Delhi District Court
Cbi vs . 1) Zakir Hussain on 20 May, 2013
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IN THE COURT OF SH. PRADEEP CHADDAH:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI
CC No. 21/08 RC : 4(E)/07
PS : CBI/EOUVIII/ND
U/s : 13(2) r/w. Sec. 13(1) (d)
of P.C. Act & Sec.120B IPC
and Sec. 218 IPC
CBI Vs. 1) Zakir Hussain
2) Anil Chhabra
3) Sudesh Chhabra
ORDER ON SENTENCE
1. This Court had vide its judgment dated 16.05.13 found the convict
Anil Chhabra, Sudesh Chhabra and Zakir Hussain guilty of offence u/s. 120
B of the IPC r/w sec. 218 IPC and r/w sec.13(2) r/w 13 (1) (d) of the P.C.
Act. Convict Zakir Hussain was also held guilty for substantive offences u/s.
13(2) r/w. Sec. 13(1) (d) of the P.C. Act and also u/s.218 of the IPC.
2. I have heard Sh. Praneet Sharma, Ld. Sr. PP for CBI, Sh. S.P.
Minocha Ld. Counsel for convict Anil Chhabra and Sudesh Chhabra and Sh.
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 1 of 6
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M. Hussain, Adv. for accused Zakir Hussain at length. I have also heard
convict Zakir Hussain in person.
3. Sh. Praneet Sharma, Ld. Sr. PP prayed for taking of strict view of
the matter and granting of exemplary punishment to the convicts. He further
submitted that the corruption has taken its root deep in society and it is in the
interest of justice to take stringent view and award the maximum
punishment to give a message to society that corruption is to be dealt with
hard hands. He further prayed that sentences which should be awarded to the
convict should run consecutively.
4. On the other hand, Ld. Counsel for convict Zakir Hussain prayed
for taking of lenient view. He claimed that convict had three daughters and
a son. They were very young and needed presence and guidance of their
father.
5. Ld. Counsel for remaining two convicts also prayed for taking of
lenient view. He claimed that convict Sudesh was 66 years old and had no
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 2 of 6
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concern with CTC since 2004 after family settlement had taken place.
Convict Anil was 59 years old and was not maintaining good health. He
further submitted that convicts have faced long trial of five years and have
learnt their lessons. He further submitted that Prevention of Corruption Act
is basically meant for public servants and not for private individuals. He also
filed affidavit of two convicts in support of his contention.
6. The allegations proved against the convict are quite serious in
nature.
7. Sh. S.P. Minocha, Ld. Counsel for the convicts also relied upon
judgments titled as Shiv Mohan Vs. State of Delhi: AIR 1977 Supreme Court
949, Ved Prakash Vs. State of Haryana : 1981 Cri. L.J. 161 and Ram
Rattan Vs. State Through Central Bureau of Investigation: 2011 (2) C.C.
Cases (HC) 126.
8. I have gone through the same and given my considered thought.
There is rampant corruption in almost all government departments and MCD
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 3 of 6
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is no exception to it. Not a brick can be laid until palms of the officials are
suitably greased. Entire face of Delhi has undergone substantial change.
Overnight single storey structures are replaced with multi storied ones
without anybody getting wiser. Municipal bylaws and rules are thrown to
wind for suitable consideration. In the case in hand, massive unauthorized
construction was carried out in 921 Kucha Kabil Attar, Chandani Chowk,
Delhi. The residential property got converted into commercial. It all was
with active connivance and blessings of Zakir Hussain who was posted as Jr.
Engineer Incharge of the area and had carried out sham demolition of a wall
which never existed. The massive unauthorized changes made in the
property escaped his attention.
9. Hon'ble Supreme Court in Raman Lal Vs. State of Bombay :AIR 1960
SC 961 had held:
" For a public servant to be guilty of corruption is a very serious
matter and the Courts would not look upon it with undue leniency."
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 4 of 6
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10. Keeping in view the entire circumstances and facts of the case in
hand, I sentence convict Anil Chhabra, Sudesh Chhabra and Zakir Hussain
to undergo R.I. for 2 years u/s. 120B of the IPC r/w sec. 218 IPC and r/w
sec.13(2) r/w 13 (1) (d) of the P.C. Act. In addition, they shall be paying
fine of Rs. 2,00,000/ each and in default of payment of fine, they shall be
undergoing S.I. for three months. I also sentence convict Zakir Hussain to
undergo RI for three years for substantive offences u/s. 13(2) r/w. Sec.
13(1) (d) of the P.C. Act. In addition, he shall be paying fine of Rs.
1,00,000/ and in default of payment of fine, he shall be undergoing S.I. for
three months. For offence u/s. 218 IPC, I sentence convict Zakir Hussain to
undergo R.I for three years. In addition, he shall be paying fine of Rs.
1,00,000/ and in default of payment of fine, he shall be undergoing S.I. for
three months. Though the amount of fine imposed on the three convicts does
not qualify more than loose change for them, but still it would send out a
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 5 of 6
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message.
11. The request made by Learned Sr. PP to the effect that sentences be
ordered to run consecutively is declined. The three sentences of the convict
Zakir Hussain shall run concurrently. Convicts shall also be given benefits
of period undergone as under trial (if any).
Announced in open Court
on May 22, 2013. ( PRADEEP CHADDAH )
Special Judge:CBI01
Central District. Delhi
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 6 of 6
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IN THE COURT OF SH. PRADEEP CHADDAH:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI
CC No. 21/08 RC : 4(E)/07
PS : CBI/EOUVIII/ND
U/s : 13(2) r/w. Sec. 13(1) (d)
of P.C. Act & Sec.120B IPC.
CBI Vs. 1) Zakir Hussain
S/o. Late Sh. Shabbir Hussain
R/o. 508/21, Zakir Nagar, Okhla,
New Delhi.
2) Anil Chhabra
S/o. Late Sh. Madan Lal Chhabra,
R/o. S14, G.K.I,
New Delhi.
3) Sudesh Chhabra
S/o. Late Sh. Madan Lal Chhabra,
R/o. S80, G.K.I,
New Delhi.
Date of Institution : 23.05.2008
Judgment Reserved : 01.05.2013
Judgment Delivered : 16.05.2013
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 7 of 6
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J U D G M E N T
1. The present chargesheet was filed by CBI against Zakir Hussain, a Junior Engineer employed with MCD and two private persons namely Sudesh Chhabra and Anil Chhabra of CTC.
2. Case of CBI as per chargesheet filed in this Court, is that Hon'ble High Court of Delhi had issued directions in a writ petition titled as 'Kalyan Sanstha Social Welfare Organization Vs. Union of India & Ors.' relating to misconduct of MCD officials which resulted in large scale unauthorized constructions. A RC was registered against the above three persons. It was alleged that accused Zakir Hussain entered into criminal conspiracy with the other two accused who were owners of property no. 921922, Kucha Kabil Attar, Chandini Chowk, Delhi. He had abused his official position as a public servant and caused pecuniary advantage to himself or to owners of the property by dishonestly and fraudulently showing demolition action at the property, whereas no such demolition had taken place. Accused Zakir Hussain further had unauthorizedly and dishonestly retained eight files of unauthorized construction and did not hand over them for taking of CC No.21/08 CBI Vs. Zakir Hussain etc. pg 8 of 6 9 necessary action. Accused Zakir Hussain was over all incharge of Chandini Chowk area and his job was to keep a check on unauthorized constructions. Investigation revealed that property no.921922, Kucha Kabil Attar, Chandini Chowk, Delhi, was residential property jointly owned by Bhola Nath Arora, Mahender Kumar and Kanta Soni. They sold it to M/s Chhabra Trading Co. vide two sale deeds. Sudesh Chhabra and Anil Chhabra carried out unauthorized construction during 2001 and on 03.05.01 the property was booked for unauthorized construction. Show cause notice dt. 04.05.01 was issued by Sh. Rajiv Goswami at instance of accused Zakir Hussain. Still another show cause notice was issued on 11.05.2001. As Sudesh Chhabra and Anil Chhabra did not demolish, accused Zakir Hussain submitted a note for passing of demolition order. The property was targeted for demolition in January 2002. On 21.01.2002, Zakir Hussain visited police station Chandini Chowk for police assistance and police party headed by HC Naresh Kumar was assigned. On the same day, accused contacted owners of the property and after holding meeting with them, left the spot without carrying out demolition. He prepared a false note claiming that unauthorized construction had been demolished by him and submitted the file to Manohar Diwani, Executive Engineer. Zakir Hussain also fraudulently showed deposit of Rs. 4700/ by owners of the property as demolition charges though no letter had CC No.21/08 CBI Vs. Zakir Hussain etc. pg 9 of 6 10 been issued to the owners for depositing the same. A receipt dt. 31.01.02 was also issued in the name of Subhash Chander, though there was no individual by the said name. Investigation had revealed that no demolition work had been undertaking by Zakir Hussain and receipt of Rs. 4700/ was issued at his instance. It was prayed that the three accused be summoned and tried.
3. My Ld. Predecessor, after appearance of the accused and completion of other formalities, framed the following two sets of charges. The first charge was:
I, __________ Special Judge (CBI01), Central District, Delhi do hereby charge you Zakir Hussain (A1) as under:
"During 20012002 at Delhi, you (A1) being posted as JE, City Zone, MCD, Building Section, Delhi by corrupt means as public servant in pursuance of the conspiracy hatched with A2 and A3 owners of property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi obtained pecuniary advantage for yourself and for A2 and A3 by not demolishing the said property having unauthorized CC No.21/08 CBI Vs. Zakir Hussain etc. pg 10 of 6 11 construction despite demolition order and availability of police assistance on 21.1.02 and falsely manipulating the record showing taking of demolition action and thereby keeping the said property intact and saving it from being demolished in the discharge of your duties as public servant and thereby committed offences punishable u/s. 13 (2) r/w. Sec. 13(1) (d) of POC Act r/w. Sec. 120B IPC and within my cognizance.
And the second charge was:
I, __________ Special Judge (CBI01), Central District, Delhi do hereby charge you Zakir Hussain (A1), Sudesh Chhabra (A2) an Anil Chhabra (A3) as under:
That in between 20012002 at Delhi, you (A1) posted as JE City Zone, MCD hatched criminal conspiracy with A2 and A3 owners of property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi to obtain pecuniary advantage by corrupt means for yourself and for A2 and A3 by not demolishing the said property having CC No.21/08 CBI Vs. Zakir Hussain etc. pg 11 of 6 12 unauthorized construction despite demolition order with the assistance of police and to falsely show the demolition action to have been taken with respect to the said property on 21.1.02 and thereby you all committed offences punishable u/s. 120B r/w. Sec. 13(2) r/w. Sec. 13(1) (d) of POC Act and within my cognizance."
4. Prosecution in support of its case examined 31 witnesses, while accused examined 3 witnesses in defence. After charge had been framed by my learned predecessor, the trunk containing all the original documents was stolen from the court room and FIR was lodged with Police Station Subzi Mandi. The documents were then reconstructed. The originals remain untraced till date. So, what we have with us are photocopies of the reconstructed documents.
5. PW1 was Raj Kumar Arora. He deposed that property No. 922, Kucha Kabil Attar, Chandini Chowk, Delhi stood in the name of his father and he was staying on the ground floor therein for the last about 45 years. His brother Ashok was on first and second floor of the said property.
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 12 of 6 13 Property No. 921, Kucha Kabil Attar, Chandini Chowk, Delhi belonged to Bhola Nath Arora and it was purchased by Sudesh Chhabra. A showroom in the name and style of Chhabra Trading Co. was built in 2001. Earlier it was residential property. The entire structure which belonged to Bhola Nath Arora was demolished and built up again by Sudesh Chhabra. He had filed an injunction suit against him. Later on there was settlement between him and Sudesh. There was no person by the name of Subhash Chander staying in property No. 922, Kucha Kabil Attar, Chandini Chowk, Delhi. MCD never issued any notice to him regarding unauthorized construction in property No.922, Kucha Kabil Attar, Chandini Chowk, Delhi. No show cause notice was ever pasted on his property. Chhabra Trading Company was built on property No. 919, 921, 924, 926, 927, Kucha Kabil Attar, Chandini Chowk, Delhi. Property No.922, Kucha Kabil Attar, Chandini Chowk, Delhi was never demolished. He had no knowledge of deposit of Rs.4700/ on 31.1.02 towards demolition charges of property No. 921922, Kucha Kabil Attar, Chandini Chowk, Delhi. In his crossexamination by learned counsel for Zakir Hussain, he deposed that property No.922, Kucha Kabil Attar, Chandini Chowk, Delhi was inherited by him and he was still staying there. The construction was done by Ashok on second floor around 1213 years ago. He was not aware of booking of property No. 921922, CC No.21/08 CBI Vs. Zakir Hussain etc. pg 13 of 6 14 Kucha Kabil Attar, Chandini Chowk, Delhi and issuance of joint notice. He had not received any notice. In his crossexamination by learned counsel for Sudesh Chhabra and Anil Chhabra, he claimed that 922 Kucha Kabil Attar, Chandani Chowk, Delhi was mutated in the name of his late father. It was undivided between him and his brother. A room had been added on the third floor of property No. 922, Kucha Kabil Attar, Chandini Chowk, Delhi. His brother Ashok supplies potable water in Mayur jugs. The business was being run from 922, Kucha Kabil Attar, Chandini Chowk, Delhi. Their building was not built on pillars. It was built on load bearing walls.
