Delhi District Court
Kaptan Singh vs . State on 9 June, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Kaptan Singh Vs. State
CR No. 411/2012
9.6.2014
ORDER:
(1) This is an application under Section 12 of the Contempt of Courts Act, 1971 filed by the applicant/ petition Kaptan Singh. It is pleaded that vide order dated 12.9.2012 the SDM Model Town directed the SHO PS Model Down to check the permission of submersible pump existing at the property bearing No. 247A, Rajpura, Gurmandi, Delhi and if no such permission is shown by the owner then to remove the boring from there and sent a compliance report immediately to him. Aggrieved by the said order of the SDM, the applicant approached this Court in Revision pursuant to which vide order dated 1.3.2013 this Court had set aside the abovesaid order of the SDM. It is further pleaded that the original record of the SDM was summoned by this Court while disposing off the revision petition and the said record along with the copy of the order dated 1.3.2013 passed by this Court was sent back to the office of the SDM Model Town and the application also brought to the knowledge of the SDM, Model Town that the proceedings had already been set aside by this Court and requested the SDM, Model Town not to further proceed in this matter.
Kaptan Singh Vs. State Page No. 1 of 30 (2) It is alleged that in furtherance of the conspiracy to harm the applicant, the SDM Model Town prepared a bogus and forged proceeding dated 15.12.2011 in which he has shown the presence of the applicant in his office and has also shown the forged and fabricated signatures of the applicant on the said proceeding sheet. It is further pleaded that in the evening of 25.5.2013 the applicant received Notice of Kalandra under Section 5/15 of Environment (Protection) Act, 1986 through the police officials of Police Station Model Town which notice on the face of it shows that it has been signed by the SDM on 25.3.2013 wherein it has been mentioned that notice was issued to the applicant for hearing on 22.5.2013 and in response to the notice the applicant had filed an affidavit to the effect that there is no violation at the property in question or that the violation has been removed whereas no such notice was issued and served to the applicant nor any such affidavit was ever filed. According to the applicant, this on the face of it discloses that the SDM has prepared false and incorrect official record to cause irreparable loss and injury to the applicant. It is pleaded that vide the above notice the applicant came to know that the proceedings which were set aside by this Court on 1.3.2013 has not been stopped by the SDM who proceeded with the order dated 12.9.2012 and further direction was given to the SHO Police Station Model Town to inspect the site and submit the status report within seven days as to whether violation made under Section 5/15 of Environment Act has been removed or not. It is alleged that the SDM had done this to execute the conspiracy to illegally harm the Kaptan Singh Vs. State Page No. 2 of 30 applicant by conducting bogus proceedings and has also illegally circumvent the judgment dated 1.3.2013 passed by this Court. (3) This application was filed on 30.5.2013 and keeping in view the allegations regarding fabrication, manipulation of the proceeding sheets in order to overreach the orders passed by this Court on 12.9.2012, notice was issued to the SDM concerned and record of the SDM was also called. Pursuant to the aforesaid on 18.7.2013 the SDM Model Town Sh. Onkar Marathe had appeared rather reluctantly and submitted that he had recently joined and whatever proceedings were conducted earlier, were by his predecessor. He, however, chose not to file any reply to the application filed by the applicant. Considering that serious allegations made by the petitioner regarding tampering or records and also of malafidies and bias, this Court made certain inquiries from the SDM Sh. Onkar Marathe but he pleaded his ignorance and requested for a passover but thereafter deliberately chose not to appear before the Court and the Ld. Addl. PP for the State pleaded his helplessness and informed the Court that even earlier when the revision petition was disposed off the SDM concerned was noncooperative and non responsive. He has also pointed out that the SDM Onkar Marathe in an attempt to thrust an adjournment upon the Court and as a ploy to gain time had requested for a passover and thereafter gone away without even briefing him with regard to the stand of the Department which irresponsible behaviour of the SDM was brought on record and bailable warrants were issued against him for 10.9.2013. During the intervening period on 16.8.2013 Kaptan Singh Vs. State Page No. 3 of 30 an application was also filed by the applicant Kaptan Singh informing this Court that the SDM Model Town was issuing threats to him and hence he sought preponment of the date pursuant to which the case was listed for 21.8.2012 on which date Sh. Surender Suryan Advocate had appeared on behalf of the SDM Model Town who submitted that he has been engaged by SDM Model Town in official capacity and has placed before this Court the Brief Transmissions (BT) From. He conceded that no permission under Section 24 Cr.P.C. has been issued issued in his name to appoint him as Special Public Prosecutor in the present proceedings and hence under the given circumstances Sh. Surender Suryan Advocate was permitted to assist the Addl. PP for the State to which the Ld. Addl. PP had no objection. Sh. Surender Suryan Advocate also informed the Court that he would inform the presence of the SDM before this Court but denied the allegations made against them and further informed that the allegations of tampering and fabrication were against the predecessor SDMs i.e. Sh. Rajender Prashad and Sh. Navlendar Kumar Singh since Sh. Onkar Marathe who had joined much later had nothing to do with the same. He also submitted to the Court that he would inform the concerned SDMs and would file a reply only after seeking detail instructions from the SDM concerned for which time be granted. Thereafter on 30.9.2013 an interim reply was filed seeking some more time but no reply was filed on merits of the allegations neither the counsel for the SDM Model Town sought any permission to file additional reply thereafter. Rather, Sh. Surender Suryan Advocate pleaded his helplessness in advancing Kaptan Singh Vs. State Page No. 4 of 30 any argument on the aspect of the fabrication of the proceedings receiving no response from concerned officers. Thereafter the matter had been kept pending and was adjourned from time to time and finally vide a detail order dated 10.1.2014 this Court observed as under:
