Delhi District Court
Fir No. 51/2020 State vs Tarvinder Marwaha on 10 March, 2023
FIR No. 51/2020 State Vs Tarvinder Marwaha
IN THE COURT OF MS. SHIVANI CHAUHAN
CHIEF METROPOLITAN MAGISTRATE
SOUTH-EAST, SAKET COURTS, NEW DELHI
CNR number. DLSE02-013922-2020
Cr. Cases Number. 4763/2020
FIR No. 51/2020
Police Station : Lajpat Nagar
U/s: 3 of The Delhi Prevention of Defacement of Property
Act, 2007
STATE
VS
TARVINDER MARWAH
Date of Institution : 19.10.2020
Date of reserving the judgment : Not reserved
Date of pronouncement of judgment : 10.03.2023.
JUDGMENT
1. Serial No. of the case : 4763/2020
2. Name of the Complainant : ASI Manoj Kumar.
3. Date of commission of offence : 24.01.2020
4. Name of accused person :
Tarvinder Marwah S/o Late Sardar
Lal Singh, R/o H-12, Jungpura
Extension, South-East, Delhi. Aged
about 62 years.
5. Offence charged : S. 3 DPDP Act.
6. Plea of accused : Not guilty
7. Final Order : Acquitted.
Police Station : Lajpat Nagar Page No. 1
FIR No. 51/2020 State Vs Tarvinder Marwaha
JUDGMENT
1. In the present case, the accused has been facing the trial for the offence punishable under Section 3 of the Delhi Prevention of Defacement of Property Act, 2007 (herein after referred the 3 the DPDP Act).
2. Brief facts of the case are that on 24.01.2020, Head Constable Manoj Kumar was on patrolling duty in the area along with Constable Anil Kumar. At about 11:30 am, they reached 10 Block, SDMC Pratibha Vidhyalya (Co-ed), Nehru Nagar ND-65 where they noticed that a pamphlet was affixed on the main gate of the said school containing the photograph of accused Tarvinder Marwah along with words "Kaam, Saath aur Samman, Marwah ki Yahi Pehchaan, Kshetra Ka Beta Hi Kshetra ka Neta, Congress Party ke Chunav Chinh, Jangpura Vidhaan Sabha Kshetra se Congress Party ke Pratyashi Tarvinder Marwah ko Bhaari Matro se Vijayi Banaye Kohinoor Printers #9358532612, Qty 5000 Sponsored by Tarvinder Marwah". Head Constable Manoj Kumar took the photographs of the board using his mobile phone and then removed the same Police Station : Lajpat Nagar Page No. 2 FIR No. 51/2020 State Vs Tarvinder Marwaha from the said gate. Head Constable Manoj Kumar then prepared the rukka and handed over the same to Constable Anil Kumar to get the FIR registered at the Police Station. After some time, Constable Anil Kumar returned to the spot and handed over the copy of FIR and original rukka to Head Constable Manoj Kumar as the investigation of the case was marked to him. During the course of investigation, IO/Head Constable Manoj Kumar got the photographs of the case property printed at the Police Station and placed them on judicial record. He then issued a notice upon accused Tarvinder Marwah and when he went to his residence, he could not found the accused and an employee of accused Tarvinder Marwah received the said notice. He then contacted on the mobile number which was mentioned on the poster and it was responded by Nawed Siddiqui. IO inquired from him regarding the making of posters. He then went to the Kohinoor Printers, where the posters were printed and inquired the manufacturer of the said poster. He informed the IO that he is the owner of the said press and he had printed the said poster. Upon inquiry, he produced statement of account and bill for printing Police Station : Lajpat Nagar Page No. 3 FIR No. 51/2020 State Vs Tarvinder Marwaha the said posters. IO served notice u/s 91 Cr.P.C. upon him. Thereafter, his statement u/s 161 Cr.P.C. was recorded by the IO. Thereafter, on 29.06.2020, IO along with Head Constable Girish Kumar went to the residence of the accused and met him. He was informed about the commission of the offence. IO then served notice u/s 41A Cr.P.C. upon the accused and the accused joined the investigation. He was inquired by the IO and it is alleged that the accused accepted that he had got the posters printed for promotion of his party. Notice u/s 91 Cr.P.C. was served upon the accused. Thereafter, accused produced Aadhar Card and Bill for manufacturing the said posters before the IO. Thereafter, IO recorded the statement of witness Head Constable Girish Kumar u/s 161 Cr.P.C. After completion of investigation the chargesheet was filed in the Court.
