Delhi District Court
State vs . Balwan Singh on 1 October, 2022
IN THE COURT OF SH. AJAY NARWAL, MM-01, NEW DELHI,
PATIALA HOUSE COURTS/NEW DELHI.
State Vs. Balwan Singh
FIR No. 1206/2015
PS: V.K. South
U/S: 466 of DMC Act
JUDGMENT
ID number of the case : 59029/2016
Date of commission of offence : 28.08.2015 and prior to this date
Date of institution of the case : 03.09.2016
Name of the complainant : Dy. Commissioner, Zone South, Green Park,
New Delhi.
Name of accused and address : Balwan Singh s/o Sh. Chandgi Ram, r/o H.
No. C-23, Masoodpur Village, Vasant Kunj,
New Delhi.
Offence complained of or proved : U/s 466A/461/332 of DMC Act
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date of judgment : 01.10.2022.
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. This is the prosecution of the accused namely Balwan Singh upon a charge sheet filed by the police station Vasant Kunj South under section 461/466A/332 of FIR no. 1206/2015 State Vs. Balwan Singh Page No. 1/8 DMC Act.
2. Briefly stated, as per the case of prosecution, the accused Balwan Singh is the owner of a property situated at H. No. C-23, Main Masoodpur (back side), New Delhi. It was found that in the aforesaid premises accused had done unauthorized construction work in the shape of ground floor and first floor. The aforementioned unauthorized construction/work has been done at instance of the accused without seeking any permission from concerned Commissioner, South DMC.
3. After completing the formalities, investigation was carried out by PS Vasant Kunj South and a charge sheet was filed against the accused person. On 03.10.2018, the notice was framed against the accused person u/s 461/466-A/332 DMC Act, to which he pleaded not guilty and claimed trial.
4. Vide his separate statement recorded, the accused person admitted the following documents under Section 294 Cr.PC. It is pertinent to mention that accused person admitted the existence of FIR and not the truth of the contents thereof:-
Sl. Documents Proved Ex. No. No.
1. Complaint dated 04.11.2015 addressed to Ex. P-1 SHO, PS V. K. South by then DC, MCD.
FIR no. 1206/2015 State Vs. Balwan Singh Page No. 2/8
5. In view of the admission of above documents under Section 294 Cr.PC, the formal examination of the following witness i.e. Deputy Commissioner South Zone, Green Park, New Delhi was dispensed with.
6. In order to substantiate its case, prosecution has examined four witnesses.
7. PW1/HC Rakesh Kumar deposed that he registered the FIR i.e. Ex. PW1/A and made endorsement thereon i.e. Ex. PW1/B.
8. PW2 Sh. Santosh Kumar Pathak, Junior Engineer deposed that on 28.05.2015, during discharging his official duty and routine inspection, he found that illegal construction work was going on at C-23, Masoodpur Village, New Delhi by the accused and therefore, he reported the first information report (internal) to his AE(B) i.e. Ex. PW2/B. Thereafter, after written instruction of AE concerned, notice Mark Y/Ex. PW2/F(colly) was issued to the owner of the said property/accused and on 11.09.2015, second notice Mark X/PW2/C was issued to the accused, however, accused did not demolish the building and thereafter, demolition order had been passed. Thereafter, complaint for prosecution of the accused was given by then DC, SDMC, vide complaint dated 04.11.2015 on his reporting i.e. Ex. PW2/D to SHO, PS V. K. South. Thereafter, IO took him to the site and he showed the illegal construction to the police official and thereafter, FIR no. 1206/2015 State Vs. Balwan Singh Page No. 3/8 police official prepared the site plan i.e.Ex. PW2/A at his instance. PW2 was duly cross examined by the Ld. Counsel for the accused person.
9. PW3 HC Reetesh Kumar deposed that on 07.11.2015, the said complaint i.e. Ex. PW1/B was marked to him. He endorsed the same from point X to X-1 and thereafter, the FIR was registered in the present case. He gave notice u/s 91 of Cr.P.C i.e. Ex. PW3/A to JE, MCD, Greej Park, namely Sh. Santosh Pathak for joining the investigation and thereafter, he along with Sh. Santosh Pathak went to the spot and prepared the site plan at his instance. Thereafter, on 18.05.2016, he served notice u/s 160 of Cr.P.C to the accused i.e. Ex. PW3/B, in pursuance of same, accused handed over Khatoni i.e.Ex. PW3/D of alleged premises which was seized vide memo Ex. PW3/C and on the same day, he served notice u/s 41A of Cr.P.C to the accused to join the investigation i.e. Ex. PW3/E. On 28.07.2016, he collected certified copies of UC file i.e. already Ex. PW2/B and PW3/F. During investigation, he had recorded the statement of all the relevant witnesses at relevant point of time u/s 161 Cr.PC. After completion of investigation, he prepared charge sheet and submitted before this court. PW3 was duly cross examined by the Ld. Counsel for the accused person.