"...... While disposing off the revision petition on 1.3.2013, in the record of the SDM placed before this Court only one handwritten note dated 17.9.2012 was present details of which have been reproduced in the order and there were no other proceeding sheets a fact which again finds mentioned in the order of this Court. The record of SDM which has now been placed before this Court shows that the page 3/N reflecting one proceeding sheet dated 15.12.2011 which has been signed by the previous SDM Rajender Prashad on which a further proceeding sheet dated
22.5.2013 signed by the SDM Navelender Kumar followed by a proceeding dated 31.5.2013 which is not signed by the SDM/ MT are present on the file. This notesheet 3/N containing proceedings dated 15.12.11, 22.5.2013 and 31.5.2013 are alleged to be fabricated and inserted perhaps to legalize the orders passed by the SDM concerned and this primafacie cannot be ruled out. This I am saying because primafacie the proceeding dated 17.9.2012 contents of which find reflected in the order of this Court dated 1.3.2013 bears the No. 1/N whereas this page, the fabrication and insertion which is alleged, bears a number 3/N though it is of a prior date i.e. 15.12.2011. Also, had this proceeding dated 15.12.2011 been in existence, then the subsequent proceedings dated 17.9.2012 would have followed the same and not the proceedings dated 22.5.2013 and 31.5.2013. After this proceeding sheet dated 15.12.2011 was inserted the subsequent SDM then started to write his proceeding sheet dated 22.5.2013 on the Kaptan Singh Vs. State Page No. 5 of 30 same being unaware that the proceeding sheet dated 17.9.2012 was present before this page on Page No. 1/N.
However, at this stage, it will not be proper to formulate a definite opinion with regard to the alleged fabrication and hence under the circumstances finding a primafacie case to suspect the fabrication of the Judicial Record by the SDM Sh. Rajender Prashad and Sh.
Navlender Kumar, it would be necessary to proceed with a detail inquiry of the same, rather than to rush with making a Contempt Reference to the Hon'ble High Court or for Institution of Criminal Prosecution as demanded by the applicant. I am granting one opportunity to both the applicant as well as the respondent to lead evidence in support of their respective claims/ counter claims. Sh. Surender Kumar Advocate has been duly informed that in case if the SDM concerned against whom allegations of fabrication of record of Judicial Proceedings are made i.e. Sh. Rajender Prashad and Sh. Navlender Kumar now chose to stay away from the present proceedings, they shall do so at their own risk since allegations made against them in this regard are of personal nature which proceedings only they can explain......"
(4) It was only after the aforesaid proceedings that the then SDM Sh. Rajender Prashad filed his reply on 16.4.2014 in his individual capacity but till date no reply has been filed on behalf of the previous SDM Navlender Kumar or by Sh. Onkar Marathe.
(5) Thereafter the case was listed for evidence of the applicant Kaptan Singh on the aspect of fabrication. Pursuant to the aforesaid Kaptan Singh examined himself as his own witness as PW1 wherein he has reaffirmed the Kaptan Singh Vs. State Page No. 6 of 30 allegations made in his application. He has deposed that he is having an ancestral property bearing Number 247A, Rajpura, Gurmandi, Delhi and he is using a bore well installed by his father at the property. According to the witness in the month of September, 2012 he received a Kalandra issued by SDM Model Town and in this Kalandra he was intimated that vide order dated 12.09.2012 his bore well had been declared irregular, therefore he was constrained to move the revision petition before the Hon'ble Court against the said order. Witness has further deposed that vide order dated 01.03.2013 certified copy of which is Ex.PW1/A this court had set aside the order dated 12.09.2012 passed by the SDM Model Town but in the month of May, 2013 again he received a copy of Kalandra/notice issued by the then SDM namely Dr. Navlender Kumar certified copy of which is Ex.PW1/B, then he received the certified copy of the proceedings conducted by the SDM. Witness has further deposed that the perusal of the order sheet, certified copy of which is Ex.PW1/C revealed that to bypass the order passed by this hon'ble court in pursuance of their criminal conspiracy, the then SDM and the SDM who had passed the order dated 12.09.2012 created forged and fabricated order sheets, however, during the course of creating forged order sheets they forgot to mention the proceedings of 12.09.2012 which were set aside by this Court vide order dated 01.03.2013. According to the witness he has never participated in any proceedings conducted by the SDM Model Town nor he appeared before SDM and he never put his signatures on the order Kaptan Singh Vs. State Page No. 7 of 30 sheet as he never participated in the proceedings and his signatures which are present on the Ex.PW1/C are appear to be forged, therefore he deny the same, therefore he again instituted the present contempt proceedings before this hon'ble court as these persons has created a forged and fabricated order sheets to bypassed the order of this hon'ble court amount into contempt of court. Witness has further deposed that in the evening of 12.08.2013 some persons who represented themselves as the officers of SDM Model Town threatened him to withdraw the present petition otherwise to face the dire consequences, thus, all the respective officials of SDM office and the then SDMs namely Rajender Parshad, Dr. Navlender Kumar and Maratha preplanned manner have committed the illegalities and misused the officials power to harass him. (6) On a specific Court Question the witness has stated that he can produce Driving Licence and passport which bears his admitted handwriting which will prove that the signatures present on Ex.PW1/C do not belong to him. The witness was permitted to place on record the the copies of his driving licence and passport, pursuant to which Kaptan Singh had tendered the copies of his Passport and his PAN card, containing his admitted signatures copies of which are Ex.PW1/D and Ex.PW1/E respectively.
