Delhi District Court
Vikram Badhwar vs The State Of Nct Of Delhi on 28 September, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 256/2020
CNR No.: DLCT01-008036-2020
Vikram Badhwar
S/o Sh. Ajay Badhwar
R/o H. No. 27, Rajapura Road
New Delhi
..... Petitioner
VERSUS
The State of NCT of Delhi
..... Respondent
Criminal Revision No. 268/2020
CNR No.: DLCT01-008582-2020
Shakeel Malik
S/o Mr. Abdul Hamed
R/o H. No. 2388, Kucha Challan
Daryaganj, Delhi
..... Petitioner
VERSUS
The State of NCT of Delhi
..... Respondent
Date of Institution : 11.11.2020 / 27.11.2020
Date of Arguments : 19.09.2022
Date of Judgment : 28.09.2022
JUDGMENT
Crl. Rev. No. 268/2020 Shakeel Malik vs. State Page No. 1 of 11
1. The criminal revision petitions under Section 397 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'Cr.PC.') are directed against order dated 20.08.2018 (Hereinafter referred to as 'the impugned order') in case No. 304923/2016 titled as 'State vs. Shakeel Malik & Anr.' arising from FIR No. 214/2013 under Section 3 of 'The Delhi Prevention of Defacement of Property Act, 2007' (In short 'DPDP Act') registered at PS Chandni Mahal whereby Ld. CMM (Central), Tis Hazari Courts, Delhi (In short 'the trial Court') taken cognizance of offence under Section 3 DPDP Act and summoned the petitioners.
2. On 15.11.2013 at about 02.10 a.m., SI Balwant Singh alongwith Ct. Dilshad while patrolling in the area found one poster measuring 3 x 2 sq. foot affixed on the wall of the street leading to Kala Mahal from Durga Sweet Corner. The said poster was written in 'Urdu' and it had photograph of Mr. Arvind Kejriwal on one corner and two photographs of two persons wearing cap of 'Aam Admi Party' alongwith three mobile numbers and party symbol 'broom'. He removed that poster and in that process, one side of the said poster got torn. He seized the said poster. He prepared a tehrir for registration of a case under Section 3 DPDP Act and handed over to Ct. Dilshad for being taken to police station for registration of FIR. He prepared site plan of the place of recovery and recorded statement of the witnesses.
Crl. Rev. No. 268/2020 Shakeel Malik vs. State Page No. 2 of 11
3. SI Balwant Singh got the said poster in 'Urdu' and translated it in 'Hindi'. In the said poster, an appeal was made to vote for 'Aam Admi Party'. The petitioner, namely, Shakeel Malik got his photograph and mobile number affixed in the said poster. During investigation, the petitioner, namely, Shakeel Mallik stated that he had given instruction for affixation of the said poster. However, the said person affixed the said poster at the said place. SI Balwant Singh could not ascertain any information regarding the person who affixed the said poster. The petitioner, namely, Shakeel Malik was the beneficiary of the said poster. He placed the petitioner, namely, Shakeel Malik in 'Column No. 12'. He did not arrest the petitioner, namely, Shakeel Malik for want of sufficient evidence. He submitted 'untraced report' on 05.08.2016.
4. The trial Court, vide order dated 08.08.2016, directed further investigation of the case.
5. After investigation, IO SI Thakur Singh submitted supplementary challan against the petitioners on 03.07.2017.
6. The trial Court, vide impugned order dated 20.08.2018, taken cognizance of offence under Section 3 DPDP Act, as under:
"However, I have perused the initial charge-sheet as well as supplementary chargesheet. On the basis of further investigation as concluded by way of supplementary chargesheet, I take cognizance of offence u/s 3 DPDP Act against both the named accused persons.
Summons be issued to both the accused persons to face the trial for 19.03.2019."
Crl. Rev. No. 268/2020 Shakeel Malik vs. State Page No. 3 of 11
7. Feeling aggrieved and dissatisfied with impugned order, the petitioners preferred the criminal revision petitions.
8. I have heard Ms. Babita Chaudhary, Advocate for the petitioner, namely, Vikram Badhwar and Mr. Kuldeep Mansukhani, Advocate for the petitioner, namely, Shakeel Malik and Mr. Amit Dabas, Ld. Addl. PP for the State / the respondent, and examined trial Court record.
