually taken at site.
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, in as much 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 CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
27which 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 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 CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.28
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."
10. Now adverting to the merits of the case, at the outset, it may be observed that accused Ajay Kumar Shrotriya was not posted in the concerned Ramesh Nagar Ward at the time of registration of FIR no. B/UC/WZ/02/78 dated 27.03.02 (Ex.PW4/A) whereby property in question was booked for deviation against sanctioned building plan at ground floor and unauthorized construction of first floor. The said FIR was booked under the signatures of Shri Mohd. Ahmed, the then JE posted at Ramesh Nagar Ward at the relevant time and also bears the endorsement of the then AE Shri D.P. Gupta for issuing the notices under the DMC Act. The same is admitted case of prosecution and self speaking from the documents filed alongwith the chargesheet. Further, the notice u/s 344(1) r/w 343 DMC Act dated 27.03.02 (Ex.PW4/B) was issued under the signatures of Shri D.P. Gupta, the then AE, West Zone and affixed by Shri Mohd. Ahmed, JE under his signatures dated 07.04.02 on the notice. The subsequent order to issue notice u/s 343(1) of DMC Act (Ex.PW4/C) was further proposed by Shri Mohd. Ahmed JE on 08.04.02 and endorsed by Shri D.P. Gupta, AE on the said date. Further, the notice u/s 343(1) DMC Act (Ex.PW4/D) dated 08.04.02 under signatures of Shri D.P. Gupta, the then AE was executed by Shri Mohd. Ahmed, JE on 10.04.02. Thereafter, since no reply was received from the builder/owner of the property, the demolition order (Ex.PW4/E) for demolition of unauthorized construction in the property was passed which was proposed by Shri Mohd. Ahmed JE on 17.04.02 and approved by Shri D.P. Gupta, AE on the said date itself.
CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
29The documents on record reflect crystal clear that Ajay Kumar Shrotriya was neither associated with the issuance of notices u/s 344 & 343 of DMC Act nor for issuance of demolition order (Ex.PW4/E) in respect of property in question i.e. Shop No.19, New Market, Ramesh Nagar, New Delhi. Even on 03.03.03, the date mentioned on the alleged entry in demolition register Ajay Kumar Shrotriya was not posted in said ward. Absolutely no evidence has been led on record to show if Ajay Kumar Shrotriya was known or had ever met Seema Verma during aforesaid period or thereafter till entry dated 03.03.03 was made by Ajay Kumar Shrotriya in demolition register showing part demolition action.
There could not have been any occasion for Ajay Kumar Shrotriya to obtain or to agree to obtain any legal or illegal pecuniary advantage either for himself or for any other person since he was neither posted in the concerned ward, nor had taken up any proceedings in respect of the property in question and nor was any further action fixed for taking demolition in the property in March, 2003.
11. In the aforesaid background, further the case of prosecution with respect to entry dated 03.03.03 allegedly made by Ajay Kumar Shrotriya in the demolition register maintained by MCD (Ex.PW6/B) may be assessed. The said entry is alleged to have been wrongly made by accused Ajay Kumar Shrotriya in furtherance of conspiracy with Seema Verma in order to favour her by wrongly showing the demolition action in the property in question though the same had never been carried out. The foundation of prosecution case is based upon aforesaid entry and it needs to be scrutinized in detail in order to CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
30ascertain if it pertains to property in question or some other property. To appreciate the counter contentions, it may be noticed that details of demolition action taken in any property is entered by the concerned JE in the demolition register maintained by Officer In-charge (Building) (OIB). The details of the building wherein action is taken may be reflected by property number or by UC file number which is the FIR number registered by MCD alongwith date. The booking of unauthorized construction by MCD in FIR number is serially maintained in the missalband register in custody of OI(B).
The FIR number registered by MCD (Ex.PW4/A) for unauthorized construction relating to property in question FIR (Ex.PW4/A) is B/UC/WZ/02/78 dated 27.03.02. However, the entry dated 03.03.03 made by Ajay Kumar Shrotriya reads as "B/UC/WZ/02/78 dated 28.02.03 - punctured roof of basement partly" which the prosecution claims to be relating to property in question. The entry has been vehemently disputed by accused and it is claimed that the same does not pertain to property no. 19, New Market, Ramesh Nagar, New Delhi in view of the discrepancies and the same be further noticed as under.
