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2011 DIGILAW 2310 (RAJ)

Jaipur Development Authority v. Kailash Soni

2011-11-01

R.S.CHAUHAN

body2011
Hon'ble CHAUHAN, J.—The Jaipur Development Authority is aggrieved by judgment dated 30th August, 2001, passed by Special Court (SC/ST Prevention of Atrocities) & Additional District & Sessions Judge, Jaipur City, Jaipur, whereby the learned Judge has acquitted the accused respondent and has quashed and set aside the judgment dated 29.03.2001 passed by Additional Chief Judicial Magistrate No.1, JDA Tribunal. 2. The brief facts of the case are that on 25.11.1992, the JDA had submitted a complaint before the JDA Tribunal, wherein it claimed that on 05.09.1992 Narendra Singh, the Enforcement Officer, was inspecting Bairathi Bhawan, wherein it was discovered that Kailash had illegally placed three shutters of 12 x 9 ft. and had encroached upon the Verendah. In fact, he had allegedly covered the entire Verendah and had started renovation in his shop, but without the prior permission of the JDA. In order to prove its case, the JDA had produced three witnesses and had submitted certain documents. In defence, the accused respondent had examined himself as a witness. After going through the oral and documentary evidence, vide judgment dated 29th March 2001, the learned Tribunal had convicted the accused respondent for offences under Sections 31(1) and 32(7) of the JDA Act. 3. Since the accused respondent was aggrieved by the judgment dated 29th March 2001, he filed an appeal before the District & Sessions Judge, Jaipur City, Jaipur. Subsequently, the appeal was transferred to the learned Judge. Vide judgment dated 30th of August, 2001, the learned Judge acquitted the accused respondent of the aforementioned offences and quashed and set aside the judgment dated 29.03.2001. Hence, this Criminal Leave to Appeal before this Court. 4. Mr. Jinesh Jain, the learned counsel for the appellant, has vehemently contended that the learned Judge has overlooked the fact that vide notification dated 07.11.1983, the Authority had authorized the Assistant Public Prosecutor and the Deputy Director (Enforcement) to submit the complaint against those persons who were indulged in illegal construction. However, the learned Judge has overlooked the said notification. Instead, the learned Judge has relied upon the notification dated 25.08.1990, whereby the Secretary, JDA, the Director (Enforcement) and Deputy Director (Enforcement) were authorized to submit the complaint. Therefore, the learned Judge has misread of evidence. 5. On the other hand, Mr. However, the learned Judge has overlooked the said notification. Instead, the learned Judge has relied upon the notification dated 25.08.1990, whereby the Secretary, JDA, the Director (Enforcement) and Deputy Director (Enforcement) were authorized to submit the complaint. Therefore, the learned Judge has misread of evidence. 5. On the other hand, Mr. M.C. Jain, the learned counsel for the accused respondent, has vehemently raised the following contentions before this Court: firstly, that the notification dated 25.08.1990 was published after the notification dated 07.11.1983. According to notification dated 25.08.1990, it is only the Secretary, the Director (Enforcement), and the Deputy Director (Enforcement), who could have submitted the complaint. However, the complaint in the present case has not been submitted by any one of them. Secondly, that the learned Tribunal has failed to follow the procedure under Chapter XX of Cr.P.C., dealing with trial of summons cases by a Magistrate. According to Section 251, the particulars of the offence, which an accused person is alleged to have committed, should be stated to him and he should be asked whether he pleads guilty or has any defence to make. However, in the present case, instead of first following the procedure under Section 251, the learned Tribunal has recorded the testimony of Harpal Singh (P.W.I). Therefore, the procedure established under Chapter XX Cr.P.C. has been violated. Lastly, that the prosecution has failed to prove the fact that the shop in question actually belonged to Kailash Soni. Hence, the prosecution has failed to prove its case beyond a reasonable doubt. Thus, the learned counsel has supported the impugned judgment. 6. Heard the learned counsel for the parties and perused the impugned judgment. 7. The learned counsel for the appellant has relied on the notification dated 07.11.1983. However, prima facie, the said notification has been superseded by the notification dated 25.08.1990. Therefore, the learned Judge was certainly justified in relying on the notification dated 25.08.1990. The learned Judge is also justified in concluding that once a power has been delegated, it cannot be sub-delegated to another person. Therefore, the contention raised by the learned counsel is unacceptable. 8. It is, indeed, trite to state that once a procedure has been established by law, it has to be followed both in spirit and letter. Chapter XX of Cr.P.C. clearly lays down the procedure to be followed in a trial of a summons case. Therefore, the contention raised by the learned counsel is unacceptable. 8. It is, indeed, trite to state that once a procedure has been established by law, it has to be followed both in spirit and letter. Chapter XX of Cr.P.C. clearly lays down the procedure to be followed in a trial of a summons case. Sections 251 & 254 Cr.P.C, are as under: 251. Substance of accusation to be stated. When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge. 254. Procedure when not convicted. (1) If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. (2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing. (3) A Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in court. Obviously, Section 251 has to proceed Section 254. For, it is imperative that the accused person should be made aware of the offence(s) alleged against him. Therefore, the prosecution is permitted to produce its evidence only after the charges have been read out to the accused. Of course, in a summons case, there is no need to frame a formal charge. However, it is imperative that the particulars of the offence should be brought to the notice of the accused so that he may not only know the offences alleged against him, but most importantly he is given an opportunity to prepare his defence accordingly. 9. According to Section 254 Cr.P.C. it is only when the accused does not plead guilty under Section 252, or the case does not fall within Section 253 Cr.P.C. that the prosecution is permitted to produce its evidence. 10. 9. According to Section 254 Cr.P.C. it is only when the accused does not plead guilty under Section 252, or the case does not fall within Section 253 Cr.P.C. that the prosecution is permitted to produce its evidence. 10. However, in the present case, the testimony of Harpal Singh (P.W.I) was recorded on 02.04.1998 whereas the particulars of the offence were read out to the accused respondent on 12.04.1999. Thus, the right of the accused respondent to a fair trial was clearly violated. After all, when Harpal Singh (P.W.I) was examined as a witness, the accused respondent did not even know the nature of the offence alleged against him. Hence, his right to cross-examine Harpal Singh was clearly violated. 11. It is also a settled position of law that the prosecution must prove its case beyond a reasonable doubt. The distance between "may be true" and "must be true" is a long distance, which the prosecution is required to traverse. Thus, it was imperative for the prosecution to establish that the shop in question actually did belong to the accused respondent. However, Narendra Kumar Godara (P.W.2), in his cross-examination, has clearly admitted that the enforcement party did not know as to who was the owner of the shop in question. Moreover, they were unaware of the fact whether the Verendah was a Government property or not. Since the Enforcement Officers did not know whether the accused respondent was, indeed, the owner of the shop, obviously, the accused respondent could not be convicted for the offences under Sections 31(1) or 32(7) of the JDA Act. 12. For the reasons stated above, this Court does not find any illegality or perversity in the impugned judgment. Hence, this criminal leave to appeal is devoid of merit; it is hereby dismissed.