CONTENTIONS OF LD. COUNSEL FOR THE PETITIONES:
9. Ld. Counsel for the petitioners contended that offence under Section 3 DPDP Act is punishable with imprisonment for a term which may extend to one year, or with fine which may extend to 50,000/-, or with both. They contended that Section 468 Cr.P.C. bars cognizance of offence after lapse of the period of limitation. They contended that the limitation for taking cognizance of an offence under Section 3 DPDP Act is one year. They contended that the trial Court taken cognizance of the said offence after more than 4 years from the date of commission of offence. They contended that cognizance of an offence punishable with imprisonment for a term of one year cannot be taken after one year from the date of commission of offence. They contended that offence under Section 3 DPDP Act is a compoundable offence and the petitioners were not afforded an opportunity for seeking compounding of the said offence before launching prosecution as provided under Section 4 DPDP Act. They prayed for setting aside of the impugned order taking cognizance of offence under Section 3 DPDP Act.
Crl. Rev. No. 268/2020 Shakeel Malik vs. State Page No. 4 of 11
10. Ld. Addl. PP for the State / the respondent contended that limitation for prosecution of the petitioners did not commence on 15.11.2013. He contended that identity of the offenders was ascertained on 30.06.2017. He contended that period of limitation, in relation to the petitioners, commenced from 30.06.2017. He contended that supplementary challan was filed on 03.07.2017. He contended that in Sarah Mathew vs. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62, Hon'ble Supreme Court of India held that for the purpose of computing the period of limitation under Section 468 Cr.P.C. the relevant date is the date of filing of the complaint or the date of institution of the prosecution and not the date on which the Magistrate takes cognizance. He contended that prosecution of the petitioners was instituted on 03.07.2017 i.e. the date of filing of supplementary challan. He contended that therefore, challan was presented within limitation period as provided under Section 468 Cr.P.C. He contended that the prosecution of the petitioners is not vitiated as they were not given opportunity for seeking compounding of offence under Section 4 DPDP Act. In the alternative, he contended that if there is delay in institution of the prosecution, the case may be remanded to the trial Court for consideration of condonation of delay. He contended that SI Balwant Singh had filed an application seeking condonation of delay in filing of charge-sheet on 05.08.2016 and endorsement in this regard was also made on the charge-sheet by the concerned MM.
Crl. Rev. No. 268/2020 Shakeel Malik vs. State Page No. 5 of 11 LAW:
11. Section 3 of 'The Delhi Prevention of Defacement of Property Act, 2007' is as under:
"3. 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 sub-section (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 the provisions of section 425 and section 434 of the Indian Penal Code, 1860 (45 of 1860) and the provisions of the relevant Municipal Acts."
12. It is, therefore, apparent from a careful reading of Section 3 DPDP Act that the offence of defacement of property is punishable with imprisonment for a term which may extend to one year, or with fine which may extend to Rs. 50,000/-, or with both. It further provides that beneficiary of any such defacement is deemed to be guilty of such offence unless he proves that the offence was committed without his knowledge or consent.
13. Section 468 Cr.P.C. bars taking of cognizance of an offence after lapse of the period of limitation.
Crl. Rev. No. 268/2020 Shakeel Malik vs. State Page No. 6 of 11
14. Section 468 Cr.P.C. is as under:
"468. Bar to taking cognizance after lapse of the period of limitation.- (1) Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
[(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.]"
15. Section 469 Cr.P.C. is as under:
"469. Commencement of the period of limitation.-
(1) The period of limitation, in relation to an offender, shall commence,-
(a) on the date of the offence; or
(b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or
(c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier. (2) In computing the said period, the day from which such period is to be computed shall be excluded."
Crl. Rev. No. 268/2020 Shakeel Malik vs. State Page No. 7 of 11
16. On holistic reading of Section 468 and 469 Cr.P.C., it is evident that if the offence is punishable with imprisonment for a term not exceeding one year, the period of limitation is one year. It further provides that no Court shall take cognizance of such offence after expiry of the said period of limitation. However, where the identity of the offender is not known, the period of limitation will commence when identity of the offender is known to the police officer.
