Delhi District Court
State vs . Manish Choudhary Khurana Date: on 12 July, 2018
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 292/17 Digitally signed
PS : Jamia Nagar by MANISH
U/s : 3 DPDP Act
MANISH KHURANA
State Vs. Manish Choudhary KHURANA Date:
2018.07.12
Unique ID No. : 2194/18 14:18:26 +0530
Date of institution of case : 17.04.2018
Date of reserving the judgment : 09.07.2018
Date of pronouncement of judgment : 12.07.2018
J U D G M E N T
1. S. No. of the Case : 70/05/18
2. Date of Commission of Offence : 15.04.2017
3. Name of the complainant : SI Hardwari Lal
No. 234/SE
PS Jamia Nagar
4. Name,parentage & address of accused : Manish Choudhary
S/o Sh. Jai Prakash,
R/o H. No. 81, Jasola Village,
Sarita Vihar, New Delhi.
5. Offence complained of or proved : u/s 3 DPDP Act
6. Plea of Accused : Pleaded not guilty
7. Final Order : Acquitted
Case of the Prosecution
1. The prosecution case is that on 15.04.2017, at 06:15 p.m on one iron pole of Parking Gate, Barat Ghar, Jamia Milia Islamiya, New Delhi within FIR No. 292/17 PS : Jamia Nagar State Vs. Manish Choudhary Page no. 1 the jurisdiction of PS Jamia Nagar which is a public property and in public view pamphlets mentioning election campaigning words alongwith photograph and name of the accused were found affixed and that the same were affixed by the accused or with his authority which constituted commission of offence punishable u/s 3 of Delhi Prevention of Defacement of Property Act. FIR was registered and after investigation, chargesheet was filed against the accused Manish Choudhary for the offence u/s 3 DPDP Act.
2. Cognizance of the offence was taken and the accused was summoned, copies of chargesheet were supplied and thereafter, notice was framed against the accused for the offence punishable u/s 3 D.P.D.P Act to which the accused pleaded not guilty and claimed trial. During admission/denial of documents, accused admitted the factum of registration of FIR as Ex.A1, endorsement on rukka as Ex.A2 and certificate u/s 65B Evidence Act regarding registration of FIR as Ex.A3 vide his statement recorded u/s 294 Cr.PC.
3. In order to prove its case, prosecution examined three witnesses.
4. PW1 Ct. Manveer and PW3 ASI Hardwari Lal deposed that on 15.04.2017, they were on evening patrolling duty and during patrolling at about 06:15 p.m. they reached at Parking Gate, Barat Ghar, Jamia Milia Islamiya, New Delhi where they noticed that on one iron pole, pamphlets mentioning election campaigning words alongwith photograph and name of the accused were found affixed. Thereafter, IO/PW3 ASI Hardwari Lal took photographs of the spot by his mobile phone camera and informed the concerned SHO. IO/PW3 stated that he got the pamphlets removed from the abovesaid pole with the help of PW1 Ct. Manveer and seized four pamphlets vide seizure memo Ex.PW1/A. Thereafter, IO/PW3 FIR No. 292/17 PS : Jamia Nagar State Vs. Manish Choudhary Page no. 2 prepared rukka Ex.PW3/A and got the FIR registered through PW1 Ct. Manvir. IO / PW3 also prepared site plan at the spot. Thereafter, they took the case property to PS Jamia Nagar where it was deposited in the malkhana. IO/PW2 further stated that during investigation on 11.10.2017, he alongiwth Ct. Manvir went to the office of accused Manish Choudhary where he met with him and after inquiry from accused Manish Choudhary and one Neetu Choudhary, he came to know that pamphlets / posters were got published by accused Manish Choudhary and he also got the pamphlets affixed at the spot. He served notice u/s 41A Cr.P.C upon the accused Manish Choudhary Ex.PW3/C. He also stated that on 15.12.2017, he examined the printing press owner namely Sh. Pradeep regarding the publication of the pamphlets. Thereafter, he recorded statement of witnesses and filed the charge sheet against the accused in the court. Witnesses identified the accused, case property Ex.P1 (colly) and photographs of case property as Ex.P2 (colly).
5. PW2 Sh. Pradeep Kumar deposed that he was running a printing press at Kotla Mubarakpur with the name and style of Creative Land Advertising. He further deposed that on 02.04.2107 a person came to his office and gave order for printing of sticker and pamphlets for "Neetu" and he issued a bill / cash memo bearing serial no. 176 dated 08.04.2017 for the same and received the billed amount. He also stated that later on some unknown person collected the aforesaid printed material from his office and that Neetu Choudhary or Manish Choudhary never came to his office regarding placing of the order or collecting the printed material. He stated that during investigation police inquired him and he handed over him a copy of the bill / cash memo Mark A and now he could not produce the original of the abovesaid bill / cash memo as it had been FIR No. 292/17 PS : Jamia Nagar State Vs. Manish Choudhary Page no. 3 destroyed being more than one year old. This witness was cross examined by Ld. APP for State as he was stated to be resiling from his earlier statement u/s 161 Cr.PC and during his cross examination he denied that he told IO in his statement that Neetu Choudhary or her husband Manish Choudhary gave him an order for printing of stickers / pamphlets directly or paid consideration amount or that they received the printed material.