10. PW4 Constable Mahesh Kumar deposed that on 07.11.2015, he along with PW/HC Ritesh Kumar went to the house of accused, where accused produced the FIR no. 1206/2015 State Vs. Balwan Singh Page No. 4/8 documents of the property, which was seized by HC Ritesh Kumar vide seizure memo Ex. PW3/C.
11. Statement of the accused person was recorded U/s 281 of Code wherein all the incriminating circumstances were put to him which he denied and pleaded his false implication. He, however, chose not to lead defence evidence. Thereafter, final arguments were heard.
12. I have heard the Ld. APP and Ld. defence counsel and have perused the case file.
13. The Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the cross-examination and there is no reason to doubt their testimonies. The Ld. Counsel for the accused, on the other hand, argued that material contradictions have appeared in the testimonies of the PWs and prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Hence, benefit of doubt must be given to the accused.
14. I have considered the rival submissions and perused the materials available on record.
FIR no. 1206/2015 State Vs. Balwan Singh Page No. 5/8
15. As per the case of prosecution, the accused person was in possession/occupant/builder of the property in question which was regarding unauthorized construction. Hence, he was charged with for the offence punishable u/s 466A/332/461 DMC Act.
16. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., (SC) 1976 A.I.R. (SC) 966 that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190 it was again held that in criminal cases burden is always is on prosecution and never shifts.
17. Section 471 of the Delhi Municipal Corporation Act, 1957 reads as under:-
71. Limitation of time for prosecution No person shall be liable to punishment for any offence against this Act or any rule, regulation or bye-law made thereunder, unless complaint of such offence is made before a municipal magistrate within six months next after--(a) the date of the commission of such offence, or (b) the date on which the commission or existence of such offence was first brought to the notice of the complainant.FIR no. 1206/2015 State Vs. Balwan Singh Page No. 6/8
18. In Municipal Corporation of Delhi Vs. Ravindra Kumar Mahindra Crl. Appeal No. 34 of 1988, passed by Hon'ble Delhi High court, it was held that for the purpose of limitation section 471 of DMC Act alone will be applicable to all the offences under the said Act and not section 468 of Cr.P.C.
19. 18. At the outset, it should be noted that the present case is barred by limitation. As per the case record, it is revealed that the complaint has been filed on 04.11.2015 by the complainant. It would mean that the officials of MCD became aware about the commission of offence on or before 04.11.2015 itself. However, the charge-sheet was filed in the present case on 03.09.2016 i.e. after the expiry of almost 4 months from the date of receipt of information about commission of offence/filing of complaint by the complainant. Hence, the present case is barred by limitation as provided u/s 471 of DMC Act.
20. Further, perusal of the charge-sheet would show that the IO had conducted a very shoddy investigation in the present case. It is pertinent to mention that the identity of owner/occupier of the property in the present case is itself in dispute. PW2 has admitted in the cross examination that name of the accused was not mentioned in the FIR, show cause notice and demolition notice. PW2 also admitted in the cross examination that Khatoni of the property in dispute mentioned the name of several persons as owner of the property and not only the accused. When there was some confusion over the property in question and its actual FIR no. 1206/2015 State Vs. Balwan Singh Page No. 7/8 owner/occupier, IO should have recorded the statements of the public witnesses/neighbours who were residing in the said locality to prove that accused is the owner of the property. Not even a single public witness was examined by the IO in the present case. Their examination could have disclosed the fact as to whether the accused Balwan Singh was really in possession/occupier of the said property situated at H. No. C-23, Main Masoodpur (back side), New Delhi. No endeavor was made by the IO to join the public witnesses in the investigation. He did not even serve any notice to any of the public witnesses. Further, no photographs of the building were annexed with the chargesheet. The prosecution has failed to establish that accused is the owner/occupier of the alleged property in question.
21. Therefore, in view of the above discussions and findings, I am of the considered view that the prosecution has miserably failed to prove the guilt of accused person for the alleged offence beyond reasonable doubt. Hence, accused person Balwan Singh stands acquitted for the offence punishable u/s 332/461/466- A of DMC Act.
Dictated directly into the computer (AJAY NARWAL)
and announced in the open Court, MM-01 (New Delhi)/
On 1st October, 2022. Patiala House Courts,
N. Delhi/01.10.2022.
FIR no. 1206/2015 State Vs. Balwan Singh Page No. 8/8