Delhi District Court
State vs . Rajesh Arora on 26 March, 2014
IN THE COURT OF MS. BHAVNA KALIA METROPOLITAN MAGISTRATE06, SOUTH EAST DISTRICT SAKET COURTS, NEW DELHI FIR No.348/2010 P.S. Malviya Nagar U/s 461 DMC Act r/w section 345A DMC Act and 448 IPC STATE VS. RAJESH ARORA a. Sl. No. of the case : 39/2013 b. Date of Institution : 20.01.2011 c. Date of Commission of Offence : 15.07.2010 d. Name of the complainant : Sh. S.K. Midha Deputy Commissioner, MCD, South Zone, New Delhi e. Name of the accused and his : Rajesh Arora parentage and address S/o U.B Arora R/o H.no. 3A/2, Toot Sarai, Malviya Nagar, New Delhi f. Offence complained of : U/s 461 DMC Act r/w section 345A DMC Act and 448 IPC g. Plea of the accused : Pleaded not guilty h. Order reserved : 05.03.2014 i. Final Order : Acquitted j. Date of such order : 26.03.2014 FIR NO. 348/2010 PAGE 1 OF PAGE 5 PS MALVIYA NAGAR Allegations of the Prosecution in brief:
It is the case of the prosecution that sealing action under section 345A of DMC Act against unauthorised construction existing at property no. 3A/2, Toot Sarai, New Delhi was taken on 08.7.10 in compliance of orders passed by the Competent Authority. The entire ground floor and first floor was sealed with the help of police force. During routine inspection carried out by Junior Engineer (Bldg.) concerned on 15.7.2010, it was found that the seal of the property was tampered/ broken by the owner/ builder. During investigation it was found that accused, Rajesh Arora had got his house/ building constructed there at labor rate.
Notice:
Prima facie offence was made out and notice u/s 251 Cr.P.C was given to the accused Rajesh Arora for offence under section 345 DMC Act punishable under Section 461 DMC Act for seal tampering and section 448 IPC Act for unlawfully entering into the said property despite the same being sealed. Evidence lead by the Prosecution:
Prosecution examined 4 witnesses to prove its case.
FIR NO. 348/2010 PAGE 2 OF PAGE 5 PS MALVIYA NAGAR
PW1, Ravi Kumar, JE stated that he had sealed the property bearing no. 3A/2, Toot Sarai, New Delhi as unauthorised construction was taking place there. He had sent a letter to PS Malviya Nagar to 'keep and watch' at the said property. He denied the suggestion that he was giving false statement as he did not remember. He stated in his cross examination that he had sealed the property by putting a rope all around the property. He further stated that he never again visited the property subsequent to sealing and he never met the accused on the said property.
PW 2 Ct. Jai Kumar stated that he had joined the investigation with the IO. He stated that he did not remember anything about the case. PW3 Sh S.K Midha stated that he had given permission as Deputy Commissioner, MCD South under section 195 Cr.PC by giving complaint dated 19.7.2010 Ex. PW3/A. He stated in his cross examination that the property was definitely sealed but he did not remember as to who had tampered with the seal.
PW4 SI Parvesh stated that on complaint from MCD South, FIR was registered and thereafter, he visited MCD office and met JE Mr. Ravi Meena. He recorded statement of Mr. Ravi and prepared site plan Ex. PW4/B. On 25.8.2010, he visited the spot where beat officer Ct. Jai Kumar met him and identified owner of property Rajesh Arora who met them and stated that he had got constructed the said property by his own laborers. He FIR NO. 348/2010 PAGE 3 OF PAGE 5 PS MALVIYA NAGAR was arrested vide memo Ex. PW4/C. He got permission under section 195 Cr.PC, recorded statement of witnesses and prepared chargesheet. He stated in his cross examination that when he visited the said premises, the same were not sealed and nobody told him if any person had broken the seal or not.
Statement of the accused under section 313 Cr.PC The accused denied that he had tampered with the seal affixed by MCD or entered the property unlawfully. He admitted that the seal had been affixed but denied having tampered with it. He further stated that nowhere in the chargesheet or evidence was it mentioned, that he had broken the seal. He stated that he did not wish to lead defence evidence. Defence Evidence:
The accused did not lead any evidence in his defence. Decision and reasons:
The accused has been given notice under scetion 345 DMC Act punishable under Section 461 DMC Act for seal tampering and section 448 DMC Act for unlawfully entering into the said property despite the same being sealed. Section 345A DMC Act provides that the Commissioner may make an order FIR NO. 348/2010 PAGE 4 OF PAGE 5 PS MALVIYA NAGAR for sealing of premises for the reasons stated in the said section and no persons shall remove the seal except on orders of the Commissioner or Appellate Authority. The accused has admitted that his property was sealed. However, he has stated that he was getting repair work done at the property when the same was sealed and after sealing he started staying at another premises. He stated that he was not aware that the seal was broken and denied having broken the seal himself. Record has been perused. There appear to be no allegations against the accused stating that he had broken or tampered with the seal. No prosecution witness has stated that it was the accused who had broken the seal. It is further not stated as to when the seal was broken. The prosecution has failed to discharge its burden and thus, the accused is acquitted for the offence of seal tampering under section 345A DMC Act punishable under section 461 DMC Act.
There are further allegations of house tresspass against the accused person. For house tresspass, criminal tresspass has to be proved. For criminal tresspass, it has to be proved that the property was in possession of another person and accused entered into that property to intimidate, insult or annoy person in possession. Nothing has been proved by the prosecution. Since the prosecution has failed to discharge its burden, the accused is acquitted for the offence under section 448 IPC.
ANNOUNCED IN THE OPEN COURT (BHAVNA KALIA)
ON 26.03.2014 METROPOLITAN MAGISTRATE06
SOUTH EAST/SAKET COURTS
FIR NO. 348/2010 PAGE 5 OF PAGE 5
PS MALVIYA NAGAR
FIR NO. 348/2010 PAGE 6 OF PAGE 5
PS MALVIYA NAGAR
FIR NO. 348/2010 PAGE 7 OF PAGE 5
PS MALVIYA NAGAR