Delhi District Court
State vs Baldev Singh on 18 September, 2023
FIR No. 244/2022 State Vs Baldev Singh
IN THE COURT OF MS. SHIVANI CHAUHAN
CHIEF METROPOLITAN MAGISTRATE
SOUTH-EAST, SAKET COURTS, NEW DELHI
CNR number. DLSE02-006293-2023
Cr. Cases Number. 2369/2023
FIR No. 244/2022
Police Station : Chitranjan Park
U/s: 3 of The Delhi Prevention of Defacement of Property
Act, 2007
STATE
VS
BALDEV SINGH
Date of Institution : 16.03.2023.
Date of reserving the judgment : Not reserved
Date of pronouncement of judgment : 18.09.2023.
JUDGMENT
1. Serial No. of the case : 2369/2022
2. Name of the Complainant : Sh. Abhay Kumar
Assistant
Advertisement
Inspector at MCD.
3. Date of commission of offence : 10.08.2022.
4. Name of accused person :
Baldev Singh S/o Late Sardar Atter
Singh, R/o E-574, Ground Floor,
Greater Kailash-II, New Delhi. Aged
about 74 years.
5. Offence charged : S. 3, DPDP Act.
6. Plea of accused : Not guilty
7. Final Order : Acquitted
Police Station : Chitranjan Park Page No. 1
FIR No. 244/2022 State Vs Baldev Singh
JUDGMENT
1. In the present case, the accused has 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 10.08.2022, Sh. Abhay Kumar, Assistant Advertisement Inspector of Advertisement Department, Municipal Corporation of Delhi was on area inspection duty alongwith other staff members. While inspecting the Chitranjan Park area, he reached at Gurudwara Road where he found an unauthorized / commercial display containing the words "Medicines Order Karo Direct Apollo SE 2 Hr Full Prescription Delivery Avail Flat 25% Off Download Now". Upon verification, it was found that no permission was obtained from MCD prior to affixing the said flex banner at the spot. He was then directed to lodge a complaint againt the president / chairman / director / partner / owner of the company / Police Station : Chitranjan Park Page No. 2 FIR No. 244/2022 State Vs Baldev Singh firm. Upon directoins, he lodged a complaint with the PS Chitranjan Park for offence under S 3 DPDP Act.. Thereafter, he lodged a complaint with Police Station Chitranjan Park. Thereafter, investigation of the case was marked to Assistant Sub-Inspector Deepak Prasad. He perused the complaint and discussed the same with his senior officials. He then prepared the rukka on the basis of the complaint. During the course of investigation, he visited the site and prepared the site plan and took the photographs of the case property. He then met the accused, served notice u/s 41A Cr.P.C. upon the accused and accused joined the investigation in the present case. After completion of the investigation, he prepared the charge-sheet and submitted the same before the Court.
3. Cognizance of the offence under Section 3 of DPDP Act was taken by the Court. The accused was summoned. After compliance of the provisions of Section 207 Cr.P.C, notice for the offence under Section 3 of the DPDP Act was served upon the accused to which the accused pleaded not guilty and claimed Police Station : Chitranjan Park Page No. 3 FIR No. 244/2022 State Vs Baldev Singh trial. Matter was then listed for Prosecutions evidence. The prosecution has examined two witnesses in support of its case.
4. Sh. Abhay Kumar, Assistant Advertisement Inspector at Municipal Corporation of Delhi was examined by the prosecution as PW1. He is the complainant in the present case. He deposed that on 10.08.2022, he was appointed as Assistant Advertisement Inspector of the Municipal Corporation of Delhi and he was on area inspection that day. During the said area inspection, he noticed an illegal commercial display advertisement through flex banner running at property No. E- 595 adjoining Gianni's Shop Gurudwara. On examination of official record, it was found that the advertiser / company / firm whose illegal commercial display of advertisement was running at the said address, the said advertiser / company / firm has not obtained any prior permission under the relevant sections of Delhi Municipal Corporation Act, 1957. Thereafter, he filed a complaint u/s 3 DPDP Act at Police Station Chitranjan Park through the higher officials. FIR was then registered against the Police Station : Chitranjan Park Page No. 4 FIR No. 244/2022 State Vs Baldev Singh owner / director / CEO / partner of M/s Apollo Hospital, Mathura Road. The complaint is exhibited as Ex.PW1/A. He correctly identified the case property from its photographs which are on judicial record. Photographs are Ex.P-1(colly).
