Delhi District Court
State (Govt. Of Nct Of Delhi) vs A.V. Surender on 1 February, 2017
CR No. 58610/2016
IN THE COURT OF SPECIAL JUDGE, CBI (PC ACT)-06, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Criminal Revision No. 58610/2016
State (Govt. of NCT of Delhi) .....Revisionist
Versus
A.V. Surender
S/o Sh. A.S. Rama Chandram
R/o K-83, Wendsor Park,
Indirapuram, Ghaziabad, UP .....Respondent
Instituted on : 22nd November 2016
Argued on : 1st February 2017
Decided on : 1st February 2017
JUDGMENT
1. This revision U/S 397 and 399 of the Code of Criminal Procedure (Cr.P.C.) is preferred against the order dated 27 th September 2016, passed by the Court of Sh. Sudhanshu Kaushik, Ld Additional Chief Metropolitan Magistrate-01, Central District, Tis Hazari Courts, Delhi, in a proceeding arising out of case FIR No. 47/2009 U/S 3 of The Delhi Prevention of Defacement of Property Act, PS I.P. Estate, whereby proceedings has been stopped u/s 258 Cr.P.C and accused A.V. Surender (respondent herein) has been acquitted.
2. In brief, facts leading to the filing of this revision petition are that on 8th March 2009, a FIR u/s 3 of West Bengal Defacement of Property Act was registered at PS I.P. Estate at the instance of complainant HC Suresh, PS I.P. Estate. On conclusion of investigation, charge sheet was filed by Incharge PS I P Estate on 6th May 2009.
3. Case of the prosecution is that accused A.V.Surender (respondent herein) while being Head of Sales Department of CHD Developers Ltd. Company, got prepared banners and fixed these banners on public property and State vs. A.V. Surender 1 of 7 CR No. 58610/2016 thereby defaced the property. Vide impugned order dated 27 th September 2016, Ld ACMM stopped the proceedings against accused A.V. Surender u/s 258 Cr.P.C. and acquitted him. Aggrieved with the said order dated 27 th September 2016 passed by the Ld ACMM Delhi, whereby proceedings against accused A.V.Surender (respondent herein) was stopped. Trial court had taken cognizance of the offence punishable u/s 3 (b) of Delhi Prevention and Defacement of Property Act 2007 (herein after to be referred in short as DPDPA). Before charge, Ld trial court inquired about the role of the other accused persons in affixing the boarding and it appeared to the trial court that IO was trying to shield other accused persons whose photographs were appearing with the photographs annexed with the file. Ld trial court issued show cause notice to the SHO, PS I P Estate on 1 st September 2010. Reply was filed by SHO PS I.P. Estate and on 7 th December 2010, an application u/s 173 Cr.P.C. was moved by SHO seeking permission to further investigate the matter. Ld trial court allowed the said application on 7 th December 2010. A Supplementary charge sheet dated 13th April 2012 was filed by SHO Incharge PS I.P. Estate on 24 th April 2012. As per supplementary charge sheet, after investigation, on 9 th January 2012 Dinesh Kumar Punj was arrested by Insp. Mahesh Kumar as there was sufficient evidence against him u/s 3 of DPDPA.
4. Sh. Himanshu Garg, Ld Addl. PP for State submits that record shows that Ld trial court had neither considered supplementary charge sheet nor proceeded further or summoned accused Dinesh Kumar Punj who had been charge sheeted pursuant to the further investigation ordered by the Ld trial court. Secondly, it is submitted that there is infirmity in the order of the Ld trial State vs. A.V. Surender 2 of 7 CR No. 58610/2016 court whereby accused A.V. Surender has been acquitted after stoppage of the proceedings u/s 258 Cr.P.C. As per Section 258 Cr.P.C. in a summons case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case release, the accused, and such release shall have the effect of discharge.
5. Grounds raised by the Ld Add. PP for State are that impugned order is not legally correct and as such not sustainable in the eyes of law. Ld trial court failed to appreciate the fact that in this case on 24 th April 2012, supplementary charge-sheet was filed against co-accused Dinesh Kumar Punj on the directions of the court itself but he has not been summoned till date and order dated 27 th September 2016 passed by Ld ACMM is totally silent with respect to co-accused Dinesh Kumar Punj. Ld trial court failed to appreciate the fact that Judgment "T.S.Marwah & Ors. Vs State" was passed in respect of Section 3(1) of the West Bengal Prevention of Defacement of Property Act, 1976, so it cannot be applied to the cases being prosecuted under DPDPA. Ld trial court failed to appreciate the fact that the definition Section 2(A) of DPDPA covers defacement by hanging the banners in public view.
6. Learned prosecutor further pointed out that in the Case Diary, there is a letter/reply dated 2nd February 2011, written by the Additional G.M. (Legal), CHD Developers Ltd., to the IO given in response to the notice u/s 91 CrPC dated 27.01.2011, by the IO to the GM, CHD Limited, wherein it had been State vs. A.V. Surender 3 of 7 CR No. 58610/2016 replied on behalf of the company that the decision with respect to the printing was taken by the Head Sales, who is Incharge at that time, but the decision with respect to fixing was taken by Mr. Dinesh Kumar Punj of M/s Punj Art Studio. The notice given by the IO and the reply given by the company was required to be placed on the record by the Investigative Agency, while filing the charge-sheet and learned APP as well as learned trial court is expected to peruse the Police diary in aid of the enquiry or trial.