The FIR number vide which the property no. 19, New Market, Ramesh Nagar, New Delhi was booked is B/UC/WZ/02/78 dated 27.03.02 while the file number reflected in the entry dated 03.03.03 in demolition register reads as "B/UC/WZ/02/78 dated 28.02.03" (The discrepancy in date is apparent). Admittedly, there are no proceedings which were conducted in file relating to property no. 19, New Market, Ramesh Nagar, New Delhi on 28.02.03 since there is no noting in the file after passing of the demolition order dated 17.04.02. The entry CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
31dated 03.03.03 in the demolition register in view of aforesaid discrepancy cannot be conclusively held to relate to property no. 19, New Market, Ramesh Nagar, New Delhi since it neither matches the date of registration of FIR of property no. 19, New Market, Ramesh Nagar, New Delhi nor relates to any proceedings conducted in the said property on 28.02.03. It may also be noticed that the aforesaid entry in the demolition register dated 03.03.03 refers to puncturing the roof of basement partly while the FIR registered with respect to property no. 19, New Market, Ramesh Nagar, New Delhi refers to booking of unauthorized construction for deviation against standard sanctioned building plan of ground floor and U/C of first floor. There is no reference to the unauthorized construction of basement at aforesaid time though subsequently report prepared by CPWD (Ex.PW3/A) alongwith forwarding letter dated 25.01.08 (Ex.PW3/B) refers to existence of basement, ground floor and first floor in the property in 2007. It has not been brought on record by the prosecution if the construction of basement was carried in property no. 19, New Market, Ramesh Nagar, New Delhi on the date of booking of FIR by MCD (i.e. 27.03.02) as the same is not reflected in the UC file. As such, on the face of record it may be difficult to conclude that entry dated 03.03.03 in the demolition register conclusively pertains to property no. 19, New Market, Ramesh Nagar, New Delhi.
In the aforesaid context, it may further be noticed that accused Seema Verma has taken a categorical stand that the said entry pertains to action taken in 15/61, Punjabi Bagh and has further relied upon proceedings taken for demolition of unauthorized construction in respect of property no. 15/61, Punjabi Bagh, New Delhi on 03.03.03. It CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
32is vehemently urged on behalf of accused that the said entry dated 03.03.03 in the demolition register pertains to 15/61, Punjabi Bagh as demolition was fixed on the aforesaid date in the area of Punjabi Bagh. To impress the point, it was pointed out that the unauthorized construction of basement in 15/61 Punjabi Bagh was booked vide FIR number B/UC/WZ/03/78 dated 17.02.03 (Ex.PW6/X) and the demolition order (Ex.PW4/DX) was passed on 28.02.03. It was further submitted that the demolition action on 03.03.03 in aforesaid property is reflected on the demolition order as "punctured the roof of basement partly and complete demolition action could not be taken due to shortage of time". As such, it was contended that the demolition action in the said property carried on 03.03.03 as corroborated from the entries made in the UC file is corresponding to the entry dated 03.03.03 made in the demolition register and the same refers the date of demolition order i.e. 28.02.03 passed in said case.
Unfortunately, the investigating agency during the course of investigation never tried to co-relate if the entry dated 03.03.03 could relate to property no. 15/61, Punjabi Bagh and any demolition action was taken in aforesaid property by Ajay Kumar Shrotriya. Only during the course of trial, it has been proved on record that the demolition proceedings in respect of property no. 15/61, Punjabi Bagh as detailed above had also been taken on 03.03.03. The documents relating to action taken in 15/61, Punjabi Bagh have been filed on behalf of accused Seema Verma after the same were obtained in an application filed under RTI Act and have not been disputed by prosecution. In the facts and circumstances, it cannot be ruled out that the entry dated 03.03.03 relied by the prosecution may have been made by Ajay Kumar CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
33Shrotriya with reference to proceedings taken up in 15/61, Punjabi Bagh though there still remains a discrepancy in reflecting the part FIR number as B/UC/WZ/02/78 instead of B/UC/WZ/03/78. It is further probable that the date in the aforesaid entry may have been referred with reference to the date on the demolition order instead of date of booking FIR. The aforesaid observation is without reflection on the merits of the said entry with respect to property no. 15/61, Punjabi Bagh as to whether the same was made by Ajay Kumar Shrotriya in accordance with procedure as the same has not been investigated by CBI with reference to aforesaid property. The aforesaid entry dated 03.03.03 if read in entirety otherwise does not match with any other proceedings or file number in missalband register. In the facts and circumstances, the benefit of doubt on account of aforesaid discrepancy, as such, has to be extended to the accused.
I am, therefore, of the considered view that the case of prosecution on the basis of aforesaid entry is on a very weak foundation as the entry has not been proved beyond reasonable doubt to be with reference to shop no. 19, New Market, Ramesh Nagar, New Delhi.
12. If the aforesaid entry dated 03.03.03 in demolition register does not conclusively relate to property no. 19, New Market, Ramesh Nagar, New Delhi, the case of prosecution crumbles like a palace on sands. The circumstances relied by prosecution that Ajay Kumar Shrotriya neither obtained the file relating to Shop No. 19, New Market, Ramesh Nagar, New Delhi before taking demolition action nor raised CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
34demolition charges and the demolition action was not reflected in action taken report by OI(B) for relevant month of March, 2003 dissipate into insignificance.
13. I am of the considered view that mere entry dated 03.03.03 in the demolition register which has not been conclusively proved to be relating to property no. 19, New Market, Ramesh Nagar, New Delhi could not have benefited accused Seema Verma in the facts and circumstances of the case since no corresponding proceedings were reflected in the unauthorized construction file showing that the proceedings for demolition action stood concluded and the file had been closed. If the accused Seema Verma was to be benefited in any manner, at least the entries would have also been made by the accused Ajay Kumar Shrotriya in any other record pertaining to the UC file of property no. 19, New Market, Ramesh Nagar, New Delhi or missalband register.
