Delhi High Court
Mcd vs Ishwar Singh & Ors on 14 August, 2008
Author: Manmohan
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl . Appeal No. 159/1994
% DATE OF DECISION : 14th AUGUST, 2008
MCD ..... Petitioner
Through: Ms. Maninder Acharya, Advocate
versus
ISHWAR SINGH & ORS ....Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
1. Whether Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in the digest? Yes
JUDGMENT
MANMOHAN, J: (ORAL)
1. The present appeal has been filed under Section 378(4) of the Code of
Criminal Procedure for setting aside the judgment dated 17 th September,
1993 passed by Shri. R.S. Arya, Metropolitan Magistrate, New Delhi.
2. Briefly stated, the material facts of this case are that a criminal
complaint under Sections 313(5) and 461 of the Delhi Municipal
Corporation Act, 1957 read with Sections 34/120B of IPC was filed against
fifteen accused persons by MCD.
3. The allegations in the complaint were that on 22nd December, 1986 at
about 9.00 a.m. Shri Milap Chand Garg, Naib Tahsildar, MCD along with
Shri Tara Chand, Patwari and Shri R.K. Sharma, ZE carried out an
inspection in agricultural village Zafarpur Kalan and found that the accused
persons were carving out residential plots in their agricultural land for the
purpose of selling it to individuals under the name and style of 'Dabur
Enclave'. According to the appellant, the agricultural land was owned by
the accused persons jointly, who entered into a conspiracy with the common
intention of carving out plots, roads and streets for construction of
residential building without seeking either any prior permission or sanction
of plans from the MCD.
4. Out of the fifteen accused persons ten were discharged at the initial
stage and the complaint proceeded only against five remaining accused
persons - who are the Respondents in the present appeal.
5. The Trial Court acquitted all the accused on the ground that not only
was the sanction of prosecution bad in law but the prosecution had also
failed to prove its case beyond doubt.
6. In my opinion, the first finding of the Trial Court that the sanction for
prosecution was bad in law is untenable. The Trial court has held that the
sanction for prosecution was without application of mind because not only
was same undated but it did not specifically mention Section 313 (5) of the
Delhi Municipal Corporation Act, 1957.
7. I have perused the sanction order PW2/A and PW2/B and I find that
in the initial note prepared by Shri Milap Chand Garg, Naib Tahsildar, both
the sections 313(5) as well as 461 of the Delhi Municipal Corporation Act
were mentioned. It is true that the Deputy Commissioner while ultimately
sanctioning the prosecution has mentioned only section 461 of the DMC Act
but to my mind the ultimate sanction has to be read in conjunction with the
proposal that was mooted. I find that the Deputy Commissioner while
according sanction to prosecute had not recorded any dissent with regard to
the initial note put up by the Naib Tahsildar. Consequently, the proposal and
the sanction have to be read together. Moreover Section 461 is only a
punishment section and an accused can be punished under this section, only
if he is charged separately under a substantive section of the DMC Act. I am
further of the view that the complaint and the sanction have to be read
together. In fact, on a harmonious reading of both the documents I have no
doubt that what has been sanctioned is prosecution of the accused under
Section 313(5) of the DMC Act as the same is the substantive and charging
Section.
8. However, on merits the Trial Court has concluded that the prosecution
has failed to prove its case beyond doubt. The relevant reasoning of the
Trial Court is reproduced hereinbelow for ready reference:-
On perusal of the cross-examination of PW5 Tara Chand
Patwari an eye witness I find that the same is discrepent and
not safe for basing conviction of the accused persons. He
stated that there was no complaint of any person, that any of
the accused persons had sold land to him. He further stated in
the same breath that the complaint was in writing. Here he is
self contradicting. After this statement Ld. AMP pointed out
that no such complaint is on the file. PW5 further stated that
one Prabhu had complained to the department and Tehsildar
could tell if he recorded the statement of Prabhu. Here Prabhu
is one of the accused persons and certainly a Co-owner of the
land who is now accused would not like to lodge such
complaint. Moreover, there is no such complaint proved by the
prosecution. Even Tehsildar who is PW2 Mr. Milap Chand
Garg Naib Tehsildar, did not state that one Prabhu had
complained to the department.
There is one more important witness of the prosecution
who is PW7. He is Mr. Ranbir Singh, Revenue Patwari. The
statement on oath of PW7 in cross-examination has damaged
the prosecution case. He admitted having received the
application for mutation from that of the previous owners to the
new owners somewhere in the month of August, September,
1986, and the mutation was accordingly, done. He further
admitted that while making mutation he had in his possession
the said application as well as the Municipal record before him.
He stated that he prepared Khatoni Ex. PW7/A on 24.3.87. He
further stated that he had visited the site in question and he saw
the agricultural activities going on.
The date 24.3.87 on which Ex. PW7/A was prepared is
very material and significant viewing the date of occurrence
which is 22.12.86. On 24.3.87 or thereafter, the Patwari
testifies, that agricultural activities were going on, on the land
in question. Then, where stands the 'DABUR ENCLAVE'?
Besides this, he mutated the land in question in the name of
New Owners as shown in Ex.PW7/A, after the date of
occurrence and certainly at that time no 'DABUR ENCLAVE'
existed.
With these above observation and discussion I conclude
that the prosecution case is not free from the shadow of
reasonable doubt. The benefit of doubt goes to the accused
persons. All the five accused persons are acquitted. Bail bonds
stand discharged."
9. In view of the discrepancies in the evidence of PW5 as well as the
subsequent mutation carried out by the Revenue Authority, I am of the view
that the Trial Court was correct in concluding that the prosecution has not
been able to prove its case beyond doubt and the benefit of doubt must enure
to the benefit of the respondents.
10. Consequently, the present appeal is dismissed.
MANMOHAN, J
AUGUST 14, 2008
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