Delhi District Court
State vs . Vijay Malik Khurana Date: on 6 November, 2019
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
Digitally
FIR No. 175/17 signed by
PS : Vasant Kunj North MANISH
U/s : 3 DPDP Act MANISH KHURANA
State Vs. Vijay Malik KHURANA Date:
2019.11.06
Unique ID No. : 6345/19 11:29:20
+0530
Date of institution of case : 31.08.2017
Date of reserving the judgment : 31.10.2019
Date of pronouncement of judgment : 06.11.2019
JUDGMENT
1. S. No. of the Case : 6345/19
2. Date of Commission of Offence : 16.04.2017
3. Name of the complainant : HC Ravinder Kumar
No. 1770/SD
PS Vasant Kunj North,
New Delhi.
4. Name,parentage & address of accused : Vijay Malik
S/o Sh. Dalel Singh
R/o H. No. 3005/B4,
Vasant Kunj, New Delhi
5. Offence complained of : u/s 3 DPDP Act
6. Plea of Accused : Pleaded not guilty
7. Final Order : Acquitted
FIR No. 175/17 State Vs. Vijay Malik 1/7
Case of the Prosecution
1. The prosecution case is that on 16.04.2017 at about 8.20 pm on the electricity pole near Masoodpur Park opposite Harijan Basti, within the jurisdiction of PS V K North, New Delhi, one board mentioning the election campaigning words alongwith name, photograph and one mobile number of accused was found affixed/hanging in public view which was affixed by the accused or at his behest which constituted commission of offence punishable u/s 3 of Delhi Prevention of Defacement of Property Act. FIR was registered and after investigation, chargesheet was filed against the accused for the offence u/s 3 DPDP Act.
2. Cognizance of the offence was taken and the accused was summoned, copies of chargesheet were supplied and thereafter, notice was framed against the accused for the offence punishable u/s 3 D.P.D.P Act to which the accused pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined three witnesses.
4. PW1/DO HC Raj Pal stated that on 16.04.2017, he was posted as HC/Duty Officer at PS Vasant Kunj North from 4.00 pm to 12.00 mid night and at about 9.15 pm, he received rukka through Ct. Ved Prakash sent by HC Ravinder and on the basis of which he recorded present FIR, copy of which is Ex.PW1/A (OSR). He further stated that he also made endorsement on the rukka Ex.PW1/B. This witness was not cross examined by Ld defence counsel.
5. PW2 Ct. Ved Prakash and PW3 HC Ravinder stated that on 16.04.2017 while they were on patrolling duty they reached at Masoodpur Park Opposite Harijan Basti within the jurisdiction of PS Vasant Kunj North and saw that on an electricity pole, one board mentioning election campaigning words alongwith name, photograph and mobile number of accused was found affixed. They further stated that thereafter, PW3/IO FIR No. 175/17 State Vs. Vijay Malik 2/7 took the photographs of the pole/spot from his mobile phone camera and thereafter, they removed the said board and PW3/IO seized the same vide seizure memo Ex.PW2/A. They further stated that PW3/IO prepared rukka and got the FIR registered through PW2 Ct. Ved Prakash and he also prepared site plan Ex.PW3/A. Thereafter they returned to the PS and IO deposited case property in Malkhana. Witnesses further stated that during further investigation, on 19.05.2017, they went to the house of accused where accused met them and PW3/IO served notice under section 41A Cr.P.C. Ex.PW3/B upon the accused and IO told the accused about the present case and interrogated the accused and also prepared his pabandinama Ex.PW3/C. Witnesses also relied upon case property i.e. one board as Ex.P1 and its one photograph as Ex.P2. These witnesses were cross examined by Ld defence counsel.
6. Thereafter, PE was closed and statement of accused was recorded u/s 313 Cr.PC, during which all the incriminating evidence was put to the accused to which accused denied in its entirety and claimed innocence. Despite opportunity, no evidence was led by the accused in his defence.
7. I have heard the Ld APP for the State and Ld counsel for the accused and also carefully gone through the record.
Finding of the Court
8. Allegation against the accused are that on 16.04.2017 at about 8.20 pm on the electricity pole near Masoodpur Park opposite Harijan Basti, New Delhi, one board mentioning the election campaigning words alongwith name, photograph and one mobile number of accused was found affixed/hanging in public view which was affixed by the accused or at his behest which constituted commission of offence punishable u/s 3 of Delhi Prevention of Defacement of Property Act.
9. Section 3(1) of the Act provides that whoever defaces any property FIR No. 175/17 State Vs. Vijay Malik 3/7 in public view by writing or marking with ink, chalk, paint or any other material except for the purposes 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 50,000 rupees or with both. Defacement has been defined by Section 2 (a) of the Act as including impairing or interfering with the appearance or beauty, damaging, disfiguring, spoiling or injuring in any other way whatsoever and the word deface shall be construed accordingly.
