Banarsi Lal Gupta v. State (NCT of Delhi)

1. Upon consideration of the report (cancellation report) under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C.) dated 05.02.2013, submitted on conclusion of investigation into first information report (FIR) no. 32/2008 of police station Pahar Ganj, the Additional Chief Metropolitan Magistrate (ACMM) took cognizance of offence punishable under Section 431 of Indian Penal Code, 1860 (IPC) and summoned M/s B L Gupta Construction Pvt. Ltd. along with two of its directors including the petitioner (Managing Director) and his wife Aruna Gupta (Director) as accused.

2. The said two persons including the petitioner assailed the said order of summoning by Crl. Rev. No. 39 and 40 of 2016 in the Court 2019:DHC:1640 of Sessions. While the prayer of Aruna Gupta was accepted, the summoning order against her being vacated, the revisional court, by its order dated 11.08.2016 declined to interfere with the remaining order, questioning which view the present petition was filed invoking the inherent powers and jurisdiction of this Court under Sections 482 and 483 Cr.P.C.

3. The FIR had been registered on 09.02.2008 on the complaint of Assistant Sub Inspector Preet Pal Singh, a police official posted at the relevant point of time in the police station. 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.

4. The investigation having been completed the report under Section 173 Cr.P.C. was filed on 05.02.2013 proposing “cancellation”. It may be mentioned here that the company in question had earlier preferred Crl.M.C. 830/2008 seeking quashing of the proceedings arising out of the FIR, the court at that stage having declined to interfere on the ground that the questions of facts required further probe, the petition having been dismissed by order dated 30.03.2009. Be that as it may, the ground on which the investigating police proposed the cancellation of the case was essentially based on 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.

5. The ACMM, however, took a different view observing that the evidence showed sufficiently that cracks on the road rendered it unsafe for travelling.

6. 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.

7. 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.

8. In this view, the impugned order cannot be sustained. The same is, therefore, set aside. The proceedings in the afore-mentioned case against the petitioner are hereby quashed. R.K.GAUBA, J. MARCH 18, 2019 nk