Delhi District Court
Fir No. 706/2022 State vs . Manjeet Singh on 7 August, 2023
FIR No. 706/2022 State Vs. Manjeet Singh
IN THE COURT OF MS. SHIVANI CHAUHAN
CHIEF METROPOLITAN MAGISTRATE
SOUTH-EAST, SAKET COURTS, NEW DELHI
CNR number. DLSE02-006757-2023
Cr. Case Number. 2556/2023
FIR No. 706/2022
Police Station : Kalkaji
U/s: 3 of The Delhi Prevention of Defacement of Property Act,
2007
STATE
VS
MANJEET SINGH
Date of Institution : 22.03.2023.
Date of reserving the judgment : Not reserved
Date of pronouncement of judgment : 07.08.2023.
JUDGMENT
1. Serial No. of the case : 2556/2023
2. Name of the Complainant : Head Constable
Suresh Kumar.
3. Date of commission of offence : 26.11.2022.
4. Name of accused person :
Manjeet Singh S/o Sh. Pritam Singh,
R/o House No. 1898/18, 3rd Floor,
Govindpuri Extension, South Delhi.
Aged about 47 years.
5. Offence charged : S. 3 DPDP Act.
6. Plea of accused : Not guilty
7. Final Order : Acquitted.
Police Station : Kalkaji Page No. 1 Of 17
FIR No. 706/2022 State Vs. Manjeet Singh
JUDGMENT
1. In the present case, the accused had 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 26.11.2022, Head Constable Suresh was on patrolling duty in the area along with Head Constable Ambesh Goswami. At about 11:00 PM, they reached at Kirana Market, Near Gopalji Sweet, Govindpuri Extension, New Delhi, where they noticed a board affixed on an electricity pole containing the words "Bhajpa Kalkaji Ward 175 Ka Mandal Adhyaksh Banaye Jaane Par Shri Manjeet Singh Ko Haardik Badhai Sh. Manjeet Singh Dr. R. S. Pahal Upadhyaksh Dakshini Jila O.B.C. Morcha Prabhari, Kalkaji Dakshini Jela OBC Morcha". Head Constable Suresh then took the photographs of the said board and removed it from the pole. After removing it from the pole, Head Constable Suresh seized it. Head Constable Suresh then prepared the rukka and handed over the same to Head Constable Police Station : Kalkaji Page No. 2 Of 17 FIR No. 706/2022 State Vs. Manjeet Singh Ambesh Goswami to get the FIR registered. After some time, Head Constable Balbeer came to the spot as the investigation of the case was assigned to him. After some time, Head Constable Ambesh Goswami returned to the spot and handed over the copy of FIR, endorsement on rukka and certificate u/s 65B of Indian Evidence Act to Head Constable Balbeer as the investigation of the case was marked to him. During the course of investigation, Investigating Officer (hereinafter referred as IO for the sake of brevity) Head Constable Balbeer prepared the site plan at the spot. IO then went to the Police Station along with case property and deposited the same in the Malkhana of the police station. Thereafter on 12.12.2022, R. S. Mahal, whose name was mentioned on the board was called at the police station and interrogated. On 06.01.2023, accused Manjeet Singh came to the police station and joined the investigation in the present case. IO then inquired the accused in the present case and notice u/s 41A Cr.P.C. was served upon him. After completion of the investigation, IO prepared the charge-sheet and filed it before the Court.
3. Cognizance of the offence under Section 3 of DPDP Act Police Station : Kalkaji Page No. 3 Of 17 FIR No. 706/2022 State Vs. Manjeet Singh was taken by the Court. The accused was summoned. After compliance of the provisions of Section 207 Cr.P.C, charge for offence under Section 3 of the DPDP Act was framed upon the accused to which the accused pleaded not guilty and claimed trial. Matter was then listed for prosecutions evidence. The prosecution examined two witnesses in support of its case.