6. Thereafter, PE was closed and statement of accused was recorded u/s 313 Cr.PC, during which all the incriminating evidence was put to the accused which accused denied in its entirety and claimed innocence. Despite opportunity, no evidence was led by the accused in his defence.
7. I have heard the Ld APP for the State and Ld counsel for the accused and also carefully gone through the record.
Finding of the Court
8. Allegations against the accused are that on 15.04.2017, at 06:15 p.m on one iron pole of Parking Gate, Barat Ghar, Jamia Milia Islamiya, New Delhi, some pamphlets mentioning election campaigning words alongwith photograph and name of the accused were found affixed and that the same were affixed by the accused or with his authority which constituted commission of offence punishable u/s 3 of Delhi Prevention of Defacement of Property Act. FIR was registered and after investigation, chargesheet was filed against the accused Manish Choudhary for the offence u/s 3 DPDP Act.
9. Section 3(1) of the Act provides that whoever defaces any property in public view by writing or marking with ink, chalk, paint or any other material except for the purposes of indicating the name and address of the owner or occupier of such property, shall be punishable with FIR No. 292/17 PS : Jamia Nagar State Vs. Manish Choudhary Page no. 4 imprisonment for a term which may extend to one year, or with fine which may extend to 50,000 rupees or with both. Defacement has been defined by Section 2 (a) of the Act as including impairing or interfering with the appearance or beauty, damaging, disfiguring, spoiling or injuring in any other way whatsoever and the word deface shall be construed accordingly.
Writing has been defined by Section 2 (d) of the Act which says that the same includes printing, painting, decoration, lettering, ornamentation etc., produced by stencil.
10. In the case in hand, some pamphlets was allegedly affixed on iron poles of parking gate of Barat Ghar. The same question regarding the defacement of public property by affixing/hanging of posters/pamphlets on an iron pole arose before Hon'ble Delhi High Court in the matter titled as T S Marwah & Ors Vs. State 2008 (4) JCC 2561 wherein it was held that mere putting the banner on a pole will not get covered by section 3(1) of West Bengal Prevention of Defacement of Public Property Act, 1976.
11. In view of the provisions contained in section 2(a) and 3(1) of Delhi Prevention of Defacement of Public Property Act, 2007 which is para materia to the abovesaid West Bengal Prevention of Defacement of Public Property Act, 1976, it is clear that offence constituting defacement of public property is attracted when such type of defacement as mentioned in section 3(1) of the Delhi Prevention of Defacement of Public Property Act is done by writing or marking with ink, chalk, paint or any other material which is not the case herein.
12. PW3 ASI Hardwari Lal who is the investigating officer in the present case is also the complainant of the present case. It is well settled law that complainant should not be the investigating officer in the case so as to FIR No. 292/17 PS : Jamia Nagar State Vs. Manish Choudhary Page no. 5 rule out any illwill 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 illwill, 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.
13. Further, PW1 as well as PW3 stated that they were on patrolling on the said day but no departure or arrival entry for patrolling was filed on record to primafacie show that they were on patrolling duty on the said day which is a crucial aspect left by the prosecution. PW1 and PW3 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 PW1 and PW3 leaves much to be desired in order to prove the prosecution case beyond reasonable doubt.
14. Further, the prosecution has relied upon photographs of the case property Ex.P2 (colly.). PW3/IO claimed to have clicked the photographs Ex.P1 (colly.) from his private mobile phone but no certificate u/s 65 B Evidence Act in support of the photographs is placed on record. Merely filing of a photograph does not suffice and does not make it an admissible piece of evidence. It implies that the photographs of the spot remain unproved in the present case and cannot be relied upon in support of the prosecution case.
15. Further, no independent witness was joined by the prosecution despite the fact that the alleged spot is a busy residential area. PW3 ASI Hardwari Lal during his cross examination has admitted that he did not join any public witness and he also did not come across any person who might have seen anyone affixing the said pamphlets / posters at the spot.
FIR No. 292/17
PS : Jamia Nagar
State Vs. Manish Choudhary Page no. 6
It was within the reach of the IO to examine the independent witness to primafacie satisfy that the pamphlets / posters were hanging on the pole. No evidence has been brought on record to prove that the alleged pamphlets / posters were affixed by the accused or with his authority. Further no proof has been produced on record that the mobile phone numbers mentioned over the pamphlets / posters belonged to accused. Even PW2 Pradeep Kumar who allegedly printed the posters in question did not support the case of the prosecution and he stated in his deposition that accused Manish Choudhary did not come to him to place the order for printing the pamphlets or to collect the printed material.
16. Therefore, considering the abovesid facts and circumstances and the evidence on record, I am of the opinion that prosecution has failed to prove its case against the accused beyond reasonable doubts.
17. Accordingly, accused Manish Choudhary is held "not guilty" and is accordingly acquitted of the offence punishable u/s 3 D.P.D.P Act. Announced in the open court Today on 12.07.2018 (Manish Khurana) CMM/SE/District Court, Saket New Delhi/12.07.2018 FIR No. 292/17 PS : Jamia Nagar State Vs. Manish Choudhary Page no. 7