Writing has been defined by Section 2 (d) of the Act which says that the same includes printing, painting, decoration, lettering, ornamentation etc., produced by stencil. Property has been defined by Section 2 (c) of the Act which says that it includes any building, hut, structure, wall, tree, fence, post, pole or any other erection.
10. In the case in hand, one board was allegedly hanging on an electricity pole. The same question regarding the defacement of public property by hanging of a board on an electricity pole arose before Hon'ble Delhi High Court in the matter titled as T S Marwah & Ors Vs. State 2008 (4) JCC 2561 wherein it was held that mere putting the banner on a pole will not get covered by section 3(1) of West Bengal Prevention of Defacement of Public Property Act, 1976.
11. In view of the provisions contained in section 2(a) and 3(1) of Delhi Prevention of Defacement of Public Property Act, 2007 which is para materia to the abovesaid West Bengal Prevention of Defacement of Public Property Act, 1976, it is clear that offence constituting defacement of public property is attracted when such type of defacement as mentioned in section 3(1) of the Delhi Prevention of Defacement of Public Property Act is done by writing or marking with ink, chalk, paint or any other FIR No. 175/17 State Vs. Vijay Malik 4/7 material which is not the case herein.
12. PW3 HC Ravinder who is the investigating officer in the present case is also the complainant of the present case. It is well settled law that complainant should not be the investigating officer in the case so as to rule out any illwill or bias against the accused. The mindset of the complainant ordinarily is holding a grievance against somebody whereas the mandate of the investigating officer is to ascertain the truth. Therefore, in order to allay any fear of bias or illwill, it is in the fitness of things that the complainant and the IO should not be the same person which is not the case before the court. Reliance placed on the judgment of Hon'ble Supreme Court in the case titled as Mohan Lal Vs. State of Punjab, MANU SC/0857/2018.
13. Further, PW2 as well as PW3 stated that they were on patrolling duty on the said day but they could not produce/place on record the departure and arrival entry to primafacie show that they were on patrolling duty or visited the spot on the said day which is a crucial aspect left by the police. PW2 and PW3 being present at the spot at the alleged time has to be proved beyond doubt and in the present case, it is a vital missing link in the prosecution case. Therefore, the testimony of PW2 and PW3 leaves much to be desired in order to prove the prosecution case beyond reasonable doubt.
14. Further, the prosecution has relied upon one photograph of the board Ex.P2. The photograph was allegedly taken through an electronic device. It is pertinent to note that certificate u/s 65B Evidence Act has not been placed on record. Digital photograph by taken an electronic device is a piece of electronic evidence and electronic evidence can only be proved by way of certificate u/s 65B of the Evidence Act which has not been done in the present case for reasons best known to the police. Merely filing of a FIR No. 175/17 State Vs. Vijay Malik 5/7 photograph does not suffice and does not make it an admissible piece of evidence. It implies that the photograph of the spot remain unproved in the present case and cannot be relied upon in support of the prosecution case.
15. Further, as per the testimony of PWs, the photograph was allegedly got developed from a nearby shop, however, the IO did not join the developer of said photograph in the investigation nor he placed on record any receipt/bill regarding development of photograph nor the IO cited the said developer of photograph as the prosecution witness in the present case.
16. Further, no independent witness was joined in the investigation by the IO. PWs have not explained in their testimony as to why the public witness was not joined in the investigation. It was within the reach of the IO to examine the independent witness to primafacie satisfy that the board was affixed/hanging on the spot. No evidence has been brought on record to prove that the alleged board was affixed/hanging by the accused or with his authority.
17. The PWs examined by the prosecution categorically stated that they had not seen anybody or the accused while affixing the said board at the spot and they also stated that they could not say as to who affixed the board at the spot. They also stated that they did not come across any witness who might have seen any person affixing the board at the spot.
18. It is also pertinent to mention that the board was allegedly affixed on BSES electricity pole, however, no complaint was received from BSES regarding the said board.
19. Further, it is pertinent to mention that one mobile number was mentioned over the alleged board, however, the IO did not obtain CAF/CDR of said mobile number to connect the accused to the alleged board. It was also within the reach of the IO to cite concerned Nodal FIR No. 175/17 State Vs. Vijay Malik 6/7 Officer to produce original CDR/CAF of the mobile number so as to substantiate the case of the prosecution, however, it was not done.
20. Therefore, considering the totality of facts and circumstances, I am of the opinion that prosecution has failed to prove its case against the accused beyond reasonable doubts.
21. Accordingly, accused Vijay Malik is held "not guilty" and is accordingly acquitted of the offence punishable u/s 3 D.P.D.P Act. File be consigned to Record Room.
Announced in the open court Today on 06.11.2019 (Manish Khurana) CMM/NDD/Patiala House Courts New Delhi/06.11.2019 FIR No. 175/17 State Vs. Vijay Malik 7/7