Delhi District Court
In Bajranglal Parikh & Ors vs . Sate Of Assam, 2008 (Suppl.) Glt on 12 August, 2014
IN THE COURT OF MS.PURVA SAREEN,
METROPOLITAN MAGISTRATE01, SOUTH, SAKET COURT, NEW DELHI
State v. J.C. Sharma etc
FIR No.34/98
PS Hauz Khas
U/s 466A/34 DMC Act & 453/34 IPC r/w Section 188 IPC
JUDGMENT
Date of institution : 22.11.1999
Date of Commission of offence : 17.12.1997
Name of the complainant : Asstt. Engg (Building) MCD, Green Park
South Zone, New Delhi
Name & address of the accused : (i) J.C. Sharma
R/o R9, Green Park Extension, New Delhi
(ii) Subhash Arora
st
R/o B48, 1 Floor, Shivalik, Malviya Nagar
New Delhi
Offence Complained of : U/s 453/466A/34 DMC Act & 188 IPC
Plea of the accused persons : Pleaded not guilty
Final Order : Acquitted
Date for reserve of order : 22.07.2014
Date of announcing of order : 12.08.2014
BRIEF FACTS AND REASONS FOR DECISION
State v. J.C. Sharma Page 1
FIR No.34/98, PS Hauz Khas
1. Briefly stated, the accused J.C. Sharma and Subhash were sent to face trial for the offence u/s 453/34 IPC & 466A DMC Act with the allegations that on 17.12.1997 at R9, Green Park Extension the accused persons committed house trespass by entering in sealed property/building and tampered with the seal and carried unauthorized construction work after violation of sealing order within the jurisdiction of PS Hauz Khas, and thereby committed an offence punishable under section 448/34 IPC and 466A/34 DMC Act.
2. Accused persons were summoned. Complete set of documents were supplied to the accused persons. Arguments heard on charge. Charge u/s 448/34 IPC & 466A/34 DMC Act was framed against the accused persons on 28.08.2014 and the matter was listed for prosecution evidence. Accused persons went to Sessions Court for revision. Thereafter, on 02.04.2007 an amended charge U/s 466A/34 DMC Act & 453/34 IPC r/w Section 188 IPC was framed against accused persons by learned Predecessor Court to which they pleaded not guilty and claimed trial. Thereafter, the matter was listed for prosecution evidence.
3. In order to substantiate the allegations, prosecution examined seven witnesses as under : State v. J.C. Sharma Page 2 FIR No.34/98, PS Hauz Khas
(i) PW1 Kishore Chand was photographer who deposed before the court that he did not recollect if he or any of his subordinate had taken photographs in this case. He further deposed that he did not recollect if an person namely Mohan was working with him.
In his cross examination by learned APP for the state witness was read over the statement mark B which he denied in total. He further stated that in the year 1998 more precisely on 30.11.1998 none was employed with him.
Accused did not prefer to cross examine the witness.
(ii) PW2 A.K. Batra deposed before the court that in the year 1999 being Asst Engineer (South) he handed over certain documents to the police. Witness pointed out the photocopies of the documents vide memo mark C1 to C3.
In his cross examination by learned defance counsel for accused J.C. Sharma it is admitted by witness that no proof of service of notices of mark C1 to C3 available on case file. Witness further stated that he cannot say whether documents mark C1 to C3 are genuine or not as the same were not prepared during his tenure.
Accused Subhash Arora adopted the cross examination of accsued J.C. Sharma.
State v. J.C. Sharma Page 3
FIR No.34/98, PS Hauz Khas
(iii) PW3 HC Vinod deposed before the court that on 17.01.1998 duty officer handed over the original rukka and copy of FIR. Thereafter, he went to the spot and handed over the same to IO ASI Satya Dev. Photographs of spot were taken. IO recorded his statement.
In his cross examination by learned Defence counsel for accused J.C. Sharma it is denied by witness that no photographs were taken in his presence.
Accused Subhash Arora did not prefer to cross examine the witness.
(iv) PW4 Rajesh Tewatia brought copy of complaint and exhibited the same as Ex.PW4/A and six notices u/s 91 CrPC Ex.PW4/B to PW4/F issued by ASI Satya Dev.
In his cross examination by learned Defence counsel for accused J.C. Sharma it is stated by witness that he only brought the summoned record and he cannot identify the signatures of Assistant Engineer on Ex.PW4/A. Accused Subhash Arora adopted the cross of accused J.C. Sharma.