(7) In his cross examination by Sh. Rajender Parshad, the previous SDM and his Counsel, the witness has denied the suggestion that he had Kaptan Singh Vs. State Page No. 8 of 30 gone to the office of the SDM Sh. Rajender Parshad on 15.12.2011 and signed the proceedings. Witness has further denied the suggestion that the signatures present on Ex.PW1/C at point A are his signatures and has voluntarily explained that the question did not arise when he did not go to the office and the said signatures do not belong to him. He has also denied the suggestion that he has participated in the proceedings conducted on 15.12.2011 and also signed the proceeding sheet. Witness has denied the suggestion that there is no contempt as alleged.
(8) Sh. Rajender Prasad the previous SDM has also examined himself as RW1 and has deposed that the proceedings/ note dated 15.12.2011 alleged to have been forged and fabricated by him was prepared by him and after a complaint, notice dated 9.12.2011 under Environmental Protection Act as sent to SHO Model Town vide dispatch No. 3637 dated 9.12.2011 for service on Sh. Kaptan Singh. According to the witness the notice directed the said Sh. Kaptan Singh to appear before the undersigned on 15.12.2011 and the said Sh. Kaptan Singh appeared on the the due date and signed the proceedings which took place in his presence. Witness has further deposed that vide these proceedings Sh. Kaptan Singh was supposed to remove boring within four days and submit an affidavit by 20.12.2011 and this notice dated 9.12.2011 is duly recorded / mentioned in the dispatch register of the subdivision and the copy of the said dispatch register duly certified by the SDM Model Town is Ex.DX1 relevant portion is encircled X1. According to the witness he took no action thereafter for nonsubmission of the affidavit Kaptan Singh Vs. State Page No. 9 of 30 by Sh. Kaptan Singh and in fact he took no notice of this matter for nine months and any officer actuated by malafide or bias would have immediately taken steps to seal the said bore well but he did nothing. Witness has further deposed that after a gap of nine months, in September 2012, another complaint was received by the subdivision in pursuance of which the undersigned directed the SHO Model Town to remove the boring after checking the permission for boring and after some days, a Kalandra under Environmental Protection Act was received from SHO Model Town. According to the witness he again issued directions, to the SHO to remove the boring and he was relieved from the post of SDM Model Town on 11.12.2012. Witness has further deposed that this Hon'ble Court stayed his order dated 12.9.2012 and with effect from 12.9.2012 till 11.12.2012, he took no steps to disturb the said Sh. Kaptan Singh. According to the witness incidentally he was busy supervising Special Summary Rivision ordered by Election Commission of India as he was Electoral Registration Officer of Badli Constituency located at Industrial Area, Badli, whereas his office of SDM was located about 15 km. away at Rampura and in the meantime, revenue districts were bifurcated into eleven from from existing nine and the office of SDM Model Town shifted from Rampura to 1, Kirpa Narayan, Marg near ISBT. Witness has further deposed that the record of the SDM in this case, was submitted in this court on 19.10.2012 whereas they shifted on 18.10.2012 and in the new office there was no infrastructure, Almirahs / racks etc. and hence it is quite possible that despite best efforts the Kaptan Singh Vs. State Page No. 10 of 30 earlier file containing note dated 15.12.2011 may not have been traced and as for his collusion with Dr. Navlender Singh who was his successor SDM, Model Town, he had no terms with him and he visited that office only in connection with his salary from October, 2012 which was finally released in January 2013. According to the witness in the month of May 2013, when Sh. Navlender Singh issued a notice to Sh. Kaptan Singh, he was on medical leave having undergone cataract surgery with effect from 8.5.2013 to 2.6.2013.
(9) Witness has further deposed that as for the charge of not appearing before this Hon'ble Court despite information, he was never informed by anyone to appear before this court except once when the Government Counsel asked him to appear on 17.2.2014 and he duly appeared and besides this, he never received any summon or telephonic information to appear before this court.