6. PW5 was Ashok Arora, brother of PW1 Rajkumar Arora. In his similar deposition, he claimed that he was staying at 922, Kucha Kabil Attar, Chandini Chowk, Delhi since birth. He lived on the second floor. His brother Rajkumar lived on the ground floor while his daughter gave tuitions on third floor. He has installed refrigeration machines for water on the first floor. 921, Kucha Kabil Attar, Chandini Chowk, Delhi belonged to Bhola Nath and he sold it to Sudesh Chhabra. Sudesh Chhabra started repairing which resulted in development of cracks on his walls. He (PW5 Ashok Arora) filed civil suit and settlement was arrived at . Accused after purchasing the property had removed partition wall and had converted CC No.21/08 CBI Vs. Zakir Hussain etc. pg 14 of 6 15 ground floor and the first floor into halls. At present it was Chhabra's show room. He had never received any notice from MCD regarding unauthorized construction in 922, Kucha Kabil Attar, Chandini Chowk, Delhi. No demolition was ever done by MCD in 921, Kucha Kabil Attar, Chandini Chowk, Delhi. There was no person having name of Subhash Chander in their family. He was crossexamined by learned PP wherein he denied the suggestion that Sudesh Chhabra had completely demolished the property after purchasing from Bhola Nath. In his crossexamination by learned counsel for Sudesh Chhabra and Anil Chhabra , he claimed that the property No.922, Kucha Kabil Attar, Chandini Chowk, Delhi had been purchased by his father around 1950. No construction on the first floor was done by him or his father . However, his mother had converted a tin shed room on the top floor in a pakka room. He had installed water refrigeration machines in 2004 on the first floor. He denied the suggestion that CBI had threatened them and pressurized to make a statement as they had carried out alternations and additions in 922, Kucha Kabil Attar, Chandini Chowk, Delhi. In his crossexamination by learned counsel for Zakir Hussain, he claimed that his father till his death paid municipal taxes and dealt with MCD. He had never paid municipal tax till date.
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 15 of 6 16
7. PW2 was HC Naresh Kumar. He deposed that he was posted in 2002 in PS Chandani Chowk. On 21.1.02 he went to CTC Plaza at 921, Kucha Kabil Attar, Chandini Chowk, Delhi for demolition as per directions of the SHO. Accused Zakir Hussain was part of the demolition team. He went inside the building while they waited out. After coming back, he told them that no demolition was to be done. They came back and informed the SHO of the developments and DD entry No. 33B dt. 21.1.02 was made. The copies of the DD entries No. 27B and 33B were Ex.PW2/A and PW2/B. In his crossexamination by learned counsel for Zakir Hussain, he claimed that he had accompanied his seniors as part of demolition team on 56 occasions. He had gone to provide protection. The total MCD staff who had come for demolition were 10/11 persons. As a beat officer, it was his duty to inform police station of every unauthorized construction. He had never sent any intimation regarding unauthorized construction in 921, Kucha Kabil Attar, Chandini Chowk, Delhi. In his crossexamination by learned counsel for Sudesh Chhabra and Anil Chhabra, he claimed that he had left the police station in 2005 for another posting. He denied the suggestion that DD No. 33B had been written by him on dictation of the SHO. On 21.1.02 one more person had gone along with Zakir Hussain inside CTC Plaza.
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 16 of 6 17
8. The third witness to be examined by CBI was Manohar Lal from MCD. He deposed that in 2002 he was posted as Beldar in City Zone MCD. Accused Zakir Hussain, Zaffar Sahab and other J.Es were posted there. On 21.1.02 they had gone to building of Chhabra saree wala near Town Hall. Zakir Hussain went inside the building while they waited outside. After 4045 minutes Zakir Hussain came out and told them to go back as job was done. Actually no demolition had been carried out. In his cross examination by learned counsel for Zakir Hussain, he claimed that Beldar Dharampal, Munna, Kishore, Umesh Thakur had accompanied him to Chhabra saree wala. He admitted that he was posted in dangerous building department and not in building department. He also admitted that job of dangerous building department was to demolish building which were in precarious condition. He also admitted that building department had separate Beldars and dangerous building department had its own set of Beldars. He volunteered that all of them went together for demolition action.
9. The next witness to be examined was Kishore Singh also posted as Beldar in MCD. He deposed that he did not remember the date but had gone for demolition of property No. 921 in a truck. The truck was parked at Nai CC No.21/08 CBI Vs. Zakir Hussain etc. pg 17 of 6 18 Sarak. Accused Zakir Hussain was their head. They kept on sitting in the truck and did not go inside the premises. After some time, Zakir Hussain told them to go back. Witness was crossexamined by Ld. PP wherein he admitted that they had gone from their office to Police Station Chandani Chowk where 34 police officers joined them. He also admitted that they had left their office to demolish property No. 921922, Kucha Kabil Attar, Chandini Chowk, Delhi. In his reexamination, he claimed that he had gone for demolition of property No. 921, Kucha Kabil Attar, Chandini Chowk, Delhi. In his crossexamination by learned counsel for Sudesh Chhabra and Anil Chhabra, he claimed that he physically did not visit the site and kept on sitting in the vehicle. In his crossexamination by advocate for Zakir Hussain, he claimed that he had not seen property No. 921922, Kucha Kabil Attar, Chandini Chowk, Delhi. Distance between Kucha Kabil Attar and Ramleela Maidan where their truck was parked, would be around 400 meters.
10. The next witness to be examined was Sh. Bhola Nath Arora. He deposed that he used to stay at 921, Kucha Kabil Attar, Chandini Chowk, Delhi. The house belonged to them as after partition they migrated to India and occupied the house. It was a pucca construction and was built with CC No.21/08 CBI Vs. Zakir Hussain etc. pg 18 of 6 19 lakhori eenth. The house comprised of ground floor, first floor and half second floor. ¼th of the property belonged to him, 1/4th to his sister Kanta Soni and balance to his late uncle Hansraj. He and his sister executed sale deed of their portion in favour of Sudesh Chhabra. Copies of the sale deeds were Ex. PW6/A and PW6/B.
11. Mr. Mahender Kumar was also examined by the prosecution. He deposed that his father Hansraj had purchased property no. 921, Kucha Kabil Attar, Chandini Chowk, Delhi, from custodian in public auction. Property comprised of ground floor, 1st floor and a small tin shed on the 2nd floor. He sold his undivided half share in the property vide sale deed dt. 21.10.97 to Sudesh Chhabra for Rs. 4,50,000/. Copy of the sale deed was Ex. PW10/A, while impression of his signatures appeared at point A on the plan of the property which was Ex. PW10/B. Remaining half property belonged to his cousins Bhola Nath Arora and Kanta Soni. In his cross examination by Ld. Counsel for Sudesh Chhabra and Anil Chhabra, he deposed that no change was effected by them in the property after its purchase by his father. However they had constructed a store in an open courtyard as well as on the 1st floor.
12. CBI had also examined owner of the remaining portion of the property as PW23. Smt. Kanta Soni deposed that property no. 921, Kucha CC No.21/08 CBI Vs. Zakir Hussain etc. pg 19 of 6 20 Kabil Attar, Chandini Chowk, Delhi, was purchased by her father Sh., Sardari Lal and her uncle Sh. Hansraj Arora. Her father had transferred half of the property in her name and she sold it to Sudesh Chhabra for Rs. 2,25,000/ in 1997. Sale deed executed was Ex. PW6/B.
13. Mr. Naresh Kumar entered the witness box as PW7. He deposed that in May 2008 he was working as Additional Commissioner, MCD. He had accorded sanction for prosecution of accused Zakir Hussain. The sanction order signed by him was Ex. PW7/A (wrongly typed out as Ex. PW6/A). It was passed after going through documents and statement of witnesses. In his cross examination by Ld. Counsel for Zakir Hussain, he claimed that he was not a law graduate but was conversant with technicalities of Prevention of Corruption Act. No draft sanction was sent by CBI alongwith letter of request. He denied the suggestion that he had not applied his mind before according sanction.
14. CBI thereafter examined Mr. Sudhir Gupta. He deposed that in 2007, he was SI/AZI in House Tax Department and had handed over certain files to CBI officers vide memo Ex. PW8/A. The files handed over pertained to 921/II, Kucha Kabil Attar, Chandini Chowk, Delhi, and of property no. 922/II, Kucha Kabil Attar, Chandini Chowk, Delhi. The files were Ex.
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 20 of 6 21 PW8/B and PW8/C. He had inspected both the properties in 2007 and did not find any sign of construction. He had also handed over few documents vide seizure memo Ex. PW8/D. The witness was cross examined by Ld.PP wherein he admitted having told IO that he had inspected premises no. 921/II, Kucha Kabil Attar, Chandini Chowk, Delhi. He had also told IO that premises were locked and that business in the name and style of Chhabra Trading Co. was being carried out in the premises. He denied the suggestion in cross examination by Ld. Counsel for Sudesh Chhabra and Anil Chhabra that he had not carried out inspection. In his cross examination by Ld. Counsel for Zakir Hussain, he admitted that whenever they come across unauthorized construction, they make an entry in the building watch register. He did not remember having told IO that he inspected property by entering through rear.
15. The next witness to be examined was Mr. Om Prakash. He deposed that he was posted in House Tax Department from 1998 to 2003. He had inspected property no. 921, Kucha Kabil Attar, Chandini Chowk, Delhi, on 07.03.02. His inspection report was Ex. PW9/A and it was verified by ZI. He found a hall on the ground floor, first floor and second floor being used for commercial activities. The owner/builder was Hansraj Sardari Lal through CC No.21/08 CBI Vs. Zakir Hussain etc. pg 21 of 6 22 M/s CTC Builder/Occupier. After inspection, notice was issued for depositing of house tax Ex. PW9/B. He further claimed that on 7.3.02, he inspected property no. 922, Kucha Kabil Attar, Chandini Chowk, Delhi, and the inspection report was Ex. PW9/D. It was also signed by ZI. Notice was then issued U/s 126 to Sadu Ram R/o 922, Kucha Kabil Attar, Chandini Chowk, Delhi. The said notice was Ex. PW9/E. He had earlier inspected property no. 922 on 22.12.2000 and gave his report Ex. PW9/F. In his cross examination by Ld. Counsel for Sudesh Chhabra and Anil Chhabra, he admitted that same person had received notices in respect of both the properties. He denied the suggestion that property no. 921 and 922 were two separate units. He volunteered that they had been combined into a single hall. He found commercial activities going on, on ground floor, first floor and second floor of property no. 922, Kucha Kabil Attar, Chandini Chowk, Delhi . On the ground floor, cloth business was being carried out. Finishing work was being done on the first floor and on the second floor, cloth trading was being done. On third floor, there was a room being used for residential purpose.
16. PW11 was Pradeep Kumar, Junior Engineer, MCD. He deposed that on directions of Executive Engineer he prepared existing building plan of CC No.21/08 CBI Vs. Zakir Hussain etc. pg 22 of 6 23 property No. 921922. He claimed that it was in Chandani Chowk area opposite Town Hall. He along with other teammates submitted reports Ex.PW11/A and PW11/B. Upon inspection he found the property to be commercial. Site plans were also prepared which were Ex.PW11/C, PW11/D & PW11/E. In his crossexamination by learned counsel for Chhabra's he claimed that the team had gone for 34 days for inspection and the same officers constituted the team on all the days. Measurement notes were taken and the plans were prepared later on by the draftsman. Property No. 922 was being used as residence. He then clarified that he was not sure of the municipal number but one of the property was of commercial nature while other one was being used for residential purpose.
17. Mr. Rajiv Goswami was PW12. FIR dt.3.5.01 Ex.PW12/A was regarding unauthorized construction. It was prepared by Zakir Hussain and contained signatures of both of them. According to it, unauthorized construction was observed in property No. 921922, Kucha Kabil Attar, Chandini Chowk, Delhi. A show cause notice was issued after FIR which was Ex.PW12/B. In his crossexamination by learned counsel for Sudesh Chhabra and Anil Chhabra, he claimed that he never visited property No. 921922, Kucha Kabil Attar, Chandini Chowk, Delhi. In his cross CC No.21/08 CBI Vs. Zakir Hussain etc. pg 23 of 6 24 examination by learned counsel for Zakir Hussain, he claimed that he was aware that AE (Bldg.) and Executive Engineer (Bldg) were supposed to carry out test check of the building which was booked for unauthorized construction.
18. PW13 was Sh. Om Prakash Goyal. He testified that he had his office cum residence at 727, Nai Basti, Katra Neel, Chandani Chowk. His gate opens towards Kucha Kabil Attar and another gate opens towards Nai Basti. Opposite his gate which opens towards Kucha Kabil Attar, there are property No. 921 & 922. Property No. 921 is owned by Ashok Arora and his brother Raju. Property No. 922 was owned by Hansraj. He did not notice encroachment in a gali in front of 921 in 2001. He had nodding acquaintance with the owners of 921 & 922. He never noticed any MCD action against property No. 921 on 21.1.02. The witness was cross examined by learned PP wherein he claimed that he might have told CBI that property No. 921 & 922 had been sold to Chhabra Trading Co. However, he did not tell them that 921 & 922 were demolished and amalgamated into a show room and main gate had been closed from the west side.