3. Cognizance of the offence under Section 3 of DPDP Act was taken by Ld. Predecessor of this Court. The accused was summoned. After compliance of the provisions of Section 207 Cr.P.C, notice for the offence under Section 3 of the DPDP Act was served upon the accused to which the accused pleaded Police Station : Lajpat Nagar Page No. 4 FIR No. 51/2020 State Vs Tarvinder Marwaha not guilty and claimed trial. Matter was then listed for Prosecutions evidence.
4. Assistant Sub-Inspector Manoj Kumar was examined as PW1. He is the complainant as well as the Investigating Officer in the present case. He deposed that on 24.01.2020, he was posted as Head Constable at Police Station Lajpat Nagar and on that day, he alongwith Constable Anil were on patrolling duty. During patrolling duty at about 11:30 a.m., they reached at N-Block, SDMC, Pratibha Vidhyalya, Co-ed, Nehru Nagar, Delhi where they noticed a pamphlet affixed on the gate of the school containing the words "Kaam Saath Samman, Marwah ki Yahi Pehchaan, Kshetra ka Beta hi Kshetra Ka Neta Symbol of Congress Party Jungpura Vidhan Sabha Kshetra Congress Party ke Pratyashi Tarvinder Marwah ko Bhari Mato se Vijayi Banaye". Photograph of accused Tarvinder Marwah was also printed on the pamphlet alongwith words "Kohinoor Printers #9358532612 sponsored by Tarvinder Marwah". He then took photographs of the pamphlet using his mobile phone camera and requested 04-05 public persons to join the investigation. Police Station : Lajpat Nagar Page No. 5
FIR No. 51/2020 State Vs Tarvinder Marwaha However, none of them agreed and left the place without disclosing their names and addresses. He then took out the pamphlet and pasted it on a white plain paper and measured the same. He then seized it vide seizure memo Ex.PW1/A. Thereafter, he prepared rukka Ex.PW1/B and handed over the same to Constable Anil for registration of the FIR. Constable Anil took rukka to Police Station Lajpat Nagar and got the FIR registered, returned to the spot and handed over copy of FIR and original rukka to him. He then prepared the site plan Ex.PW1/C at the spot. They then returned to Police Station and he took the printout of the photographs using the printer at the Police Station. He placed the pamphlet on the judicial file. During the course of investigation, he contacted on the mobile number which was mentioned on the pamphlet which was responded by one person namely Nawed Siddiqui. He told him that he was running a printing shop in the name of Kohinoor Printers and he got the pamphlets printed at the request of Tarvinder Marwaha. He recorded the statement of Constable Anil u/s 161 CrPC. During the course of investigation on 22.06.2020, he went to Police Station : Lajpat Nagar Page No. 6 FIR No. 51/2020 State Vs Tarvinder Marwaha Saharanpur, Uttar Pradesh and reached at the shop namely Kohinoor Printer where he met Nawed Siddiqui. He served the notice u/s 91 Cr.P.C. upon Nawed Siddiqui Ex.PW1/D for providing the information as on whose instance the pamphlets were printed and asked for the bill for printing pamphlets. He replied qua the notice u/s 91 Cr.P.C. Ex.PW1/E. He also handed over the invoice no. 95 dated 02.02.2020 qua printing of the pamphlets along with copy of the statement of the account. He seized the same vide seizure memo Ex.PW1/F. The copy of the said invoice and statement of account are Mark A and Mark B. As per the statement of account, an amount of Rs, 1,69,220/- was credited in the account of Nawed Siddiqui by way of NEFT dated 05.02.2020 qua the payment of printing pamphlets. He then recorded the statement of Nawed Siddiqui to this effect. He then returned to the Police Station. On 29.06.2020, he alongwith Head Constable Girish went to the residence of accused Tarvinder Marwaha and served the notice u/s 91 Cr.P.C. upon him Ex.PW1/G. He replied to the said notice Ex.PW1/H and had handed over the copy of the bill of Kohinoor Printers. He seized Police Station : Lajpat Nagar Page No. 7 FIR No. 51/2020 State Vs Tarvinder Marwaha the same along with copy of FIR vide seizure memo Ex.PW1/I. Thereafter, he served notice u/s 41 Cr.P.C. upon the accused Ex.PW1/J. He then recorded the statement of Head Constable Girish to this effect. Thereafter, he returned to the Police Station, prepared the charge-sheet and submitted the same before the Court. He correctly identified the case property which is on judicial file and the same is Ex.PW1/J.