5. Assistant sub inspector Deepak Prasad was examined by the prosecution as PW2. He is the Investigating Officer in the present case. He deposed that Investigation of the present case was marked to him by the higher officials. During the course of investigation, he went to the spot and prepared the site plan and took the photographs of the case property using his mobile phone. The site plan is exhibited as Ex.PW2/A. He also contacted the accused Baldev Singh, reached at his residence and met him. He also served notice u/s 41A Cr.P.C. upon the accused Baldev Singh and he joined the investigation in the present case. The notice u/s 41A Cr.P.C. is Ex.PW2/B. Accused Baldev Singh informed him that he had let out the shop on rent to a medical store and they had affixed the said board without the permission from the MCD. He correctly identified the Police Station : Chitranjan Park Page No. 5 FIR No. 244/2022 State Vs Baldev Singh accused and the case property from its photographs before the Court. Photographs of the case property are Ex.P-1(colly).
6. The witnesses were duly cross-examined by Ld. counsel for the accused. Thereafter, on the submissions of Ld. Substitute APP for the State, PE was closed. The statement of the accused under Section 313 Cr.P.C. r/w Section 281 Cr.P.C. was recorded. The accused has denied commission of the offence and has stated that he had been falsely implicated in the present case. Accused did not wan to lead any evidence independent in his defence. As Ld. Counsel for accused and Ld APP were ready, Final arguments were heard.
7. It is submitted by Ld. Substitute 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 installing the flex banner on the property. Hence, the accused is liable to be convicted U/S 3 DPDPAct.
8. On the other hand, it is submitted by Ld. counsel for Police Station : Chitranjan Park Page No. 6 FIR No. 244/2022 State Vs Baldev Singh 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. There is no evidence available on record to prove that the flex banner was installed on the instructions of the accused. The accused has been falsely implicated by the officials to settle some personal score. No offence has been committed by the accused. Hence, it is prayed the accused may be acquitted.
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.
11. It is significant to note that accused in the present case Police Station : Chitranjan Park Page No. 7 FIR No. 244/2022 State Vs Baldev Singh 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. Police Station : Chitranjan Park Page No. 8
FIR No. 244/2022 State Vs Baldev Singh
13. In view of the aforesaid provisions, before an accused is 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. Perusal of the record shows that the PWs who had allegedly seen the flex banner have not stated that they had seen anybody or the accused person while affixing the flex banner at Police Station : Chitranjan Park Page No. 9 FIR No. 244/2022 State Vs Baldev Singh the spot. The prosecution also did not examine any witness who might have seen any person affixing the flex banner at the spot. No public person has been examined by the prosecution to prove that the flex banner was affixed by the accused person or by any person on his instructions. No evidence has been led to prove that the said flex banner was affixed at the instructions of the accused person. There is no evidence on record which can connect the accused person with the said flex banner. Further, there is nothing on record to show that the Banner was affixed on any 'Public Property' within the meaning of the Act. Rather it is the very case of the prosecution that the banner was affixed on a private property. Thus, no offence under DPDP Act is made out in the present case.
16. Further, 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 : Chitranjan Park Page No. 10
FIR No. 244/2022 State Vs Baldev 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."
17. 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 banner will not get covered u/s 3(1) of the West Bengal Prevention of Defacement of Property Act.
18. 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 Police Station : Chitranjan Park Page No. 11 FIR No. 244/2022 State Vs Baldev Singh Prevention of Defacement of Property Act, word "Writing" has been defined as including decoration, lettering, ornamentation etc. produced by stencil. Except 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)".
19. There is no evidence on record which can connect the accused person with the said flex banner. Further, there is nothing on record to show that the Banner was affixed on any 'Public Property' within the meaning of the Act. Rather it is the very case of the prosecution that the banner was affixed on a private property. Thus, no offence under DPDP Act is made out in the present case. 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 Police Station : Chitranjan Park Page No. 12 FIR No. 244/2022 State Vs Baldev Singh of reasonable doubt and is hereby acquitted. Ordered accordingly.
Pronounced in the open Court on this 18th Day of September, 2023. SHIVANI Digitally signed by SHIVANI CHAUHAN CHAUHAN Date: 2023.09.18 14:12:44 +0530 (Shivani Chauhan) Chief Metropolitan Magistrate South East, Saket Courts:
New Delhi.
Police Station : Chitranjan Park Page No. 13