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 24 of 6 25
19. PW14 was Zaffar Mohsin (wrongly typed as Zaffar Hussain), a Junior Engineer of MCD. He claimed that in document D47 which was copy of log book dt. 21.1.02 Ex.PW14/A, his name appeared at point A and signatures at corresponding point B. The said signatures were not his. He had not gone from City Zone to Jama Masjid, Darya Ganj and Chandani Chowk for demolition. He could not tell as to who had forged his signatures on it. In his crossexamination by learned counsel for Zakir Hussain, he claimed that he never accompanied Zakir Hussain on any day for demolition. He denied the suggestion that on 21.1.02 he had accompanied Zakir Hussain for demolition. In his crossexamination by Learned counsel for Sudesh Chhabra and Anil Chhabra, he claimed that even against other two entries at A1 dt. 19.1.02 and A2 dt. 20.1.02, his signatures do not appear. He could not tell as to who had put his signatures against them. He did not having carry out demolition even on 19.1.02 and 20.1.02. He denied the suggestion that he had deliberately disowned his signatures because of case registered against Zakir Hussain.
20. The next witness was Mr. Kamleshwar Dayal. He deposed that he was member of the team which prepared site plan of property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi. Apart from him, a Jr. Engineer CC No.21/08 CBI Vs. Zakir Hussain etc. pg 25 of 6 26 Pradeep Kumar and two member of Architect Department of MCD were also there. He had visited the property many times and had accompanied Mr. Giri. The witness also identified signatures of M.R. Mittal on the forwarding letter Ex.PW15/A and his own signatures on reports Ex.PW11/A & PW11/B. In his crossexamination by Learned counsel for Sudesh Chhabra and Anil Chhabra, he claimed to have visited property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi, 45 times though he could not provide the date or month of visit. Property No. 921 & 922 had been mixed up and converted into one. He could not tell precise measurement of the two properties. He had met Anil Chhabra twice during inspection.
21. PW16 was Mr. Bhupinder Giri. He deposed that he was working as Architect Asstt. in MCD and was directed to prepare existing site plan of 921 & 922 in Chandani Chowk. He inspected the property along with his team and prepared plans Ex.PW11/C, PW11/D & PW11/E. Upon his visit, he found a sign board of Chabra Trading Corporation put up and ladies garments and sarees were being sold. In his crossexamination, he deposed that his statement was not recorded, but he had been questioned by the CBI. Property No. 922 was being used totally for residential purpose. He denied CC No.21/08 CBI Vs. Zakir Hussain etc. pg 26 of 6 27 the suggestion that commercial activities were going on in 922. He had inspected 922, 34 times. The site plans had been prepared jointly by him and the draftsman.
22. PW17 was Sh. Srimandir, again from MCD. He claimed to have dealt with unauthorized construction file pertaining to property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi. Notices had been issued by his predecessor, while he passed demolition order in respect of property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi. Zakir Hussain had put up noting dt. 11.5.01 for issuing demolition notice. He signed the same at point A and the said notice was Ex.PW17/A. Another note put up by Zakir Hussain was Ex.PW17/B. He approved it and signed it at point B. Demolition notice dt. 11.5.01 was Ex.PW17/C. It also contained his signatures. Report put up by Zakir Hussain of carrying out demolition was Ex.PW17/D. It was signed by Zakir Hussain at point A. The witness deposed further that letter of demand of demolition charges is to be issued under signatures of ZE (Bldg.). After J.E submits the report, it is marked for further action to AE. As per Ex.PW17/D, request for issuing letter of demolition charges was put up directly to E.E. (Bldg) and not to him. In his crossexamination by learned counsel for Zakir Hussain, he claimed that CC No.21/08 CBI Vs. Zakir Hussain etc. pg 27 of 6 28 demolition charges were to be calculated by JE after carrying out demolition. An entry is made in demolition charges register. He admitted that E.E (Bldg.) has to carry out test check in few cases to confirm the status. He had not visited property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi. The owner/builder is provided six days time to carry out demolition. If he fails to do so, demolition action is taken by MCD. In few cases, owner/builder carries out part demolition on his own and thus rest is done by demolition staff. In his crossexamination by Learned counsel for Sudesh Chhabra and Anil Chhabra, he claimed that he had not verified whether property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi were two different properties owned by different owners. Notice cannot be issued to a person who is not the owner. If notice is issued to another individual, then notice is bad and no action can be taken. As per norms, 50% of the unauthorized construction was to be inspected by AE before issuing the demolition order. The properties are selected randomly. He denied the suggestion that false proceedings had been recorded in respect of property Nos. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi.
23. The next witness to be examined was Sh. Satbir Singh. He deposed that he was posted as LDC in City Zone. Ex.PW18/A was a receipt issued CC No.21/08 CBI Vs. Zakir Hussain etc. pg 28 of 6 29 by him in his handwriting and signatures. It was issued after demolition charges of Rs.4700/ was deposited in respect of property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi. The relevant page of the demolition charge register was Ex.PW18/B and relevant page of despatch register in handwriting of Ashok Bhati was Ex.PW18/C. In his cross examination by learned counsel for Zakir Hussain, he claimed that he had issued receipt in the name of person mentioned in the demand letter. However, he could not remember whether the letter was in the name of Subhash Chander or not. In his crossexamination by learned counsel for Sudesh Chhabra and Anil Chhabra, he claimed to have verified correctness of the letter on basis of which he had received demolition charges. He denied the suggestion that he was party to false proceeding and issuance of false receipt copy of which was Ex.PW18/A.
24. The next witness to be examined was Shishpal. He deposed that on 21.1.02, he was working as Beldar and was posted in City Zone MCD. He was deputed in demolition squad along with other Beldars for carrying out demolition in property in Kucha Kabil Attar under supervision of accused Zakir Hussain. After reaching the property, demolition action was taken. The show cause notices was pasted on the property contained impression of CC No.21/08 CBI Vs. Zakir Hussain etc. pg 29 of 6 30 his signatures. The notices were Ex.PW12/B & Ex.PW12/C. The witness was crossexamined by learned PP wherein he denied the suggestion that he had told IO that he was directed by Zakir Hussain to remain at the gate while Zakir Hussain and JE Zaffar Mohsin went inside Chhabra Trading Co. He also denied having told CBI that after about 45 minutes Zakir Hussain and Zaffar Mohsin came out and police personnels were relieved without taking any demolition action. He denied having told IO that demolition action was not taken on property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi. He admitted having told IO that demolition squad had proceeded for demolition under Zakir Hussain at Chandani Chowk in truck No. DL 1LB 2924 around 10.30 a.m. In his crossexamination by learned counsel for Sudesh Chhabra and Anil Chhabra he claimed that when he went to the premises for serving show cause notice, the premises were locked and there was a wooden gate having height of 6ft. On the second occasion, none of the person from surrounding shops were asked to witness the service of notice. The gate again was locked from outside. On both occasions, it was working day. In his crossexamination by learned counsel for accused Zakir Hussain, he claimed that he was called twice to CBI Office and his oral statement was not recorded. Some documents were got signed from him.
25. PW20 was Sh. Surajmal. He deposed that he was working as driver CC No.21/08 CBI Vs. Zakir Hussain etc. pg 30 of 6 31 in MCD City Zone and used to drive truck No. DL 1LB 2924 and also maintain a log book. He claimed that Ex.PW14/A which was copy of log book of the truck did not contain his signatures. The log book used to be put up before J.E for his signatures, some times by him and on some occasions by the owner of the truck. In his crossexamination by counsel for Zakir Hussain, he claimed that truck was operated only in City Zone. Entries used to be made by him or by the owner. Zaffar Mohsin and Zakir Hussain used to go for demolition. He was not certain if log book Ex.PW14/A contained signatures of Zaffar Mohsin. He did not remember having accompanied Zaffar Mohsin and Zakir Hussain on 21.1.02 (wrongly typed as 21.1.01) to carry demolition.
26. The next witness to be examined was Sh. S.N. Hassan. He deposed that he was working as JE (Bldg.) in MCD in 200102. After going through Ex. PW14/A, he claimed that signatures marked as B1, B2 & B were not his. He had made noting for taking demolition action as per policy. The said noting which was Ex. PW17/B contained his signatures at point A. Thereafter he marked the file to AE for obtaining demolition orders. After passing of order of demolition action, the file was handed over to accused Zakir Hussain for taking demolition action on 21.1.02. Accused Zakir CC No.21/08 CBI Vs. Zakir Hussain etc. pg 31 of 6 32 Hussain then prepared a note Ex. PW17/D after taking the demolition action. Signatures of Zakir Hussain appeared at point A on the said note. The witness was cross examined by Ld. Counsel for Sudesh Chhabra and Anil Chhabra, wherein he claimed that show cause notice for demolition and FIR indicate that property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi, was a single property. He admitted that in absence of necessary details, the showcause notice and demolition notice would not be a proper notice. He also admitted that in case of separate properties owned by different owners, separates notices have got to be issued. In his cross examination by Ld. Counsel for accused Zakir Hussain, he admitted that it was duty of JE to bring to knowledge of AE any unauthorized construction. He also admitted that power for issuance of showcause notice and demolition notice were delegated by the Commissioner to Assistant Engineer. He also admitted that before passing of demolition order it was essential to verify whether the owner had carried out demolition himself or not. He claimed that he was not aware whether the concerned JE (Zakir Hussain) had demolished the property or not. He also admitted that in few cases after receiving demolition notice, owner/builder themselves carry out demolition. The demolition report could be submitted to EE instead of AE.
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 32 of 6 33
27. The next witness to be examined was Mr. Manohar Diwani from MCD. He deposed that he was posted as EE (Bldg.) from 2001 to 2003 at City Zone, MCD. The main job of building department was to book unauthorized constructions and take demolition action against unauthorized properties. It was duty of JE to detect unauthorized construction in his area. He has to prepare FIR and then approach Office Incharge (Bldg.) and get it numbered. It is entered in misil band register. Date wise monthly list is prepared for taking demolition action against properties mentioned therein. After JE (Bldg.) registers FIR, demolition notice is issued by AE (Bldg.). Thereafter demolition order is issued by AE (Bldg.). Ex.PW22/A was office order for demolition programme in City Zone from 01.01.02 to 28.02.02. Ex. PW22/B was list of tentative demolition/sealing action of building department. The list included demolition and sealing action against property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi. He had approved a note put up by Zakir Hussain. It was to the effect that demolition action had been taken and owner/occupier be directed to deposit demolition charges of Rs. 4700/. In his cross examination by Ld. Counsel for Sudesh Chhabra and Anil Chhabra, the witness claimed that EE (Bldg.) was to inspect 10% of the properties booked by JE (Bldg.). He also admitted that notices for unauthorized constructions and demolition have to be issued CC No.21/08 CBI Vs. Zakir Hussain etc. pg 33 of 6 34 separately for each property. In the case in hand, single notices Ex. PW12/A , PW12/B and PW17/C had been issued in respect of property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi. If the said two properties were not single, then notices were illegal. Site plans Ex. PW11/C and PW11/D indicate that property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi, were separate properties. House tax documents Ex. PW9/A and PW9/F indicate that the two properties were separate. The notices and demolition orders in the present case were illegal. He had not inspected the site at any time. In his cross examination by Ld. Counsel for Zakir Hussain, he admitted that in every zone of MCD, watch and ward register is maintained. Misil band register is also maintained in every zone. At the end of the day, misil band register was signed by EE. It was duty of AE to verify correctness of the report of JE before issuance of showcause notice. The demolitions were carried out as per priorities. Copy of the list of demolition is sent to concerned police station for providing police assistance. In few cases, owner/builder make rectification before MCD carries out demolitions. He had granted permission to JE concerned (accused Zakir Hussain) for collection of charges after being satisfied about carrying out demolitions by the JE. He could not remember if AE had ever reported to him that unauthorized constructions had been demolished. File of the CC No.21/08 CBI Vs. Zakir Hussain etc. pg 34 of 6 35 present case had been closed on his directions and there was no conspiracy between him, JE (Zakir Hussain) and the owner/builders.
28. PW24 was Ashok Kumar, again from MCD. He deposed that his job was to maintain files of unauthorized buildings, sealing files misil band register etc.. Entries in the misil band register were checked by EE daily. Ex.PW24/A was a letter vide which he had handed over few documents to CBI.
29. Ansar Alam was the next witness to be examined. He had signed Ex. PW24/A vide which documents had been handed over to CBI. According to Sr. No. 12 of the said letter, original files regarding showcause notices, action and demolition order initiated by Zakir Hussain were not traceable in the office.
30. PW26 was K.S. Lohchab. He deposed that he was working in CBI during inquiry of PE 4/2006 a letter was issued on 22.5.06 by the SP to different SHOs with copies to DCP Central, North and South. The letter is Ex. PW26/A. Ex.PW26/B was another letter written by the then SP, CBI. He had in response received a letter from DCP Sunil Garg North District, Delhi, CC No.21/08 CBI Vs. Zakir Hussain etc. pg 35 of 6 36 which was Ex. PW26/C, vide productioncumreceipt memo Ex. PW26/D he had handed over the letters alongwith enclosures to Dharamvir Singh of CBI.
