Delhi District Court
State vs . Harish Singh on 18 October, 2022
IN THE COURT OF MS. ARCHANA BENIWAL
CHIEF METROPOLITAN MAGISTRATE,
DWARKA COURT, NEW DELHI.
FIR No. 106/2020
PS BHD Nagar
State Vs. Harish Singh
CIS No. : 6244/2020
Date of institution of the case : 25.09.2020
Date of commission of offence : 01.02.2020
Name of the complainant : HC Sunil Kumar
Name of accused and address : Harish Singh
S/o Mohan Singh
R/o H.No. 46, Vnoba Enclave,
Najafgarh, Delhi.
Offence complained of : U/s 3 DPDP Act
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date on which judgment reserved : 18.10.2022
Date of judgment : 18.10.2022
- :: 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 Harish Singh.
State Vs. Harish Singh FIR No.106 of 2020, PS BHD Nagar Page No. 1 of 7
2. It is the case of the prosecution that on 01.02.2020 at 05:20 PM, at CRPF Market to Dichaon Road, Sainik Enclave, Par-1, Najafgarh, New Delhi one banner/hording with written description "Harish Academy Coaching for Classes IXth to XIIth PH. No. 9910616746, 8700433805 etc" was found affixed on electric pole. Charge-sheet for commission of offence punishable u/s 3 DPDP Act was filed against accused Harish Singh as the said description was bearing his mobile number and during the investigation, it emerged that he was the one who had got the said board printed and affixed the same 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 one witness.
5. PW1 /complainant/ASI Sunil deposed that on 01.02.2020, he alongwith HC Deepak was on patrolling duty in Beat Area, Sainik Enclave, Part-I, Dichaun Road vide DD No. 39B Ex PW 1/A. During their patrolling duty, at about 5:30 p.m they reached at CRPF market, Sainik Enclave, Part-I, Dichaun Road and saw hoarding fixed on the electric pole situated on the road. The said hoarding was containing the advertisement in words "Harish Academy Coaching for Classes IXth to XIIth PH. No. 9910616746, 8700433805". He clicked the photograph of the hoarding from his mobile phone. Thereafter, he prepared rukka Ex PW 1/B and handed over the rukka to HC Deepak for registration of State Vs. Harish Singh FIR No.106 of 2020, PS BHD Nagar Page No. 2 of 7 FIR. HC Deepak went to PS BHD Nagar and got register the FIR. After registration of FIR he came back at the spot. PW-1 prepared site plan Ex. PW1/C and thereafter, he called at mobile number given on the board, upon which accused Harish Singh replied. On 09.02.2020, he served notice u/s 41A Cr.P.C Ex PW 1/D to accused Harish Singh. He correctly identified accused as well as the photograph of case property Ex.P before the court. He was cross-examined by Ld. defence counsel.
6. Vide separate statement recorded u/s 294 Cr.P.C, accused had admitted the documents i.e. FIR No. 106/2020 vide Ex. A1, endorsement of rukka by DO W/HC Anita on complaint Ex. A2, certificate u/s 65B Indian Evidence Act issued by DO W/HC Anita Ex. A3. Hence, the above documents were ordered to be read in evidence without its formal proof and the examination of DO/WHC Anita was dispensed with. HC Sunil Kumar, PW at serial no.3 of list of witnesses is dropped being repetitive witness.
7. No other witness was examined by the prosecution and hence, PE was closed.
8. Thereafter, separate statement u/s 313 Cr.P.C. of the accused was recorded, wherein all the incriminating material that 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. Accused opted not to lead defence evidence.
9. Final arguments advanced by Ld. APP for State and ld. counsel State Vs. Harish Singh FIR No.106 of 2020, PS BHD Nagar Page No. 3 of 7 for accused heard. Case file perused carefully.
10. Section 3 of the Delhi Prevention of Defacement of Property Act, 2007 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."
11. Though in the present matter, one banner / hoarding with description "Harish Academy Coaching for Classes IXth to XIIth PH. No. 9910616746, 8700433805 etc" was found affixed, yet it has to be decided as to whether all the ingredients as mentioned in Section 3 DPDP Act have been fulfilled or not.
12. In the present matter, complaint was made by ASI Satish Kumar State Vs. Harish Singh FIR No.106 of 2020, PS BHD Nagar Page No. 4 of 7 i.e., PW-1 and he was the one who took the photograph and prepared rukka Ex. PW1/B.
13. Further, no independent witness was joined in the investigation by the IO. PW has not explained in his testimony as to why no public witness had joined in the investigation. It was within the reach of the IO to examine the independent witnesses to corroborate the fact that the banner / hoarding was affixed on the spot. No evidence has been brought on record to prove that the alleged banner / hoarding was affixed by the accused or with his authority. In the present matter, complaint was made by ASI Sunil i.e., PW1 and he was the one who took the photograph and prepared rukka Ex. PW1/B. He is also IO in this case. No Negatives / certificate u/s 65-B of Indian Evidence Act have been filed by the IO.
14. In the present matter, the allegation against the accused is that one banner / hoarding with description "Harish Academy Coaching for Classes IXth to XIIth PH. No. 9910616746, 8700433805 etc" was found affixed on the electric pole. Now, it has to be seen whether affixing of the banner / 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 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 State Vs. Harish Singh FIR No.106 of 2020, PS BHD Nagar Page No. 5 of 7 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."
15. 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."
16. 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, one banner / hoarding with description "Harish Academy Coaching for Classes IXth to XIIth PH. No. 9910616746, 8700433805 etc" found affixed, would not amount to an offence u/s 3 of DPDP Act.
17. In view of the aforesaid discussion, it can be safely concluded that the prosecution has failed to prove its case against accused beyond a reasonable doubt.
State Vs. Harish Singh FIR No.106 of 2020, PS BHD Nagar Page No. 6 of 7
18. 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.
19. 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 Harish Singh is hereby acquitted from the offence punishable under Section 3 of DPDP Act.
Digitally signed by20. Accused be set at liberty. ARCHANA ARCHANA BENIWAL BENIWAL Date: 2022.10.18 Pronounced in the open court on this 17:00:44 +0530 18th October 2022 (ARCHANA BENIWAL) Chief Metropolitan Magistrate South West District, Dwarka Courts New Delhi State Vs. Harish Singh FIR No.106 of 2020, PS BHD Nagar Page No. 7 of 7