Delhi District Court
State vs . Shashi Tyagi on 7 April, 2022
IN THE COURT OF SH. VINOD KUMAR MEENA
CHIEF METROPOLITAN MAGISTRATE,
DWARKA COURT, NEW DELHI.
FIR No. 24/2020
PS Vikaspuri
State Vs. Shashi Tyagi
CIS No. : 4821/2020
Date of institution of the case : 29.08.2020
Date of commission of offence : 15.10.2020
Name of the complainant : HC Sanjeet Singh
Name of accused and address : Shashi Tyagi,
W/o Sh. Ajit Tyagi,
R/o H.No. Side IV-111
Vikaspuri, Delhi
Offence complained of : U/s 3 DPDP Act
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date on which judgment reserved : 07.04.2022
Date of judgment : 07.04.2022
- :: 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 Shashi Tyagi.
State Vs. Shashi Tyagi FIR No.24 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 15.10.2020 at 06:30 pm, one poster/hoarding written description "sabhi shetrawasiyo ko christmas ve nav varsh ki hardik shubhkamnaye, Dinesh Tyagi, Adhyaksh, Najafgarh zila congress committee, Abhishek Thyagi adhyaksh, Pashchim Dehli NSUI vidhansabha adhyaksh, Delhi Pradesh Congress committee manav adhikar & Cash for Gold, Ph-8448252352 Flat No.111, Side A, Vikas Puri" was found affixed on telephone pole near WZ-92 Budhella Village, Vikaspuri, New Delhi. Charge-sheet for commission of offence punishable u/s 3 DPDP Act was filed on the assumption that since the said poster/hoarding was bearing mobile number of the accused, hence she was the one who had got printed and affixed the poster/hoarding 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 she pleaded not guilty and claimed trial.
4. The prosecution, in support of its case, has examined one witness.
5. PW1/complainant/IO HC Sanjeet Singh deposed that on 15.01.2020, he alongwith Ct. Monu were on patrolling duty and during duty, they noticed one banner having wording "sabhi shetrawasiyo ko christmas ve nav varsh ki hardik shubhkamnaye, State Vs. Shashi Tyagi FIR No.24 of 2020, PS Vikaspuri Page No. 2 of 10 Dinesh Tyagi, Adhyaksh, Najafgarh zila congress committee, Abhishek Thyagi adhyaksh, Pashchim Dehli NSUI vidhansabha adhyaksh, Delhi Pradesh Congress committee manav adhikar & Cash for Gold, Ph-8448252352 Flat No.111, Side A, Vikas Puri" on telephone pole at Boddela Village, Vikaspuri, near WZ-92. He further deposed that he clicked the photograph of that banner from his phone. Thereafter, they detached the banner from telephone pole and seized the same. Thereafter, he prepared rukka Ex. PW1/A. 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-1. PW-1 prepared site plan Ex. PW1/B. Thereafter, they returned to PS. He arrested accused vide arrest memo Ex. PW1/C. He correctly identified accused before the court. He correctly identified the case property and photographs of the banner. The said poster is Ex. P1 and photograph is Ex.P2.
6. During cross examination, PW1 stated that he did not remember the number of DD entry prepared for patrolling duty. He admitted that he had not seen who had pasted the said hoarding on said telephone pole. He admitted that no public persons had joined investigation. He deposed that no investigation regarding manufacturing of the said banner. He deposed that he had not seen who had affixed the said hoarding on the telephone pole. He admitted that no complaint from BSNL was received to him regarding hanging the hoarding on telephone pole of BSNL. He deposed that he had not placed certificate U/s 65 B of Indian State Vs. Shashi Tyagi FIR No.24 of 2020, PS Vikaspuri Page No. 3 of 10 Evidence Act regarding clicking the photographs of the poster.
7. No other witness was examined by the prosecution and hence, PE was closed.
8. Thereafter, separate statement u/s 313 CrPC of the accused was recorded, wherein all the incriminating material appeared in evidence against her, was put to her to which she stated that she is innocent and has been falsely implicated in this case.
