Delhi District Court
State vs . on 15 December, 2012
1
IN THE COURT OF SH. SANJEEV KUMAR METROPOLITAN
MAGISTRATE1 (EAST) KARKARDOOMA COURTS, DELHI
In the matter of:
State
Vs.
Kishan Kumar
FIR NO. 8/1998
P.S. Special Task Force
JUDGMENT
1. Sr. No. of the case : 253/08
2. Date of institution : 17.02.1999
3. Name of the complainant : Sh. S. Kumarswamy, IAS
4. Date of commission of offence : 20.07.1998
5. Name of accused : Kishan Kumar
S/o Sh. R. K. Bhatti ,
R/o. H. No. F19,
Mangal Bazar, Laxmi Nagar,
Delhi.
6. Offence complained of : Section 345/345 A/461 DMC
Act &188 IPC
7. Plea of guilt : Accused pleaded not guilty
8. Date of reserving the Judgment : 07.12.2012
9. Final order : Acquitted
10. Date of such Judgment : 15.12.2012
Page no. 1 of 9 St. vs. Kishan Kumar; FIR No. 8/1998
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1. The case of the prosecution is that property bearing no. E7, Laxmi Nagar, Delhi, i.e., property in question was booked for unauthorized construction and thereafter, on 29.06.1998, same was sealed by MCD/STF. On 20.07.1998, Jr. Engineer namely R. A. Goel, had found that said seal has been broken and thereafter, first Information Report (in short 'FIR') No. 8/1998 under section 345/345A/461 DMC Act &188 IPC was registered at Police Station Special Task Force (STF), Delhi on the complaint of Sh. S. Kumar Swamy, Deputy Commissioner, MCD, South Zone, Shahadara, Delhi. After investigation, chargesheet was filed before this court under section 345/345A/461 Delhi Municipal Corporation Act (DMC Act) & 188 Indian Penal Code (IPC) and thereafter, accused was summoned for the said offence.
2. In light of the above stated facts and proceedings, after making compliance of provisions of section 207 Code of Criminal Procedure, 1973 (in short "Cr.P.C") vide order dated 17.10.2007, finding a prima facie case, Sh. Raj Kapoor, framed charge for the offence punishable under section 345/345A/461 DMC Act &188 IPC, to which the accused pleaded not guilty and claimed trial.
3. For proving its case, the prosecution has produced five Page no. 2 of 9 St. vs. Kishan Kumar; FIR No. 8/1998 3 witnesses., Hanuman Sahai Meena, examined as PW1; HC Narender Singh examined as PW2, Sh. R. A. Goel, examined as PW3; ASI Virender Singh, examined as PW4; HC Jitender Kumar examined as PW5; Sh. Suresh Kathuria, examined as PW6; Sh. V. K. Guar, examined as PW7; Sh. S. Kumarswamy examined as PW8; Sh. B. S. Suman, examined as PW9 and Sh. Hari Ram examined as PW10.
4. Statement of accused was recorded under section 313 (1)(b) of the Cr. P.C. When accused was briefed on all the incriminating evidence and documents, he denied the allegations and mentioned he is innocent and have been falsely implicated in this case. He further submits that he is not the owner of the property in question and name of his father is R. K. Bhati not Tula Ram and property in question was in the name of said Tula Ram. He also mentioned that in the year of 1988, he was working in a STD shop, situated opposite the premises in question. However, he opted to lead evidence in his defence.
5. Accused himself examined as DW1 and mentioned that in the year of 1988, he was working in a STD shop, situated opposite the premises in question and the name of his father is R. K. Bhatti not Tula Ram. He also mentioned that property in question in the name of one Tula Ram. He also placed on record copy of his driving license and RC for proving his identity and name of his father.
Page no. 3 of 9 St. vs. Kishan Kumar; FIR No. 8/1998 4
6. I have heard the State through Sh. M.A. Khan, Learned Assistant Public Prosecutor and Sh. Anil Kumar Saxena, counsel for accused. Record is also gone through.
7. Learned APP for the State argued that prosecution witnesses have fully supported the prosecution case and therefore, accused may be convicted. Learned defence counsel had contended that the name of father of the accused is R. K. Bhatti not Tula Ram; that documents filed by the prosecution do not show the accused as a owner; that Tula Ram is the owner of the property in question; that no witnesses have deposed that he had seen the accused breaking the seal, therefore, accused may be acquitted.
8. As per the case of the prosecution there was unauthorized construction and therefore same was booked and after giving necessary notice property was sealed and after some days, said sealed was found broken. R. A. Goel, Junior Engineer, MCD, Delhi, has deposed that at property in question unauthorized construction was done so he booked the same on 08.05.1998 and thereafter, show cause notices were issued and pasted at the site but no body turned up and thereafter on 26.05.1998, demolishing order was passed on his report by S. Kumarswamy. He has further deposed on 15.05.1998, he had gone at Page no. 4 of 9 St. vs. Kishan Kumar; FIR No. 8/1998 5 property in question but owner of the building was not available, thereafter, on 26.05.1998, he got the property in question sealed with the help of STF Staff. In this regard, complainant S. Kumarswamy (PW8) has deposed that the property was sealed on account of variation against sanctioned building plan. As per the witnesses, the said premises was sealed as the building plan was deviated from Sanctioned Plan. Hence, as per the case of prosecution, building plan was deviated from Sanctioned Plan. Prosecution has not proved the sanctioned plan of the said building to prove the deviation, which were allegedly made in the said building. Without proving the sanction plan of the building, the deviation, if any, in the said building cannot be proved.