17. In the case of Sarah Mathew vs. Institute of Cardio Vascular Diseases (supra), Hon'ble Supreme Court of India held that for the purpose of computing the period of limitation under Section 468 Cr.P.C. the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance.
18. IO SI Balwant Singh lodged FIR on the basis of the said poster seized by him on 15.11.2013. He got the said poster translated from 'Urdu' to 'Hindi' on 18.11.2013. He acquired knowledge that the said poster was containing photograph of the petitioner, namely, Shakeel Malik alongwith his mobile number. In the said poster, an appeal was made to vote for the petitioner, namely, Vikram Badhwar. Therefore, it is evident that identity of beneficiaries of the said poster was known to IO SI Balwant Singh as on 18.11.2013. Therefore, the period of limitation shall commence from 18.11.2013. On examination of the trial Court record, it is evident that IO SI Balwan Singh did no investigation since 18.11.2013.
Crl. Rev. No. 268/2020 Shakeel Malik vs. State Page No. 8 of 11
19. IO SI Balwant Singh filed charge-sheet on 05.08.2016 after more than two years and eight months.
20. The trial Court, vide order dated 08.08.2016, directed further investigation.
21. IO SI Thakur Singh filed supplementary charge- sheet on 03.07.2017.
22. Besides collecting Call Detail Record (CDR) and Customer Application Form (CAF) pertaining to mobile numbers already available since the date of registration of FIR, he did no investigation to ascertain the identity of the person who affixed the said poster.
23. IO SI Balwant Singh filed charge-sheet on 05.08.2016. The trial Court, vide order dated 08.08.2016, directed further investigation and pursuant thereto, supplementary challan was filed on 03.07.2017. Therefore, relevant date for computation of limitation is the date of filing of charge-sheet i.e. 05.08.2016.
24. On computation of limitation as on date of filing of charge-sheet on 05.08.2016, it is evident that the prosecution was instituted after more than one year since the date on which identity of the petitioners was known to IO SI Balwant Singh.
25. There was inordinate delay in institution of the prosecution. The trial Court should not have taken cognizance of offence under Section 3 DPDP Act after expiry of period of limitation on 17.11.2014. The trial Court committed manifest error in taking cognizance of offence under Section 3 DPDP Act.
Crl. Rev. No. 268/2020 Shakeel Malik vs. State Page No. 9 of 11
26. As regards contention that the prosecution could not be launched unless an opportunity is provided to the petitioners under Section 4 DPDP Act for seeking compounding of an offence under Section 3 DPDP Act, it can be stated that absence of mechanism for seeking compounding of an offence cannot be a ground to challenge institution of prosecution for the said offence.
27. Accordingly, the criminal revision petitions filed by the petitioners are allowed. The petitioners shall suffer material prejudice, if the impugned order is not set-aside. The impugned order dated 20.08.2018 whereby the trial Court had taken cognizance of offence under Section 3 DPDP Act is set- aside. A copy of order alongwith trial Court record be sent to trial Court. The criminal revision files be consigned to record room.
Digitally signed by SANJAY SANJAY SHARMA
SHARMA Date:
2022.09.28
17:47:15 +0530
Announced in the open Court SANJAY SHARMA-II
on this 28th September, 2022 Addl. Sessions Judge-03 (Central)
Tis Hazari Courts, Delhi
Crl. Rev. No. 268/2020 Shakeel Malik vs. State Page No. 10 of 11
Shakeel Malik vs. State
CNR No.: DLCT010085822020
Crl. Revision No. 268/2020
28.09.2022
Proceedings convened through Video Conferencing. Present : Mr. Kuldeep Mansukhani, Advocate for the petitioner.
Vide separate judgment, the criminal revision petition filed by the petitioner is allowed. The criminal revision file be consigned to record room.
Digitally signed SANJAY by SANJAY
SHARMA
SHARMA Date: 2022.09.28
17:47:28 +0530
Sanjay SharmaII
ASJ03, Central District
Tis Hazari Courts, Delhi
NK 28.09.2022
Crl. Rev. No. 268/2020 Shakeel Malik vs. State Page No. 11 of 11