(v) PW5 Satya Dev, Retd. SI deposed before the court that on 13.01.98 one complaint was sent by Assistant Engineer, MCD, Building Department State v. J.C. Sharma Page 4 FIR No.34/98, PS Hauz Khas was marked to him by the SHO for investigation. He prepared Rukka on the complaint. Thereafter, he reached at the spot i.e R9, Green Park Extension where he found that the three storey building was there. The seals which were affixed upon the front gate were found tampered. Thereafter he saw that some labours were found standing in the gallery of the building. Thereafter he inquired and come to know that the construction work was stopped after the PCR van reached at the spot. Meanwhile Ct. Vinod reached the spot along with copy of FIR and original complaint and handed over same to him. He called private photographer at the spot and got the spot photographed. Site plan was prepared. The site plan Ex.PW5/A found torn from down right side where the signature of the IO was stated to be put. Thereafter, I collected photographs from photographer and statement of photographer was recorded. Thereafter, he gave notices u/s 91 CrPC to the MCD for handing over the original documents of sealing order, Dform show cause notices, photographs and other record. MCD office handed over him the photocopies of the said documents marked as C1 and C2. MCD officials had also gave reply for not producing the original documents as mark C3. After discussing with the senior officers challan was prepared against the accused persons without arresting them.
In his cross examination by learned Defence counsel for accused State v. J.C. Sharma Page 5 FIR No.34/98, PS Hauz Khas J.C. Sharma it is stated by witness that he did not record the statement of persons found present at the premises. The persons who were in possession of the property told that they had purchased the said property from one Subhash Arora who had got constructed the property along with J.C. Sharma. It is admitted by witness that he had prepared list of documents himself. Witness further stated that he cannot say whether any signature upon mark XY i.e. memorandum of understanding, belongs to J.C. Sharma. Witness further stated that he cannot say whether signature upon the memorandum of understanding at the place of first party was of Surjeet Singh Sharma. Witness denied that he had wrongly filed the charge sheet against the accused J.C. Sharma.
In his cross examination by learned counsel for accused Subhash Arora it is admitted by witness that he did not get the sanction u/s 195 CrPC. He had not recorded the statement of any MCD officials. Witness admitted that MCD officials did not show the original documents and only provided photocopy of the documents. No seizure memo was prepared and nothing was recovered.
(vi) PW6 Devender deposed before the court that in the month of December 1997 being Assistant Engineer, Building, South Zone, MCD on the basis of record and reporting of tampering of seal at property no.R9, State v. J.C. Sharma Page 6 FIR No.34/98, PS Hauz Khas Green Park Extension, he made formal complaint to SHO.
In his cross examination by learned Defence counsel for accused J.C. Sharma it is stated by witness that Ex.PW6/A i.e. formal complaint was prepared by him. The report of tampering was given to him in writing by Jr. Engineer. Witness further stated that he cannot produce the written reporting of Jr. Engineer as the same might be in the officials file. It is admitted by witness that he being Assistant Engineer, South Zone was not clear whether the alleged tampering was done by the owner of builder.
In his cross examination by learned counsel for accused Subhash Arora it is stated by witness that he was never called by IO during investigation of present case. It is admitted by witness that he never personally visited the property in question for the purpose of sealing. Witness further stated that he cannot tell whether the photographs of the property were taken while sealing or subsequent.
(vii) PW7 Nand Kishore, Record Clerk from SDMC brought before the court form no.D in respect of property in question and letters from concerned department. Same were Ex.PW6/A to Ex.PW6/D. In his cross examination by learned Defence counsel for accused J.C. Sharma it is admitted by witness that in original file, the original ink has been used at point X, Y & Z and other portions were photocopy.
State v. J.C. Sharma Page 7
FIR No.34/98, PS Hauz Khas
Accused Subhash Arora adopted the cross of accused J.C. Sharma.
4. Thereafter, PE was closed. Statement of accused persons U/s 281 Cr.P.C were recorded wherein they refused to lead DE. Thereafter, DE was closed and final arguments were addressed.
5. I have heard the submissions and carefully perused the record.
6. It has been argued by learned counsel for accused that there is nothing on record to connect the property with the photographs The photographs have not been proved. It has been further argued by learned counsel for accused that no witnesses were made to join the sealing process on the day of the sealing.
