Delhi District Court
Cr. Case/11342/2019 on 5 September, 2019
IN THE COURT OF Dr. SUMEDH KUMAR SETHI,
CHIEF METROPOLITAN MAGISTRATE,
SOUTHWEST DISTRICT, DWARKA COURTS, NEW DELHI
State v. Gagan
Unique Case ID No. 11342/2019
FIR No. 131/2019
Police Station : Vikas Puri
Under Section: 3 of The Delhi Prevention of Defacement of
Property Act, 2007
Date of institution : 14.05.2019
Date of reserving : Oral
Date of pronouncement : 05.09.2019
JUDGMENT
a) Date of commission of : On or before 24.03.2019 offence
b) Name of the complainant : HC Bhupender, No. 401/W, PS Vikas Puri,
c) Name, parentage and : Gagan, address of the accused S/o Prem Goyal, R/o H283, Vikas Puri, New Delhi.
d) Offence complained of : Section 3 of The Delhi Prevention of Defacement of Property Act, 2007.
e) Plea of the accused : Notice for the offence punishable U/s 3 DPDP Act was framed against the accused to which he pleaded not guilty and claimed trial.
State v. Gagan FIR No. 131/2019 P.S.: Vikas Puri Page 1 of 7
f) Final order : The accused is being acquitted of the offence punishable U/s 3 of The Delhi Prevention of Defacement of Property Act, 2007.
g) Date of final order : 05.09.2019 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 24.03.2019, HC Bhupender alongwith Ct.
Shree Chand was patrolling in the area of PS Vikas Puri and at about 05.00 pm, when they reached near Reliance Jio Show Room, GG1 Vikas Puri, New Delhi, they noticed that on the electricity pole, flex board of Vicky Creations was found affixed. The photograph of the spot were clicked by IO. HC Bhupender prepared tehrir and got the case registered through Ct. Shree Chand. The flex board/banner in question was seized by the IO. IO prepared the site plan and recorded the statements of witnesses. After completion of the investigation, chargesheet was filed in the court by HC Bhupender.
NOTICE
2. Vide order of even date, notice for the offence punishable U/s 3 of The Delhi Prevention of Defacement of Property Act, 2007 has been served upon accused Gagan to which he pleaded not guilty and claimed trial.
State v. Gagan FIR No. 131/2019 P.S.: Vikas Puri Page 2 of 7 EVIDENCE OF THE PROSECUTION
3. Vide order of even date, in compliance with the provisions of Section 294 of the Cr.P.C., the accused was called upon to admit or deny the genuineness of FIR alongwith certificate U/s 65 B of the Indian Evidence Act, which were admitted by the accused and were accordingly exhibited as Ex. A1. In view of the admission made, the evidence of the duty officer concerned was dispensed with.
4. Since a perusal of the record revealed that there is nothing on record to connect the accused with the alleged flex board/banner or with the Vicky Creations or with the telephone numbers given in the flex board/banner, this court was of the opinion that no fruitful purpose will be served by examining the witnesses cited by the prosecution i.e. the IO and the Constable who had accompanied the IO during investigation. Therefore, prosecution evidence had been closed vide detailed order of even date. Accordingly, no prosecution witness stands examined in the instant case.
STATEMENT / DEFENCE OF THE ACCUSED
5. Accused Gagan was examined under Section 281 Cr. P. C. read with Section 313 Cr.P.C., whereby entire incriminating evidence was put to him. Accused Gagan denied the entire evidence put to him and claimed innocence. The accused did not wish to lead any evidence in his defence.
State v. Gagan FIR No. 131/2019 P.S.: Vikas Puri Page 3 of 7 ANALYSIS AND FINDINGS
6. 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
7. 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 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 State v. Gagan FIR No. 131/2019 P.S.: Vikas Puri Page 4 of 7 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.
8. 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. However, whether this constitutes defacement or not is secondary to deciding whether the accused is responsible for putting up this flex board/banner in the first place.
9. The case of the prosecution is that the flex board/banner in question was got affixed by accused Gagan in order to advertise his firm/shop Vicky Creations.
10. First and foremost, it is also noteworthy that the name of accused Gagan has not been mentioned anywhere on the flex board/banner in question. There is nothing on record to show any connection of accused with the Vicky Creations. The IO has not taken any steps to collect any documents to show any connection of the accused with the Vicky Creations, allegedly being advertised by the accused by affixing a flex board/banner on the government property. There is nothing on record to show as to in what capacity the flex board/banner in question was allegedly got affixed by the accused.
11. Further, no certificate U/s 65 B of the Indian Evidence Act, in support of the photographs has been placed on record, which is also State v. Gagan FIR No. 131/2019 P.S.: Vikas Puri Page 5 of 7 fatal to the case of prosecution.
12. It is also noteworthy that 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 flex board/banner. 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.
13. One of the most important aspect is that, though two phone numbers have been given on the flex board/banner in question, as is reflected from the photograph placed on record, the IO has not bothered to collect the Customer Application Form from the concerned service providers to know as to whether the mobile numbers mentioned on the flex board/banner are that of the accused or not.
14. 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 HC Bhupender 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 State v. Gagan FIR No. 131/2019 P.S.: Vikas Puri Page 6 of 7 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, HC Bhupender has conducted investigation throughout and even filed the charge-sheet before the Court, which leaves room for doubting the fairness of the investigation.
15. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the prosecution has failed to prove its case against the accused. Accused Gagan is accordingly acquitted of the offences punishable U/s 3 of the Act.
16. Provisions of Section 437 A Cr. P. C. have already been complied with. Digitally signed SUMEDH by SUMEDH KUMAR SETHI
17. File be consigned to Record Room.
KUMAR Date: SETHI 2019.09.05 15:08:35 +0530 ANNOUNCED IN THE OPEN COURT (Dr. SUMEDH KUMAR SETHI) DATED: 05.09.2019 CHIEF METROPOLITAN MAGISTRATE SOUTH WEST DISTRICT, DWARKA COURTS NEW DELHI. State v. Gagan FIR No. 131/2019 P.S.: Vikas Puri Page 7 of 7