31. Dharamvir Singh deposed as PW27. He claimed that after registration of this case, he was entrusted with investigation by the SP. Copy of the FIR was Ex. PW27/A. During investigation he collected records from MCD City Zone, house tax records, sale deed from subregistrar, got present building plan prepared, collected reports and various documents including records of the properties in question, memorandum and articles of association of Chhabra Trading Co., attendance registers of beldars, misil band register, vide various memos. He also had examined material witnesses, obtained sanction for prosecution of accused Zakir Hussain and after completion of investigation, filed the charge sheet Ex. PW27/S. During cross examination by Ld. Counsel for Sudesh Chhabra and Anil Chhabra, he claimed that statement of few witnesses were recorded in hand, while rest were dictated by him for recording on computer. He admitted that there was overwriting regarding time in the statement u/s 161 Cr.P.C. of Kishori Singh and PW Dharam Pal. He denied the suggestion that he had formulated the statement of the witnesses on his own. The statements were made by the CC No.21/08 CBI Vs. Zakir Hussain etc. pg 36 of 6 37 witnesses in Hindi. He claimed that he had verified genuineness of notices Ex. PW12/A and PW12/B from the Executive Engineer Manohar Diwani. Property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi were two different properties owned by different owners. He had visited them but could not recollect the date of visit. According to the log book Ex. PW14/A, Zafar Mohsin had not accompanied to the site. After going through copy of the entry he claimed that name of Zafar Mohsin has been mentioned as a person going to the site alongwith the truck. In his cross examination by Ld. Counsel for Zakir Hussain, he denied the suggestion that he had not conducted inquiry within framework of order passed by Hon'ble High Court and he had gone beyond the scope and guidelines of the order. He did not submit any specific report to Hon'ble High Court and volunteered that common reports were submitted through their Zonal office at New Delhi. He admitted that in terms of the order passed by Hon'ble High Court, they were directed to ascertain nexus between owner/builder and MCD officials in respect of unauthorized constructions. He denied the suggestion that he had not inspected the property. He denied the suggestion that whatever record he had taken possession of and whatever inspections had been carried out at his behest by various departments, were prior to the period January 2002. He had collected circulars collected by Commissioner, MCD from time to time.
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 37 of 6 38 He admitted that once unauthorized construction was booked, it was required to be checked by AE and EE. Neither AE nor EE had carried out personal inspection of the property in dispute. He also admitted that it was duty of AE after receiving record of demolition to carry out inspection and verify whether complete demolition had been carried out or not. He also admitted that notice can be deemed to be served if they are pasted on the property. He denied the suggestion that owner of the property had deposited demolition charges with MCD. He volunteered that demolition charges were deposited at instance of accused Zakir Hussain to conceal fact of non demolition. He further volunteered that had the owner deposited the demolition charges, his name would have been mentioned on the receipt instead of Subhash Chander. He also admitted that he did not find any reply submitted by owner of property No. 921 to the showcause notice and once no reply is received, MCD is within its power to pass demolition order. If the owner fails to demolish then MCD can do the job and recover demolition charges. He denied the suggestion that it came to his knowledge that owner of property had already carried out rectifications/demolitions in terms of demolition order. He admitted that in statements recorded u/s 161 Cr.P.C. of Kishori Singh and Shish Pal, it is not mentioned that statements were read over and explained to the witnesses in vernacular. Lastly he admitted that CC No.21/08 CBI Vs. Zakir Hussain etc. pg 38 of 6 39 during course of investigation, he did not find any direct or indirect evidence that accused Zakir Hussain had any monetary transaction by submitting report of demolition.
32. PW28 was Umesh Thakur. He deposed that in January 2002 he was posted in building department of City Zone, MCD. On 21.1.02 he remained in his office and did not visit any place for demolition action. He identified impression of his signatures on copy of attendance register on Ex. PW28/A.
33. PW29 was Mr. R.S. Madan. He deposed that he was posted as Sub registrar at Kashmiri gate. He wrote a letters Ex. PW29/A to PW29/D to SP, CBI. He handed over documents mentioned therein vide those letters. The documents handed over by him were copies of the sale deed of the properties in question.
34. The next witness to be examined was Mr. Vinod Mathur. He deposed that he had prepared site plan of property no. 921 situated at Station Road near Mewa Hotel which was part of sale deed Ex. PW6/B. He had visited the spot and taken the measurement from the terrace. At the time of his visit, the property was residential. Its owner was Kanta Soni (The previous owner of CC No.21/08 CBI Vs. Zakir Hussain etc. pg 39 of 6 40 the property purchased by Chhabras). The site plan prepared by him was Ex. PW30/A. In his cross examination by Ld. Counsel for Sudesh Chhabra and Anil Chhabra, he claimed to have visited the property on 8.9.97 at about 2.00/3.00 pm. Property no. 921 was different from 922.
35. PW31 was Mr. Ramphal. He claimed that in August 2007, he was posted in Architecture Department of MCD. He had visited property no. 921922, Kucha Kabil Attar, Chandini Chowk, Delhi. He had gone there to prepare existing building plan. The team comprised of Bhupender Giri, Pawan Aggarwal and himself. Copies of the plans Ex. PW11/C,Ex. PW11/D, PW11/E contained impression of his signatures. Property no. 921 was found to be of commercial nature and entrance was from the side of Town Hall. In his cross examination by Ld. Counsel for Sudesh Chhabra and Anil Chhabra, he claimed that the drawings in respect of Ex. PW11/C to PW11/E were not prepared by him.
36. The last witness to be examined by the prosecution was Pawan Aggarwal, a member of the team which had prepared existing building plan of property no. 921922, Kucha Kabil Attar, Chandini Chowk, Delhi. He too in his similar testimony claimed to have visited the property. He CC No.21/08 CBI Vs. Zakir Hussain etc. pg 40 of 6 41 prepared the drawings in the office of MCD Chief Architect after measurement was taken by Ramphal and Bhupender Giri. Site plans Ex. PW11/C to PW11/E were prepared by him in the office of Chief Architect.
37. After closing of PE, statements of accused were recorded u/s 313 Cr.P.C.
38. Accused Zakir Hussain in his statement u/s. 313 Cr.P.C claimed that during his tenure no showroom was built. He admitted that MCD came to know of unauthorized constructions raised in 921922 Kucha Kabil Attar, Chandani Chowk, Delhi from a court case. He did not know any person by the name of Subhash Chander who was living in property No.922 Kucha Kabil Attar, Chandani Chowk, Delhi. Show cause notice in respect of 921922 Kucha Kabil Attar, Chandani Chowk, Delhi was issued because they appeared to be single unit. Later on demolition was done in respect of 921,Kucha Kabil Attar, Chandani Chowk, Delhi. He had put up the noting after demolition before Executive Engineer as Asstt. Engineer was not available in the office. He admitted that police team comprising of HC Naresh Kumar, Ct. Adesh and Ct. Inder had gone to the spot to help in demolition. He admitted that he was part of the team being Jr. Engineer. He admitted that he had asked the police party to wait outside while he went CC No.21/08 CBI Vs. Zakir Hussain etc. pg 41 of 6 42 inside the building, but he claimed that demolition was carried out and it was duly completed and he did not tell police officials that no demolition was to be done. He claimed that there was altercation between him and HC Naresh Kumar and between the owners and Naresh Kumar. He claimed that Beldar Manohar Lal had made a false statement regarding his telling Manohar Lal that no demolition was to be done. He also claimed that the owner/builder had already carried out major demolition of unauthorized construction. He claimed that show cause notice and demolition had been issued in name of owner/builder and as they had refused to accept, the notices were pasted. He claimed that wrong name had been written by concerned officer while issuing recovery notice and issuance of receipt in the name of Subhash Chander. He admitted that entries in the log book have to be put up before JE for his signatures. He admitted that S.N. Hassan was working as JE (Bldg.) in the City Zone in 20012002. He further admitted that log book Ex.PW14/A did not contain signatures of S.N. Hassan at point B1, B2 and B. He also claimed that log book did not contain signatures of Surajmal at point X1, X2 and X3. Lastly he claimed that he had been falsely implicated on basis of false complaint made by people having vested interest in the dispute. He had performed his duty as per law as an officer of MCD.
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 42 of 6 43
39. Accused Anil Chhabra and Sudesh Chhabra in their similar statements u/s. 313 Cr.P.C., claimed that property No. 921 Kucha Kabil Attar, Chandani Chowk, Delhi had been purchased in 1997 and thereafter, repairs were carried out without violating building bylaws. They claimed that they were not aware of any Subhash Chander staying in 922 Kucha Kabil Attar, Chandani Chowk, Delhi. They admitted that business of Chhabra Trading Co. was being carried out in 919, 921, 924, 926 & 927, Kucha Kabil Attar, Chandani Chowk, Delhi. No notice had been received by them in respect of 921, Kucha Kabil Attar, Chandani Chowk, Delhi. They claimed that business at 921, Kucha Kabil Attar, Chandani Chowk, Delhi was being looked after by Sanjay Jain, their staff and they occasionally visit the place. They claimed to have no knowledge of visit of accused Zakir Hussain along with demolition team. He admitted that some officials of MCD indeed had visited their office according to information given by Sanjay Jain. In response to question No. 28 regarding usage of ground floor, first floor and second floor for commercial activity and the occupier being CTC at 921 Kucha Kabil Attar, Chandani Chowk, Delhi, they gave no answer. Property No. 921 & 922 Kucha Kabil Attar, Chandani Chowk, Delhi were separate properties and they had nothing to do with property no.
922. Business of sarees and ladies garments was being run from 921. They CC No.21/08 CBI Vs. Zakir Hussain etc. pg 43 of 6 44 had not made any payment of Rs.4700/ towards demolition charges for property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi. Lastly they claimed to be innocent. It was claimed that alleged order of demolition could not have been executed as property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi were distinct properties and they had nothing to do with property No. 922.
40. Sudesh Chhabra and Anil Chhabra examined their manager Sanjay Kumar Jain as DW1. He deposed that he was working as a Manager with Chhabra Trading Co. It had shops in many places in Delhi. Sudesh Chhabra has an office at Katra Asharfi. He looks after the accounts of CTC. He does not attend shop at 920, Station Road, Town Hall, Delhi. Anil Chhabra looks after purchasing and supplies of sarees at various shops of CTC scattered over Delhi. He visits the Town Hall shop rarely. The day to day administration and business is looked after by him (DW1 Sanjay Jain). They had never received any notice from MCD. In his crossexamination by Ld PP he claimed that in 2002 no MCD staff had come to property No. 921 for demolition. However, few people indeed had come for inspection. In his crossexamination by learned counsel for Zakir Hussain, he denied the suggestion that he was not employed with Chhabra Trading Co. in February CC No.21/08 CBI Vs. Zakir Hussain etc. pg 44 of 6 45 2002. He denied the suggestion that owner of property No. 920 and 921, Kucha Kabil Attar, Chandani Chowk, Delhi had carried out unauthorized constructions regarding which show cause notices and demolition notices were served. He denied the suggestion that as owners refused to accept the notice, service was affected by affixation. He denied the suggestion that accused Zakir Hussain along with 45 Beldars had carried out any demolition. He also denied the suggestion that the owner themselves had carried out any demolition.
41. The second defence witness was Parmanand. He was examined by the accused Zakir Hussain. He claimed that he was working as Beldar in MCD. Zakir Hussain was their JE. Normally 1012 Beldars accompany JE for demolition. On 21.1.02 he accompanied Zakir Hussain. They carried out demolition in property No. 921922 Kucha Kabil Attar, Chandani Chowk, Delhi. They demolished a wall, part of which was already lying demolished. After doing the job, they came back to the truck parked at Town Hall. In his crossexamination by Ld.PP, he could not tell the period during which he was posted in Building Department . He could not spell out any date of January 2001, apart from 21.1.02 in which he had gone for demolition. Attendance is marked and then they leave for demolition action.
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 45 of 6 46 After he was shown attendance register Ex.PW28/A for the month of January 2002, he admitted that his name was not mentioned in the register as the person who was present in the office of MCD on 21.01.2002. However, he denied the suggestion that he had not accompanied accused Zakir Hussain for demolition to 921922, Kucha Kabil Attar, Chandani Chowk, Delhi. He admitted in crossexamination by counsel for Sudesh Chhabra and Anil Chhabra that he was posted at that time in dangerous building department which was separate from building department. The said two departments had different junior engineer. He claimed that they had gone straight to the first floor without entering the ground floor. He did not remember if the demolition of the wall was done on the first floor, ground floor or second floor. He claimed that the wall in question was 89 ft. in height. 45 ft. had already been demolished and they had punctured the remaining portion. He admitted that they were accompanied by police team. He did not make any entry or signatures in the attendance register on that day.
42. The last witness to be examined in defence by accused Zakir Hussain was Arun Kumar. He too deposed on the lines of deposition of Parmanand. He claimed to have accompanied Zakir Hussain and they demolished a wall CC No.21/08 CBI Vs. Zakir Hussain etc. pg 46 of 6 47 in property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi. He admitted in his crossexamination by Ld. PP, that in the first instance attendance of Beldars is marked and only thereafter they go for demolition action along with JE. He could not remember if he had attended any other demolition program in the entire month of January 2002. After seeing attendance register Ex.PW28/A, he admitted that his name did not figure in it. In his crossexamination by Learned counsel for Sudesh Chhabra and Anil Chhabra he claimed that Beldars from Dangerous Building Department were also taken for demolition but only after orders were passed in this respect by Executive Engineer. The Beldars of Dangerous Building Department work under supervision of AE posted in Dangerous Building Department. He could not remember the name of JE under whom he was working in dangerous building department. He claimed further that he did not report to his own JE or to any other officer of dangerous building department upon his return. He admitted having known accused Zakir Hussain for the last 1012 years and knew him when he was posted in Minto Road Office. He could not even remember having participated in any demolition program of 2009 or at any other point of time. The building in question was built up to second floor and the demolition had been carried out on the first floor. He could not remember height and length of the wall.
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 47 of 6 48 He could not tell height and length of the wall which was completely demolished by them.
