Delhi District Court
State vs . Manohar Nagar. on 30 May, 2012
IN THE COURT OF SHRI PRASHANT SHARMA,
METROPOLITAN MAGISTRATE 06,
SAKET COURTS, NEW DELHI.
Serial No. : 146/3 dated 03.2.09
Unique Identification No. 02406R0479362009
State Vs. Manohar Nagar.
FIR No. 337/08
P. S. R K Puram
U/s 3 W. B. Act.
JUDGMENT:
1.Srl. No. of the case & Date of institution 146/3 & 03.2.2009
2.Date of commission of offence 01.09.08
3.Name of the complainant HC Surender Mohan, No. 129/SW, PS R K Puram, New Delhi.
4.Name of the accused Mr. Manohar Nagar, S/o Sh. S S Nagar, H. NO. 5, Hasan Pur, I P Extension Delhi.
5.Nature of offence complained of 3 W . B. Act
6.Plea of the accused person Accused pleaded not guilty
7. Date reserved for order 30.5.2012
8.Final Order Acquitted.
9.Date of such order 30.5.2012 10.Date of Institution : 3.2.2009 FIR No. 337/08 P. S. R K Puram Page No. 1 of 7 Date of order reserved : 30.5.2012 Date of pronouncement : 30.5.2012 BRIEF FACTS OF THE CASE:
1. Accused in this case, was acquitted u/s 258 Cr.PC.
2. Prosecution story was that on 1.9.08, at unknown time on the wall of Government park Sector07, R K Pura, near Malai Mandir, new Delhi where they found photographs for campaign for election for the post of Vice President for DUSU election of the accused, found pasted on the wall. The said posters was seized and case U/s 3 West Bengal Prevention of defacement of property Act was registered against the accused, whose photographs were placed posters. During investigation, site plan was prepared, statement of witnesses were recorded, accused was arrested, case property was seized and after completing investigation, charge sheet was filed.
3. After finding prima facie case against the accused, summons were issued against the accused by the court. Subsequently, charge was framed to which accused pleaded not guilty and claim trial and case was subsequently fixed for PE.
4. In order to prove its case the prosecution has examined only one witness. PW 1 ASI Baljit Singh deposed that on 9.2.08 he was posted at PS R K Puram. That on that day, he received rukka sent by HC Surender Mohan, through Ct. Lalit. That he had registered the FIR in question Ex. PW1/A and had made endorsement on the rukka Ex. PW1B.
FIR No. 337/08 P. S. R K Puram Page No. 2 of 75. At that stage, during prosecution evidence accused preferred an application u/s 258 Cr.PC, requesting that proceeding may be stopped. Accused, relied upon the judgment T S Marvah Vs. State 2008 (IV) JCC 2561, wherein it was held that section 3 (1) West Bengal prevention of defacement of property Act 1976, referred only to such type of the defacement, as is done by writing of marking with ink, chalk or pain or any other material. In the said case, factually, one banner consisting of photograph of accused was affixed on an electric poll. On the basis of the said fact, prosecution was initiated against the accused, under the Act in question. Hon'ble Delhi High Court, had held that the pasting of banner, on the electric poll would not attract the liability of an accused, under the Act in question. Relying upon the said judgment, it was requested vide the application u/s 258 Cr.PC, that proceeding may be stopped in this case also.
6. Allegations of the prosecution, in this case,were that posters of campaign for election for the post of Vice President for DUSU election accused was found on the wall , with photograph affixed on it. That on the basis of the said factum of pasting of the poster, prosecution was initiated against the accused.
7. Section 2(aa) of the Act in question, defines defacement vide an inclusive definition, stating that it includes impairing or interfering with the appearance beauty , damaging, distinguishing, spoiling or injury any other way and the word deface shall be construe accordingly. Section 3(1) of the said Act talks about punishment for defacement of property by stating that whoever defaces any FIR No. 337/08 P. S. R K Puram Page No. 3 of 7 property in public view by writing or by marking with ink, chalk, pain or any other material except for the purpose of indicating the memo and address of the owner of occupying the such property, shall be punished accordingly.
