Delhi District Court
The Case Titled As T. S. Marwah vs . State, 2008 (4) Jcc 2561, It Has on 30 August, 2018
IN THE COURT OF SH. SUMEDH KUMAR SETHI,
CHIEF METROPOLITAN MAGISTRATE,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
State v. Kishan Lal
Unique Case ID No. 170/2018
FIR No. 402/17
Police Station : Palam Village
Under Section: 3 of The Delhi Prevention of Defacement of
Property Act, 2007
Date of institution : 05.01.2018
Date of reserving : 21.08.2018
Date of pronouncement : 30.08.2018
JUDGMENT
a) Serial number of the case : 86/2018
b) Date of commission of : On or before 10.11.2017 offence
c) Name of the complainant : ASI Suresh Kumar, No. 255/SW, PS Palam Village, New Delhi
d) Name, parentage and : Kishan Lal, address of the accused D/o Bachchan Singh, R/o RZD1/35 A, Vinod Puri, Vijay Enclave, Palam Colony, New Delhi.
e) Offence complained of : Section 3 of The Delhi Prevention of Defacement of Property Act, State v. Kishan Lal FIR No. 402/2017 P.S.: Palam Village Page 1 of 10 2007.
f) Plea of the accused : Notice for the offence punishable U/s 3 DPDP Act was served upon accused Kishan Lal to which ehe pleaded not guilty and claimed trial.
g) Final order : Accused Kishan Lal is being acquitted of the offence punishable U/s 3 of The Delhi Prevention of Defacement of Property Act, 2007.
h) Date of final order : 30.08.2018 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE CASE OF PROSECUTION
1. The case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') is that on 10.11.2017, ASI Suresh Kumar alongwith Ct. Vinod were patrolling in the area of PS Palam Village and at about 07.35 pm, when they reached near Dwarka Flyover, Pillar no. 35, Palam, Delhi, they noticed many posters of "Rising PIONEER Education Hub An Institute" affixed on the pillar of the flyover i.e. a government property. The photographs of the spot were clicked by IO. ASI Suresh Kumar prepared tehrir and got the case registered through Ct. Vinod. IO prepared the site plan and recorded the statements of witnesses. After completion of the investigation, chargesheet was filed in the court by the State v. Kishan Lal FIR No. 402/2017 P.S.: Palam Village Page 2 of 10 subsequent IO HC Anoop Kumar. However, thereafter, on 05.02.2018, the IO requested for sometime to conduct further investigation in the matter and thereafter filed supplementary charge sheet on 13.03.2018.
NOTICE
2. Vide order dated 13.07.2018, notice for the offence punishable U/s 3 of The Delhi Prevention of Defacement of Property Act, 2007 was served upon accused Kishan Lal to which he pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
3. To prove its case, the prosecution in all examined four witnesses.
PW1 Ct. Aman Kumar, a witness to the arrest of accused. PW2 H.Ct. Anoop Kumar, the subsequent IO of the case. PW3 ASI Suresh Kumar, the first/initial IO of the case. PW4 Ct. Vinod who was accompanying ASI Suresh Kumar at the time of recovery of the posters in question.
STATEMENT / DEFENCE OF THE ACCUSED
4. Accused Kishan Lal was examined under Section 281 Cr. P. C. read with Section 313 Cr.P.C., whereby entire incriminating evidence was put to him. Accused Kishan Lal denied the entire State v. Kishan Lal FIR No. 402/2017 P.S.: Palam Village Page 3 of 10 evidence put to him and claimed innocence. Accused did not wish to lead any evidence in his defence.
ANALYSIS AND FINDINGS
5. Arguments have been heard. The record has been thoroughly and carefully perused. The respective submissions of learned Assistant Public Prosecutor for the State and learned Counsel for the accused have been heard and considered.
Notice U/s 3 of The Delhi Prevention of Defacement of Property Act, 2007
6. In the instant case, the accused has been served notice for the offence punishable U/s 3 of The Delhi Prevention of Defacement of Property Act, 2007 which reads as follows : "Penalty for defacement of property (1) Whoever defaces any property in public view by writing or marking with ink, chalk, paint or any other material except for the purpose of indicating the name and address of the owner or occupier of such property, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to fifty thousand rupees, or with both.
(2) Where any offence committed under subsection (1) is for the benefit of some other person or a company or other body corporate or an association of persons (whether incorporated or not), then, such other person and every president, chairman, director, partner, manager, secretary, agent or any other officer or persons concerned with the management, thereof, as State v. Kishan Lal FIR No. 402/2017 P.S.: Palam Village Page 4 of 10 the case may be, shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence. (3) The aforesaid penalties will be without prejudice to the provisions of section 425 and section 434 of the Indian Penal code, 1860 (45 of 1860) and the provisions of the relevant Municipal Act.
7. To bring the case within the purview of Section 3 of the Act, the prosecution will have to establish that the case involves defacement of a public property as also that the defacement was done by the accused himself or at his behest. At the outset, it is observed that in the case titled as T. S. Marwah vs. State, 2008 (4) JCC 2561, it has been held that no case for defacement is made out by affixation of banner/poster on objects such as an electricity pole. However, in the cases of Colonel Shiv Raj Kumar vs. South Delhi Municipal Corporation, WP (C) 3367/2015 and CM No. 6040/2015 as well as Indian Outdoor Advertising Association vs. South Delhi Municipal Corporation and Others, WP (C), 4238/2015 and CM no. 7673/2015 decided on 06.05.2015, directions have been given for invoking the provisions of the DPDP Act against such banners/posters. However, whether this constitutes defacement or not is secondary to deciding whether the accused is responsible for putting up this banner/poster in the first place.
