Delhi District Court
State vs . Anshul Gupta on 22 April, 2022
IN THE COURT OF SH. VINOD KUMAR MEENA
CHIEF METROPOLITAN MAGISTRATE,
DWARKA COURT, NEW DELHI.
FIR No. 72/2020
PS Vikaspuri
State Vs. Anshul Gupta
CIS No. : 7497/2020
Date of institution of the case : 20.10.2020
Date of commission of offence : 01.02.2020
Name of the complainant : HC Sudhir Kumar
Name of accused and address : Anshul Gupta,
S/o Sh. Pramod Gupta,
R/o Flat No. B-903, SB Youth
Appartment Sector-2, Dwarka
Delhi
Offence complained of : U/s 3 DPDP Act
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date on which judgment reserved : 22.04.2022
Date of judgment : 22.04.2022
- :: JUDGMENT :: -
1.Vide this judgment, I shall decide the present case u/s 3 DPDP Act (Delhi Prevention of Defacement of Property Act, 2007) filed by the prosecution against accused Anshul Gupta.
State Vs. Anshul Gupta FIR No.72 of 2020, PS Vikaspuri Page No. 1 of 10
2. Before deciding the present case, it is inevitable to mention here the brief facts of the case. It is the case of the prosecution that on 01.02.2020 at 05:30 pm, one board mentioning "The physics IIT- JEE tree NEET IIT-Roorkee (AIR 764) EX-FIT-JEE Faculty 8 years + Experience Best Result, AIR 52 NEET (2019) AIR 21 Neet (2018) AIR 51 NEET (2017) 8169869569 A-12, 2nd Floor, Opp. Aakash Institute, Vikaspuri Printed By: SVA # 9911519160" was found affixed on telephone pole, near A-12, Vikaspuri Delhi. Charge-sheet for commission of offence punishable u/s 3 DPDP Act was filed on the assumption that since the said board was bearing mobile number of the accused, hence he was the one who had got printed and affixed the board there.
3. Copy of charge-sheet and supporting documents were supplied to the accused. After hearing arguments, notice for offence punishable u/s 3 DPDP Act was framed against the accused to which he pleaded not guilty and claimed trial.
4. The prosecution, in support of its case, has examined two witnesses.
5. PW1 Bhoop Singh deposed that on 01.11.2019 he had prepared a board in a length of 2x3 in the name of "The Physics Tree" at the instance of a coaching owner, namely Anshul Gupta. He further deposed that he had issued a bill in respect of the same. He proved poster Ex. P1.
State Vs. Anshul Gupta FIR No.72 of 2020, PS Vikaspuri Page No. 2 of 10
6. During cross-examination, he deposed that he cannot produce the original bill. He denied the suggestion that he cannot produce the original bill as no such poster was prepared by him and copy bill is false and fabricated.
7. PW2/complainant/IO HC Sudhir deposed that on 01.02.2020 he alongwith Ct. Monu were on patrolling duty and during duty, they noticed one board at telephone pole having wording "The physics IIT-JEE tree NEET IIT-Roorkee (AIR 764) EX-FIT-JEE Faculty 8 years + Experience Best Result, AIR 52 NEET (2019) AIR 21 Neet (2018) AIR 51 NEET (2017) 8169869569 A-12, 2 nd Floor, Opp. Aakash Institute, Vikaspuri Printed By: SVA # 9911519160" at A-12, Vikaspuri. He further deposed that he clicked the photograph of that board from his phone. Thereafter, they detached the banner from telephone pole and seized the same vide seizure memo Ex. PW2/A. Thereafter, he prepared rukka Ex. PW2/B. He handed over the said rukka to Ct. Monu for registration of FIR. Ct. Monu went to the PS and got registered FIR and after registration of FIR, he come back at spot and handed over copy of FIR to PW-2. PW-2 prepared site plan Ex. PW2/C. Thereafter, they returned to PS. He arrested accused vide arrest memo Ex. PW2/D. He correctly identified accused before the court. He correctly identified the case property and photograph of the poster. The said poster is Ex. P1 and photograph is Ex.P2.
8. During cross examination, PW2 stated that he did not remember the number of DD entry prepared for patrolling duty. He State Vs. Anshul Gupta FIR No.72 of 2020, PS Vikaspuri Page No. 3 of 10 admitted that he had not seen who had affixed the said board on said telephone pole. He admitted that no public persons had joined investigation. He deposed that he had not placed certificate U/s 65 B of Indian Evidence Act regarding clicking the photographs of the poster.
9. No other witness was examined by the prosecution and hence, PE was closed.
10. Thereafter, separate statement u/s 313 CrPC of the accused was recorded, wherein all the incriminating material appeared in evidence against him, was put to him to which he stated that he is innocent and has been falsely implicated in this case.
11. Accused opted not to lead defence evidence.
12. Final arguments advanced by Ld. APP for State and ld. counsel for accused heard. Case file perused carefully.
13. It is argued by Ld. APP for State that accused has affixed the board on telephone pole situated at A-12, Vikaspuri, Delhi and rukka Ex.PW2/B was prepared by the IO and accordingly, the accused be convicted for offence punishable u/s 3 DPDP Act.
14. On the other hand, it is argued by Ld. Counsel for accused that prosecution has miserably failed to prove its case as there is nothing on record to show that the impugned board was affixed by State Vs. Anshul Gupta FIR No.72 of 2020, PS Vikaspuri Page No. 4 of 10 the accused. There are no public witnesses to substantiate the commission of the offence. The photograph is not annexed with certificate U/s 65 B of Indian Evidence Act. It is further submitted by Ld. Defence counsel that accused be acquitted.
