April 4, 2019 (Delhi): Recently High Court of Delhi observed that minor cracks on the public road cannot directly invite the offence of mischief as it cannot be taken as a consequence intended to flow.
The bench of Justice Gauba passed the judgment in Banarasi Lal Gupta vs State on 18.03.2019.
The allegations in the FIR concerned certain cracks that had come to his notice in a public road (DBG Road, leading to LIG/MIG/HIG flats in Motia Khan), abutting a plot of land bearing no.1, Motia Khan, Pahar Ganj where some excavation work was underway at the instance of M/s B.L. Gupta Construction Pvt. Ltd. As per the allegations in the FIR, such cracks had developed on account of appropriate directions not having been taken for the digging work to the extent of 15 meters, the cracks exposing the public at large using the said public road to the possibility of accidental loss of life, limb or property. The FIR indicated possible offences committed by such acts of commission or omission to be those punishable under Sections 336 and 431 IPC and Section 3 of Prevention of Damage to Public Property Act, 1984.
Police after investigation however proposed a cancellation report. The ACMM, however, took a different view observing that the evidence showed sufficiently that cracks on the road rendered it unsafe for travelling.
The cancellation report of police was primarily based upon a report given by Brijesh Chandra, Executive Engineer of Delhi Development Authority (DDA) wherein the public road in question was indicated to be under the jurisdiction of the said agency. The executive engineer, by his report dated 13.03.2008, informed the police authorities that “only minor cracks” had developed in the road which had been “rectified by the agency”. The police examined the said executive engineer under Section 161 Cr.P.C. in the course of which statement he explained that the said hairline cracks had developed due to heavy traffic and slanting of road side malba/debris, there being no threat to the adjoining properties on account of the ongoing construction, all necessary safety measures having been adopted to avoid any mishap/accident at site, there being no threat perceived to the local residents.
The High Court commented on the report of engineer as "The report and statement of the executive engineer of DDA cannot be wished away or ignored. It would clearly reveal that the reasons for hairline cracks in the road could be attributed to factors other than the excavation work".
The High Court agreed with the petitioner and quashed the case. The Court observed "This Court agrees with the submissions that mere development of hairline cracks in the above nature cannot be the basis of inference that the consequences flowing therefrom are “intended” to be the mischief in the sense of effecting injury to the public road within the meaning of penal clause contained in Section 431 IPC".
Read the judgment here:
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