43. I have heard Sh. Praneet Sharma, Ld. Sr. PP, Mr. Verma Ld. Counsel for accused Zakir Hussain and Sh. S.P. Minocha Ld. Counsel for Sudesh Chhabra and Anil Chhabra very extensively.
44. Ld. Counsel for accused Anil Chhabra and Sudesh Chhabra argued that after Junior Engineer (JE) inspects the property, he submits the report to the Asstt. Engineer (AE). Notices are thereafter issued by AE upon report given by J.E. According Ld. Counsel for the accused, case of MCD was that Chhabras had constructed an unauthorized wall. Construction of wall would mean that property was being divided into two. It could not mean amalgamation of two properties. He claimed that if property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi were two separate properties, then the FIR Ex. PW12/A and notices Ex.PW12/B & PW17/C, issued by MCD were invalid. If the notices were invalid then no action whatsoever could have been taken by MCD. He further claimed that according to PW1 Raj Kumar Arora and PW5 Ashok Arora, Chhabras had nothing to do with property no. 922, Kucha Kabil Attar, Chandani Chowk, Delhi. According to CC No.21/08 CBI Vs. Zakir Hussain etc. pg 48 of 6 49 PW21 S.N. Hasan from MCD, if separate properties are owned by different owners, then separate showcause notices and demolition notices must be issued. The same stand was taken by PW22 Manohar Diwani who was Executive Engineer, MCD. He too had claimed that separate notices are required to be issued and single notices were invalid. He further argued that according to PW22, the site plans indicate that property no. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi, were separate properties. Documents of house tax department also indicate them to be separate properties owned by different owners. So Ld. Counsel submitted that MCD could not have taken any action whatsoever in the matter. Ld. Counsel further submitted that MCD had to file status report in the Hon'ble High Court. It was party to an earlier suit filed by owner of property no. 922, Kucha Kabil Attar, Chandani Chowk, Delhi against Anil Chhabra and Sudesh Chhabra. MCD was thus aware of the unauthorized construction. They issued notice to Anil Chhabra and Sudesh Chhabra for property no. 921 & 922, Kucha Kabil Attar, Chandani Chowk, Delhi. They did not have any choice left as report was to be submitted in Hon'ble High Court. They prepared false and fabricated notices. They also prepared record regarding demolition and this sham job was done by accused Zakir Hussain. There was no occasion for any conspiracy between Anil Chhabra and Sudesh Chhabra and Zakir CC No.21/08 CBI Vs. Zakir Hussain etc. pg 49 of 6 50 Hussain. There was no reason for them to pay any illegitimate money to accused Zakir Hussain and more so IO PW27 Dharamvir Singh in his cross examination admitted that during course of investigation, he did not find any direct or indirect evidence that Zakir Hussain had any monetary transaction in submitting demolition report.
45. Ld. Counsel for the accused Anil Chhabra and Sudesh Chhabra further argued that there was no positive evidence on record to show that demolition had taken place or had not taken place. So, according to him the entire prosecution case is washed out. There is no possibility of conspiracy.
46. He claimed, if property no. 921 and 922, Kucha Kabil Attar, Chandini Chowk, Delhi are two separate properties then there has to be a wall which has to be preserved. If the two properties have been amalgamated then there cannot be a wall which requires demolition. Mere non demolition would not attract provisions of Prevention of Corruption Act.
47. Ld. Counsel further submitted that if Anil Chhabra and Sudesh CC No.21/08 CBI Vs. Zakir Hussain etc. pg 50 of 6 51 Chhabra were conspirators, then they would have deposited Rs. 4700/ towards demolition charges, but here they are disputing it.
48. Ld. Counsel further submitted that the charge framed was defective. There was no wall which was unauthorized construction. Regarding rest of unauthorized construction, there was no charge and so accused could not be convicted for other unauthorized construction in property No.921, Kucha Kabil Attar, Chandani Chowk, Delhi.
49. Ld. Counsel for accused Zakir Hussain on the other hand submitted that there were three main allegations against his client. First was that he did not demolish the property. Second was that he gave a false report of demolition, and the third one was that it was in furtherance of conspiracy hatched between Sudesh Chhabra, Anil Chhabra and his client. He submitted that as per Sec. 343 of DMC Act, it is not necessary to issue notice to the owner. It has to be issued to the person at whose instance unauthorized construction is being done. JEs job is just to watch and prepare FIR and place the file before AE. JE cannot take action on his own. Showcause notice is issued by AE. There could have been no conspiracy between his client and Chhabras till 03.05.01 when FIR Ex. PW12/A was CC No.21/08 CBI Vs. Zakir Hussain etc. pg 51 of 6 52 registered by accused Zakir Hussain. Lodging of FIR would indicate absence of conspiracy. There could not be any conspiracy between JE and builder. The movement FIR is lodged by JE, he loses all control.
50. Ld. Counsel for Zakir Hussain also said that the main question was whether demolition had been carried out or not. Legality and illegality of the notices was not be gone into by the court. He further submitted that CBI had exceeded its jurisdiction by going beyond directions given by Hon'ble High Court in Kalyan Sansthan case. He claimed that PW3 Manohar Lal though in examination in chief claimed that no demolition had taken place, in crossexamination he admitted that he kept on sitting in the truck. So, he could not have seen any demolition or non demolition. Similarly, PW4 Kishore Singh had claimed that they kept on sitting in a gaadi. Accused Zakir Hussain told them that he would inspect the property. After 3045 minutes, he told them to go back. So, he could not have seen demolition or non demolition.
51. Ld. Counsel relied upon case of Mayawati Vs. Union of India :
2012 VI AD SC 435. He claimed that in the said case CBI was directed to CC No.21/08 CBI Vs. Zakir Hussain etc. pg 52 of 6 53 carry out investigation regarding Taj Corridor. CBI exceeded its mandate and went through assets of Mayawati. He claimed that in the case in hand also CBI exceeded the directions given by Hon'ble High Court in Kalyan Sansthan's case. The job of CBI should have ended with giving of report regarding nexus between MCD officers, politicians and builders.
52. He further submitted that there were lacuna in the case of CBI. He questioned the source from which CBI got list of baildars who had accompanied Zakir Hussain for demolition. Ld. Counsel went through testimony of the baildars. PW3 Manohar Lal had claimed that no demolition was carried out. He also mentioned names of five baildars who had accompanied him. Ld counsel argued that CBI had not examined those five Beldars as it would have demolished their case. Ld. Counsel further claimed that PW20 Suraj Mal driver of the truck stated that it was not his job to verify demolition. PW28 Umesh Thakur stated that he did not visit any place for demolition on 21.1.02. Ld. Counsel relied heavily upon testimony of PW19 Shishpal who claimed that demolition was done. Ld. Counsel further argued that it was duty of CBI to prove guilt of the accused. CBI had shown on record that demolition team went to the site, but no evidence was CC No.21/08 CBI Vs. Zakir Hussain etc. pg 53 of 6 54 led to show that demolition was not carried out.
53. Ld. Counsel further argued that PW9 Om Prakash and PW15 Kamleshwar Dayal had submitted that property No. 921 & 922, Kucha Kabil Attar, Chandani Chowk, Delhi had been amalgamated. As they had been amalgamated, single notice could have been issued.
54. Ld. Counsel also argued that there was no possibility of any conspiracy between Sudesh Chhabra, Anil Chhabra and Zakir Hussain. Zakir Hussain had booked the property and exposed it to threat of demolition.
55. Let me put the records straight. Charge sheet filed by the CBI does not limit itself to any unauthorized construction of "wall". It talks about unauthorized construction "in the property". It simply mentions that Zakir Hussain had booked the property for unauthorized construction of raising of wall till roof level. The charge framed by my Ld.Predecessor was also not limited to unauthorized construction of "wall".It was regarding unauthorized construction"in the property" No. CC No.21/08 CBI Vs. Zakir Hussain etc. pg 54 of 6 55 921922, Kucha Kabil Attar, Chandani Chowk, Delhi. Contention of Ld. Counsel for Anil Chhabra and Sudesh Chhabra that charge framed was defective cannot be sustained because the charge framed did not confine itself to unauthorized construction of "wall". It was meant for unauthorized construction in the entire property. It was MCD which had for the first time has come up with the story of unauthorized construction of "wall" in the FIR lodged by accused Zakir Hussain and notices issued by him.
56. I have gone through the judgments cited by Ld. Counsel for Anil Chhabra and Sudesh Chhabra. With all humility, I would submit that they do not apply to the facts of the case in hand. In the first case cited by Ld. Counsel titled as Mainpal Vs. State of Haryana, accused tress passed into house of Prakashi Devi and used criminal force on her. He was convicted by the trial court u/s. 452 and 354 IPC. The evidence led showed that the accused attempted to outrage modesty of her daughter in law Sheela Devi. Hon'ble Apex Court posed a question that if charge was of assaulting and outraging modesty of 'X' but the evidence indicates that modesty of 'Y' had been outraged, then could he be punished. It observed further that accused CC No.21/08 CBI Vs. Zakir Hussain etc. pg 55 of 6 56 had concentrated his crossexamination on the charge regarding assaulting Prakashi Devi. So, he could not be convicted for outraging modesty of Sheela Devi. Here, in case in hand the charge framed was not regarding unauthorized construction and non demolition of wall. It was for entering into criminal conspiracy and not demolishing the entire unauthorized construction in property No. 921 &922, Kucha Kabil Attar, Chandani Chowk, Delhi and then falsely showing demolition action to obtain pecuniary advantage. Accused throughout knew that he was charged with regard to non demolition of entire unauthorized construction in property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi and not mere non demolition of a wall. We can again take a relook at the charge framed by my learned predecessor against the accused persons in this regard.
57. The second case cited was of Sohan Lal Vs. State of Punjab, the said case was decided by two Hon'ble Judges of Apex Court in 2003. They had held that in absence of charge framed u/s. 302 or 109 IPC, conviction of the accused could not be sustained. I would humbly submit that in 2004, three Hon'ble Judges of Apex Court in case titled as Dalbir Singh Vs. State of U.P.: AIR 2004 SC 1990 where no charge u/s. 306 IPC had been framed, CC No.21/08 CBI Vs. Zakir Hussain etc. pg 56 of 6 57 held that accused could be convicted u/s. 306 IPC, if evidence on record was sufficient.
58. The third case referred by Ld. Counsel for the accused was State of Maharashtra Vs. Ramashankar. In the said case a Magistrate had framed a composite charge u/s. 304A, 337 & 427 IPC. It was held that trial court was required to communicate to the accused particular of the offences so that he gets real opportunity to plead guilty or adopt defence as desired. In the case in hand my Ld. Predecessor in the charge framed did mention about entering into conspiracy by the accused persons for non demolition of unauthorized construction. He also mentioned about falsely manipulation of the record while keeping the property intact and obtaining of pecuniary advantage. He also gave the exact municipal number of the property involved.
59. The last case cited by Ld. Counsel was of Suchand Pal Vs. Phani Pal. It had been held by Hon'ble Apex Court that case of prosecution should stand on its own legs. It cannot take advantage of weakness in the defence. Court could not make out a new case for prosecution. In the case in hand since beginning the charge was for not demolishing unauthorized construction in the property and was not confined to any "wall" which CC No.21/08 CBI Vs. Zakir Hussain etc. pg 57 of 6 58 actually did not exist.
60. Case of Ms. Mayawati which was relied upon also has no application to the case in hand. Section 2 of DSPE Act talks about constitution and powers of Special Police Establishment. As per Sec. 2 (2) of the said Act members of said police establishment shall have the jurisdiction throughout any Union Territory in relation to investigation of offences and arrest of persons concerned with those offences, all the powers, duties privileges and liabilities which police officers of that Union Territory possess.
61. Section 3 of the DSPE Act says that Central Government by notification in the official gazette specify the offences or classes of offences which are to be investigated by DSPE. According to the notification issued, offences following under Prevention of Corruption Act can be investigated by member of DSPE.
62. As per section 5 of DSPE Act Central Government can extend to any area (which is a state and not Union Territory) powers and jurisdiction of members of DSPE for investigation of offences.
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 58 of 6 59
63. As per Section 6 of the DSPE Act nothing contained in Section 5 shall confer jurisdiction and powers over members of DSPE to act in any state, without consent of the State Government. So prior consent of State government is a must before Central Government can issue notification U/s 5 of DSPE Act.
64. In Ms. Mayawati's case FIR was lodged and investigation was conducted without obtaining consent of the UP Government u/s. 6 of DSPE Act. Hon'ble Supreme Court had held that in absence of consent of State Govt., the entire exercise of CBI of lodging FIR and investigation into assets of Ms. Mayawati was not related to Taj corridor project and thus was without jurisdiction and void ab initio as they had not issued any direction to CBI to conduct roving enquiry into assets of Ms.Mayawati. There was no consent u/s. 6 DSPE Act given by State Government regarding investigation into assets of Ms.Mayawati. There was no notification u/s. 5 DSPE Act also.
65. In the present case there is no need for consent of the State Government as far as Delhi is concerned because Delhi is a Union Territory and is being governed by the Central Government. CBI is also under supervision and control of Central Government. The offence alleged against CC No.21/08 CBI Vs. Zakir Hussain etc. pg 59 of 6 60 the accused persons was cognizable and CBI could have proceeded against the accused persons in a normal course of business and there was no need for obtaining consent from any source. There was no need for obtaining sanction u/s. 6 of DSPE Act for the above reasons. So case of Ms. Mayawati does not apply and CBI had not exceeded its jurisdiction by taking up this case and filing the charge sheet.