5. Assistant Sub-Inspector Girish Kumar was examined by the prosecution as PW2. He accompanied the IO during the investigation in the present case. He deposed that on 29.06.2020, he was posted as Head Constable at Police Station Lajpat Nagar and on that day, he alongwith IO/Head Constable Manoj Kumar went to the residence of the accused and met him. IO informed the accused about the commission of the offence u/s 3 DPDP Act and accused admitted his guilt for the same. IO then served notice u/s 91 Cr.P.C. upon the accused for providing the identity proof and the bill of the Kohinoor printers from which he got the pamphlets prepared. Upon which, accused handed over the copy of his Aadhar Card and the bill of Kohinoor Printers which are Police Station : Lajpat Nagar Page No. 8 FIR No. 51/2020 State Vs Tarvinder Marwaha marked as Mark A and Mark B. IO seized the same vide seizure memo Ex.PW1/1. Thereupon, IO served notice u/s 41A Cr.P.C. upon the accused and accused joined the investigation. Thereafter, IO recorded his statement at the Police Station. Identity of the accused was not disputed by the Ld. Counsel for the accused.
6. Head Constable Anil was examined by the prosecution as PW3. He was accompanying the IO during patrolling on the date of incident. He deposed that on 24.01.2020, he was posted as Constable at Police Station Lajpat Nagar and on that day, he alongwith Head Constable Manoj were on patrolling duty. During patrolling at about 11:30 a.m., they reached at N-Block, SDMC, Pratibha Vidhyalya, Co-ed, Nehru Nagar, Delhi where they noticed a pamphlet affixed on the gate of the school containing the words "Kaam Saath Samman, Marwah ki Yahi Pehchaan, Kshetra ka Beta hi Kshetra Ka Neta Symbol of Congress Party Jungpura Vidhan Sabha Kshetra Congress Party ke Pratyashi Tarvinder Marwah ko Bhari Mato se Vijayi Banaye'". Photograph of accused Tarvinder Marwah was also Police Station : Lajpat Nagar Page No. 9 FIR No. 51/2020 State Vs Tarvinder Marwaha printed on the pamphlet. There was also the words "Kohinoor Printers #9358532612 sponsored by Tarvinder Marwaha". Thereafter, IO / Head Constable Manoj took photographs of the pamphlet using his mobile phone camera and requested 04-05 public persons to join the investigation but none agreed and left the place without disclosing their names and addresses. Thereafter, IO / Head Constable Manoj took out the pamphlet and pasted it on a white plain paper and measured the pamphlet as per which the diameter was found to be 14cm and seized it vide seizure memo Ex.PW1/A. IO then prepared rukka Ex.PW1/B and handed over the same to him for registration of the FIR. He took rukka to Police Station Lajpat Nagar and got the FIR registered and, thereafter, returned to the spot and handed over copy of FIR and original rukka to IO. IO then recorded his statement.
7. Sh. Naved Siddiqui was examined by the prosecution as PW4. He deposed that he has been running a printing press at Shaharanpur, Uttar Pradesh. In year 2020, accused Parvinder Marwah had ordered him for printing sticker and Chunav Police Station : Lajpat Nagar Page No. 10 FIR No. 51/2020 State Vs Tarvinder Marwaha Samagri (Election material). Accused transferred more than one lakh rupees to him through NEFT in his account for printing the sticker and Chunav Samagri. He handed over the bill, bank statement and reply of notice issued u/s 91 Cr.P.C. upon him to police official. Notice u/s 91 Cr.P.C. is Ex. PW1/E. Police official seized copy of bank statement and copy of bill vide seizure memo Ex. PW1/F. Certified copy of bank statement in which he received Rs.1,69,220/- from accused Tarvinder Singh Marwah is Mark A. The self attested copy of bill issued in the name of accused Tarvinder Singh Marwah is Mark B. Sticker from the judicial file was shown to the witness and he stated that the same was printed by him upon the order of accused.
8. The witnesses were duly cross-examined by Ld. counsel for the accused. Thereafter, on the submissions of Ld. APP for the State, PE was closed and the statement of the accused was recorded under Section 313 Cr.P.C. r/w Section 281 Cr.P.C. The accused has denied commission of the offence and has stated that he had been been falsely implicated in the present case. Accused did not lead any evidence independent in his Police Station : Lajpat Nagar Page No. 11 FIR No. 51/2020 State Vs Tarvinder Marwaha defence. DE was closed. Final arguments were heard.
