Delhi District Court
State vs Preeti on 28 August, 2023
IN THE COURT OF SH. ANUBHAV JAIN
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
SHAHDARA DISTRICT, DELHI.
State Vs. Preeti
FIR No.: 88/2012
PS: Vivek Vihar
JUDGMENT
A Case Identification 81332/2016
Number
B Name of the SI Sachin Tomar
Complainant
C Name of the accused & Preeti
his parentage and W/o Late Sh. Paramjeet Singh
address R/o H. no. C-228, 1st floor,
Vivek Vihar Delhi.
D Date of commission of 07.04.2012
the offences
E Date of Institution of the 06.07.2012
case
F Offences charged Offences u/s 3 of Delhi Prevention of
Defacement of Property Act & sec. 188
IPC
G Plea of accused Pleaded not guilty
H Order Reserved on 02.08.2023
I Date of Pronouncement 28.08.2023
of judgment
J Final Order Accused is acquitted of all the offences
charged.
K State represented by Sh. Arun Kumar Mavi, Ld. APP for the
State.
FIR No. 88/2012 PS : Vivek Vihar State Vs. Preeti Page No. 1/9
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE
1. Present accused is produced before the court to stand trial for the offences punishable u/s 3 of Delhi Prevention of Defacement of Property Act & sec. 188 IPC
2. In brief, the facts of the case as per the prosecution are that on 07.04.2012 at about 04.35 pm, IO SI Sachin Tomar along with HC Kanwal Pal were on patrolling duty and when they reached at in front of House no. C-233, they saw a hoarding board on a Electricity Pole in middle of the park. It is further stated that the said hoarding board was of Bahen Preeti, who was an independent candidate of MCD General Election, 2012. It is further stated that the length and breadth of the hoarding was about 3.5x5.5 feet containing photograph of the candidate Preeti and having a message of "Aaiye milkar sawaren apna chhetra......". It is further stated that when they reached at the House No. C-153, they saw another hoarding in the name of Bahen Preeti on the electricity pole inside the park. It is further stated that video-graphy of both the hoardings were got done by the IO & IO Seized the same vide Seizure Memo. Thereafter, IO prepared the Rukka and got the FIR registered.
During the course of investigation , IO recorded the statement of witnesses, prepared the site plan, obtained the requisite complaint U/s 195 Cr.PC from ACP Vivek Vihar and collected the necessary notification regarding the MCD General Election 2012 from concerned Authority. After completion of investigation, IO filed the charge-sheet against accused Preeti for the offences punishable u/s 3 of Delhi Prevention of Defacement of Property Act & sec. 188 IPC in the Court.
FIR No. 88/2012 PS : Vivek Vihar State Vs. Preeti Page No. 2/93. Upon filing of the charge-sheet, this court vide order dated 06.07.2012 took the cognizance of the offences against accused and summons were issued. Accused appeared before the court and copies of the charge-sheet were supplied on 22.02.2013 in compliance of Section 207 Cr.PC.
4. Further, Ld. Predecessor Court vide order dated 21.05.2013 framed charge against accused U/s 3 of Delhi Prevention of Defacement of Property Act & sec. 188 IPC, to which, accused pleaded not guilty and matter was fixed for PE.
5. During the course of evidence, prosecution has examined following four witnesses :
PW1 /ASI Rajender was the duty officer, who has proved registration of present FIR. He has further proved present registered FIR Ex.PW1/A & endorsement on rukka made by him Ex.PW1/B. PW2 / Abhishek Sharma has proved the CD ExP-1 containing videography of the hoardings affixed on the electric pole in front of Vivek Vihar park.
PW3 / ASI Kanwar Pal has deposed similar in lines of PW4 / IO SI Sachin Tomar and same is not being reiterated here for the sake of brevity.