4. Head Constable Suresh Kumar was examined by the prosecution as PW1. He is the complainant as well as the initial Investigating Officer in the present case. He deposed that on 26.11.2022, he was posted as Head Constable at Police Station Kalkaji and on that day, he was on patrolling duty along with Head Constable Ambesh. During patrolling duty, at about 11:00 pm, they reached at Kirana Market, near Gopalji Sweets, Govind Puri Extension, New Delhi within the jurisdiction of Police Station Kalkaji and noticed one board was affixed on a pole containing the words "Bhajpa Kalkaji Ward No. 175 Ka Mandal Adhyakash Bane Jaane Par Sh. Manjeet Singh Ko Haardik Badhayi, Sh. Manjeet Singh Dr. R. S. Pal Upadhyaksh, Dakshini Jila, OBC Morcha Prabhaari Kalkaji, Dakshini Jila, OBC Morcha". He took the Police Station : Kalkaji Page No. 4 Of 17 FIR No. 706/2022 State Vs. Manjeet Singh photographs of the same using his mobile phone and removed the board from the pole with the help of Head Constable Ambesh. After removing it, he measured the board and seized it vide memo Ex.PW1/1. He then prepared the rukka vide Ex.PW1/2 and handed over the same to Head Constable Ambesh to get the FIR registered at the Police Station. Head Constable Ambesh Manoj then left the spot and went to Police Station for getting the FIR registered. After a while, Head Constable Balbeer reached the spot as the investigation of the case was marked to him. Head Constable Ambesh also returned to the spot and handed over the copy of FIR and original rukka to Head Constable Balbeer as the investigation of the case was marked to him. He then handed over the case property and documents prepared by him to Investigating Officer Balbeer. IO / Head Constable Balbeer prepared the site plan at the spot at his instance, the same is Ex.PW1/3. IO then recorded his statement u/s 161 Cr.P.C. in the present case. He then returned to the police station. He correctly identified the case property from its photograph before the Court. Photograph is Ex.P-1.
5. Head Constable Balbeer Singh was examined by the Police Station : Kalkaji Page No. 5 Of 17 FIR No. 706/2022 State Vs. Manjeet Singh prosecution as PW-2. He is the Investigating Officer in the present case. He deposed that on 26.11.2022, he was posted as Head Constable at Police Station Kalkaji and on that day, vide Order of the SHO, the then Duty Officer marked the present case for investigation to him after registration of the FIR. He went to the police station and collected the copy of FIR & original tehrir and went to the spot i.e., Kirana market, Near Gopalji Sweets, Govindpuri Extension and met the initial IO / Head Constable Suresh who had already seized the hoarding board and handed over the same to him. He also handed over the seizure memo & other relevant documents of the present case to him as the further investigation was assigned to him. He then prepared site plan at the instance of Head Constable Suresh Ex.PW1/3. He then returned to the Police Station and deposited the case property with MHC (M) in Malkhana. He then inquired regarding the mobile number mentioned on the hoarding and he came to know that the "greeting message"
mentioned on the hoarding addressing to R. S. Pahal was placed on the pole by one Manjeet Singh. Sh. R. S. Pahal was called at the police station and his statement was also recorded vide Ex.PW2/A. Police Station : Kalkaji Page No. 6 Of 17 FIR No. 706/2022 State Vs. Manjeet Singh Thereafter, accused Manjeet was called at Police Station and after interrogating him, notice u/s 41A Cr.P.C. was served upon him vide Ex.PW2/B. He recoreded the statement of witness u/s 161 Cr.P.C. After completion of the investigation, he prepared the charge-sheet and submitted the same before the Court. He correctly identified the case property from its photograph before the Court. Photograph of the case property is Ex.P1.
6. The witnesses were duly cross-examined by Ld. Counsel for the accused and, thereafter, on the submissions of Ld. APP for the State, PE was closed. 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 falsely implicated in the present case. Accused did not lead any independent evidence in his defence. DE was closed. Final arguments were heard.