9. It is submitted by Ld. APP for State that the prosecution has proved its case against the accused beyond reasonable doubts. The accused has failed to prove any defence. He has failed to produce any permission for affixing the poster on the public property. Hence, the accused is liable to be convicted.
10. On the other hand, it is submitted by Ld Counsel for accused that the prosecution has failed to prove the case against accused beyond reasonable doubts. There is no public witness examined by the prosecution. The complainant himself has conducted the investigation which vitiate the proceedings conducted during the investigation. There is no evidence available on record to prove that the poster was affixed on the instructions of the accused. He has been falsely implicated by the police officials to settle some personal score. No offence has been committed by him.
11. Submissions heard on behalf of both the parties. Police Station : Lajpat Nagar Page No. 12
FIR No. 51/2020 State Vs Tarvinder Marwaha Carefully perused the record.
12. It is a settled proposition of criminal law that the prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. The primary burden of proof for proving the offences in a criminal trial rests on the shoulders of the prosecution. Further, an accused is entitled to benefit of every reasonable doubt appearing qua the material facts.
13. It is significant to note that accused in the present case has been charged with the offence under Section 3 of the Delhi Prevention of Defacement of Property Act, 2007, which provides penalty for defacement of 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. Section 3 (2) of the Act further renders the beneficiary of the act guilty of such offence unless he proves that the offence was committed without his knowledge or consent.
Police Station : Lajpat Nagar Page No. 13
FIR No. 51/2020 State Vs Tarvinder Marwaha
14. The term 'defacement' has been defined under Section 2(a) of the aforesaid Act, which includes impairing or interfering with the appearance or beauty, damaging, disfiguring, spoiling or injuring in any other way whatsoever, whereas, the term 'writing' has been defined in Section 2(d) of the Act, which includes printing, painting, decoration, lettering, ornamentation etc., produced by stencil. The term 'property' has been defined in Section 2(c) of the Act, so as to include any building, hut, structure, wall, tree, fence, post, pole or any other erection.
15. In view of the aforesaid provisions, before an accused is convicted for the offence under Section 3 (1) of DPDP Act, the prosecution is required to prove following facts beyond reasonable doubts:-
(1) That the accused has defaced any property by writing or marking with ink, chalk, paint or any other material.
(2) That the said property is situated in a public view.
(3) That the writing or marking on the property in a public view was not for indicating the name and address of the owner and Police Station : Lajpat Nagar Page No. 14 FIR No. 51/2020 State Vs Tarvinder Marwaha occupier of the said property.
16. In order to secure conviction of the accused for the offence under Section 3 (2) of the Act, the prosecution was required to prove that the offence as per Section 3(1) of the Act had been committed for the benefit of the accused.
17. Accused has argued that the complainant had also conducted the entire investigation in the present case and, therefore, the entire investigation has come under doubts. It is prayed that benefit of the said doubt may be given to the accused.
18. Hon'ble High Court of Delhi in Gurtej Singh Batth vs State, in Crl.A.39/2015, on 27 November, 2018, while relying upon the judgments of the Hon'ble Supreme Court of India in Mohan Lal v. State of Punjab, (2018) SCC OnLine SC 974 and Arif Khan v. State of Uttarakhand, (2018) SCC Online SC 459, has held that in every criminal prosecution, it was essential that the investigation, on the face of it, had to be free, judicious and just, and that it had also to appear to be so, eschewing any Police Station : Lajpat Nagar Page No. 15 FIR No. 51/2020 State Vs Tarvinder Marwaha conduct or impression which may give rise to a real and genuine, and not a mere fanciful, apprehension, in the mind of the accused, that the investigation was not fair. If, therefore, the informant police official in a criminal prosecution, especially one which carries a reverse burden of proof, who had made the allegations, was himself asked to investigate, serious doubts would naturally arise with regard to his fairness and impartiality. Actual proof of bias was not required in such a case. It would be illogical to presume and contrary to normal human conduct, that the Investigating Officer would, in such a case, conclude the investigation with a closure report, which would mean that he had falsely implicated the petitioner and would result in attendant consequences on the complainant himself.
19. However, the case of the prosecution cannot be disbelieved only because some investigation was conducted by the complainant. There have to be some other grounds to disbelieve the present case of the prosecution.
