Court dismisses ex-MLA’s plea in encroachment case, says misuse of power serious offence

New Delhi, Sep 1 (PTI) A sessions court here has dismissed the appeal of former Congress MLA Asif Mohammad Khan against the 2018 judgement of a magisterial court sentencing him to six months imprisonment in a land encroachment case, saying misuse of power as a public representative was a grave offence and the highest form of breach of public trust.

The court was hearing Khan’s appeal against the order of sentence in a case of encroaching land of the Delhi Development Authority (DDA) in Jasola here.

Additional Sessions Judge Vishal Singh said any lesser punishment would be completely misplaced and disproportionate to the magnitude of the offence and directed that Khan be taken into judicial custody to serve the sentence.

However, the court modified the order on the six-month sentence imposed on him to the extent that the period of detention undergone by him was to be set off against the sentence.

A magisterial court had in January 2018 convicted Khan for offences under sections 427 (mischief causing damage to the amount of fifty rupees), 447 (punishment for criminal trespass), 434 (mischief by destroying or moving, etc., a landmark fixed by public authority) of the Indian Penal Code and provisions of the Prevention of Damage to Public Property Act. The court then sentenced him to six months imprisonment for the offences on February 5, 2018.

Against the order on conviction and sentence, Khan filed an appeal.

In an order passed on August 28, the court rejected as “vacuous and untenable” Khan’s argument that there was no encroachment on the DDA land in Jasola village.

“In view of testimonies of prosecution witnesses and documentary evidence, the prosecution was able to bring home the charged offence against the appellant (Khan). There is no substance in the arguments that the uprooted barbed wire was not seized by the investigating officer and no photograph of the alleged encroachment was taken,” the court said.

It said the magisterial court had “rightly appreciated the evidence” to convict him and the verdict was well-reasoned. Therefore, the present appeal, so far as it impugns the judgment of conviction stands dismissed.”

In its subsequent order passed on Saturday, the court rejected Khan’s request for grant for probation, and said, “It is observed that misuse of power by convict Asif Mohd as a public representative in encroachment of government land is a very serious offence”.

“It is considered the highest form of breach of trust reposed by the public in the convict who elected him as public representative to work for their welfare and protect their interest, rather than to violate the law, misuse his power and work for his own interest. Any lesser punishment than that awarded by the trial court would be completely misplaced and disproportionate to the magnitude of the offence,” the court said.

The court directed that Khan who was on bail be taken into judicial custody for serving the sentence.

“The benefit under Section 428 (period of detention undergone to be set off) of Code of Criminal Procedure (CrPC) shall be given to the appellant/convict for the judicial custody period already spent by him in the case. The impugned order on the sentence is modified accordingly,” the court said.

Khan had sought a lenient punishment, saying besides having the responsibility of caring for his bedridden and paralysed wife, he was a reputed person of society, involved in several social work activities, and sending him behind bars would harm his reputation.