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Whether participation of the accused is require or not in the preliminary enquiry u/s.340 of crpc.

(Querist) 17 April 2015 This query is : Resolved 
Respected Experts,
Developer was responsible for cutting 20 trees. Eye witness filed complaint to the Ward officer with photo graphs-Ward officer complained Police and then Police obtained permission from the Magistrate for investigation-for purpose FIR u/s.154 was recorded against developer specifying as accused name with recording eyewitness/complainant as witness-Police IO registered Complaint case before the Magistrate and charge sheet was filed by showing accused other than the developer wherein the said witness complainant’s name is shown to be PW. Trial was started and the said witness was called for deposition. The witness found that the accused mentioned in the FIR was not presented and that a different person was presented who read plea. The said witness also found that as per FIR the offence recorded stating the developer was responsible for felling of 20 trees and violated the permission granted by the tree Authority whereas as per charge sheet it is recorded that the accused other than the developer has committed offence of tree fell every day from date of the permission dated 2008 granted. Charge sheet was filed in the year 2013. Thus as per the charge sheet the fake accused has committed offence of tree fell every day since 2008-2013.
When witness completed deposition before the PP, the Advocate for the fake accused came forward and started to cross the witness which was opposed by the witness. Witness deposed that the offence committed by the developer itself who obtained the permission from the tree Authority and that the accused presented is not the accused developer for which his original complaint refers. The Magistrate did not made any inquiry therefore the witness filed application with prayer to pass order directing the IO to present the developer accused. The application was dismissed. Then the witness send letter to the Hon'ble Chief Justice High Court, the Chief Metropolitan Magistrate and the trial Court also but there was no action.
The witness who filed the complaint for which the Complaint case was registered was compelled to cross examined by the advocate of the Bogus accused and the purpose of the original complaint was not served. If the accused remained absent in the further deposition it is possible that cost could be ordered or if the witness give away the case the main accused developer will be set free.
Therefore the witness preferred application under section 340(1) of the CRPC against the IO for preliminary inquiry of the case and the IO. The Advocate for the bogus accused filed application for participate in the preliminary inquiry and raised objection that the witness has no right to file such perjury Application and that the accused made obstruction in the process of the court and also that heavy cost should be levied against the witness. Though the matter is concerned with the BMC, no Advocate from the BMC legal department appearing and the witness is fighting lonely. The Magistrate Court also not taking the matter of tree fell seriously.
Kindly inform me how to act in this situation. Why witness in the Indian Court has no value if there is abuse of process of Court going on when the truth can be inquired by way of preliminary inquiry without interference of the bogus accused.
Regards,
Sadanand Panchal
SAINATH DEVALLA (Expert) 18 April 2015
What is the status of the complainant? What way was he connected with the land in which the trees were cut? What made him visit so many courts against the original accused? The court will rely only on the investigation report submitted by the IO, and act accordingly.
P. Venu (Expert) 18 April 2015
It appears from the facts that matter has occured in Mumbai. Obviously, Law and its procedure is being abused and the Judge/Magistrate is help in preventing the abuse. You can bring the matters to the notice of the Guardian High Court in charge.
Sadanand B. Panchal (Querist) 19 April 2015
Respected experts,
Thanks for your advise.As the status of the complainant asked as aforesaid I have to inform as per following:
The tree were cut is the same land where complainant reside at Chawl situated in Khar Mumbai. There was heavy excavation of the land in the Plot for construction of the Plinth of proposed building and the soil was removed blow to the rock without permission from the Collector B.S.D. upto the property line of the Plot. The abuse fact was informed to the Hon'ble Chief Justice of the Bombay High Court but the complaint letter was forwarded to the Public Grievances Cell by the Registrar of the Court. I visited so many times and made inquiry. But my two complaints were not even replied.
Now the matter remained in the Magistrate Court, building completed, flower beds constructed on the concrete slab where 40 trees shown to be planted. It is astonishing that despite matter in the Court, the Superintendent of Gardens, Tree Authority Mumbai has fraudulently granted NOC to the Tree Condition in the IOD therefore the developer obtained occupation certificate and members of the Society taken possession of flats. Developer gone away for construction of new buildings.
SAINATH DEVALLA (Expert) 19 April 2015
U mean to say the builder encroached a part of the land of the complainant.

Are the complainant and UR self the same.Right through U have represented the case with various higherups.
Sadanand B. Panchal (Querist) 19 April 2015
Respected Experts,
The chawl is very old of the year 1933. I am the complainant and occupant of the chawl. There was a building of the society constructed since the year 1980. The society in the year 1973 filed RAE suit for possession of the land under the chawl which was dismissed in 1981.There was another suit for possession of the entire land before the Hon'ble City Civil Court the suit was dismissed by decision that the Society not the landlord. Society was claiming to be owner of the land by purchase from the original landlord. Behind back there was another developer who constructed building and it was occupied by the persons other than the members at the time of registration. This fact was known in the year 2007 under RTI Act. Thereafter I filed RTI Application for certified copy of the proposal file of building and the department replied that file was not available. When obtained file of new building, found Property Register Card showing false entry of the name of Society conveyance and the name of the chawl owner as Imla Malak. In fact chawl occupants are occupants of class “I” under the MLR Code. Thus the developer while constructing the new building, has encroached the right of way and open spaces under possession of the chawl occupants.
Coconut, Ashoka and Jamun trees were felled while encroachment the right of way by excavation. On complaint to police, the assistant of the developer produced the tree removal permission. Two Ashoka trees out of 16 Ashoka cut, out of total trees felled no tree planted and there is no earth to plant. We are now compelled to approach chawl through Ramp.
T. Kalaiselvan, Advocate (Expert) 25 April 2015
Take the help of a skilled and seasoned lawyer and fight it out as per his further advise.


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