PW4 / SI Sachin Tomar has deposed that on 07.04.2012, he was posted at PS Vivek Vihar and he along with ASI Kanwar Pal were on patrolling duty and when they reached at in front of House no. C-233, they saw a hoarding board on a Electricity Pole in middle of the park. He further FIR No. 88/2012 PS : Vivek Vihar State Vs. Preeti Page No. 3/9 deposed that the said hoarding board was of Bahen Preeti, who was an independent candidate of MCD General Election, 2012 and the length and breadth of the hoarding was about 3.5x5.5 feet containing photograph of the candidate Preeti and having a message of "Aaiye milkar sawaren apna chhetra......". He further deposed that he called a videographer at the spot and made video-graphy of the hoarding, brought down said hoarding from the electricity pole and seized the same vide Seizure Memo (Ex. PW3/B). He further deposed that when we reached at the House No. C-153, they saw another hoarding in the name of Bahen Preeti on the electricity pole inside the park and that the same hoarding was also of same length and breadth and having same particular as the previous one and the second hoarding was also videographed and seized vide Seizure Memo (Ex.PW3/A). Witness further deposed that thereafter, he prepared the Rukka (Ex.PW4/A) and got the FIR registered through HC Kanwar. Thereafter, he prepared site plan (Ex. PW4/B) and made enquiry at spot regarding the hoarding and went to the house of accused Preeti, where upon inquiry, she disclosed that she had put the hoarding on the electricity pole. Witness further stated that thereafter, they came back at the PS and deposited the case property in the Malkhana and he recorded the statement of witnesses. It is further stated that he also obtained the requisite sanction U/s 195 Cr.PC from ACP, Vivek Vihar and also collected the necessary notification regarding the MCD General Election 2012 from concerned Authority. He further deposed that on 28.04.2012, CD of Videography was handed over to him by videographer Abhishek and he seized the same vide Seizure Memo (Ex.PW4/C). PW4 further deposed that after completion of investigation, he prepared the charge-sheet and submitted in the court. Witness correctly identified the accused in the court.FIR No. 88/2012 PS : Vivek Vihar State Vs. Preeti Page No. 4/9
6. Further, after completion of prosecution evidence, same was closed vide order dated 17.10.2022 and matter was listed for statement of accused u/s 313 Cr.PC.
7. Statement of accused u/s. 313 Cr.P.C was recorded on 04.11.2022, wherein accused denied the allegations so levelled against her by the prosecution and stated that she is falsely implicated in the present case by the police officials under the influence of other political rivals. She further did not avail the opportunity to lead defence evidence and the matter was fixed for final arguments.
8. Section 3 of the Delhi Prevention of Defacement of Property Act, 2007 (herein after referred simply as 'the Act') provides:
"3. 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."
9. Defacement has been defined under section 2(a) and writing under section 2(d) of the Act. As per section 3 of the Act the defacement of the property is punishable if the defacement has been done by writing or by marking; writing which as per section 2(d) of the Act includes 'printing, painting, decoration, lettering, ornamentation etc., produced by stencil.' Here the words of section 2(d) of the Act to be noticed are 'produced by stencil'. Stencil in common parlance means a sheet of material (metal, plastic, cardboard, waxed paper, silk, etc.) that has been perforated with a pattern (printing or a design); ink or paint can pass through the perforations to create the printed pattern on the surface below. If a poster or a hording is FIR No. 88/2012 PS : Vivek Vihar State Vs. Preeti Page No. 5/9 put on the wall that would not be a writing 'produced by stencil', though the poster or the hording might have been itself prepared by stencil.
10.The Ld. Addl. PP for the State has argued that if a poster or a hording is produced by 'stencil' and then put on public property that would be covered under the provisions of section 3 of the Act, otherwise section 3 of the Act would become a dead letter if someone produces for example a poster by stencil and then by it defaces any property in public view by sticking or pasting such poster on wall.
11.Writing means someone writing by ink, chalk or paint etc. directly on a paper other paper like material (for example cloth) by hand. By the definition of 'writing' in section 2(d) of the Act has been given an artificial meaning which would not ordinarily been covered under the normal connotation of the word writing. But, the word writing as defined u/s 2(d) of the Act would not cover the instance of which the Ld. Addl. PP has given the example, though the act of putting poster would be defacing the property in public view.