(10) During his cross examination by Ld. Defence counsel, witness has admitted that the details of the dispatch number dated 9.12.2011 are not mentioned in the entire proceedings recorded through order sheets. Witness has denied the suggestion that the records in this regard have been fabricated to cover up the illegality committed by him and his successor. He has admitted that he has not checked whether notice dated 9.12.2011 has ever been served upon the revisionist or not. Witness has denied the suggestion that notice has never been served upon the revisionist. According Kaptan Singh Vs. State Page No. 11 of 30 to the witness after his transfer he had visited the office of DC, North on two or three occasions. Witness has admitted that the office of SDM Model Town and DC North is in the same premises. Witness has denied the suggestion that when he came to know that his order dated 12.9.2012 had been set aside by the court, he in collusion with Navlender Singh SDM created forged and fabricated order sheets and then proceeded on leave to cover up the same. He has also denied the suggestion that Kaptan Singh never appeared before him or that Kaptan Singh has not signed any proceedings before him on 15.12.2011. Witness has denied the suggestion that in September 2012 no complaint had been received by him in this matter and he failed to disclose the name and details of the complainant. According to the witness he has issued the directions to SHO Model Town to remove the bore well on 12.9.2012. Witness has admitted that the orders bearing the proceedings for 15.12.2011 and 22.5.2013 does not find mention of proceedings dated 12.9.2012. Witness has denied the suggestion that the proceedings sheets dated 15.12.2011 and 22.5.2013 have been forged and fabricated later and that is why the proceedings dated 12.9.2012 is not part of the same. Witness has denied the suggestion that the signatures of Kaptan Singh on the proceedings dated 15.12.2011 are forged and fabricated. Witness has admitted that the order sheets are not in sequence and the first proceeding sheet dated 12.9.2012 is on page 1 whereas page 2 is blank, and page three bears proceeding sheet dated 15.12.2011 followed Kaptan Singh Vs. State Page No. 12 of 30 by proceeding sheet dated 22.5.2013 and 31.5.2013 on the same page and has voluntarily explained that the order sheet dated 12.9.2012 is a separate file different from the file containing proceeding dated 15.12.2011. Witness has denied the suggestion that this order sheet has been forged and fabricated by him after the order of this court as an after thought and cover up and also to overreach the directions of this Court. Witness has admitted that by making the order dated 15.12.2011 as the base, the later SDM Dr. Navlender Kumar had again after the order of this court dated 1.3.2013 passed in this revision petition, passed another order of sealing on 22.5.2013 which order is under challenge in the court of Sh. Vidya Prakash, Ld. ASJ. Witness has denied the suggestion that this proceeding sheet dated 15.12.2011 has been fabricated only to illegally overreach the order passed in the revision petition. Witness has denied the suggestion that prior to 17.2.2014, he did not appear before the court despite due information in this regard or that he was deliberately avoiding his appearance before this court due to fear of his wrong doings. According to the witness Government Counsel as deputed might be representing Navlender Singh. (11) In his Additional Examination so permitted by the court Sh. Rajender Prashad (RW1) has deposed that he remained posted as SDM Model Town from 12.7.2011 to 11.12.2012 and before his joining as SDM Model Town there was already a complaint against the borewell at 247A, Rajpura Gurmandi. According to the witness this complaint is dated Kaptan Singh Vs. State Page No. 13 of 30 20.07.2010 and this was made by one Sanjeev Kumar and this was followed by another complaint dated 05.12.2011 made by Pawan Kumar against the same borewell and this complaint was addressed to him. Witness has further deposed that based on the earlier complaint dated 20.07.2010, the police had framed a Kalandra U/s 133 Cr. P.C against Kaptan Singh for having a borewell at 247A, Rajpura, Gurmandi. He has also deposed that Pawan Kumar thereafter filed applications under RTI Act seeking information about the fate of earlier complaint and the matter went up to CIC. He has further deposed that on 16.08.2010 Delhi Jal board had also made a complaint to the SHO PS Model Town regarding the illegal borewell and on 09.12.2011 he issued a notice to Sh. Kaptan Singh to appear in person or by pleader on 15.12.2011 before him and since the complaint related to section 5/15 of Environment Protection Act 1986, he issued this notice. According to the witness the SHO PS Model Town was directed to serve the copy of this notice dated 09.12.2011 on Kaptan Singh and the number of this notice was SDM/MT/2010/3637 dated 09.12.2011 and the police station Model Town had acknowledged receipt of this notice and one constable 711/NW had received this notice for being served on Kaptan Singh (page 11/C). He has further deposed that a dispatch register is maintained in routine in the office of SDM Model Town and Page 18 of his application is the true photocopy of the dispatch register wherein the notice bearing number SDM/MT/2010/3637 dated 09.12.2011 has been entered and dispatched to Kaptan Singh. According to him, it also mentions that the notice was also sent to Kaptan Kaptan Singh Vs. State Page No. 14 of 30 Singh through SHO PS Model Town and the notice must have been served on Kaptan Singh because he subsequently appeared in his court on 15.12.2011. He has testified that on 15.12.2011 Kaptan Singh had appeared in his court and after some arguments on the issue he made statement before him that he would file an affidavit within four days (by 20.12.2011) and stated that he shall remove the illegal boring and these proceedings were written by Sh. Shwet Mani, reader to SDM and were signed by him. It has been informed that Shwet Mani remained in Judicial custody in a trap case later and was in Judicial Custody when the order sheet dated 22.05.2013 was written. According to the witness after this order was passed, no other order was written by him on the same page and Sh. Kaptan Singh had also signed the court proceedings dated 15.12.2011 on the left side of the page and this page containing the order dated 15.12.2011 remained in the same form till another order dated 22.05.2013 was written on the same page by the successor SDM Sh. Navlender Kumar. Witness has further deposed that the order dated 22.05.2013 was written by Ms. Madhu Mehta, Head Clerk in the office of SDM Model Town and the third order dated 31.05.2013 appear to have been written by Trilok Kanungo who had joined the sub division on 13.05.2013 after being reinstated from suspension and he was not in this office of SDM Model Town at that time as he had been relieved as SDM on 11.12.2012.