7. On the other hand, Sh. Vinod Mahla, learned counsel appearing on behalf of A.V. Surender pointed out that on the Bill of preparation of board by Dinesh Kumar Punj, painter the words "approved Mr.M.K. Sharma/Pl.Pay,", is written and signed by R.K. Mittal, Chairman of CHD Developers Ltd. and that Bill is issued in the name of company M/s CHD Developers Ltd. and accused A.V. Surender, who was merely an employee and sales head Delhi of the company has been made an accused on behalf of company as scapegoat and as per the Section 3 (2) of the Delhi Defacement of Property Act, "company as well as every President/Chairman/Director concerned with the management of the company shall be deemed to be guilty" unless he proves that the offence was committed without his knowledge. It is submitted that the Investigative agency had wrongfully given clean chit to the company and chairman and the Managing Director of the company had been left Scot free, whereas A.V. Surender, employee, who has left the company after about 6 months of the registration of FIR and more than 7 years ago and was acting on the directions of the Chairman and the directors of the company has only been arrayed as an accused.
State vs. A.V. Surender 4 of 7 CR No. 58610/2016
8. Indisputably, in the present case, Ld Magistrate had not recorded statement of any witness or the principal witnesses but after stoppage of the proceedings pronounced the judgment of acquittal whereas in the present case, for reasons to be recorded by him if satisfied, Ld Magistrate could stop the proceedings and only release the accused having the effect of discharge in the present facts and circumstances.
9. On perusal of the material on record and hearing the learned additional PP and learned counsel for the respondent, this court finds apparent errors on the face of impugned order. The first error in the impugned order is that u/s 258 Cr.P.C, learned trial court could have stopped the proceedings u/s 258 and pronounce judgment of acquittal only in a case, where evidence of the principal witnesses had been recorded. Admittedly, in the present case, learned trial court had not recorded statement of any witness and thus, in case, the learned trial court was satisfied, the accused could have only been released having the effect of discharge, whereas in the present case learned trial court had acquitted the respondent A.V. Surender after stopping the proceeding u/s 258 CrPC. Secondly, indisputably, supplementary challan had been filed on record by the officer, incharge PS IP Estate on 24th April 2012, wherein Dinesh Punj another accused was charge-sheeted and it was specified in the charge-sheet that Dinesh Kumar Punj had taken the contract of Printing and Affixing the poster (Board). He was arrested by IO, thus, learned trial court was required to consider and apply its mind on the supplementary charge sheet, in order to find out whether the proposed accused Dinesh Kumar Punj and or any other person in view of material on record was to be summoned to face trial or not.
State vs. A.V. Surender 5 of 7 CR No. 58610/2016 This necessary duty has not been performed by the learned trial court.
10. Thirdly, this case pertains to Section 3 of Delhi Prevention of Defacement of Property Act, 2007, which came into force w.e.f. 1 st March 2009. On behalf of prosecution it was pointed out that learned trial court relied upon a judgment titled as T.S. Marwah & Ors. vs. State 1, wherein it was held that mere putting of banners will not be covered by Section 3 pertained to The West Bengal Prevention of Defacement of Property Act 1976 and to a period before, Delhi Prevention of Defacement of Property Act 2007 came into force. In Anil Bhatia Vs. Government of NCT of Delhi 2, our High Court has held that putting of posters, banners, hoardings, boards on the building, walls etc. is the subject mater of defacement Act and while referring to a precedent reported as Sunil Pandharinath Jadhav Vs.State of Maharashtra 3, it was observed that the putting of the posters, banners, hoardings, boards which does not co-here with the surrounding is bound to have bearing on the appearance or beauty of the public place and is a eye sour to the viewers causing not only public nuisance but also violative of Fundamental Right under Article 21 of the Constitution, robbing people of the clean and beautiful environment and surroundings free from any defacement and the directions were issued for removal of all illegal posters, banners, hording, boards. Lastly, learned trial court had to bear in mind Section 3 (2) of Delhi Defacement of Property Act, whereby " When any offence is committed under sub‐section (1) is for the benefit of some other person or a company or other body corporate or an association of persons ( whether incorporated or not) then, such other person and every president, chairman, 1 2008 (4) JCC 2561 2 W.P.(C) No.6711/2013 decided on 19.02.2015 3 MANU/MH/0537/2010 State vs. A.V. Surender 6 of 7 CR No. 58610/2016 director, partner, manager, secretary, agent or any other officer or persons connected with the management thereof, as the case maybe, shall, unless he proves the offence was committed without his knowledge or consent, be deemed to be guilty of such offence". In the present case A.V. Surender was alleged to be Delhi Sales Head, who allegedly had got prepared the board from Dinesh Kumar Punj, Painter and had decided to get it fixed from him on alleged south wall of the property of Bhartiya Rashtriya Vigyan Sansthan. Perusal of the record shows a Bill dated 7 th February 2009 in the sum of Rs.1,50,000/-, in the name of company M/s CHD Developers Ltd. of Punj Art Studio, Shop No.7, Bhagat Singh Market, New Delhi -01 for 100 hordings size 12ft x 8 ft. on iron pipe frame with flex printing pasted on it, to be fixed at different locations of Delhi, Ghaziabad, Noida Etc. with cartridge and fixing.
11. Learned trial court was supposed to consider supplementary charge- sheet and entire material on record. In view of the foregoing reasons, this court finds illegality and infirmity in the impugned order dated 27 th September 2016 which deserves to be set aside and recalled. Order accordingly. Case is remitted back to the learned trial court to consider the matter afresh after consideration of the entire material on record including supplementary charge-sheet. Parties are directed to appear before the learned trial court on 18 th February 2017. Revision stands disposed of, accordingly. TCR be sent back alongwith a copy of this order. Revision file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT VINAY KUMAR KHANNA
st
on 1 February 2017 Special Judge-CBI (PC Act)-06
Tis Hazari Court/Delhi
State vs. A.V. Surender 7 of 7