66. Prosecution in order to succeed has to establish three things:
i) Unauthorized construction had been carried out in property No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi.
ii) No demolition of unauthorized construction had taken place.
iii) False record had been prepared showing taking of demolition action.
Non demolition and preparation of false record was result of conspiracy hatched and monetary considerations.
67. To establish unauthorized construction, CBI had examined few witnesses. Testimony of PW1 Rajkumar Arora clearly shows that Chhabras had carried out construction in property No. 921, Kucha Kabil Attar, Chandani Chowk, Delhi after having purchased it from the owners. They CC No.21/08 CBI Vs. Zakir Hussain etc. pg 60 of 6 61 demolished the entire structure and rebuilt it. In his crossexamination by learned counsel for accused Anil Chhabra and Sudesh Chhabra, he claimed to have told IO that Chhabra Trading Co. was built on 919, 921, 924, 926, 927, Kucha Kabil Attar. Due to construction raised by Anil Chhabra and Sudesh Chhabra, his property No. 922 got damaged and he filed an injunction suit against Anil Chhabra and Sudesh Chhabra. The matter was subsequently compromised. PW5 Ashok Arora brother of PW1 Rajkumar Arora too had claimed that Anil Chhabra and Sudesh Chhabra commenced with repairing of the premises which resulted in damage to his property No.
922. His brother filed civil suit against Anil Chhabra and Sudesh Chhabra and the matter was subsequently compromised. He had deposed that Chhabras had removed partition wall and converted the premises into big halls. This would mean that Chhabra Trading Co. is running show room in 921 and other adjoining properties in Kucha Kabil Attar, Chandani Chowk, Delhi. Certainly Anil Chhabra and Sudesh Chhabra are not using it as residence. They are running Chhabra Trading Co. in the aforesaid properties. PW3 Manohar Lal too had claimed that they had gone for demolition of Chhabra saree wala near Town Hall. Similarly PW Kishore Singh claimed to have gone for demolition in 921, Kucha Kabil Attar, Chandani Chowk, Delhi. Even if we discard their testimony regarding CC No.21/08 CBI Vs. Zakir Hussain etc. pg 61 of 6 62 demolition or non demolition since they remained in the truck, it would clearly indicate that indeed construction had been carried out atleast in property No.921, Kucha Kabil Attar, Chandani Chowk, Delhi and that is why the MCD team had gone to the premises in question.
68. PW8 Sudhir Gupta had handed over file pertaining to house tax of property no. 921, Kucha Kabil Attar, Chandini Chowk, Delhi, to CBI. The said file contained details of the construction which existed in the property from 1962 to 2001. Before Anil Chhabra and Sudhesh Chhabra had purchased property no. 921, Kucha Kabil Attar, Chandini Chowk, Delhi, it comprised of a room on the ground floor measuring 8x10 ft., one dalan measuring 8x12 ft., two side kothas measuring 8x4 ft., one store, one kitchen. On the first floor, there was one room measuring 8x15 ft. one store, one latrine and a bath. In the said file, there is copy of the notice issued to Mr. Hansraj Sardari Lal. According to it, one tin shed was converted into a room on the first floor and tin shed had been built on the second floor. There is also a document on the said file, according to it, inspection was carried out on 24.7.84 of the property, which indicated the said construction as existing in the property. In 1997 the property was sold to Chhabras by way of different sale deeds. The property no. 921, Kucha Kabil Attar, Chandani CC No.21/08 CBI Vs. Zakir Hussain etc. pg 62 of 6 63 Chowk, Delhi had been sold by way of three sale deeds which are Ex. PW6/A, PW6/B and PW10/A. Now if we take a look at the site plans which were annexed to the sale deeds, which are Ex. PW10/B & PW30/A, we find that at the time of sale of the property no.921, Kucha Kabil Attar, Chandini Chowk, Delhi, it comprised of ground floor, first floor and terrace on the second floor. There were stores, rooms, courtyards, bathrooms and latrines, existing on the ground floor and first floor of the said property. House tax department issued a notice dt. 25.3.2002 claiming therein that additions and alterations had been carried out on ground floor, first floor and second floor of the property and the rateable value of the property was proposed to be enhanced from Rs. 810/ to Rs. 194800/. House tax department had carried out inspection of the premises on 07.03.2002. The inspection note is Ex. PW9/A. They found that on ground floor, first floor and second floor, there were halls measuring 13x16 ft. MCD had also prepared a plan showing present condition of building no. 921, Kucha Kabil Attar, Chandini Chowk, Delhi. This plan was prepared at instance of CBI. According to report Ex. PW11/A, halls have been constructed on the ground, first and second floor of the property. Before construction of the halls, as per the sale deed, there existed rooms, stores, latrine, kitchen and bathrooms. Site plans were also prepared which were Ex. PW11/D and PW11/E which indicated that entire CC No.21/08 CBI Vs. Zakir Hussain etc. pg 63 of 6 64 property no. 921, Kucha Kabil Attar, Chandini Chowk, Delhi, had been converted into halls. Even PW15 Kamleshwar Dayal, an employee of MCD had deposed that he found structural changes having taken place while preparing plan. This would indicate that massive changes were made in the property no. 921, Kucha Kabil Attar, Chandani Chowk, Delhi after it was sold by its three owners to Chhabras. This would indicate that indeed massive unauthorized construction had been carried out in property No. 921, Kucha Kabil Attar, Chandani Chowk, Delhi and CBI has been successful in establishing this fact.
69. Accused Zakir Hussain completed his file by issuing notices. He was not bothered whether the notices were for 921, Kucha Kabil Attar, Chandani Chowk alone or for property No. 921922, Kucha Kabil Attar. He did his job not knowing then, that his misdeeds would come to light some day. Notices were issued which never left the file. I am saying so because PW19 Shishpal who was working as Beldar in MCD and was colleague of accused Zakir Hussain deposed in the court that show cause notices had been pasted on the property which was to be demolished. The said notices were Ex.PW12/B and Ex.PW17/C. He had claimed that he had accompanied the accused Zakir Hussain to the property and in his presence the notices were CC No.21/08 CBI Vs. Zakir Hussain etc. pg 64 of 6 65 affixed. They also were signed by him. In his cross examination he claimed that the property was locked from outside. It had a wooden gate of about 6 ft. in height. On their repeated visits also they found the property locked and hence pasted the notices. Now if we take a look at the notices which are Ex.PW12/B and PW17/C, we find that report given on them is that occupant of the property had refused to accept the notice. This refusal was done repeatedly and so the notices were pasted. It becomes more than clear that deposition of this witness and report on notices is contrary to each other and that is why I am of the opinion that the notices were never sent and fake report was written in the office itself by the accused Zakir Hussain and signatures of PW19 Shishpal were obtained as a witness in the office of MCD itself by accused Zakir Hussain.
70. I also tend to discard testimony of PW19 Shishpal regarding demolition action which was allegedly taken. The witness is a liar. He could not tell name of single baildar who had accompanied the demolition team to showrooms of Anil Chhabra and Sudesh Chhabra. If he could lie blatantly about service of notice, he could also lie about demolition to save skin of his corrupt colleague. Mere non demolition of unauthorized construction may be an offence under DMC Act alone, but if corruption angle is there then it CC No.21/08 CBI Vs. Zakir Hussain etc. pg 65 of 6 66 becomes an offence under Prevention of Corruption Act also.
71. In his statement u/s. 313 Cr.P.C, accused Zakir Hussain admitted that he knew about unauthorized construction because of the court case. Even if the court case was compromised by the parties to that litigation, then was it not duty of the accused to have proceeded against and to demolish the unauthorized construction. The conspiracy had taken place, for not demolishing the unauthorized construction which had been carried out. Accused Zakir Hussain admitted in his statement u/s. 313 Cr.P.C. that he asked police party to wait outside the showroom. Though it is settled law that accused cannot be convicted on basis of something stated by him in his statement u/s 313 Cr.P.C. But we can keep this fact in mind while looking at statement made by PW2 Naresh Kumar that accused had asked them to wait outside the show room. The witness very categorically stated that no demolition had been carried out. He had recorded this fact in the daily diary on the very same day. There was no reason as to why PW2 HC Naresh Kumar should have made entries in the daily diary about non carrying out of the demolition. Naresh Kumar had no axe to grind way back in the year 2002. It is not number of witnesses which matters. It is quality of the evidence led that matters. Why should JE tell the police force which is there CC No.21/08 CBI Vs. Zakir Hussain etc. pg 66 of 6 67 to protect them to stand outside. Rather he should have taken the police party inside so that they would be able to protect MCD team in case it is assaulted by the builder. It would indicate that accused Zakir Hussain had something else in mind when he asked the police personnel to wait outside.
72. Large scale unauthorized constructions had taken place all over the city of Delhi in connivance with MCD officers. Hon'ble High Court of Delhi gave directions in WP No. 4582/2003. This RC was registered in 2007. The unauthorized construction had already taken place and demolition too had taken place in 2002 on papers. Accused Zakir Hussain completed his file, not knowing that his box of misdeeds would open up year later when Hon'ble Delhi High Court would pass directions. He had issued notices regarding raising of unauthorized construction of just a wall. What Zakir Hussain and accused Anil Chhabra and Sudesh Chhabra did was very normal and in routine. Zakir Hussain booked property, issued notices which actually never left the file. Testimony of PW19 Shishpal is contrary to the reports given on reverse of the notices to which I had just referred, and then completed the requirement of file by showing demolition which never took place and also prepared demolition note and sought recovery of charges amounting to Rs.4700/. What further proof of conspiracy can possibly be CC No.21/08 CBI Vs. Zakir Hussain etc. pg 67 of 6 68 there. The unauthorized construction stood tall. It was booked and demolished all on papers. If there was no conspiracy, no give and take between the accused persons the structure could not have been left untouched. It would have been demolished. We have at times to infer things from their flow. Though IO said that he did not find evidence of money changing hands, I do not expect accused Zakir Hussain to issue receipt for cash received. We have to infer things. If no cash was involved then why Zakir Hussain was so generous and permitted the structure to stand as it is and fabricate and manipulate the official records to show as if demolition had taken place. According to Section 13(1) (d) (III), a public servant is said to have committed offence of criminal misconduct if while holding office as a public servant, obtains for any person, any valuable thing or pecuniary advantage without any public interest. Here in case in hand Zakir Hussain had extended pecuniary advantage to accused Anil Chhabra and Sudesh Chhabra by not demolishing the unauthorized construction raised by them in violation of Municipal bylaws. The value and utility of their building would have risen manifold.
73. CBI had successfully established on record by leading evidence that CC No.21/08 CBI Vs. Zakir Hussain etc. pg 68 of 6 69 no demolition whatsoever had been carried out by accused Zakir Hussain in 921, Kucha Kabil Attar, Chandani Chowk, Delhi on 21.1.2002. PW1 R.K. Arora had claimed that he was living in 922, Kucha Kabil Attar, Chandani Chowk, Delhi and 921 had been completely demolished and rebuilt by accused Sudesh Chhabra. PW5 Ashok Arora too claimed that accused had removed partition walls and converted it in big halls. He also deposed that no demolition whatsoever was done by MCD. No notice of demolition was ever served on them. PW13 Mr. O.P. Goel residing in the vicinity deposed to have never noticed any demolition action. PW14 Zafar Mohsin deposed that he never went for demolition and his signatures had been forged on the log book. I find his contention correct because if we compare signatures on the log book Ex. PW14/A with the signatures put by him on his testimony in the Court, we find that they do not tally. PW28 Umesh a beldar categorically claimed that he had not gone for demolition. PW19 Shishpal beldar committed flip flops to which I have already referred to. The two defence witnesses examined by Zakir Hussain also deserve to be discarded.
74. Zakir Hussain had examined two witnesses in his defence. They were Parmanand and Arun Kumar. Both claimed to be beldars in MCD.
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 69 of 6 70 Both claimed that they had accompanied Zakir Hussain to show room of Sudesh Chhabra and Anil Chhabra for demolition and also had carried out demolition. Both claimed that wall already had been partly demolished by the owner. While Arun Kumar claimed to have completed the job of demolishing the wall, Paramanand claimed to have merely punctured it. Moreover, Parmanand had claimed that he did not go inside the ground floor at all. He had straight away gone to the first floor without entering ground floor and carried out so called demolition. As per FIR Ex.PW12/A, notices Ex.PW12/B and Ex.PW17/C there was unauthorized construction upto roof level on the ground floor and the first floor. So, the walls on the ground floor and the first floor were ought to be demolished to complete the job and witness claimed that they straight away went to first floor and demolished. It would mean that they did not enter the ground floor at all and no action whatsoever was taken regarding the wall which was alleged to be unauthorized construction on the ground floor. He did not even remember whether the demolition done by him was on the first floor, second floor or on the ground floor. He admitted in his crossexamination by Ld. PP that his name did not figure in the register as a person who was present in the MCD office on the day of demolition. If he was not present on the alleged date of demolition i.e. 21.1.2002, how could he accompany Zakir Hussain to the CC No.21/08 CBI Vs. Zakir Hussain etc. pg 70 of 6 71 site? He was not present in the office of MCD according to attendance register and so there was not question of his accompanying Zakir Hussain for demolition. The other defence witness had claimed that wall was completely demolished though he could not tell its height and length. These witnesses have simply tried to save skin of their senior colleague. It has come on record that some of the beldars were directed to remain sitting in the truck while other accompanied Zakir Hussain to the show room. If Zakir Hussain was keen to carry out demolition, he should have taken with him all the beldars and not just handful, leaving rest of the team of Beldars to take nap in the truck.