15. After hearing the submissions of both the sides and before proceedings further with deciding the present case, it is inevitable to discuss Section 3 of the Delhi Prevention of Defacement of Property Act, 2007 which 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) Where any offence 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, director, partner, manager, secretary, agent or any other officer or persons concerned with the management thereof, as the case may be, shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence.
(3) The aforesaid penalties will be without prejudice to the provisions of section 425 and section 434 of the Indian Penal Code, 1860 (45 of 1860) and the provisions of the relevant Municipal Acts."
16. Though in the present matter a board mentioning "The State Vs. Anshul Gupta FIR No.72 of 2020, PS Vikaspuri Page No. 5 of 10 physics IIT-JEE tree NEET IIT-Roorkee (AIR 764) EX-FIT-JEE Faculty 8 years + Experience Best Result, AIR 52 NEET (2019) AIR 21 Neet (2018) AIR 51 NEET (2017) 8169869569 A-12, 2 nd Floor, Opp. Aakash Institute, Vikaspuri Printed By: SVA # 9911519160"
was found affixed on an electric pole, yet it has to be decided as to whether all the ingredients as mentioned in Section 3 DPDP Act have been fulfilled or not.
17. In the present matter, complaint was made by HC Sudhir i.e. PW2 and he was the one who took the photograph and prepared rukka Ex. PW2/B, he is also IO in this case.
18. PW2 stated that he alongwith Ct. Monu were on patrolling duty on the said date, but they could not produce/place on record the departure and arrival entry to prima facie show that they were on picket duty or visited the spot on the said day which is a crucial aspect left by the police. PW2 being present at the spot at the alleged time has to be proved beyond doubt and in the present case, it is a vital missing link in the prosecution case. Therefore, the testimony of PW2 leaves much to be desired in order to prove the prosecution's case beyond reasonable doubt.
19. The prosecution has relied upon photograph of spot. The photograph was allegedly taken through an electronic device i.e. mobile phone. It is pertinent to note that certificate u/s 65B of Indian Evidence Act has not been placed on record. Digital photograph taken from an electronic device is a piece of electronic State Vs. Anshul Gupta FIR No.72 of 2020, PS Vikaspuri Page No. 6 of 10 evidence and electronic evidence can only be proved by way of certificate u/s 65B of Indian Evidence Act, which has not been done in the present case for reasons best known to the police. Merely filing of photograph does not suffice and does not make it an admissible piece of evidence. It implies that the photograph of the spot remain unproved in the present case and cannot be relied upon in support of the prosecution case.
20. Further, no independent witness was joined in the investigation by the IO. PW has not explained in their 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 poster was affixed on the spot. No evidence has been brought on record to prove that the alleged poster was affixed by the accused or with his authority.
21. In the present matter, the allegation against the accused is that one board mentioning "The physics IIT-JEE tree NEET IIT-Roorkee (AIR 764) EX-FIT-JEE Faculty 8 years + Experience Best Result, AIR 52 NEET (2019) AIR 21 Neet (2018) AIR 51 NEET (2017) 8169869569 A-12, 2nd Floor, Opp. Aakash Institute, Vikaspuri Printed By: SVA # 9911519160" was found affixed on the telephone pole at A-12, Vikaspuri, Delhi. Now, it has to be seen whether installing of 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 State Vs. Anshul Gupta FIR No.72 of 2020, PS Vikaspuri Page No. 7 of 10 same as Section 3 of DPDP Act. For the sake of clarity, Section 3 of West Bengal Prevention of Defacement of Property Act, is reproduced here 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."
22. In a case titled as "T.S. Marwah & Others Vs. State", 2008 (4) JCC 2561, it has been held by Hon'ble High Court of Delhi: -
"... ... ... 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 defacements for the purpose of prosecution as is done by writing or marking with ink, chalk, paint or any other material."
23. The question which is to be decided in the present case is whether the present case is covered by the aforesaid judgment and whether the aforementioned judgment also applicable to offence u/s 3 of DPDP 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 (supra) would also be applicable to the provision of Section 3 of DPDP Act. In these circumstances, affixing of a board mentioning "The physics IIT-JEE tree NEET IIT- Roorkee (AIR 764) EX-FIT-JEE Faculty 8 years + Experience Best State Vs. Anshul Gupta FIR No.72 of 2020, PS Vikaspuri Page No. 8 of 10 Result, AIR 52 NEET (2019) AIR 21 Neet (2018) AIR 51 NEET (2017) 8169869569 A-12, 2nd Floor, Opp. Aakash Institute, Vikaspuri Printed By: SVA # 9911519160" would not amount to an offence u/s 3 of DPDP Act.
24. In view of the aforesaid discussion, it can be safely concluded that the prosecution has failed to prove its case against accused beyond reasonable doubt.
25. Further, 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 the accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
26. In the present case, in view of the above stated discussions, it can be 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 namely Anshul Gupta is hereby acquitted from the offence punishable under Section 3 of DPDP Act.
27. Accused has furnished personal bond and surety bond in terms of Section 437-A Cr.P.C. The same have been accepted and State Vs. Anshul Gupta FIR No.72 of 2020, PS Vikaspuri Page No. 9 of 10 shall remain in force for a period of six months from today.
28. File be consigned to Record Room.
Pronounced in the open court on this 22nd April 2022 (VINOD KUMAR MEENA) Chief Metropolitan Magistrate South West District, Dwarka Courts New Delhi State Vs. Anshul Gupta FIR No.72 of 2020, PS Vikaspuri Page No. 10 of 10