Delhi District Court
State vs . Mansi on 23 February, 2021
IN THE COURT OF SH. GAJENDER SINGH NAGAR, CHIEF
METROPOLITAN MAGISTRATE,
CENTRAL DISTRICT, TIS HAZARI COURT,DELHI
STATE VS. Mansi
FIR NO. 0063/19
PS: Maurice Nagar
U/S: 3 DPDP Act
JUDGMENT
New Case No. : 4008/20
CNR No. :
Date of commission of offence : 30.08.2019
Date of institution of the case : 10.08.2020
Name of the complainant : HC Adesh Kumar
Name of accused and address : Mansi
D/o Sh. Ajay Kumar
R/o H.No. 154, Khera
Kalan, North West, Delhi
110082.
Offence complained of or proved : U/s 3 DPDP Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date on which reserved for judgment: 23.02.2021
Date of judgment : 23.02.2021
FIR No. 0063/19, PS Maurice Nagar State Vs. Mansi Page 1/9
BRIEF STATEMENT OF THE REASON FOR DECISION:
1. This is the prosecution of accused pursuant to charge sheet filed by P.S. Maurice Nagar U/s 3 of the Delhi Prevention of Defacement of Property Act 2007 subsequent to the investigation carried out by them in FIR No. 0063/2019.
2. Brief facts of the case are that on 30.08.2019 at unknown time at Patel Chest Chowk, Miranda House College, Teacher's Flat Side, Maurice Nagar, Delhi, accused got flex board put up in her name on the electricity pole, which was not for the purpose of indicating the name and address of the owner/ occupier of such property, but to gain personal benefit/ advertisement. The board was noticed by the complainant alongwith Ct. Naveen, police officials during patrolling and the present FIR was registered at instance of the complainant.
3. Thereafter, investigation was completed and chargesheet was filed against the accused. The accused appeared before the Court and on 20.02.2021, notice under section 251 Cr.P.C. for the offence U/s 3 of the Delhi Prevention of Defacement of Property Act 2007 was served upon her, to which she pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
4. In order to prove its case, the prosecution examined one witness.
FIR No. 0063/19, PS Maurice Nagar State Vs. Mansi Page 2/95. PW1/ complainant HC Adesh Kumar who deposed that on 30.08.2019, he alongwith Ct. Naveen were on patrolling duty. At about 6:10 pm when they reached at Patel Chest Chowk, they saw one flex board on the electricity pole and it was written "JOIN ABVP MANSI" by red and blue colour on the said flex board. He clicked the photographs through his mobile phone. He removed the flex board from the electricity pole. Thereafter, he prepared the rukka which is Ex. PW1/A and handed over the same to Ct. Naveen for registration of FIR. Accordingly, FIR was got registered. He prepared site plan which is Ex. PW1/B. He seized the flex board vide seizure memo Ex. PW1/C. He recorded statement of Ct. Naveen U/s 161 Cr.P.C. He deposited the said flex board with the maalkhana of P.S. Maurice Nagar. It is stated that during investigation, he inquired about the girl namely Mansi (i.e. accused) whose name was there on the flex board and they came to know that the said girl is student of Aditi Mahavidhyala, Delhi University and is studying in B.A. (Hon.). Accused was active member of Akhil Bharti Vidhayarthi Prisad. Accused had affixed the said flex board for her election campaign of Delhi University Student Union. It is stated that on 05.03.2020, he alongwith W/HC Satvinder Kaur at Art Faculty, Delhi University, interrogated the accused and during interrogation she told them that she had affixed said flex board for her election campaign in coming election of Delhi University Student's Union 2019. This witness gave a notice U/s 41A Cr.P.C. to accused which is Ex. PW1/D. He recorded statement of W/HC Satvinder Kaur. Thereafter, this witness prepared chargesheet and filed the same in the Court. This witness correctly identified two photographs of the said flex board which are FIR No. 0063/19, PS Maurice Nagar State Vs. Mansi Page 3/9 Ex. P1 (Colly). During his crossexamination, he admitted that he had not sealed the abovesaid flex board with his seal. He admitted that he had not investigated on the aspect that from where accused got printed the abovesaid flex board.
6. Since all the relevant/ material witnesses have been examined, hence prosecution evidence stands closed.
THE DEFENCE :
7. Statement of the accused U/s 313 Cr.P.C. was recorded. The accused denied the prosecution case and stated that she had not committed any offence and had no concern with the said flex board. The board does not belong to her. She however did not lead any evidence in defence.
THE ARGUMENTS:
8. Ld. APP for the State has argued that the prosecution has been able to establish its case against the accused beyond reasonable doubt as the witness has deposed against her and that accused has failed to show that she had no concern with the board.