8. The case of the prosecution is that the accused Kishan Lal was the owner of "Rising Pioneer Education Hub", an education institute and the posters in question were affixed for the benefit of State v. Kishan Lal FIR No. 402/2017 P.S.: Palam Village Page 5 of 10 the said institute/accused. The posters in question were allegedly removed from the pillar of the government's flyover and were seized in the present case. As per the case of prosecution, the IO had clicked the photographs of the posters while they were affixed on the pillar of the flyover. However, no such photograph, which was a crucial piece of evidence, has been placed on record in order to show that the posters Ex.P1 (Colly) were ever placed on a government property. Only a print out Mark PW1/A has been placed on record. It was stated by PW3 ASI Suresh Kumar, the complainant/initial IO that the said print out was of the click from his mobile phone. Even if it is believed that the said print out is of the photograph which was clicked on the mobile phone of IO ASI Suresh Kumar, no certificate U/s 65 B of the Indian Evidence Act, in support of the same has been placed on record, which again is fatal to the case of prosecution. It is also relevant to state here that even otherwise, from the print out of the photograrph Mark PW1/A, it cannot be ascertained that the posters in question were affixed on a public property or a government property. There is only one print out of the photograph i.e. mark PW1/A and in the said print out, no government property or pillar of the flyover is visible. In fact, from the said print out one cannot ascertain as to whether the posters have been affixed on a wall, pillar, roof, floor or board, what to talk of a government property or a private property. Thus, the main ingredient to constitute an offence punishable U/s 3 of the Act i.e. defacement of a government property is not made out in the instant case. This is State v. Kishan Lal FIR No. 402/2017 P.S.: Palam Village Page 6 of 10 sufficient to acquit the accused in the present case. However, there are other reasons also, for the court to come at the conclusion of acquittal of the accused, which are as follows :
(a) Though there is a print out on record which is allegedly of the posters being affixed on the pillar of government flyover, no photographs of the said pillar after removal of the posters has been taken or filed on record, in order to establish that the posters Ex.P1 produced in the Court are the same posters which were removed from the pillar of government flyover.
(b) The said posters were not sealed by the IO at the time of seizure, for the reasons best known to the IO.
(c) Despite the fact that the spot is a public place, the IO did not make any effort to join any public witness in the investigation at the time of seizure of the posters. There is no explanation on the part of the IO/investigating agency, as to why the IO did not make any efforts to join any public witness in the investigation.
(d) As per the case of prosecution as per the police report, first of all the posters Ex.P1 were removed from the pillar of the Government's flyover and were seized in the present case vide memo Ex.PW3/A and State v. Kishan Lal FIR No. 402/2017 P.S.: Palam Village Page 7 of 10 thereafter, rukka Ex.PW3/B was prepared and the FIR was got registered through Ct. Vinod. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot by Constable Vinod. Thus, ordinarily, the FIR number should not find mention in the seizure memo of the posters Ex.PW3/A, which came into existence before registration of the FIR. However, interestingly, the seizure memo of the posters Ex.PW3/A bear the FIR number and case details in the same handwriting and ink as the other contents. No explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memo. The same leads to only one inference that either the said document was prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused. Reliance here is placed on the decisions of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127 and Mohd. Hashim v. State, 1999 VI AD (Delhi) 569.
(e) Another lacuna in the prosecution case which is fatal to it is that the complainant himself acted as the investigating officer. It was on the complaint of ASI State v. Kishan Lal FIR No. 402/2017 P.S.: Palam Village Page 8 of 10 Suresh Kumar that the FIR was lodged in the present case and he, therefore, became the complainant. In Megha Singh v. State of Haryana, AIR 1995 SC 2339, the Hon'ble Apex Court observed in paragraph 4 as under:
"... We have also noted another disturbing feature in this case. PW-3, Siri Chand, head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under S. 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation."
(emphasis supplied) In the instant case as well, ASI Suresh Kumar has acted as the investigating officer as having noticed the posters in question having been affixed on a government property, he rather than informing the police station or waiting for another IO to come to the spot, continued investigation inasmuch as by clicking the photographs of the spot, seizing the board in question and preparing rukka, which leaves room for doubting the fairness of the investigation.
9. Thus, in view of the foregoing analysis, this Court is of the State v. Kishan Lal FIR No. 402/2017 P.S.: Palam Village Page 9 of 10 considered opinion that the prosecution has failed to prove its case against the accused. Accused Kishan Lal is accordingly acquitted of the offences punishable U/s 3 of the Act.
10. Provisions of Section 437 A Cr. P. C. have already been complied with. Digitally signed SUMEDH by SUMEDH KUMAR SETHI
11. File be consigned to Record Room. KUMAR Date:
SETHI 2018.08.30
16:15:30 +0530
ANNOUNCED IN THE OPEN COURT (SUMEDH KUMAR SETHI)
DATED: 30.08.2018 CHIEF METROPOLITAN MAGISTRATE
SOUTH WEST DISTRICT, DWARKA COURTS
NEW DELHI.
State v. Kishan Lal
FIR No. 402/2017 P.S.: Palam Village Page 10 of 10