Kaptan Singh Vs. State Page No. 15 of 30 (12) According to him, on 12.09.2012 he had issued another order to SHO Police Station Model Town (on the basis of Pawan Kumar's complaint) directing him to check the permission of the submersible and if no such permission is found, then removed the boring and sent compliance report (page 19C) and he had received the Kalandra from SHO Police Station Model Town vide DD No. 47B dated 15.09.2012 U/s 5/15 of EP Act. He has also deposed that thereafter on 17.09.2012 he had passed an order directing SHO to remove the illegal boring which order was ultimately quashed by this Hon'ble Court in criminal revision 411/12 on 01.03.2013. Witness has further deposed that Kaptan Singh had filed criminal revision petition 411/12 which was decided on 01.03.2013 vide which the order dated 17.09.2012 issued by him was quashed as the Hon'ble court was pleased to hold that procedure established by law had not been followed.
(13) He has further deposed that after the Hon'ble Court passed orders dated 01.03.2013 in criminal revision 411/12, the then SDM Navlender Singh passed another order dated 22/23.05.2013 issuing a notice to the SHO Model Town to inspect the site of borewell and submit a status report whether violations made under EP Act have been removed. According to the witness this notice has been issued not by him but by his successor and only he can explain whether this notice was issued after complying with the procedure established by law and only he can explain whether he had read the order dated 01.03.2013 passed by this hon'ble court in criminal revision 411/12. Witness has admitted that this subsequent order appears to be in Kaptan Singh Vs. State Page No. 16 of 30 violation of the procedure and hence appears to be irregular to him which irregularity can be corrected by the present SDM only, as he does not have any power to either withdraw or correct the order dated 22/23.05.2013. According to him, his order dated 15.12.2011 appears to have been given a wrong number i.e. 3/N as it should have been 1/N and the person who maintains the file in the office of the SDM can alone explain as to how his order passed on 15.12.2011 came to be placed at page 3/N instead of page 1/N at which the proceedings dated 17.09.2012 have been attached and the order dated 15.12.2011 was initially in a separate file containing only one page order sheet apart from the complaint of Pawan Kumar, notice dated 09.12.2011 and its acknowledgment by the police station (11/C). He has testified that it appears that this file was disturbed and the initial order sheet dated 15.12.2011 was mixed with the all other papers of the other file and then they were numbered as 1/N to 4/N and when he had passed order dated 15.12.2011 no page number was mentioned on the noting sheet as on the first page of the note sheet sometimes page 1/N is not written and page numbers in the noting file starts from page 2/N and the page numbers are not in his handwriting. According to the witness he is not aware who has marked page numbers on the green page order sheet/note sheet and he is totally innocent. Witness has further deposed that he has full respect for the Court and he has not done anything to either violate any order/ directions of any court nor he will ever do so nor he has fabricated any record nor has even attempted to do the same. The witness has also deposed that the proceedings were Quasi Kaptan Singh Vs. State Page No. 17 of 30 Judicial proceedings and he is also protected from frivolous proceedings under the Environment (Protection) Act and he has never received any notice/summons from the hon'ble court in the criminal revision nor in these proceedings and he is appearing to assist the hon'ble court after receiving a phone call from the government counsel. Witness has further deposed that he still feel that if any discomfort of annoyance has been caused to this Hon'ble court by any of his action or inaction, he is apologetic for the same and he is innocent.