9. Per contra, accused submits that she has no concern with the flex board, that she never got the same affixed and that she never defaced any property. She submits that the investigation is incomplete and improper as there is nothing to connect her with the offence.
FIR No. 0063/19, PS Maurice Nagar State Vs. Mansi Page 4/9THE FINDINGS:
Offence U/s 3 DPDP Act:
10. The undersigned has heard Ld. APP for the State and accused and have also perused the material available on record.
11. Section 3(1) of the Delhi Prevention of Defacement of Property Act, 2007 provides that : "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) XXX (3) XXX
12. Though in the present matter a flex board bearing name of the accused was found affixed on the electricity pole, however due to the following reasons the accused deserves acquittal in the present matter : FIR No. 0063/19, PS Maurice Nagar State Vs. Mansi Page 5/9
(i) In the present matter, complaint was made by HC Adesh Kumar. After registration of FIR he was the one who seized the board, prepared the site plan. Thus, after registration of FIR, investigation of the present case was marked to the same police official who was the complainant. Thus, in the present matter complainant and IO was the same person. It is well settled law that complainant should not be the investigating officer in the case so as to rule out any ill−will 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 ill−will, 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 upon the judgment of Hon'ble Supreme Court in the case titled as Mohan Lal Vs. State of Punjab, MANU SC/0857/2018.
(ii) No independent witness was joined in the investigation by the IO. PW1 has not explained in his 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 prima facie satisfy that the flex board was affixed on the spot. No evidence has been brought on record to prove that the alleged flex board was affixed by the accused or with her authority.
(iii) The PW1 who was allegedly visited the spot examined by the prosecution had not stated that he had seen anybody or the accused while affixing the said board at the spot and he also could not FIR No. 0063/19, PS Maurice Nagar State Vs. Mansi Page 6/9 say as to who affixed the board at the spot. He did not come across any witness who might have seen any person affixing the board at the spot.
(iv) In the present matter, the allegation against the accused is that some flex board bearing her name was found affixed on electricity pole. Now it has to be seen whether affixed board would amount to an offence U/s 3 of DPDP Act, or not. Prior to enactment of DPDP Act, West Bengal Prevention of Defacement of Property Act, 1976 was prevalent in Delhi. Section 3 of West Bengal Prevention of Defacement of Property Act is same to same as Section 3 of DPDP Act. For the sake of convenience, Section 3 of West Bengal Prevention of Defacement of Property Act, is reproduced here which provides 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 property, shall be punishable with punishment prescribed."
In a case titled as "T.S Marwah & Ors Vs. State", 2008(4) JCC 2561 it has been held by Hon'ble High Court of Delhi that "mere putting of the banner will not be covered by Section 3 of the West Bengal Prevention of Defacement of Property Act, 1976. It is true Section 2 (aa) defines defacement which includes impairing or interfering with the appearance, beauty, damaging, distinguishing, spoiling or injuring in any other way FIR No. 0063/19, PS Maurice Nagar State Vs. Mansi Page 7/9 whatsoever, but Section 3(1) is not all embracing and it refers to 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".
The question for determination in the present case is whether the present case is covered by the aforesaid judgment and whether the aforementioned judgment also applicable to offence under Section 3 of Delhi Prevention of Defacement of Property Act.
Provisions of Section 3 of DPDP Act and Section 3 of the West Bengal Prevention of Defacement of Property Act are similar to each other and therefore the ratio of the aforementioned judgment of T.S Marwah Vs. State would also be applicable to the provision of Section 3 of DPDP Act.
In these circumstances, affixing of board on the electricity pole having the name of the accused on it would not amount to an offence U/s 3 of DPDP Act.
13. In view of the abovestated circumstances, it can be safely held that the prosecution has failed to prove its case against accused beyond reasonable doubt.
14. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. The burden of proof of the version of the prosecution in a criminal trial throughout FIR No. 0063/19, PS Maurice Nagar State Vs. Mansi Page 8/9 the trial is on the prosecution. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
15. In the present matter, in view of the abovestated discussions, it can be safely held that the prosecution has failed to prove its case beyond reasonable doubt. The evidence coming on record entitles the accused to be acquitted in the present case. Therefore, accused Mansi is hereby acquitted from charge leveled against him in the present matter. Requirements of Section 437A Cr.P.C have been complied with. File be consigned to Record Room Digitally signed after due compliance. GAJENDER by GAJENDER SINGH NAGAR SINGH Date:
NAGAR 2021.02.25
17:12:19 +0530
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 23.02.2021 CMM (CENTRAL)/DELHI Containing 9 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) CMM (CENTRAL)/DELHI FIR No. 0063/19, PS Maurice Nagar State Vs. Mansi Page 9/9