8. This case, squarely fell under the domain of the case, T S Marwah (Supra). Factually, in this case also, chalk, paint etc. as per the mandate of section 3(1) of Act in question, were not used. Rather, posters were affixed on the wall.
9. Moving further, after reading, the aforesaid provisions, I find that the aim of the legislature, was to punish those, who defaces any property, in a manner, which is permanent in nature. Putting of banners or posters, will not attract the liability of the wrong doer, as the said banner or poster, under normal circumstances, can be removed without affecting the basic structure or appearance of the article, on which they are affixed. Aforesaid, reasoning, seemed to be one off, aspect, borne in mind, in the case of T S Marwah (Supra). Apart from the said reasoning, it was categorically held that banners posting on the wall/poles, will not attract to the liability of the persons whose banners were affixed.
10. Keeping in mind, the aforesaid reasoning, I was of the view that the case of the accused, was also covered by the aforesaid case law.
11. Accordingly, even if prosecution evidence, was taken true and correct, then also it would not have resulted in conviction of accused. If that be so, then there was no fun, in proceeding with the trial of this case. Therefore, the application u/s 258 Cr.PC was FIR No. 337/08 P. S. R K Puram Page No. 4 of 7 allowed.
12.In the absence of any fruitful purpose, in proceeding with the case, mandatory requirement of recording of statement of accused u/s 313 Cr.PC was dispensed with.
13.Keeping in mind the aforesaid reasoning, accused was acquitted u/s 3 West Bengal Act.
14.Keeping in mind the discussion made above, I find that prosecution failed to prove its case beyond reasonable doubt for the offence punishable U/s 3 West Bengal Prevention of defacement of property Act .Accordingly, accused Manohar Nagar is acquitted for the commission of the offences punishable U/s 3 West Bengal Prevention of defacement of property Act. Previous bail bond will remain on record till expiry of six months from now as per section 437A Cr. P.C. This is done as accused persons did not furnish fresh bail bond. File be consigned to record room after necessary compliance.
Announced in open court ( PRASHANT SHARMA ) today i.e. 30.5.2012. M.M.06, Saket Courts, New Delhi.
30.5.2012
FIR No. 337/08
P. S. R K Puram Page No. 5 of 7
State Vs. Manohar Nagar.
FIR No. 337/08
P. S. R K Puram
U/s 3 W. B. Act.
30.5.2012
Present : Ld. APP for State.
Accused present with counsel.
An application for stopping of proceedings u/s 258 cr.PC is pending adjudication. Arguments heard.
The said application is perused and considered. Accused, relied upon the judgment T S Marvah Vs. State 2008 (IV) JCC 2561, wherein it was held that section 3 (1) West Bengal prevention of defacement of property Act 1976, referred only to such type of the defacement, as is done by writing of marking with ink, chalk or pain or any other material. In the said case, factually, one banner consisting of photograph of accused was affixed on an electric poll. On the basis of the said fact, prosecution was initiated against the accused, under the Act in question. Hon'ble Delhi High Court, had held that the pasting of banner, on the electric poll would not attract the liability of an accused, under the Act in question. Relying upon the said judgment, it was requested vide the application u/s 258 Cr.PC, that proceeding may be stopped in this case also.
Allegations of the prosecution, in this case,were that posters of accused was found on the wall of government park, sector7, R K Puram, with photograph affixed on it. That on the basis of the said factum of pasting of the poster, prosecution was initiated against the accused This case, squarely fell under the domain of the case, T S Marwah (Supra). Factually, in this case also, chalk, paint etc. as per FIR No. 337/08 P. S. R K Puram Page No. 6 of 7 the mandate of section 3(1) of Act in question, were not used. Rather, posters were affixed on the wall.
Thus, application, stands allowed.
Vide my separate judgment of even date accused is acquitted for the commission of offence U/s 3 West Bengal Prevention of defacement of property Act. Previous bail bond will remain on record till expiry of six months from now as per section 437A Cr. P.C. This is done as accused persons did not furnish fresh bail bond. File be consigned to record room after necessary compliance.
( PRASHANT SHARMA ) M.M.6, Saket Courts, New Delhi 30.5.2012 FIR No. 337/08 P. S. R K Puram Page No. 7 of 7