12.The other part of section 3 of the Act is defacing the property by 'marking with ink, chalk, paint or any other material.' With respect to this the Hon'ble High Court in T.S. Marwah v. State (Delhi) has observed:
"A bare look at Section 3(1) goes to show that the offences committed therein would be punishable only if the defacement is done in respect of property in public view by writing or marking with ink, chalk, paint or any other material. There is nothing in the charge sheet filed against the petitioners to indicate that any property was defaced by writing or marking with ink, chalk, paint or any other material. The only allegation is that the banner was put on an electric pole. Mere putting of the banner will not get covered by Section 3(1) of The West Bengal Prevention of Defacement of Property Act, 1976. It is true that FIR No. 88/2012 PS : Vivek Vihar State Vs. Preeti Page No. 6/9 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 only such type of defacement for the purpose of prosecution as is done by writing or marking with ink, chalk, paint or any other material."
13.The above said observation has been made with respect to West Bengal Prevention of Defacement of Property Act, 1976; however the charging section of section 3 of the said Act is pari materia to section 3 of the Delhi Prevention of Defacement of Property Act, 2007 which has been quoted above.
14.The only thing now to be considered by the court is if 'any other material' would cover defacement of any property in public view by any means which includes anything which is conceivable by which the property might be defaced as per the definition of defacement given in the Act under section 2(a).
15.Had the intention of the legislature been to punish the offender for defacement for any reason which led to the defacement of the property in public view there was no occasion to define writing as per section 2(d) of the Act and punishing it under section 3 of the Act for defacing the property by 'writing or marking'.
16.It is well settled that any penal statue is to be construed strictly and therefore the words, 'any other material' in section 3 of the Act would not cover everything under the sky with which the property might or can be defaced, but the words 'any other material' would take the colours and meanings from the words which preceded it i.e. from the words 'ink, chalk FIR No. 88/2012 PS : Vivek Vihar State Vs. Preeti Page No. 7/9 and paint'.
17.The manner in which it is alleged that the accused had defaced the property in public view was that the accused has placed a hoarding containing her photograph on an electricity pole. In light of the judgment T. S. Marwah (SUPRA) the same cannot be considered as defacement of property under section 3 of Delhi Prevention of Defacement of Property Act, 2007.
18. The accused herein has also been charged for the offence punishable u/s 188 IPC. It is alleged that by placing the said banner / poster upon the electricity pole, was in contravention with the order / mode of code of conduct dt. 31.03.2012 passed by State Election Commission, NCT of Delhi, with regard to elections in three Municipal Corporation of Delhi, 2012.
19. The prosecution has placed on record copy of said Code of Conduct and reliance was placed upon clause 2 of the same wherein it is stated :
"It is clarified that no hoardings, banners are allowed anywhere except at places authorized by MCD for which separate permission from MCD has to be taken. All other posters will be removed and cases registered under section Delhi Prevention of Defacement of Property Act, 2009".
20. It is pertinent to state in here that the accused in her statement under sec. 313 Cr.PC have categorically stated that she has not placed the said banner and same was done under the influence of political rivals. Be that as it FIR No. 88/2012 PS : Vivek Vihar State Vs. Preeti Page No. 8/9 may, it is for the prosecution to show that the said banner was put up by or upon asking of the accused herein. No such witness has been examined by the prosecution to show that the said banner was placed by accused only. Further, IO for the reason best known to himself, has examined the printing press who has printed the said banner to ensure that same was printed and placed at behest of accused herein.
21.It is further pertinent to state in here that for an offence u/s 188 IPC, it has to be shown that disobedience of order by public servant causes or tend to cause obstruction, annoyance, injury, risk of obstruction, danger to human life, health or safety or causes riot or affray. In the present case, even if for the sake of argument, it is believed that the said banner was placed by the accused herein, there is nothing to show that placing of said banner causes obstruction, annoyance, injury, risk of obstruction, danger to human life, health or safety or causes riot or affray.
22.In view of the law & facts discussed above, The prosecution has failed to prove its case against accused beyond reasonable doubt. Accordingly the accused Preeti is hereby acquitted for the offences u/s 3 of Delhi Prevention of Defacement of Property Act & sec. 188 IPC.
Announced in the Open Court (ANUBHAV JAIN)
on dated 28th Augutst, 2023 ACMM/SHAHDARA DISTRICT/
KKD COURTS / DELHI/ 28.08.2023
Present judgment consisted of 09 pages and each page bears my signatures.
(ANUBHAV JAIN) ACMM/ SHD/KKD COURTS/ DELHI/28.08.2023 FIR No. 88/2012 PS : Vivek Vihar State Vs. Preeti Page No. 9/9