9. PW3 Sh. R. A. Goel, is the Junior Engineer who has booked the property in question, sealed the same and found that breaking of the seal. This witness has no where stated that accused is the owner/builder of the property in question and when cross examined by Learned Counsel for accused, then, he has stated that at the time of sealing of premises, he was not aware about the name of landlord/owner/builder of the premises; that he never met with the owner/landlord of the said property; that he personally verified the name of the owner of the said property/building from the locality but he could not traced out owner of the same. He could not say whether accused is the owner of the said building or not in his cross examination. Complainant, PW8 has also not Page no. 5 of 9 St. vs. Kishan Kumar; FIR No. 8/1998 6 stated either in the complaint nor in the evidence recorded in the court that accused is the owner/builder of the property in question. In the cross examination, complainant had stated that he do not know the name of the builder/owner of the property in question. He has admitted in his cross examination that name of the owner/builder of the property was not mentioned in his complaint Ex. PW3/A. In his cross examination, he could neither admit nor deny the suggestion that accused Kishan Kumar is not the owner of the property in question. Hence, neither the complainant nor the Junior Engineer, R. A. Goel could tell the owner/builder of the property in question. Hence, all the relevant witnesses with regard to sealing of the premises, issuing notices and filing complaint with the police i.e. PW8 and PW3 have not deposed that accused Rajesh Aggarwal was the owner/landlord/occupier of the said premises.
10. Regarding sealing of the said premises, prosecution has examined two witnesses i.e. PW3 and PW8. PW8 is the Deputy Commissioner, who had passed final order of the sealing. PW3 Sh. R. A. Goel was the Junior Engineer, who had sealed the premises as per the case of prosecution. But PW3 when cross examined by Learned Counsel for the accused then he could not tell the points where sealing was made by him. As per this witness no sketch plan was prepared and no measurement was taken by him regarding the sealed premises. PW3 Page no. 6 of 9 St. vs. Kishan Kumar; FIR No. 8/1998 7 has also stated in his crossexamination that he was not aware about the fact that there were three premises pertaining to the same number G40. He has also stated in his cross examination that he is not aware about the fact that the premises G40 belongs to someone namely Vijay Goel and another G40 belongs to P.K. Singh or not. He has also deposed in his crossexamination that he cannot say that accused Rajesh Aggarwal was having any concern with the sealed premises or not. Hence, this witness could not tell as to whether the premises, which was sealed by him belongs to Rajesh Aggarwal or Vijay Goel or P.K. Singh. PW4 Sh. B.S. Suman, has also admitted the suggestion of Learned Counsel for the accused in his crossexamination that the documents provided by him through seizure memo Ex. PW4/A are not pertaining to the case of Rajesh Aggarwal and not related to the property of the Rajesh Aggarwal. IO Inspt. Sajjan Singh (PW5) has deposed in his crossexamination that premises was sealed by R.A Goel, Junior Engineer, MCD. PW3 P.K. Jain has also deposed in his crossexamination that R.A Goel, the then Junior Engineer had completed all the proceedings of unauthorized construction and process before the sealing. Said R.A Goel has not been examined by the prosecution.
11. In respect of breaking of the seal of the premises, PW3 R. A. Goel and PW8 Complainant are the only witness, who has been examined by the prosecution. PW3 has deposed in this regard that on Page no. 7 of 9 St. vs. Kishan Kumar; FIR No. 8/1998 8 20.07.1998, when he visited the said premises as per his routine, he found both the above said seal tempered/broken and in this regard he gave his report to his higher officers. This witness has nowhere stated in the evidence that Kishan Kumar was the owner at the relevant point of time and said Kishan Kumar had broken the seal on 20.07.1998. He had also not seen the accused Kishan Kumar breaking the said seal. No other prosecution witnesses has deposed that accused Kishan Kumar had broken the seal of premises. Complainant (PW8) has deposed that R. A. Goel (PW3) on 16.07.1998, when visited the area then he found that seal was tempered. Hence, as per this witness seal was broken on 16.07.1998 but as per PW3, seal was found broken on 20.07.1998. PW8 has also filed complaint before the Deputy Commissioner of Police before Special Task Force (STF) Ex. PW3/A and in said complaint also, it has been mentioned that during the course of routine inspection of JE, i.e., PW3 on 16.07.1998 he found that seal had been tempered. Hence, there are contradictions in respect of date of broken seal of the property in question by PW3 and PW8.
12. As per the case of prosecution, accused was not owner of the property in question and his father Tula Ram was the owner of the property in question at the relevant point of time.
13. Charge for the offence under section 188 IPC has also been Page no. 8 of 9 St. vs. Kishan Kumar; FIR No. 8/1998 9 framed against the accused. Under section 195 (1) (a) (i) no court shall take cognizance of an offence punishable under section 172 to 188 (both inclusive) of the IPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Hence, public servant whom order was violated by the accused or some other public servant to whom said public servant is administratively subordinate are required under section 195 (1) (a) (i) of the Cr.P.C. to file complaint before the Court for the offence under section 188 IPC but no such complaint was filed.
14. In view of the above discussion, the prosecution has failed to prove its case against the accused beyond reasonable doubt and therefore, accused is acquitted of all the charges. Bail bond stands cancelled. Surety stands discharged. File be consigned to Record Room.
Announced in the open court (Sanjeev Kumar)
th
On 15 Day of December, 2012 Metropolitan Magistrate1 (East)
(total nine pages) Karkardooma Courts, Delhi
Page no. 9 of 9 St. vs. Kishan Kumar; FIR No. 8/1998