Delhi District Court
State vs . Mohd. Saleem on 11 September, 2013
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 334/2010
P.S. Malviya Nagar
U/s 461 DMC Act r/w section 345A DMC Act r/w 465of DMC Act
State Vs. Mohd. Saleem
JUDGMENT :
a. Sl. No. of the case : 14/2
b. Date of Institution : 19.01.2011
c. Date of Commission of Offence : 09.07.2010
d. Name of the complainant : Sh. S.K. Midha
Deputy Commissioner
e. Name of the accused and his : Mohd. Saleem
parentage and address S/o Abdul Majid
R/o H.no.4, Toot Sarai,
Malviya Nagar, New Delhi
f. Offence complained of : U/s 461 DMC Act r/w
section 345A DMC Act r/w
465of DMC Act
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 11.09.2013
i. Final Order : Acquitted
j. Date of such order : 11.09.2013
FIR NO. 334/2010 PAGE 1 OF PAGE 8
PS MALVIYA NAGAR
1. The accused in this case was sent up for trial for the commission of offence U/s 461 DMC Act r/w section 345A DMC Act r/w 465of DMC Act.
2. The facts in brief are that on 09.07.2010, the accused has tampered with the seal affixed by MCD on 08.07.2010 at property bearing no. 4, Toot Sarai, Malviya Nagar, New Delhi. In this respect, a complaint was lodged by Deputy Commissioner, MCD, in police station Malviya Nagar. On the basis of complaint of D.C, tehrir was prepared and the present case FIR was registered. Investigation was carried out and the present challan was presented before the court for trial.
3. Accused has appeared in the court and he was informed about the substance of allegations leveled against him vide notice dated 08.05.2013, under section 461 DMC Act r/w section 345A DMC Act r/w 465of DMC Act to which he pleaded not guilty and claimed trial.
4. To prove its case against the accused, the prosecution has examined four witnesses namely Ravi Kumar Meena as PW1, Ct. Jai Kumar as PW2, Sh. S.K. Midha as PW3 and SI Parvesh Lamba as PW4.
5. PW1 Ravi Kumar Meena has testified that he did not remember the FIR NO. 334/2010 PAGE 2 OF PAGE 8 PS MALVIYA NAGAR exact date when he inspected the property bearing no. 4, Toot Sarai, Malviya Nagar, New Delhi. He found some labours working over there and on inquiry from one person, he replied in the negative. PW1 further testified that after returning to the office, he got the notice issued under section 343/344 DMC Act against the owner/builder of the said premises. He had also initiated the sealing proceedings. PW1 further testified that since he did not receive any reply, he sealed the said property. He had also got issued watch and ward letter under the signatures of then AE.
PW1 was cross examined by Ld. APP as he was not revealing complete facts. In his cross examination PW1 has testified that he had told the IO that on 08.07.2010, he had sealed the said property on account of unauthorized construction. PW1 further testified that he had intimated his senior officers regarding the unauthorized construction at the said property. He further states that he did not remember whether the owner of the said property had tampered the seal on 09.07.2010. PW1 further testified that he went with the IO and shown him the said property and IO prepared the site plan at his instance. He further testified that he did not know Mohd. Saleem and he did not see the accused present at the spot. PW1 was cross examined by Ld. Defence Counsel also. In his cross examination, PW1 has testified that he had photographed the spot after sealing the property but he had not given the said photographs to the IO.
FIR NO. 334/2010 PAGE 3 OF PAGE 8 PS MALVIYA NAGAR 6. PW2 Ct. Jai Kumar has testified that on 28.08.2010, he along
with IO/SI Parvesh Lamba had gone to property bearing no. 4, Toot Sarai, Malviya Nagar where IO had effected the arrest of accused vide arrest memo Ex. PW2/A. Ld. counsel for accused did not prefer to cross examine PW2.
7. PW3 S.K Midha has testified that as a Deputy Commissioner of South Zone, MCD, the case was put up to him regarding unauthorized construction at property no.4, Toot Sarai, Malviya Nagar on ground floor. A show cause notice was issued in July, 2010 asking the reasons for why the property should not be sealed. No response was received hence the said property was sealed on 08.07.2010. PW3 further testified that on 09.07.2010, the seal was found to be broken and consequent to that, an FIR was lodged in July, 2010. On 01.09.2010, a complaint was made under section 195 Cr.P.C to the DCP concerned for prosecution of the accused. In his cross examination, PW3 has testified that he did not ensure whether any show cause notice was served upon the accused or not before passing the order of demolition.