(14) During his cross examination by applicant/ revisionist Sh. Kaptan Singh, a specific question was put to the witness, if the order dated 15.12.2011 remained in the same form since they were not present in the official files placed before this court and how this could have been page no. 3 on which the successor SDM Sh. Navlender Singh had written the subsequent proceedings on 22.5.2013 after the order of this court in the revision petition. To this the witness has replied that the successor SDM Sh. Navlender Singh should not have passed any order dated 22.5.2013 on the same note sheet below the order dated 15.12.2011 and there is an order dated 17.9.2012 passed by him present in the file which is subsequent to order dated 15.12.2011. According to the witness it appears that someone may have either removed the initial notesheet containing order dated 15.12.2011 and may not have produced it before this Court in the Criminal Revision No. 411/12 and after the order dated Kaptan Singh Vs. State Page No. 18 of 30 1.3.2013 was passed by this Court in CR No.411/12, then somebody must have inserted/added/placed the earlier order sheet dated 15.12.2011 in the file which contained order sheet dated 17.9.2012. He has explained that because of this the pagination became unsystematic and improper and the order dated 17.9.2012 was paged by someone as 1/N and the order dated 15.12.2011 was paged as 3/N. According to the witness backside of Page 1/N being blank, was crossed and numbered Page 2/N by someone and thereafter, order dated 15.12.2011 was added / inserted / placed in this file and numbered as page 3/N and the successor SDM perhaps did not check the sequence of the orders and erroneously wrote the order dated 22.5.2013 on page 3/N below the order dated 15.12.2011 passed by him. Witness has further deposed that had he been careful, he would have correctly got the file paginated by putting his order dated 15.12.2011 on page 1/N and thereafter in chronological order and the irregularity has thus crept in the file not because of any fabrication by him (as he was transferred out as SDM on 11.12.2012) and his Reader Sh. Shwet Mani was also not available on 22.5.2013 as he was in Judicial Custody at that time and even he was on leave from 8.5.2013 to 2.6.2013 due to his cataract surgery. According to the witness neither him nor his Reader Swet Mani were present when order dated 22.5.2013 was passed. (15) The witness has further deposed that Sh. Onkar Marathe is the present SDM Model Town. Further, when asked as to why two files in Kaptan Singh Vs. State Page No. 19 of 30 respect of same proceedings were prepared, the witness has replied that the first file had contained the initial complaints by Sanjeev Kumar and Pawan Kumar and the Kalandra prepared by the Police and it also contained an acknowledgment notice from the Police Station Model Town and the single page order sheet dated 15.12.2011 on a separate green page. According to the witness this file may not have been produced before this Court and it remained in the office of the SDM and the office of the SDM had shifted from Rampura to 1, Kirpa Narayan Marg on 18.10.2012. Witness has further deposed that the files (in plural) were produced before this Court on next day i.e. 19.10.2012. He has also deposed that another file contained a Kalandra which was received by him from SHO Model Town on 15.9.2012 vide DD No. 47B and this file also contained the order dated 12.9.2012 and 17.9.2012 passed by him on the basis of the above said Kalandra under EP Act, 1986. According to the witness these files should have been produced but perhaps the first file was either not traced or not produced before this Hon'ble Court and there was no Almirah or Racks in the new office of SDM Model Town for at least two months. Witness has further deposed that later on after the decision of CR 411/12 on 1.3.2013, the Kanungo Trilok who joined the office on 13.5.13 (after being reinstated from suspension) perhaps mixed the papers and both the order sheets in one file, perhaps thinking that it relates to the same issue, as a result, four pages came to be numbered as page 1/N to 4/N and he has no role to play in this numbering of note sheet or in the mixing of two note sheets and other papers in one file and he was not present at that Kaptan Singh Vs. State Page No. 20 of 30 time.
(16) According to the witness, he is not aware who had produced the files before this court in the present application for contempt and what file were produced containing what documents, voluntarily explained that he had already been transferred by that time and he was not a party in the criminal revision no. 411/12 nor in the contempt proceedings as no notice was ever served upon him in either of these proceedings. He is also not aware who had paginated the proceedings sheets / office file, voluntarily explained that it might have been the present Reader of the SDM court or Kanungo Trilok. He has denied the suggestion that he is only trying to protect himself and he cannot tell if the order passed by this court dated 1.3.2013 was placed before the then SDM Sh. Navlender Singh.
(17) After considering the testimonies of the above witnesses, I may note that the SDMs Dr. Navlender Kumar and Sh. Onkar Marathe are duly aware of the proceedings before this Court but have chosen to keep away from the Court for the reasons best known to them. Sh. Surender Suryan Advocate had been duly permitted to assist the Ld. Addl. Public Prosecutor on behalf of the SDM/ department concerned but no reply has been filed and it appears that they have nothing else to say.
(18) I may note that in so far as the earlier order dated 1.3.2013 is concerned, the same is very clear. In the record of the SDM so placed before this Court claiming that this was the entire record, only one handwritten note dated 17.9.2012 was present, the details of which have been reproduced and Kaptan Singh Vs. State Page No. 21 of 30 incorporated in the order and there were no other proceeding sheets a fact which again finds mentioned in the order of this Court. Where then is the question of there being another file in respect of the same proceedings as is now being desperately claimed by the respondents only to wriggle out of the allegations of fabrication. The record of SDM in respect of the proceedings which has now been placed before this Court shows that the presence of page 3/N reflecting one proceeding sheet dated 15.12.2011 which has been signed by the previous SDM Rajender Prashad which was previously not there in the record placed before this court when the Revision Petition was dealt with. On this page/ sheet containing the proceeding sheet dated 15.12.2011, another proceeding sheet dated 22.5.2013 duly signed by the SDM Navelender Kumar followed by a proceeding dated 31.5.2013 which is not signed by the SDM/ MT also finds reflected. This notesheet 3/N containing proceedings dated 15.12.11, 22.5.2013 and 31.5.2013 primafacie appears to be fabricated and inserted perhaps to legalize the orders passed by the SDM concerned which possibility cannot be ruled out. The proceeding dated 17.9.2012 contents of which find reflected in the order of this Court dated 1.3.2013 bears the No. 1/N whereas this page, the fabrication and insertion which has been alleged, bears a number 3/N though it is of a prior date i.e. 15.12.2011. I am of a primafacie view that had this proceeding dated 15.12.2011 been in existence, then the subsequent proceedings dated 17.9.2012 would have followed the same and not the proceedings dated 22.5.2013 and 31.5.2013. After this proceeding sheet Kaptan Singh Vs. State Page No. 22 of 30 dated 15.12.2011 was inserted, the subsequent SDM then started to write his proceeding sheet dated 22.5.2013 (allegedly in the handwriting of the office staff as claimed by Sh. Rajender Prashad the then SDM) on the same perhaps being unaware that the proceeding sheet dated 17.9.2012 was present before this page on Page No. 1/N.
