Delhi District Court
State vs . Partibha Rao on 22 March, 2021
IN THE COURT OF SH. GAJENDER SINGH NAGAR, CHIEF
METROPOLITAN MAGISTRATE,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
STATE VS. Partibha Rao
FIR NO. 137/17
PS: Sarai Rohilla
U/S: 3 DPDP Act
JUDGMENT
New Case No. : 13293/17
Date of commission of offence : 19.04.2017
Date of institution of the case : 28.11.2017
Name of the complainant : HC Ajeet Sharma
Name of accused and address : Partibha Rao
W/o Sh. Manoj Kumar
R/o H.No. 2087/6A, Gali
No. 21, Prem Nagar,
Anand Parbat, Delhi.
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: 22.03.2021
Date of judgment : 22.03.2021
BRIEF STATEMENT OF THE REASON FOR DECISION:
1. This is the prosecution of accused pursuant to charge sheet filed by P.S. Sarai Rohilla U/s 3 of the Delhi Prevention of FIR No. 137/17, PS Sarai Rohilla State Vs. Partibha Rao Page 1/10 Defacement of Property Act 2007 subsequent to the investigation carried out by them in FIR No. 137/2017.
2. Brief facts of the case are that on 19.04.2017 at about 5:30 pm at nearby Shahzada Bagh Jhuggi, Inderlok, Delhi, accused got one advertisement/ flex board tied/ put up with the electric 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 HC Rattan, a police official during patrolling and the present FIR was registered at his instance.
3. Thereafter, investigation was completed and chargesheet was filed against the accused. The accused appeared before the Court and 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 him on 18.12.2019, to which she pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
4. In order to prove its case, the prosecution examined two witnesses.
5. PW1 HC Ajeet Sharma who deposed that on 19.04.2017 he was posted at PP Inderlok, P.S. Sarai Rohilla as Head Constable. On that day, he alongwith HC Rattan were on patrolling duty. At about 5:30 pm, when they reached nearby the Jhuggi they FIR No. 137/17, PS Sarai Rohilla State Vs. Partibha Rao Page 2/10 had seen one advertisement board which was tagged with the electric pole wherein it was written "Jai Bheem Jai Bharat, Baba Sahab, Dr. Bhim Rao Ambedkar, Manya Shri Kashiram Ji, B.S.P. Sansthapak, Bahujan Samaj Party, Behen Kumari Mayawati, Rashtriya Adhyaksh, B.S.P., Sansad (Rajya Sabha) avem purv Mukhya Mantri, Uttar Pradesh, Hathi Ka Button Dabao, Ward No.82, Anand Parvat se gandgi hatao, B.S.P. ki kya pehchan, Neela Jhanda, Haati Nishan, Chunav Chinh, Sahatam Chaudhary, Purv Maha Sachiv, Delhi Pardesh, Baspa, 75333019799, Partibha Rao, M.A.B.ed. Putra Wadhu, Sehtam Chaudhary, Pratyashi, Ward No.82, Anand Parvat, Nivedak, Samast Karyakarta, Anand Parvat, Ward No.82". He removed the same from the electric pole after clicking the photographs from his mobile phone. He seized the poster vide seizure memo, Ex. PW1/A. Thereafter he prepared rukka which is Ex. PW1/B and handed over the same to HC Rattan for registration of FIR. Accordingly, FIR was got registered. He also prepared the site plan which is Ex. PW1/C. He also served notice U/s 41A Cr.P.C. upon accused. This witness correctly identified accused. He also recorded statements of witnesses. This witness correctly identified photograph Ex. P1 of the advertisement board shown to him. During his crossexamination, it is admitted by him that it was not investigated by him that from where accused got published the said advertisement. It is admitted that he had not seen the accused while affixing the said advertisement board on the electric pole. It is denied by him that the said advertisement board was falsely planted upon the accused. It is FIR No. 137/17, PS Sarai Rohilla State Vs. Partibha Rao Page 3/10 denied by him that public persons were not asked to join the investigation deliberately.
6. PW2 HC Rattan deposed on the same lines as deposed by PW1.
7. Since all the relevant/ material witnesses have been examined, hence prosecution evidence stands closed.
THE DEFENCE :
8. 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 she had no concern with the said board. She had never got any flex board printed. She however did not lead any evidence in defence.
THE ARGUMENTS:
9. 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.
10. Per contra, Ld. Counsel for accused submits that accused has no concern with the advertisement board, that she never got the same affixed and that she never defaced any property. It is stated that FIR No. 137/17, PS Sarai Rohilla State Vs. Partibha Rao Page 4/10 the investigation is incomplete and improper as there is nothing to connect accused with the offence.