7. It has been further argued by learned counsel for accused that neither section 188 IPC nor 466A/453 DMC Act are made out against the accused as section 188 IPC states that "whoever knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction ........".
State v. J.C. Sharma Page 8
FIR No.34/98, PS Hauz Khas
8. IO has not placed any directions of public servant lawfully empowered to show that any disobedience of the orders has been done.
9. After hearing the arguments of counsel for accused as well learned APP for the state, I am giving following observations: First of all, I shall discuss the maintainability of the complaint at the time charge sheet was filed.
In Bajranglal Parikh & Ors Vs. Sate of Assam, 2008 (suppl.) GLT 486, it has been held that the proceedings u/s 188 IPC cannot be initiated through a police report but a complaint has to be filed before the court of learned MM. It has been held that "The situation at hand is almost identical with Mt. Lachmi Devi (supra), for, while in the case of Mt.Lachmi Devi (Supra), it was by virtue of an Ordinance that an offence under Section 188, IPC was made cognizable without making any corresponding change or amendment in Section 195(a), the present case is one, where Section 188, IPC has been made cognizable by the legislature. In the present case too, however, no corresponding change has been made by the legislature in the provisions of Section 195(1)(a)(i). Hence, I completely fail to comprehend as to how it would be possible for a person to be prosecuted on the basis of a police State v. J.C. Sharma Page 9 FIR No.34/98, PS Hauz Khas report for an offence committed, under section 188, IPC, unless a complaint, in writing, is made to the Magistrate by the public servant concerned or a public servant to whom he is administratively subordinate. Looked at from any angle, the prosecution of the Petitioners is wholly illegal, cannot be sustained and must be treated as an abuse of the process of law.
10.In Gurinder Singh vs. State, 63 (1996) DLT 104, it has been held that "the order of taking cognizance u/s 186 IPC in the absence of written complaint by public servant was set aside".
11. Admittedly, the present case is instituted on the basis of police report and not on the basis of a compliant u/s 195 CrPC by the public servant or his successor who had issued the order. This aspect has not been considered by the Ld. MM at all. Thus the petitioner deserves a discharge on this count.
12.Now let me examine the issue qua offence u/s 466A/453 DMC Act, if can be proceeded with on the basis of a police report.
13.Sections 471 of DMC Act is relevant in this regard and it runs as under : State v. J.C. Sharma Page 10 FIR No.34/98, PS Hauz Khas "Limitation of time for prosecution. No person shall be liable to punishment for any offence against this Act or any rule, regulation or bye law made thereunder, unless complaint of such offence is made before a municipal magistrate within six months next after
(a) the date of the commission of such offence, or
(b) the date on which the commission or existence of such offence was first brought to the notice of the complainant.
14.A bare perusal of section 471 DMC Act makes it clear that for any offence under the DMC Act, a complaint for said offence has to be made before the learned Municipal Magistrate, within sic months of the offence or its knowledge. In the present case, admittedly, complaint was never filed before the learned Municipal Magistrate, but the cognizance was taken by the learned MM on a police report/FIR. Hence, on the similar grounds, as stated above, the petitioner cannot be tried even for the offence u/s 466A/453 DMC Act.
15.Apart from the above points, I do agree with the submissions of the counsel for accused that nothing has been placed on record to connect the photographs with the property nor any public person made as witness to prove that any sealing was done upon the premises. Simply and oral order State v. J.C. Sharma Page 11 FIR No.34/98, PS Hauz Khas by MCD official is not sufficient to prove that any sealing was done. IO has not placed on record to connect the property with the accused.
16.In light of the above circumstances, it would not be proper to subject criminality upon the accused for the offences which may not have been committed by them as law is adversarial in nature. The offence of the accused persons have to be proved beyond reasonable doubt. The prosecution has not been able to do the same in the present case. Hence, accused J.C.Sharma and Subhash Arora stand acquitted for the offence punishable U/s 466A/34 DMC Act & 453/34 IPC r/w Section 188 IPC.
17. Bail bonds to remain in force for a period of one month u/s 437A CrPC.
18.File be consigned to record room.
Announced in the open court (PURVA SAREEN)
th
on 12 August 2014 MM1/SOUTH/SAKET COURT
NEW DELHI
State v. J.C. Sharma Page 12
FIR No.34/98, PS Hauz Khas