(19) Sh. Rajender Prashad the then SDM has appeared in the Court and has tried to defend the indefensible. Though he admits that the proceeding sheet has been written by him which allegedly bears the signatures of Kaptan Singh which Kaptan Singh has denied and which signatures of Kaptan Singh primafacie appear to be forged as a bare perusal of these signatures by the naked eye show that they do not tally with the signatures of Kaptan Singh present on his admitted documents i.e. Passport and Driving License (placed before this Court). This primafacie lends credence to the allegations made by the applicant regarding forging of his signatures and fabrication of the proceedings dated 15.12.2011 and the subsequent proceedings (22.5.2013 & 31.5.2013) at a later stage either by the subsequent SDMs or by their office.
(20) I may further observe that on 1.3.2013 the Revision Petition filed by Kaptan Singh was disposed off with the following observations:
"....... The record of the SDM has been duly summoned. I have heard the Ld. Addl. Public Prosecutor for the State on the grounds raised by the Revisionist. The Ld. Addl. PP submits that after seeing the record of the SDM he had personally tried to get the briefing from the SDM Kaptan Singh Vs. State Page No. 23 of 30 concerned but the officer appeared to be unconcerned and told him that he had nothing to say and whatever proceedings were conducted would find reflected from the records summoned by the Court.
I have gone through the summoned record of the SDM and at the very outset, I may mention that the said record does not reflect any proceedings which had been conducted by the SDM before passing the impugned order.
It is reflected from the record that the action has been initiated against the Revisionist on the asking of one Pawan Kumar who has given his address as Chamber L7, P.S. Rathee Block, Tis Hazari Court, Delhi which communication is based on an earlier complaint of one Sanjeev Kumar dated 20.7.2010. The record also reveals that on the basis of the same a Kalandra under Section 133 Cr.P.C. had been instituted against the Revisionist and except for the contents of the complaint which stand incorporated in the said Kalandra there is no material in the form of statement of the complainant or any other resident of the area or any report of inspection by the competent officer / photographs etc. I may observe that the proceedings so initiated under the Environment (Protection) Act are Judicial in nature since any violation under Section 15 of the Environment (Protection) Act entails a punishment which may extend to five years or fine which may extend to Rs. One lacs and hence the competent authority / SDM is under an obligation to follow the procedure established by Law. It is incumbent upon the competent authority to inform the alleged violator regarding the allegations against him and thereafter to provide him an effective opportunity of being heard only after which a speaking Kaptan Singh Vs. State Page No. 24 of 30 order reflecting the satisfaction of the competent authority can be passed.
The primary requirement in the present case was to have summoned both the complainant and the alleged violator / revisionist and after providing an opportunity of hearing to both the parties the competent authority should have identified the disputed issues of fact / law. In case of dispute of fact it is only after providing opportunity to the parties to bring evidence in support of their claims that a final order could have been passed. In the present case the entire record of the SDM does not show that any notice was given either to the complainant or to the revisionist. The record also does not reflect that the revisionist had ever appeared before the SDM or that he was informed of the allegations made against him. Further, at no point of time any inspection is shown to be have been carried out by any competent authority to ascertain the correctness of made by the complainant nor any photograph of the alleged misuse has been placed on record. No statement of any of the public persons / neighbours / residents had been shown to have been taken at any point of time placed on record.
In the entire record of the competent authority/ SDM perused by me, only one hand written note dated 17.9.2012 is present and it is primafacie evident from the same that perhaps the said note was hurriedly written by some official staff without any application of mind and was duly signed by the SDM as such. I reproduce the said note as under:
"...... A police kalandra u/s. 5/15 E.P. Act received from P.S. Model Town vide DD No.47B dated 15.9.12 in respect of Sh. Kaptan Singh S/o Late Sh. Kanhiya Lal R/o H. No. 247A, Rajpur Gurmandi Delhi.Kaptan Singh Vs. State Page No. 25 of 30
Accordingly order passed against the respondent.