75. There was also no occasion for any altercation between junior engineer and police team as there was no conflict of interest. Police team was there to protect the MCD staff. Similarly, there was no occasion for altercation between police team and the owner as it is not for the police team to carry out demolition. Altercation at the most can be between MCD demolition team and the owner/builder. So, there was no reason for the police officer PW2 HC Naresh Kumar to have made entry in the daily diary about non demolition. I have also discounted the testimony of PW19 Shishpal. He spoke lies regarding service of notice on the property which I CC No.21/08 CBI Vs. Zakir Hussain etc. pg 71 of 6 72 have already discussed and so there is no real possibility of his speaking truth about non demolition specially so when liberty of his senior colleague Zakir Hussain is at stake. It becomes more than clear that no demolition had been carried out by Zakir Hussain in the property belonging to co conspirators.
76. So, it stands established without any shadow of doubt that no demolition action was ever undertaken by the team led by accused Zakir Hussain on 21.1.02 at premises in question.
77. It is settled law that very rarely Court can come across direct evidence of conspiracy. It has to be inferred from facts and circumstances of each individual case. My Lord Mr. Justice D.P. Wadhwa and my Lord Mr. Justice S.M. Quadri in CBI Vs. Nalini :Manu/SC/0945/1999 held:
"The agreement, sine qua non of conspiracy, may be proved either by direct evidence which is rarely available in such cases or it may be inferred from utterances, writings acts, omissions and conduct of the parties to the conspiracy which is usually done."
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 72 of 6 73
78. In a still earlier case My Lord Mr. Justice M.F. Ali and My Lord Mr. Justice A.P. Sen in S.L. Joshi Vs. State of Maharashtra : 1980 Cri. L.J. 388 held:
" It is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design which have been amply proved by the prosecution as found as fact by the High Court".
79. We have to infer and gather from the circumstances as to whether any criminal conspiracy existed or not. When such massive construction activity had taken place in property no. 921, Kucha Kabil Attar, Chandini Chowk, Delhi, and the rooms, store rooms and the bathrooms were all demolished to pave way for halls, accused Zakir Hussain failed to notice such massive construction activity and saw only raising of an unauthorized wall. The conspiracy started from this point. It has come up in testimony of officials of MCD that every property having unauthorized construction must CC No.21/08 CBI Vs. Zakir Hussain etc. pg 73 of 6 74 be issued separate notices. Common and joint notices are illegal and no action could be taken on them. If Engineers of MCD who deposed in the court were aware of this fact, then there is no reason why Zakir Hussain was not having knowledge of illegality of the joint notice. He would have known this fact all throughout. Deliberately joint notices for 921 and 922, Kucha Kabil Attar, Chandani Chowk, Delhi had been issued by him to shield the property no. 921, Kucha Kabil Attar, from demolition even at a later date. Testimony of PW1 and PW5 is very clear. They are residing in 922, Kucha Kabil Attar, Chandani Chowk Delhi. PW11 Pradeep Kumar, Junior Engineer of MCD who had visited the site to prepare existing building plan very clearly deposed that property no. 922, Kucha Kabil Attar was being used as residence. PW16 Bhupender Giri Architect Assistant of MCD, who had prepared the site plans also claimed that 922, Kucha Kabil Attar was being used totally for residential purpose. Lodging of FIR Ex. PW12/A, issuance of joint notices were the early steps taken by conspirator accused Zakir Hussain in the conspiracy.
80. To satisfy the file and to show that he was very vigilant and duty conscious, accused Zakir Hussain then issued notice calling upon the CC No.21/08 CBI Vs. Zakir Hussain etc. pg 74 of 6 75 owner/occupier to remove the unauthorized wall which had been constructed. The said notice was Ex. PW12/B. Thereafter another notice was issued Ex.17/C for demolition. Instead of giving notice for the entire unauthorized construction, the notice was just for a wall which never existed. All three accused very well knew about the extensive unauthorized construction which had been carried out. I have already observed in para55 of this judgment that the charge framed by my Ld. Predecessor was not confined to non demolition of wall which had been allegedly unauthorizedly constructed. The charge was for "not demolishing the property having unauthorized construction and falsely manipulating the record to indicate demolition action and thereby keeping the property intact". The entire shape and size of property No. 921, Kucha Kabil Attar, Chandani Chowk Delhi had been changed by accused Anil Chhabra and Sudesh Chhabra. Utility of the building had been increased manifold by building the halls and running a showroom therein. The advantage to the owners can very easily be presumed. Accused Zakir Hussain in his statement u/s 313 Cr.P.C., was put question no. 37, which was to the effect that existing site plans and reports had been prepared. He did not dispute correctness of the site plans, but merely said that no plan was prepared in his presence. The addition and alteration carried out was massive and not of a simple wall which is depicted CC No.21/08 CBI Vs. Zakir Hussain etc. pg 75 of 6 76 in the notices.
81. Court has to deduce from the circumstances of each individual case about existence of conspiracy. It was held in above cited cases that it is duty of the Court to draw inference regarding existence of conspiracy. In the case in hand, accused Zakir Hussain did not demolish property despite the fact it had unauthorized construction. PW11 who had prepared the site plan had found substantial changes in the properties. Notices which had been issued were just a small part of the big design. They were to fulfill the requirements of the file. Court should not limit itself to the notice Ex. PW12/B and PW17/C. These notices were just by way of formality. Zakir Hussain came to the site alongwith the police team. He went inside and came out and left without doing anything. He then made a report Ex. PW17/D. There was no occasion for him to make false report indicating demolition. Even log book were fabricated to show presence of PW14 Zafar Mohsin. We do not have benefit of report of handwriting expert in this regard and so we cannot blame Zakir Hussain for the same, but the demolition report Ex. PW17/D is in his own handwriting. He cannot disown this fabricated report. He even did not dispute the said report. In addition testimony of PW14 would show CC No.21/08 CBI Vs. Zakir Hussain etc. pg 76 of 6 77 that attempts were made to fabricate the records and he had actually not participated in demolition action on 21.01.2002 or on any other day with Zakir Hussain.
82. If notices are illegal then no demolition action can be taken. There is no dispute regarding it. But preparation of demolition report without taking any demolition action leads the Court to draw only one inference and that is of conspiracy between builders and the JE.
83. Further proof of conspiracy we can gather from report made by is Zakir Hussain Ex. PW17/D. In the said report, he said that letter be sent to owner/occupier to deposit Rs. 4700/ towards demolition charges. There is no copy of such letter on Court record. Despite non issuance of such a letter, Rs. 4700/ was deposited within a week by some third person namely Subhash Chander. There is testimony of PW18 Satbir Singh, in this regard who had issued the receipt. It is obvious that the said amount was deposited by somebody at behest of the person who was involved in this conspiracy.
84. PW24 was Ashok Kumar, again an employee of MCD. He deposed that it was his duty to maintain files of unauthorized buildings, sealings etc..
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 77 of 6 78 He had deposed about document Ex. PW24/A. Ex. PW24/A was a letter written by Executive Engineer to Superintendent of Police, CBI dt. 20.7.07. It was in response to letter written by SP CBI Ex.PW27/N whereby CBI had sought eight files of unauthorized construction in various properties. According to the said letter, eight files of unauthorized construction were not available in the office as Zakir Hussain had not initiated any action. This would indicate that Zakir Hussain was an old hand. Those properties having unauthorized construction listed in those eight files were booked in a year 200102 and till 20.7.07 Zakir Hussain sat over them. He had not completed the formalities of getting showcause notices issued and then obtaining demolition orders in those files. Inference of his activities can easily be drawn.
85. I find myself not in agreement with contentions of learned counsel for Zakir Hussain that once notices are issued, JE loses all control over the matter and is not in a position to derive any pecuniary gain. It is not so. Jr. Engineer can be termed as a foot soldier. He can turn a blind eye to unauthorized construction going on in a property of course, for a consideration. Even after property is booked and after demolition order is passed Jr. Engineer has to implement it. He can certainly conspire with the CC No.21/08 CBI Vs. Zakir Hussain etc. pg 78 of 6 79 owner/builder and not demolish the unauthorized construction. It can be part of larger design. To complete the formalities of the file FIR can be registered by Jr. Engineer, notices can be issued and sham demolition can also be carried out, as was done in the case in hand. Admittedly, showroom in the name and style of CTC is being run in property No. 919, 921, 924, 926 & 927, Kucha Kabil Attar, Chandani Chowk, Delhi. It is simply not believable that only single wall had been constructed unauthorizedly as is depicted in FIR Ex.PW12/A. Unauthorized construction was much more and to complete the requirement of file, FIR was lodged and notice was issued depicting just raising of single wall to indicate that accused Zakir Hussain was duly performing its duty.
86. The broad preposition is that MCD according to its procedure has to book unauthorized construction and follow all the rules thereafter. Court is not see legality of the notices. If accused was duty bound to carry out demolition, he should have actually done demolition at the spot and not merely on papers. What is in challenge before us is that accused Zakir Hussain who was duty bound to check and stop unauthorized construction and carry out demolition, did not do his job and fabricated the record to show demolition was done. He did not stop at that. He also made a note for CC No.21/08 CBI Vs. Zakir Hussain etc. pg 79 of 6 80 collecting demolition charges and surprisingly the demolition charges of Rs. 4700/ were got deposited by a rank outsider Subash Chander.
87. I, therefore, hold that prosecution has been completely successful in making out its case against all the three persons that they had entered into criminal conspiracy to save property bearing No. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi in which illegal unauthorized construction had been carried out, from demolition. The conspiracy had begun with booking of the property of Anil Chhabra and Sudesh Chhabra. The unauthorized construction was not possible without active blessings of Zakir Hussain. Conspiracy culminated with visit of accused Zakir Hussain on 21.1.2002 ostensibly to carry out demolition and return of the demolition team without doing the job.
88. My Ld. Predecessor in the charge framed against accused Zakir Hussain charged him with falsely manipulating the record to show taking of demolition action. I would like to quote the exact words used by my Ld. Predecessor in the body of the charge:
"...... and falsely manipulating the record showing taking of CC No.21/08 CBI Vs. Zakir Hussain etc. pg 80 of 6 81 demolition action and thereby keeping the said property intact and saving it from being demolished in the discharge of your duties as a public servant.....".
89. But in so many words he did not mention section 218 of the IPC. It is settled law that if evidence on record shows commission of any particular offence then accused can be convicted for it even if formal charge regarding it was not framed. As per Section 464 of the Cr.P.C., Hon'ble appellate Court shall not hold an order invalid on the ground that no charge was framed regarding it unless failure of justice has been occasioned.
90. Section 218 of IPC talks about framing of incorrect record or writing by a public servant to save a person from punishment or any property from forfeiture. This section talks about willful falsification of a public document. This should be done with knowledge that the record or writing is incorrect. Even if incorrect document is not submitted to another person or otherwise used by the writer, the offence is complete as soon as the document is made part of the record.
91. The essential ingredients for invoking Section 218 IPC are that (a) CC No.21/08 CBI Vs. Zakir Hussain etc. pg 81 of 6 82 accused should be a public servant. (b) It is his duty to prepare any record or writing. (c) He prepares a record which he knows to be incorrect. (d) He knows that his act would save any property from forfeiture or other charge.
92. In Madhab Chandra Saha Vs. Emperor : AIR 1926 Calcutta 1202, the accused entered into room of complainant Kuki Bewa while she was sleeping and touched her body. The lady shouted, upon which accused escaped. The Magistrate tried the accused summarily u/s. 457 of IPC and sentenced him to nine weeks R.I. In appeal it was claimed that the learned Magistrate was wrong in trying the case summarily and that accused was prejudiced by omission to frame a charge as intention had not been definitely found by any of the court below. It was submitted that complaint was not only u/s. 457 IPC but also u/s. 354 IPC an offence which could not be tried summarily. The Hon'ble Judges observed that the Magistrate had recorded evidence in chief. The witnesses were also crossexamined. The Hon'ble Court held:
"In the present case the Judge has exactly carried out that procedure. He has recorded the particulars set out in Section 263 of the Criminal CC No.21/08 CBI Vs. Zakir Hussain etc. pg 82 of 6 83 Procedure Code and has written a judgment. The only point is that he has not framed a formal charge. Now, apart from anything else under section 535 of the Criminal Procedure Code mere omission or irregularity in the charge will not justify a reversal of an order of the lower court, unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby. So, speaking for myself, as it was perfectly clear to the accused from the evidence on the record and the examination in chief what case he had to meet, I cannot hold that the mere failure to frame a charge has vitiated the conviction and sentence." ( Emphasis added ).
93. And then ultimately held :
"There is also provision of Section 535 to which I have also referred. For these reasons, I do not hold that, CC No.21/08 CBI Vs. Zakir Hussain etc. pg 83 of 6 84 owing to omission to frame a charge, especially when here, at the close of the prosecution evidenceinchief, the Magistrate laid down exactly what was the charge, i.e., an offence under Section 457 of the Indian Penal Code, first part, the trial has been vitiated. I would, therefore, discharge the Rule."
( Section 535 of the Old Code corresponds to Section 464 of Cr.P.C. 1973)
94. In Bala Seetharamaiah Vs. Perike S. Rao: AIR 2004 SC 2172, charge was framed against six accused persons u/s. 148 IPC, second charge was u/s. 302 IPC, simpliciter against each accused and the third charge framed against A1 and A2 was u/s. 324 IPC. No charge was framed u/s. 302 r/w 149 IPC. They all were convicted. Hon'ble High Court set aside conviction u/s. 302 IPC of A1, A3 to A6 and instead sentenced them u/s. 326 IPC. Hon'ble Supreme Court held that mere omission to mention section 149 IPC can be considered as irregularity, but failure to mention nature of the offence committed could not be termed as mere irregularity.