20. In the present case, as the record would reveal that no independent public witness had joined the investigation at any Police Station : Lajpat Nagar Page No. 16 FIR No. 51/2020 State Vs Tarvinder Marwaha point of time with respect to recovery of the incriminating poster. The place of recovery of the poster in question is clearly shown to be located in an area where public persons would be readily available. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. In the case titled as Nanak Chand Vs. State of Delhi, Crl. Revision No. 169/81, decided on 07.11.1990, Hon'ble High Court of Delhi has observed as under:
"The recovery was from a street with houses on both sides and Police Station nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Police Station : Lajpat Nagar Page No. 17 FIR No. 51/2020 State Vs Tarvinder Marwaha Napoleon on the Bridge at Arcola.''
21. In the present case, non-joining of any public person as a witness creates doubt on the case of the prosecution. However, this Court is conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. I get strength from the judgment of the Hon'ble supreme Court of India in Appabhai and Another v. State of Gujarat, AIR 1988 SC 696. The aforesaid fact merely casts an additional duty on the Court to be more vigilant while scrutinizing the testimony of the police witnesses. However, in the present case, there are other circumstances too, which raise suspicion over the prosecution version.
22. The witnesses PW-1 and PW-3 have stated that they were on patrolling duty when they had noticed the poster on the gate of a school. They had removed the poster and seized it.
23. The witnesses PW1 and PW3 who had allegedly seen the poster have not stated that they had seen anybody or the Police Station : Lajpat Nagar Page No. 18 FIR No. 51/2020 State Vs Tarvinder Marwaha accused while affixing the said poster at the spot and they could not say as to who had affixed the poster at the spot. The prosecution also did not examine any witness who might have seen any person affixing the poster at the spot. As argued by the Ld. Counsel for accused, there is not even an iota of evidence led by the prosecution to prove that the poster in question was either affixed by the accused herein or that the same was affixed on his instructions.
24. The only allegation against the accused is that the poster had been affixed on the gate of a government school, a public property.
25. Prior to enactment of the DPDP Act, the West Bengal Prevention of Defacement of Property Act, 1976 was prevalent in Delhi. Section 3 of the West Bengal Prevention of Defacement of Property Act is similar to Section 3 of DPDP Act which reads as under:
"Whoever defaces any property in public view by writing or marking with ink, chalk, paints or any other material, except for the purpose of indicating the memo and address of the owner or occupies of such Police Station : Lajpat Nagar Page No. 19 FIR No. 51/2020 State Vs Tarvinder Marwaha property, shall be punishable with punishment prescribed."
26. Hon'ble High Court of Delhi in case title "T.S. Marwah & Ors. Vs. State 2008 (4) JCC 2561" has held that the offence u/s 3(1) of the Act would be punishable only if the defacement is done in respect of property in public view by writing or marking with ink, chalk, paint or any other material. Mere putting of the poster will not get covered u/s 3(1) of the West Bengal Prevention of Defacement of Property Act.
27. Section 3 of the Delhi Prevention of Defacement of Property Act, 2007 is similar to the Section 3(1) of the West Bengal Prevention of Defacement of Property Act except with one change in the definition of word "Writing". Section 2(d) of the Delhi Prevention of Defacement of Property Act, 2007 defines writing as including printing, painting, decoration, lettering, ornamentation etc. produced by stencil. In West Bengal Prevention of Defacement of Property Act, word "Writing" has been defined as including decoration, lettering, ornamentation etc. produced by stencil. Except this difference in the definition Police Station : Lajpat Nagar Page No. 20 FIR No. 51/2020 State Vs Tarvinder Marwaha of writing, the provisions of both the Acts are same. Therefore, the ratio of the judgment of the Hon'ble High Court of Delhi in "T.S. Marwah(supra)"' still holds good for the present case as the facts of the present case are similar to the facts of the case in that of "T.S. Marwah's case (supra)".
28. In the present matter, in view of the discussion herein above, it can be safely held that the prosecution has failed to prove its case against the accused beyond reasonable doubt. The accused is entitled to the benefit of reasonable doubt and is hereby acquitted. Ordered accordingly.
Pronounced in the open Court on this 10 th Day of March, 2023.
(Shivani Chauhan) Chief Metropolitan Magistrate South East, Saket Courts:
New Delhi.Police Station : Lajpat Nagar Page No. 21