Sd/ SDM/ MT"
The manner in which the proceedings have been conducted as above is shocking. It is writ large that no hearing has been given to the Revisionist. The original order of the Government of NCT of Delhi on which the public notice bearing No. F.8 (348)/ EA/ Env/ 09/ 10411061 dated 18.5.2010 was issued by the then Deputy Commissioner, is also not present on the file. It is evident from the public notice on which the SDM has placed his reliance that it is drawing of ground water from the bore well / tubewell which has been made punishable and hence before any order of removal could have been passed by the SDM there should have been evidence on record to prove the drawing of water from the borewell / tubewell. In the entire record there is not even a whisper of any kind of misuse or drawing of water from the submersible pump so much so that even the complainant has not been called for examination. The time when the borewell came into existence is disputed by the revisionist and this Court at this stage of revision cannot step into the shoes of the SDM to adjudicate upon these disputed questions of fact firstly with regard to the time when the borewell came into existence and secondly whether the water had been drawn from the said borewell in violation of the Environment (Protection) Act as alleged.
Without adjudicating upon these disputed questions of facts it was not open to the SDM i.e. an authority exercising Judicial functions under the Environment (Protection) Act while considering the complaint against the revisionist to straightaway pass the orders of removal on mere allegations. It is writ large that the order in Kaptan Singh Vs. State Page No. 26 of 30 question suffers from patent non application of mind having been passed mechanically without observing due process of law and following established legal procedures.
In view of the above I hereby set aside the impugned order dated 17.9.2012 passed by the SDM, Model Town......"
(21) It is only after the above order passed by this court that the then SDM conducted subsequent proceedings dated 22.5.2013 & 31.5.2013 on the same proceeding sheet containing the proceedings dated 15.12.2011 which is primafacie forged in a blatant attempt to overreach the order passed by this Court in the Revision Petition on 1.3.2013. Sh. Rajender Prashad the then SDM who has been examined as RW1 has admitted that the above orders passed by the subsequent SDM are in violation of the procedures prescribed and hence appear irregular to him which irregularity could only be corrected by the present SDM as he does not have the power either to withdraw or correct the said orders dated 22.5.2013 and 23.5.2013. He in his deposition also admitted that the subsequent SDM Sh. Navlender Kumar by making the order dated 15.12.2011 the base had passed another order of sealing on 22.5.2013 after the orders passed by this Court on 1.3.2013 in the Revision Petition and states that these proceedings have been improperly recorded and the SDM Sh. Navlender Kumar should not have passed the order dated 22.5.2013 by writing on the same note sheet below 15.12.2011. Sh. Rajender Prashad has admitted that there was Kaptan Singh Vs. State Page No. 27 of 30 another order dated 17.9.2012 passed by him in the file which is subsequent to order dated 15.12.2011. He has further admitted that the pagination in the file of the SDM is unsystematic and improper and has desperately tried to explain the same by saying that there was a possibility that earlier somebody might have removed the notesheet when the file was sent to this Court and later on reinserted the same. If this be so, then it is more serious because this tampering, manipulation and fabrication could only have taken place in the office of the SDM Model Town who had full control over the Judicial file and none else could have done the same before the file was produced before this Court by their own officers. Since the legality of the said proceedings relating to the sealing order passed by the SDM Model Town after 1.3.2013 is already under challenge before the Court of Sh. Vidya Prakash, Ld. ASJ, I am therefore refraining myself from making any observations as regards the same and confining myself to the aspect of tampering, manipulation and fabrication of the Judicial Record. (22) In so far as the prayer of the applicant for making a reference to Delhi High Court under the Contempt Act is concerned, I may observe that as per the provisions of Section 20 of Contempt of Courts Act no Court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed. In the present case the proceedings before this Court relating to inquiry on the allegations have been Kaptan Singh Vs. State Page No. 28 of 30 delayed beyond the period of one year, solely on account of the conduct of the respondents/ SDMs and hence no useful purpose would be served by making a reference to the Delhi High Court for the alleged illegal acts committed by the officers/ officials of SDM Office Model Town being an exercise in futility.
(23) However, I may observe that the proceedings under Environment (Protection) Act which are conducted by the SDM are Judicial Proceedings as per the procedure prescribed under the Act and Rules and the records so maintained by the SDMs while conducting such proceedings are Judicial Records. As herein above discussed, the material which has come on record in the form of oral statement of the applicant Kaptan Singh and documents placed on record by him (Passport and Driving Licence etc.), statement of the then SDM Sh. Rajender Prashad and the documents/ proceedings present on the Trial Court Record primafacie disclose commission of offences under Section 463/464/466 Indian Penal Code and other provisions of law for which inquiry/ investigations may be necessitated after registration of the case and primafacie no sanction for purposes of prosecution would be required as the acts alleged i.e. tampering, manipulation, forgery and fabrication etc. of record of judicial proceedings are acts which are not covered within the colour of office. Therefore, I direct that a copy of this order be placed before the Ld. CMM (North) with the directions to consider the observations made by this Court as herein above and if deem fit to direct registration of case and investigations thereof and to proceed against Kaptan Singh Vs. State Page No. 29 of 30 violators in accordance with law.
(24) With these observations the present application filed by Kaptan Singh is disposed off. Copy of this order be placed on the Trial Court Record after which the Trial Court Record be sent back.
(25) Revision File be Consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 9.6.2014 ASJII(NW)/ ROHINI
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