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 84 of 6 85
95. In Jagir Singh Vs. State of Punjab : AIR 1968 Supreme Court 43 , six persons were tried u/s 148, 302 r/w 149 and sec. 201 r/w 149 of IPC. The trial court convicted accused no. 1 and 5 u/s 302 and 201 r/w 149 IPC. In appeal, Hon'ble High Court had held that though accused were charged u/s 302 r/w 149 IPC they could be convicted u/s 302 r/w 34 IPC. No prejudice was caused to the appellant by alteration of the charge from Sec. 302 r/w 149 to sec. 302 r/w 34 IPC. Hon'ble Apex Court discussed previously decided cases and held that appellant no. 1 and 5 were rightly convicted of offence u/s 302 r/w 34 IPC.
96. In Dalbir Singh Vs. State of UP : AIR 2004 SC 1990, three Hon'ble Judges of Supreme Court dealt with similar situation. One Dr. Dalbir Singh was accused of killing his wife and two small daughters. He had been harassing his wife for dowry. The charge framed against him was u/s 302, 304B and 498A IPC. The trial Court convicted him u/s 302 and 498A and acquitted him of the charge u/s 304B IPC. In appeal Hon'ble High Court held that charge u/s 302 IPC was not made out. It acquitted him. It also concluded that accused was guilty u/s 306 IPC but since no charge had been framed, he could not be convicted u/s 306 IPC. There were two conflicting CC No.21/08 CBI Vs. Zakir Hussain etc. pg 85 of 6 86 decisions of Hon'ble Apex Court in this regard. One was titled as Lakhjit Singh Vs. State of Punjab and other one was Sangaraboina Sreenu Vs. State of Andhra Pradesh. Hon'ble Supreme Court in Dalbir Singh's case went through evidence and letter written by deceased wife Vimla in detail. It observed that in statement u/s 313 Cr.P.C. and also in the written statement filed by him, accused had admitted that letter was written by his deceased wife Vimla. It held that there was no aspect of the prosecution which was not put to the accused. Therefore, accused could be convicted u/s 306 IPC and that would not result in failure of justice in any manner.
97. In K. Prema S. Rao Vs. Yadla Srinivasan Rao: AIR 2003 SC 11, a young married woman died soon after her marriage. She had committed suicide. Her husband and inlaws were arrested and charged u/s. 304B IPC and in the alternative section 498A IPC. Trial court acquitted all three of them of the offence u/s. 304B and convicted them u/s.498A. In appeal Hon'ble High Court acquitted the inlaws and upheld the conviction and the sentence imposed on the husband. The matter reached Hon'ble Supreme Court. Hon'ble Supreme upheld the acquittal of inlaws. But, it found that husband could be convicted for abetment of suicide u/s. 306 IPC on basis of evidence already on record. It observed that as a result of cruel treatment, CC No.21/08 CBI Vs. Zakir Hussain etc. pg 86 of 6 87 the wife was driven to suicide. Offence of abetment of committing suicide punishable u/s. 306 IPC was made out against the husband. It was argued by learned advocate that in absence of charge framed against the accused u/s. 306 IPC, he could not be convicted for the said offence. Hon'ble Supreme Court held :
"From the record we find that although a charge specifically under Section 306 IPC was not framed but all facts and ingredients constituting that offence were mentioned in the Statement of Charges framed under Section 498A and Section 304B of IPC. The statement of charge framed by the trial courts reads thus......"
98. It further held:
"Mere Omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure has ample provisions to meet a situation like the one before us. From the Statement of Charge framed under Section 304B CC No.21/08 CBI Vs. Zakir Hussain etc. pg 87 of 6 88 and in the Alternative Section 498A IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306, IPC with 498A IPC does not preclude the Court from convicting the accused for the said offence when found proved."
and ultimately sentenced the husband u/s. 306 IPC.
99. Now coming back to the case in hand, my Ld. Predecessor in his order directing framing of charge noted that accused Zakir Hussain had falsely recorded a note dt. 21.1.2002 showing that he had carried out demolition of unauthorized construction and the operation lasted for two hours. He had further sought to realise Rs. 4700/ as demolition charges. In fact, no demolition had been carried out and the property remained intact. In the formal charge framed against accused Zakir Hussain, he was charged with falsely manipulating the record showing taking of demolition action and thereby keeping the property intact and safe. However my Ld. Predecessor did not mention Sec. 218 of the IPC and mentioned only sec. 13(2) r/w 13(1)(d) of the POC Act r/w 120B IPC.
100. In question no. 64 of statement u/s 313 Cr.P.C., it was put to the CC No.21/08 CBI Vs. Zakir Hussain etc. pg 88 of 6 89 accused Zakir Hussain that he had prepared a note Ex. PW17/D pertaining to completion of demolition action and requesting for issuance of letter for demolition charges of Rs. 4700/. Accused admitted it as correct.
101. My Lord Ms. Justice Mukta Gupta in State Vs. Lal Singh: ILR (2012) IV Delhi 329, had held that Court is not bound by the offences invoked in the charge sheet or by the offence for which cognizance has been taken. IO in the present charge sheet did make out a case against the accused persons u/s. 218 of the IPC. The document incorrectly prepared was a public record. It was prepared by a public servant in his official capacity and thus, section 218 of IPC is attracted.
102. It cannot be said that accused Zakir Hussain had been taken by surprise in any manner. In the body of formal charge also it was mentioned about manipulating of the record and a specific question was put to him in statement u/s 313 Cr.P.C. In the above cited case of K. Prema S. Rao also Hon'ble Judges of the Apex Court had noted that though specific charge u/s. 306 IPC had not been framed, still in the body of charge framed u/s. 498A and 304B, it was mentioned that the lady had committed suicide because of cruelty and harassment inflicted upon her. Similarly in case in hand in the CC No.21/08 CBI Vs. Zakir Hussain etc. pg 89 of 6 90 charge framed, my Ld. Predecessor had clearly charged the accused with falsely manipulating the record to show taking of demolition action. So, accused has not been taken by surprise. He was throughout aware of this charge against him. So, no failure of justice ever took place because of non mentioning of Sec. 218 of the IPC. The material on record clearly goes to show that no demolition action whatsoever had taken place and the report regarding demolition action prepared by accused Zakir Hussain was purely fabricated one.
103. The Court is not concerned with validity or invalidity of the notices which had been issued at the behest of Zakir Hussain. The main thing to be seen is whether any demolition action took place or not. If demolition action does not take place, then there is no occasion for preparation of any demolition action report. Preparing a report without taking of demolition action would make out a case u/s. 218 of the IPC.
104. In case titled as Kamla Prasad Singh Vs. Hari Nath Singh: AIR 1968 SC 19 , one Kamla Prasad filed three complaints for prosecution of Ahlmad of court of Tehsildar, Lekhpal of village Cholapur and one Hari CC No.21/08 CBI Vs. Zakir Hussain etc. pg 90 of 6 91 Nath Singh who had allegedly abetted the offence committed by coaccused. Hon'ble Supreme Court held that Section 218 dealt with intentional preparation of false record by a public servant with object of saving or injuring any person or property. It held that it was a distinct offence which could be proceeded with without bar of Section 195 of the Cr. P.C. With reference to the case before it, Hon'ble Judges held:
"The intention here was to save the property from the vendees namely Kamla Prasad Singh and others. The offence was complete the moment the false record was made with the said intention and it was not necessary for the completion of this offence that the record should be used in a judicial proceeding so as to cause an erroneous opinion to be formed touching on a point material to the result of such proceeding."
and ultimately they held that since section 218 was not named in section 195 of the Cr.P.C., private complaint of Kamla Prasad Singh could be entertained and there was no bar. Here accused Zakir Hussain is guilty of offence punishable U/s 218 IPC for having prepared demolition report, showing demolition action Ex. PW17/D. He knew the report to be incorrect CC No.21/08 CBI Vs. Zakir Hussain etc. pg 91 of 6 92 as no demolition action at all had taken place. It was done with the view to save property of coconspirators from being demolished for unauthorized construction. The said document was put up by Zakir Hussain under his signatures before PW17 Mr. Srimandir who was posted as Assistant Engineer in MCD. In the said report, accused Zakir Hussain not only had claimed that demolition had been carried out in property no. 921922, Kucha Kabil Attar, Chandani Chowk, Delhi, he had also claimed that it had taken two hours to demolish and Rs. 4700/ be recovered from the owner/occupier of the building. In his statement u/s. 313 Cr.P.C. in response to question No. 5, he claimed that demolition action indeed had been taken in respect of part of property No. 921, Kucha Kabil Attar, Chandani Chowk, Delhi. The said report Ex. PW17/D bore his signatures at point A.
105. There was no need to obtain sanction for prosecution of accused Zakir Hussain for offence U/s 218 of the IPC, since the act performed by him was not part of his official duty. His visit to showroom of Anil Chhabra and Sudesh Chhabra can be termed as an official act, but preparation of incorrect report was not an official act.
106. In S.B. Saha Vs. M.S. Kochar : 1979 Cri. L. J. 1367 (1) custom officers raided a premises and seized imported goods. Inventory was made CC No.21/08 CBI Vs. Zakir Hussain etc. pg 92 of 6 93 and the goods were kept in sealed boxes. Later on the goods vanished. Complaint case was filed for misappropriation of goods. Hon'ble High Court held that no sanction was required for prosecution of the accused/appellant for offence U/s 120 B r/w 109 IPC because "they were certainly not acting in discharge of their official duties, when they misappropriated these goods". Hon'ble Apex Court in appeal held:
"The allegation against appellants is about commission of offences U/s 409/120B IPC. To be more precise, the act complained of is dishonest,misappropriation or conversion of the goods by the appellants, which they had seized and, as such, were holding in trust to be dealt with in accordance with law. There can be no dispute that the seizure of the goods by the appellants and their being thus entrusted with the goods or dominion over them, was an act committed by them while acting in discharge of their official duty. But the act complained of is subsequent dishonest misappropriation or conversion of those goods by the appellants, which is the second necessary element of the offence of criminal breach of trust U/s 409 IPC.
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 93 of 6 94 Could it be said that the act of dishonest misappropriation or conversion complained of bore such a integral relation to the duty of appellants that they could genuinely claim that they committed it in the course of the performance of their official duty? In the facts of the instant case, the answers cannot but be in the negative. There is nothing in the nature or quality of the act complained of which attaches to or partakes of the official character of the appellants who allegedly did it. Nor could the alleged act of misappropriation or conversion, be reasonably said to be imbued with the colour of the office held by the appellant."
" In the light of all that has been said above, we are of the opinion that on the facts of the present case, sanction of appropriate government was not necessary for the prosecution of the appellants for an offence under section 409/120B IPC because the alleged act of criminal misappropriation complained of was not committed by CC No.21/08 CBI Vs. Zakir Hussain etc. pg 94 of 6 95 them while they were acting or purporting to act in the discharge of their official duty, the commission of the offence having no direct connection or inseparable link with their duties as public servants. At the most the official status of the appellants furnished them with an opportunity or occasion to commit the alleged criminal act".
107. In a later case titled as S.N. Mishra Vs. State of U.P. : 1997 Cri.L.J. 2491, Hon'ble Judges made it very clear that it was not official duty of a public servant to fabricate false record. They held:
" The question is : when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public funds etc. can be said to have acted in discharge of his official duties? It is not the official duty of the public servant to fabricate the false record and misappropriate the pubic funds etc. in furtherance of or in discharge of his CC No.21/08 CBI Vs. Zakir Hussain etc. pg 95 of 6 96 official duties. The official capacity only enables him to fabricate the record or misappropriate public funds etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of same transaction, as was believed by the learned judge.Under these circumstances, we are of the opinion that the view expressed by the High court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained".
108. In the sanction order for prosecution of accused Zakir Hussain the sanctioning authority did refer to preparation of false note dt. 21.01.2002 by accused Zakir Hussain and ultimately granted sanction for his prosecution under various sections of IPC and PC Act. In the light of aforesaid two judgments, I hold that case could have proceeded against the accused even in absence of specific sanction for prosecution U/s 218 of IPC.
109. The evidence already led by the prosecution leaves no room for doubt and clearly establishes that accused Zakir Hussain had framed CC No.21/08 CBI Vs. Zakir Hussain etc. pg 96 of 6 97 incorrect record and recorded a note Ex. PW17/D which he knew was false and incorrect. This he did deliberately to complete the file and save property of coconspirators from demolition action. I therefore also convict accused Zakir Hussain for offence punishable u/s 218 IPC since he was a public servant and had prepared incorrect report indicating demolition action.
110. To sum up, I hold all the three accused i.e. Anil Chhabra, Sudesh Chhabra and Zakir Hussain guilty of offence u/s. 120B of the IPC r/w sec. 218 IPC and r/w sec.13(2) r/w 13 (1) (d) of the P.C. Act. In addition accused Zakir Hussain is also held guilty for substantive offences u/s. 13(2) r/w. Sec. 13(1) (d) of the P.C. Act and also u/s.218 of the IPC. They are convicted accordingly.
Announced in open Court
on May 16, 2013. ( PRADEEP CHADDAH )
Special Judge:CBI01
Central District. Delhi
CC No.21/08 CBI Vs. Zakir Hussain etc. pg 97 of 6