7. 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 board on the public Police Station : Kalkaji Page No. 7 Of 17 FIR No. 706/2022 State Vs. Manjeet Singh property. Hence, the accused is liable to be convicted.
8. On the other hand, it is submitted by Ld. Counsel for the 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 investigation which vitiate the proceedings conducted during the investigation. There is no evidence available on record to prove that the board was affixed on the instructions of the accused. He has been falsely implicated by the police officials to settle some personal score and no offence has been committed by him.
9. Submissions heard on behalf of both the parties. Carefully perused the record.
10. 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. Police Station : Kalkaji Page No. 8 Of 17
FIR No. 706/2022 State Vs. Manjeet Singh
11. 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.
12. 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.
13. In view of the aforesaid provisions, before an accused is Police Station : Kalkaji Page No. 9 Of 17 FIR No. 706/2022 State Vs. Manjeet Singh 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 occupier of the said property.
14. 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.
15. Ld. counsel for the accused has argued that the complainant had also conducted the 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.
16. Hon'ble High Court of Delhi in Gurtej Singh Batth vs Police Station : Kalkaji Page No. 10 Of 17 FIR No. 706/2022 State Vs. Manjeet Singh 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 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. Police Station : Kalkaji Page No. 11 Of 17
FIR No. 706/2022 State Vs. Manjeet Singh
17. However, the case of the prosecution cannot be disbelieved only because the investigation was conducted by the complainant. There have to be some other grounds to disbelieve the present case of the prosecution.
18. In the present case, as the record would reveal that no independent public witness had joined the investigation at any point of time with respect to recovery of the incriminating board. The place of recovery of the board 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:
Police Station : Kalkaji Page No. 12 Of 17
FIR No. 706/2022 State Vs. Manjeet Singh "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 Napoleon on the Bridge at Arcola.''
19. 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.
20. The witness PW1 has stated that he was on patrolling duty when he had noticed the board on an electricity pole. PW-1 had Police Station : Kalkaji Page No. 13 Of 17 FIR No. 706/2022 State Vs. Manjeet Singh taken the photographs of the board and removed it. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"22.49 Matters to be entered in Register No. II "The following matters shall, amongst others, be entered "(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
"Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
21. In the present case, DD entry record of the presence of PW1 along with Head Constable on the spot on patrolling duty has not been proved by the prosecution. Hence, the fact of presence of the complainant and Head Constable on the spot on the relevant date and time has come under the clouds of reasonable doubt. As already stated, the public witnesses who could have deposed regarding the affixation of the poster on the spot have not been Police Station : Kalkaji Page No. 14 Of 17 FIR No. 706/2022 State Vs. Manjeet Singh examined by the prosecution which also creates reasonable doubt on the case as projected by the prosecution.
22. The witness PW1 who had allegedly seen the board has not stated that he had seen anybody or the accused while affixing the said board at the spot and they could not say as to who had affixed the board at the spot. The prosecution also did not examine any witness who might have seen any person affixing the board at the spot. As argued by Ld. Counsel for the accused, there is not even an iota of evidence led by the prosecution to prove that the board in question was either installed / affixed by the accused herein or that the same was installed / affixed on his instructions.
23. The only allegation against the accused is that the board had been affixed on an electricity pole, a public property.
24. 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:
Police Station : Kalkaji Page No. 15 Of 17
FIR No. 706/2022 State Vs. Manjeet Singh "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 property, shall be punishable with punishment prescribed."
25. 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.
26. 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 Police Station : Kalkaji Page No. 16 Of 17 FIR No. 706/2022 State Vs. Manjeet Singh this difference in the definition 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)".
27. 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 07th Day of August, 2023. Digitally signed by SHIVANI
SHIVANI CHAUHAN
CHAUHAN Date: 2023.08.07
15:15:23 +0530
(Shivani Chauhan)
Chief Metropolitan Magistrate
South East, Saket Courts:New Delhi
Police Station : Kalkaji Page No. 17 Of 17