THE FINDINGS:
Offence U/s 3 DPDP Act:
11. The undersigned has heard Ld. APP for the State and Ld. Counsel for accused and have also perused the material available on record.
12. 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
13. Though in the present matter one advertisement board mentioning "Jai Bheem Jai Bharat, Baba Sahab, Dr. Bhim Rao FIR No. 137/17, PS Sarai Rohilla State Vs. Partibha Rao Page 5/10 Ambedkar, Manya Shri Kashiram Ji, B.S.P. Sansthapak, Bahujan Samaj Party, Behen Kumari Mayawati, Rashtriya Adhyaksh, B.S.P., Sansad (Rajya Sabha) avem purv Mukhya Mantri, Uttar Pradesh, Hathi Ka Button Dabao, Ward No.82, Anand Parvat se gandgi hatao, B.S.P. ki kya pehchan, Neela Jhanda, Haati Nishan, Chunav Chinh, Sahatam Chaudhary, Purv Maha Sachiv, Delhi Pardesh, Baspa, 75333019799, Partibha Rao, M.A.B.ed. Putra Wadhu, Sehtam Chaudhary, Pratyashi, Ward No.82, Anand Parvat, Nivedak, Samast Karyakarta, Anand Parvat, Ward No.82" was found tied/ affixed/ pasted on the electric pole, however due to the following reasons the accused deserves acquittal in the present matter :
(i) In the present matter, complaint was made by HC Ajeet Sharma. 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.
FIR No. 137/17, PS Sarai Rohilla State Vs. Partibha Rao Page 6/10(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 advertisement board was tied/ affixed on the spot. No evidence has been brought on record to prove that the alleged advertisement board was tied/ affixed by the accused or with her authority.
(iii) The PWs who had allegedly visited the spot examined by the prosecution had themselves admitted that he had not seen anybody or the accused while affixing the said board at the spot and he also could not 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 an advertisement/ flex board mentioning "Jai Bheem Jai Bharat, Baba Sahab, Dr. Bhim Rao Ambedkar, Manya Shri Kashiram Ji, B.S.P. Sansthapak, Bahujan Samaj Party, Behen Kumari Mayawati, Rashtriya Adhyaksh, B.S.P., Sansad (Rajya Sabha) avem purv Mukhya Mantri, Uttar Pradesh, Hathi Ka Button Dabao, Ward No.82, Anand Parvat se gandgi hatao, B.S.P. ki kya pehchan, Neela Jhanda, Haati Nishan, Chunav Chinh, Sahatam Chaudhary, Purv Maha Sachiv, Delhi Pardesh, Baspa, 75333019799, Partibha Rao, M.A.B.ed. Putra FIR No. 137/17, PS Sarai Rohilla State Vs. Partibha Rao Page 7/10 Wadhu, Sehtam Chaudhary, Pratyashi, Ward No.82, Anand Parvat, Nivedak, Samast Karyakarta, Anand Parvat, Ward No.82" i.e. also bearing name of accused was found tied/ affixed on electric 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 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".
FIR No. 137/17, PS Sarai Rohilla State Vs. Partibha Rao Page 8/10The 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/ putting up of board on the electric pole mentioning "Jai Bheem Jai Bharat, Baba Sahab, Dr. Bhim Rao Ambedkar, Manya Shri Kashiram Ji, B.S.P. Sansthapak, Bahujan Samaj Party, Behen Kumari Mayawati, Rashtriya Adhyaksh, B.S.P., Sansad (Rajya Sabha) avem purv Mukhya Mantri, Uttar Pradesh, Hathi Ka Button Dabao, Ward No.82, Anand Parvat se gandgi hatao, B.S.P. ki kya pehchan, Neela Jhanda, Haati Nishan, Chunav Chinh, Sahatam Chaudhary, Purv Maha Sachiv, Delhi Pardesh, Baspa, 75333019799, Partibha Rao, M.A.B.ed. Putra Wadhu, Sehtam Chaudhary, Pratyashi, Ward No.82, Anand Parvat, Nivedak, Samast Karyakarta, Anand Parvat, Ward No.82" i.e. also bearing name of accused belonging to the accused would not amount to an offence U/s 3 of DPDP Act.
14. 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.
FIR No. 137/17, PS Sarai Rohilla State Vs. Partibha Rao Page 9/101 15. 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 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.
16. 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 Partibha Rao is hereby acquitted from charge leveled against her in the present matter. Requirements of Section 437A Cr.P.C have been complied with. File be consigned to Record Room after due compliance.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 22.03.2021 CMM (CENTRAL)/DELHI Containing 10 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) CMM (CENTRAL)/DELHI FIR No. 137/17, PS Sarai Rohilla State Vs. Partibha Rao Page 10/10