The evidence on record as such is bereft to infer the existence of conspiracy between accused Seema Verma who was the owner of premises at aforesaid time and accused Ajay Kumar Shrotriya, JE. A few bits here and there are not adequate for connecting the accused to presume the hatching of conspiracy. The prosecution, as such, has miserably failed to bring home the charge against the accused beyond reasonable doubt.
14.I am deeply concerned with the manner in which irresponsible investigation has been carried. In fact, it is unfortunate that no proceedings have been taken in respect of property no. 19, New CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
35Market, Ramesh Nagar, New Delhi after passing of demolition order dated 17.04.02 by the concerned JE Shri Mohd. Ahmed, and Shri D.P. Gupta, AE and the blame has been simply shifted against Ajay Kumar Shrotriya.
The Courts do not merely discharge the function to ensure that no innocent man is punished but also that a guilty man does not escape. It has been held by the Hon'ble Supreme Court in order dated 3rd August, 2012 reported in Criminal Appeal No. 529/2010 Dayal Singh & Ors. Vs. State of Uttaranchal that it shall be appropriate exercise of jurisdiction that Trial Courts return a specific findings in criminal cases upon recording of reasons on the deliberate dereliction of duties, designedly defective investigation, intentional acts of omission and commission prejudicial to the case of the prosecution in breach of professional standards and investigative requirements of law, during the course of the investigation by the investigating agency, expert witnesses and even the witnesses cited by the prosecution.
The premier investigating agency (CBI) was expected to thoroughly investigate the case instead of merely filing the chargesheet as a ritual for performing the duties, 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. It does not appear to be a case of faulty investigation CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
36simplicitor as the 15 chargesheets arising out of the same FIR clearly reflect that only Ajay Kumar Shrotriya, the then JE on deputation from DDA to MCD for a period of less than one and a half years has been booked alongwith the owners/builders of the concerned properties without even ascertaining or bringing out the role of the other JE/AE/EE/SE/DC concerned who were posted prior to the tenure of Ajay Kumar Shrotriya during whose tenure the unauthorized construction may have come up. Further, even no action has been recommended or any other person chargesheeted who were posted after transfer of Ajay Kumar Shrotriya from concerned ward and were responsible to initiate legal action for demolition against the unauthorized construction. The number of cases involving unauthorized construction and failure to take requisite action is far larger but investigation has been wrongly confined by the investigating agency to 15 cases pertaining to Ajay Kumar Shrotriya, at its whims and fancies.
The investigation definitely lacks the requisite professionalism and the lapses shake the faith and confidence in the law enforcement agency. In this particular case, the CBI has completely ignored the role of the then JE Shri Mohd. Ahmed, the AE Shri D.P. Gupta, the Executive Engineer and explore the political nexus in terms of the directions passed by the Hon'ble High Court in WP(C) 4582/2003 on the basis of which the FIR has been registered in the present case. Admittedly, no further proceedings after passing of the demolition order dated 17.04.02 have been taken in respect of property no. 19, New Market, CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
37Ramesh Nagar, New Delhi but the action has been directed only on the basis of said entry against Ajay Kumar Shrotriya, JE though the role of other officers in completely ignoring the taking of any action after passing of demolition order dated 17.04.02 is dubious. It appears that there was a complete administrative failure and no supervisory role was exercised by the Executive Engineer, SE or DC posted at relevant time. In case the unauthorized construction had been booked and the demolition action had not been taken by JE/AE, there appears to be a necessary supervisory role of the senior officers i.e. EE/SE/DC to ensure that demolition action is taken in accordance with law. However, the dumping of the files 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.
The said observations should serve as an eye opener to the MCD and the investigating agency and recurrence of such wrongs is to be taken with stern hands. Also, directions are issued to the concerned competent authority/Commissioner, MCD to initiate departmental proceedings for the lapses against the concerned JE/AE Shri Mohd. Ahmed, the then JE and Shri D.C. Gupta, AE posted at relevant time for failing to take necessary demolition action against the unauthorized construction in property no. 19, New Market, Ramesh Nagar, New Delhi and the other officers posted thereafter and responsible for non-initiating demolition action in the property no. 19, New Market, Ramesh Nagar, New Delhi. Action taken report be placed before this Court within a CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.
38period of six weeks. Copy of judgement be forwarded to concerned competent authority i.e. Commissioner, MCD through Deputy Commissioner, West Zone, MCD for compliance and he shall coordinate and ensure the filing of compliance report personally before this Court as directed above.
15. 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.
Announced in the (Anoop Kumar Mendiratta) open Court on Special Judge (PC Act) CBI-08 30th March, 2013 Central District, THC, Delhi.
CC No.92/11 (RC No.01/2007) -CBI vs. Ajay Kumar Shrotriya & Anr.