8. PW4 SI Parvesh Lamba has testified that on 10.08.2010, on receipt of complaint from MCD, South Zone, dated 14.07.2010, he had registered the present case FIR. On 11.08.2010, during inquiry, he had visited the site and prepared the site plan. He had also FIR NO. 334/2010 PAGE 4 OF PAGE 8 PS MALVIYA NAGAR interrogated the JE as well as DC concerned. On 28.08.2010, after inquiry, he had arrested the accused Mohd. Saleem. On that day, Ct. Jai Kumar had also accompanied them. PW4 further testified that accused had produced some documents i.e. GPA regarding property bearing no. 4, Toot Sarai, Malviya Nagar. He obtained the permission under section 195 Cr.P.C.
In his cross examination, PW4 has testified that he did not make any inquiry from the persons nearby the Mosque whether any fresh construction was being carried out at the said property. PW4 further testified that he did not take any photographs of the site which shows that any fresh construction was being carried out by the accused at the alleged site.
9. After closing of prosecution evidence, statement of accused was recorded U/s 281 r/w 313 Cr.P.C. In his statement, accused denied to have committed the offence and claimed to have been falsely implicated in this case. Accused further denied to lead any defence evidence.
10. I have heard the Ld. APP for the State and the Ld. Counsel for the accused and have also perused the record.
11. U/s 345A of DMC Act, the Commissioner of MCD has power to make an order for sealing of any work of unauthorized construction FIR NO. 334/2010 PAGE 5 OF PAGE 8 PS MALVIYA NAGAR and sub section 3 thereof makes the removal of such seal without the permission of the Commissioner punishable. To prove such an offence, there must be evidence to show that a seal was affixed by the authorized officer of the MCD which was broken or tampered with by the accused in contravention of the provision of section 345 A of DMC Act.
12. In the present case, the prosecution has not led any evidence in the first place to establish that the property was ever sealed. No record in this connection has been brought on record. Infact, no such record was secured by the IO during the investigation. Oral evidence in this behalf is also not sufficient. The JE has been examined as PW1 and he has mentioned in this testimony that he had affixed the seal but he has not given the period when the seal was affixed. He has also not disclosed about the sealing proceedings. He has been cross examined by the prosecutor on several material aspects of the case but he has not supported the prosecution case and has been confronted on a number of points which he resiled from his earlier statement. Apart from any documentary evidence, no photographs of the sealed property have been placed on record. Though as per the testimony of PW1, he had taken the photographs of the spot after sealing the same.
13. Moreover, the prosecution has relied upon the documents showing FIR NO. 334/2010 PAGE 6 OF PAGE 8 PS MALVIYA NAGAR the ownership of the accused in the property but these documents have not been proved by producing any proper witness. In any case, being owner of the property is no offence and what the prosecution was required to prove, was that the accused has broken or tampered with the seal. In this respect, no eye witness has been examined by the prosecution. Being owner of the property, does not raise any presumption against accused for having committing the offence. Even the complaint of the concerned official or the FIR does not disclose as to who had removed the seal. In such circumstances, it cannot be said that it was the accused who had removed the seal and committed the offence.
14. Again under section 345A of DMC Act, a duty has been cast upon the MCD to serve proper notice upon the owner or occupier before putting any seal upon the property. In the present case, no such notice seems to have been served upon the accused. Issuing of such notice is a prerequisite for sealing a property and production of such notice in original in the court is essential being a material evidence.
15. All these infirmities in the prosecution evidence seriously reflects on the varacity of prosecution case the benefit whereof must go to the accused.
FIR NO. 334/2010 PAGE 7 OF PAGE 8 PS MALVIYA NAGAR
16. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused Mohd. Saleem is acquitted for the offence punishable U/s 461 DMC Act r/w section 345A DMC Act r/w 465 of DMC Act.
Announced in the Open Court (DEEPAK SHERAWAT)
On 11.09.2013 Metropolitan Magistrate
South East District/New Delhi
FIR NO. 334/2010 PAGE 8 OF PAGE 8
PS MALVIYA NAGAR
FIR No.334/2010
PS Malviya Nagar
U/s 461 DMC Act r/w section 345A DMC Act r/w 465of DMC Act 11.09.2013 Present: Ld. APP for the State.
Accused on bail with counsel.
Final arguments heard.
Vide my separate judgment dictated and announced in the open court, accused is acquitted for the offence punishable U/s 461 DMC Act r/w section 345A DMC Act r/w 465of DMC Act for which he stands charged.
Accused is released on bail on furnishing personal bond in the sum of Rs.10,000/ with one surety in the like amount. Bail bond furnished. Same is accepted. As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused shall remain bound by the personal as well as surety for a period of six months from today.
Documents, if any, be released to accused as well as surety after cancellation of endorsement on the same.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South East/11.09.2013
FIR NO. 334/2010 PAGE 9 OF PAGE 8
PS MALVIYA NAGAR
FIR NO. 334/2010 PAGE 10 OF PAGE 8
PS MALVIYA NAGAR