9. Accused opted not to lead defence evidence.
10. Final arguments advanced by Ld. APP for State and ld. counsel for accused heard. Case file perused carefully.
11. It is argued by Ld. APP for State that accused has affixed the poster/hoarding on telephone pole situated near WZ-92, Budhella Village, Vikaspuri, New Delhi and rukka Ex.PW1/A was prepared by the IO and accordingly, the accused be convicted for offence punishable u/s 3 DPDP Act.
12. 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 poster/hoarding was affixed by the accused. There are no public witnesses to substantiate the commission of the offence. The photographs are not annexed with certificate U/s 65 B of Indian Evidence Act. It is further State Vs. Shashi Tyagi FIR No.24 of 2020, PS Vikaspuri Page No. 4 of 10 submitted by Ld. Defence counsel that accused be acquitted.
13. 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."
14. Though in the present matter a poster/hoarding mentioning "sabhi shetrawasiyo ko christmas ve nav varsh ki hardik shubhkamnaye, Dinesh Tyagi, Adhyaksh, Najafgarh zila congress committee, Abhishek Thyagi adhyaksh, Pashchim Dehli NSUI State Vs. Shashi Tyagi FIR No.24 of 2020, PS Vikaspuri Page No. 5 of 10 vidhansabha adhyaksh, Delhi Pradesh Congress committee manav adhikar & Cash for Gold, Ph-8448252352 Flat No.111, Side A, Vikas Puri" was found affixed on telephone 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.
15. In the present matter, complaint was made by HC Sanjeet Singh i.e. PW1 and he was the one who took the photograph and prepared rukka Ex. PW1/A, he is also IO in this case.
16. PW1 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. PW1 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 leaves much to be desired in order to prove the prosecution's case beyond reasonable doubt.
17. 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 evidence and electronic evidence can only be proved by way of certificate u/s 65B of Indian Evidence Act, which has not been done State Vs. Shashi Tyagi FIR No.24 of 2020, PS Vikaspuri Page No. 6 of 10 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.
18. 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.
19. In the present matter, the allegation against the accused is that one poster/hoarding mentioning "sabhi shetrawasiyo ko christmas ve nav varsh ki hardik shubhkamnaye, Dinesh Tyagi, Adhyaksh, Najafgarh zila congress committee, Abhishek Thyagi adhyaksh, Pashchim Dehli NSUI vidhansabha adhyaksh, Delhi Pradesh Congress committee manav adhikar & Cash for Gold, Ph- 8448252352 Flat No.111, Side A, Vikas Puri" was found affixed on telephone pole near WZ-92 Budhella Village, Vikaspuri, New Delhi. Now, it has to be seen whether installing of poster/hoarding 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 State Vs. Shashi Tyagi FIR No.24 of 2020, PS Vikaspuri Page No. 7 of 10 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."
20. 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."
21. 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 poster/hoarding mentioning "sabhi shetrawasiyo ko christmas ve nav varsh ki hardik shubhkamnaye, Dinesh Tyagi, State Vs. Shashi Tyagi FIR No.24 of 2020, PS Vikaspuri Page No. 8 of 10 Adhyaksh, Najafgarh zila congress committee, Abhishek Thyagi adhyaksh, Pashchim Dehli NSUI vidhansabha adhyaksh, Delhi Pradesh Congress committee manav adhikar & Cash for Gold, Ph- 8448252352 Flat No.111, Side A, Vikas Puri" would not amount to an offence u/s 3 of DPDP Act.
22. 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.
23. 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.
24. 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 Shashi Tyagi is hereby acquitted from the offence punishable under Section 3 of DPDP Act.
25. Accused has furnished personal bond and surety bond in State Vs. Shashi Tyagi FIR No.24 of 2020, PS Vikaspuri Page No. 9 of 10 terms of Section 437-A Cr.P.C. The same have been accepted and shall remain in force for a period of six months from today.
26. File be consigned to Record Room.
Pronounced in the open court on this 07th April 2022 (VINOD KUMAR MEENA) Chief Metropolitan Magistrate South West District, Dwarka Courts New Delhi State Vs. Shashi Tyagi FIR No.24 of 2020, PS Vikaspuri Page No. 10 of 10