Delhi District Court
Case Titled As T.S. Marwah & Ors vs . State 2008(4) Jcc 2561 In Which on 20 March, 2018
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
State
Vs.
Alok Kumar
FIR No.868/2017
P.S Mehrauli
JUDGMENT
1. Sr. No. of case 1056/2018
2. Date of institution 21.02.2018
3. Name of the complainant HC Amit Kumar
4. Date of commission of offence On 11.11.2017 at about 08:10 pm
5. Name of accused Alok Kumar
S/o Sh. Kedar Nath R/o Plot
No.163, Second Floor, Laxmi
Vihar, Street No.9, Uttam Nagar,
New Delhi-110059
6. Offence complained of 3 DPDP Act
7. Plea of accused Accused pleaded not guilty
8. Date of reserving the judgment 20.03.2018
9. Final order Acquitted
10 Date of such judgment 20.03.2018
FIR No.868/2017 PS Mehrauli Page-1/6
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. The story of the prosecution is that on 11.11.2017 at about 08:10 pm at Kalka Daas Marg near MCD Office in front of Ambawatta Building accused got affixed two boards, one board in front side and other board on back side on an electric board on which bearing "KEBAB EXPRESS DELICIOUSLY NORTH INDIAN CALL 9015159999 Qutab Tiffin, Qutub Minar, Mehrauli New Delhi" was written. Hence, accused was chargesheeted under section S.3 of the Delhi Prevention of Defacement of Property Act 2007 (henceforth referred to as 'DPDP Act').
2. In compliance of Section 207 Cr.P.C, copy of the chargesheet and the documents annexed therewith was supplied to accused and he was served with notice u/sec 3 of Delhi Prevention of Defacement of Property Act, 2007 (in short 'DPDP Act') to which he pleaded not guilty and claimed trial.
3. In order to substantiate its case, the prosecution examined 02 witnesses in all.
3.1 PW-1 Ct. Ganesh Ram deposed that on 11.11.2017, he alongwith IO HC Amit were on patrolling duty in the area of PS Mehrauli. During patrolling, when they reached at Kalka Dass Marg near MCD Office in front of Ambawata Building, they noticed two flex boards were affixed on the front side and back side of an electricity pole and the said flex boards FIR No.868/2017 PS Mehrauli Page-2/6 were bearing the writing "Kabab Express". IO clicked the photographs of the flex boards from his personal mobile phone and thereafter, the said boards were removed from the electricity pole and the same were taken into possession vide memo Ex.PW1/A. Rukka was prepared by the IO and handed over to him for registration of FIR. After registration of FIR, he returned back to the spot and handed over the original rukka and copy of FIR to the IO. IO searched accused but no clue was found. IO prepared the site plan vide Ex.PW1/B. IO recorded his statement. Witness correctly identified the case property i.e. two flex boards vide Ex.P-1 and two photographs of said flex boards vide Ex. P-2.
3.2 PW-2 HC Amit deposed that on 11.11.2017, he alongwith Ct. Ganesh were on patrolling duty in the area of PS Mehrauli. During patrolling, when they reached at Kalka Dass Marg near MCD Office in front of Ambawata Building, they noticed two flex boards were affixed on the front side and back side of an electricity pole and the said flex boards were bearing the writing "Kabab Express". He clicked the photographs of the flex boards from his personal mobile phone. Thereafter, the said boards were removed from the electricity pole and the same were taken into possession vide memo already Ex.PW1/A. He prepared the rukka vide Ex.PW2/A. The same was handed over to Ct. Ganesh for registration of FIR. After registration of FIR, he returned back to the spot and handed over the original rukka and copy of FIR to him. He searched accused but no clue was found. He also prepared the site plan vide already Ex.PW1/B. He recorded the statement of Ct. Ganesh u/sec 161 Cr.P.C. During the course FIR No.868/2017 PS Mehrauli Page-3/6 of investigation, he came to know about the person who affixed the above said flex boards. A notice vide Ex.PW2/A1 u/sec 160 Cr. P.C. was given to him. On 02.12.2017, he arrested accused vide arrest memo Ex.PW2/B, conducted his personal search vide personal search memo Ex.PW2/C and recorded his disclosure statement vide memo Ex.PW2/D. Witness correctly identified accused before the court. Witness correctly identified the case property i.e. two flex boards vide already Ex.P-1 and two photographs of said flex boards vide already Ex. P-2.
4. Prosecution evidence was directed to be closed vide order dated 15.03.2018.
5. Statement of the accused U/s 313/281 Cr.P.C. was separately recorded wherein all the incriminating evidence was put to him for seeking his explanation.
6. I have heard Ld. APP for the State and Ld. counsel for the accused. I have carefully perused the case file in light of the submissions advanced by the respective counsels.
Brief reasons for final decision
7. Defence relied upon judgment of Hon'ble High Court of Delhi in case titled as T.S. Marwah & Ors Vs. State 2008(4) JCC 2561 in which Hon'ble High Court of Delhi has laid down as below:-
FIR No.868/2017 PS Mehrauli Page-4/6 "A bare look at Section 3 (1) goes to show that the offence committed therein 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. There is nothing in the charge sheet filled against the petitioner to indicate that any property was defaced by writing or marking with ink, chalk, paint or any other material. The only allegation is that the banner was put on an electric pole. Mere putting of the banner will not get covered by section 3 (1) of The West Bengal Prevention of Defacement of Property Act, 1976. It is true that Sec. 2(AA) defines defacement which includes impairing or interfering with the appearance, beauty, damaging, distinguishing , spoiling or injuring in any other way whatsoever, but Section 3 (1) is not all embrasing and it refers only such type of defacement for the purpose of prosecution as is done by writing or marking with ink, chalk, paint or any other material."
8. Present charge sheet has been filed u/sec 3 of Delhi Prevention of Defacement of Property Act, 2007. Before Delhi Prevention of Defacement of Property Act, West Bengal Prevention of Defacement of Property Act, 1976 was prevalent in territory of state of Delhi. Provisions of Section 3 of both the above-mentioned Acts are almost same except one change in definition of Word Writing in Delhi Prevention of Defacement of Property Act. Section 2 (d) of Delhi Prevention of Defacement of Property Act defines writing as including printing, painting, decoration, lettering, ornamentation etc., produced by stencil. In West Bengal Prevention of Defacement of Property Act, "writing" was defined as including decoration, FIR No.868/2017 PS Mehrauli Page-5/6 lettering, ornamentation, etc., produced by stencil.
9. The sole difference in definition of writing in both the Acts is inclusiveness of printing in Delhi Prevention of Defacement of Property Act.
10. Except addition of printing in definition of writing, provisions of Delhi Prevention of Defacement of Property Act and West Bengal Prevention of Defacement of Property Act for Section 3 of both the Acts are also same. So ratio in judgment of Hon'ble High Court of Delhi in T. S. Marwah's case (Supra) still holds good for present case as facts of present case are similar to those in T. S. Marwah's case and putting up of banner/poster will not be covered u/sec 3 (1) of DPDP Act. In view of ratio of judgment in T. S. Marwah's case (Supra), no case u/sec 3 of Delhi Prevention of Defacement of Property Act is made out against accused. I am of the opinion that the accused is entitled to be acquitted for offence u/sec 3 of DPDP Act.
Announced in the open
Court on 20.03.2018 (Pooja Talwar)
CMM (South), Saket Courts,
New Delhi
Certified that this Judgment contains 06 pages and each page is signed by me.
(Pooja Talwar)
CMM (South), Saket Courts,
New Delhi
FIR No.868/2017 PS Mehrauli Page-6/6