Allahabad High Court
BAREILLY DEVELOPMENT AUTHORITYversusRAJENDRA PRASAD
- Decided
- Bench
- ABDUL SHAHID
Holding
The appellate court held that the acquittal was correct because the complainant failed to discharge the burden of proof.
Summary
The Bareilly Development Authority (BDA) prosecuted Rajendra Prasad under Sections 26(1) and 28(4) of the U.P. Urban Planning and Development Act, alleging illegal construction. The trial court acquitted the accused, finding that the prosecution had not produced the original inspection report, the original order directing stoppage of construction, nor proof that the order was served, and had failed to produce a key witness, Jitendra Kumar Gupta. The High Court examined the record and held that the missing original documents and lack of service evidence meant the prosecution did not discharge the burden of proof beyond reasonable doubt. It also noted that secondary evidence was not admissible without a satisfactory explanation of loss. Consequently, the Court affirmed the trial court’s acquittal and dismissed the appeal.
Issues considered
- Whether the prosecution proved the charges under Sections 26(1) and 28(4) of the U.P. Urban Planning and Development Act beyond reasonable doubt.
- Whether the absence of original inspection report, original stoppage order, and proof of service defeats the prosecution’s case.
- Whether secondary (photocopy) evidence of the order can be admitted in the absence of a declaration of loss.
- Whether the failure to produce a material witness warrants an adverse inference under Section 114(g) of the Evidence Act.
Legislation cited
- Indian Evidence Act, 1872 — s. 114(g), 65
- U.P. Urban Planning and Development Act, 1973 (as amended 1976) — s. 26, 28
Subjects
- criminal appeal
- acquittal
- burden of proof
- secondary evidence
- urban planning law
- inspection report
- service of notice
- adverse inference
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 352 of 1983
Bareilly Development Authority
.....Appellant(s)
Versus
Rajendra Prasad
.....Respondent(s)
Counsel for Appellant(s) : Murli Dhar
Counsel for Respondent(s) : AGA, T.S. Dabas
Court No. - 87
HON'BLE ABDUL SHAHID, J.
1. Sri Sri Santosh Kumar Yadav, Advocate has filed Vakalatnama on
behalf of opposite party which is taken on record.
2. Heard Sri D.S. Chauhan, learned counsel for the appellant and Sri
Santosh Kumar Yadav, learned counsel for opposite party. Perused the
record.
3. The criminal appeal has been filed against the impugned judgment and
order dated 27.11.1982 passed by the learned City Munsif Magistrate-I
Class, Bareilly, in Criminal Case No. 325 of 1982 (B.D.A. vs. Rajendra
Prasad), under Sections 26(1) and 28(4) of the U.P. Urban Planning and
Development Act, 1983, whereby the accused–opposite party has been
acquitted.
4. Learned counsel for the appellant submits that the impugned judgment
and order dated 27.11.1982, passed by the learned Munsif Magistrate,
Bareilly, is illegal, arbitrary and against the weight of evidence available
on record. It is contended that the learned trial court has failed to properly
appreciate the oral as well as documentary evidence adduced on behalf of
the prosecution and has recorded the finding of acquittal on erroneous and
misconceived grounds.
5. It has further been submitted that the prosecution has successfully
established the charges against the accused–opposite party under Sections
26(1) and 28(4) of the U.P. Urban Planning and Development Act, 1983.
However, the learned trial court has ignored the material evidence
available on record while arriving at the finding of acquittal. According to
the learned counsel, the findings recorded by the trial court are perverse
and contrary to the facts and the law applicable to the present case.
CRLA No. 352 of 1983
2
6. Having considered the submissions advanced by the learned counsel
for the appellant and upon perusal of the record, it transpires that the
impugned judgment was delivered in the year 1982, and a considerable
period of time has elapsed since then.
7. The proceedings were initiated by the Bareilly Development Authority
against the opposite party, Rajendra Prasad, under Sections 26(1) and
28(4) of the U.P. Urban Planning and Development Act, 1973 (as
amended in 1976). The learned trial court elaborately discussed the
evidence produced before it.
8. The learned trial court specifically held that the complaint (Ext. Ka-1)
was filed by Jitendra Kumar Gupta on behalf of the appellant, Bareilly
Development Authority, and he was also the pairokar in the case.
Therefore, it was necessary that the said person be produced before the
court as a witness. This was not difficult, as P.W.-1 deposed in his cross-
examination that Jitendra Kumar Gupta was working as an Assistant
Engineer in the P.W.D., Nainital. Thus, he was a material witness who
could have been produced by the Bareilly Development Authority by
summoning him before the court. He was the best person to verify and
prove the contents of the complaint. However, no such steps were taken.
The said material witness was not produced before the court willfully and
deliberately. The learned trial court presumed that if this witness had been
produced before the court, an adverse inference could have been drawn
against the complainant under Section 114(g) of the Evidence Act, 1872.
9. As per the complainant, the first inspection took place on 02.07.1981,
when Rakesh Sharma, Assistant Engineer, allegedly saw the disputed
construction and submitted his report to his superior officers stating that
certain constructions had been raised in violation of the provisions of law.
According to the averments in the complaint, on the basis of that
inspection, an order dated 02.07.1981 was issued directing stoppage of
construction, which has been exhibited as Ext. Ka-5. However, the said
document is only a photocopy of the order.
10. The learned trial court clearly observed that the report of Rakesh
Sharma dated 02.07.1981 is not on record. Instead, the report filed before
the court is Ext. Ka-4 dated 15.07.1981. The basic report dated
02.07.1981 has not been filed before the court. Hence, it may be
presumed that the complainant willfully and deliberately did not file the
said report before the court of law. The said report could have been read
as proper and admissible evidence against the accused persons.
CRLA No. 352 of 1983
3
11. The learned trial court further observed that there is no satisfactory
proof on record regarding service of the order for stoppage of
construction. Only oral evidence has been produced before the court, and
no documentary evidence has been filed by the Bareilly Development
Authority to prove that the order directing stoppage of construction was
duly served upon the opposite party. The order for stoppage of
construction (Ext. Ka-5) is only a photocopy, and the original copy has
not been filed before the court.
12. The learned trial court also observed that secondary evidence is
admissible only when the concerned party proves that the original or
primary evidence has been lost and it is absolutely not possible to recover
the same. Only thereafter can secondary evidence be produced. However,
no such evidence has been produced by the Bareilly Development
Authority on record to establish the loss or unavailability of the original
documents.
13. It is a fundamental principle of law that the plaintiff must prove his
case on the basis of preponderance of probabilities, and the burden of
proof lies upon the plaintiff. In criminal cases, the burden of proof lies
upon the complainant to prove the case beyond reasonable doubt. In the
present case, neither the original inspection report dated 02.07.1981 is on
record nor the original order directing stoppage of construction dated
15.07.1981. Moreover, there is no proof of service of the said notice upon
the opposite party to show that it was duly served on him.
14. Thus, the complainant has failed to discharge the burden of proof that
lies upon his shoulders. Consequently, the impugned judgment and order
dated 27.11.1982 passed by the learned City Munsif Magistrate, First
Class, Bareilly, in Criminal Case No. 325 of 1982 (B.D.A. vs. Rajendra
Prasad) is having no illegality.
15. In view thereof, the criminal appeal is liable to be dismissed and it is
dismissed accordingly.
March 9, 2026
M. Tarik
(Abdul Shahid,J.)
Digitally signed by :-
MOHD TARIK
High Court of Judicature at Allahabad
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