Delhi District Court
State vs . Sandeep Mehta on 29 May, 2019
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
FIR No. 745/17
PS : Vasant Kunj North
U/s : 3 DPDP Act
State Vs. Sandeep Mehta
Unique ID No. : 18465/18
Date of institution of case : 30.11.2018
Date of reserving the judgment : 29.05.2019
Date of pronouncement of judgment : 29.05.2019
JUDGMENT
1. S. No. of the Case : 18465/18
2. Date of Commission of Offence : 29.12.2017
3. Name of the complainant : ASI Vinod Kumar
No. 08/SD
PS Vasant Kunj North
New Delhi.
4. Name,parentage & address of accused : Sandeep Mehta
S/o Sh. Sunil Kumar Mehta
R/o H. No. 19, Road No. 20,
East Punjabi Bagh,
New Delhi.
5. Offence complained of : 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 29.12.2017 at about 7.30 pm on the electricity pillar opposite DPS School, Nelson Mandela Marg towards C9, Vasant Kunj road, Delhi within the jurisdiction of PS Vasant Kunj North, FIR No. 745/17 State Vs. Sandeep Mehta 1/6 a flex board measuring 3x2 mentioning the words "Vidyamandir Classes xxxxxxxxx" alongwith mobile numbers, was found affixed which was affixed by the accused or at his behest and in public view 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 Sandeep Mehta 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. Vide statement recorded u/s 294 Cr.PC accused admitted the factum of registration of present FIR as Ex.A1, endorsement made by duty officer on the rukka as Ex.A2 and certificate u/s 65B Evidence Act regarding registration of FIR as Ex.A3.
3. In order to prove its case, prosecution examined three witnesses.
4. PW1 HC Vinay Kumar proved the copy of FIR as Ex.PW1/A (OSR), endorsement on rukka as Ex.PW1/B and certificate u/s 65B Evidence Act regarding registration of FIR as Ex.PW1/C.
5. PW2 HC Suresh Kumar and PW3 ASI Vinod Kumar deposed that on 29.12.2017 while they were on petrolling from Nelson Mandela Marg to C9, Vasant Kunj, New Delhi, at about 7.30 pm they reached at DPS School and saw that one flex board of "Vidyamandir Classes, IIT, JEE etc" was affixed on the electric pole at the divider. Thereafter, PW3/IO ASI Vinod Kumar took the photographs of the flex board from his mobile phone. PW3/IO further deposed that he called on the mobile phone number which was mentioned on the flex board and the person who attended the call told him that his office address was at Kamal Cinema Complex, 2nd Floor, Safadarjung Enclave. Thereafter, PW3/IO removed FIR No. 745/17 State Vs. Sandeep Mehta 2/6 the flex board and took it into possession vide seizure memo already Ex.PW2/A. Thereafter, PW3/IO prepared rukka Ex.PW3/A and got the FIR registered through PW2 HC Suresh Kumar. Thereafter PW3/IO prepared the site plan already Ex.PW2/B. PW3/IO ASI Vinod Kumar further deposed that on 24.03.2018, notice u/s 41A Cr.PC Ex.PW3/B was served to Sandeep Mehta for 26.03.2018. Pabandinama Ex.PW3/C of accused was also prepared. PW3/IO ASI Vinod Kumar recorded the DD Entry No. 35B Ex.PW3/D and he also took the copy of the passport of accused Sandeep Mehta. Witnesses identified the accused Sandeep Mehta in the Court and case property i.e flex board as Ex.P1.
6. Thereafter, PE was closed and statement of accused was recorded u/s 313 r/w s. 281 Cr.PC, during which all the incriminating evidence was put to the accused to 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. Allegation against the accused are that on 29.12.2017 at about 7.30 pm on the electricity pillar opposite DPS School, Nelson Mandela Marg towards C9, Vasant Kunj road, Delhi, a flex board measuring 3x2 mentioning the words "Vidyamandir Classes xxxxxxxxx" alongwith mobile numbers, was found affixed which was affixed by the accused or at his behest which constituted commission of offence punishable u/s 3 of Delhi Prevention of Defacement of Property 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 FIR No. 745/17 State Vs. Sandeep Mehta 3/6 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 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. Property has been defined by Section 2 (c) of the Act which says that it includes any building, hut, structure, wall, tree, fence, post, pole or any other erection.
10. In the case in hand, a flex board was allegedly affixed on an electricity pole. The same question regarding the defacement of public property by hanging of a board on an electricity 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 Vinod Kumar who is the investigating officer in the present FIR No. 745/17 State Vs. Sandeep Mehta 4/6 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 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. Reliance placed on the judgment of Hon'ble Supreme Court in the case titled as Mohan Lal Vs. State of Punjab, MANU SC/0857/2018.
13. Further, the prosecution has relied upon case property i.e one flex board, photograph of which was allegedly taken by the PW3/IO at the spot, however, during cross examination PW2 HC Suresh Kumar and PW3/IO ASI Vinod Kumar admitted that the photograph is not placed on record.
14. Further, no independent witness was joined in the investigation by the prosecution despite the fact that the alleged spot is a public place. PWs have not explained in their testimony as to why the public witness was not joined in the investigation. It is also pertinent to mention that the alleged flex board was allegedly hanging on the electricity pole at the spot, however, PW3/IO during his cross examination stated that he did not inquire any official of any electricity authority/BSES regarding the alleged board. It was within the reach of the IO to examine the independent witness or the officials of BSES to primafacie satisfy that the board was affixed on the spot. No evidence has been brought on record to prove that the alleged board was affixed by the accused or with his authority.
15. Further, the IO called up on one of the mobile number mentioned over the alleged board, however, during his cross examination the IO stated FIR No. 745/17 State Vs. Sandeep Mehta 5/6 that he did not obtain CDR/CAF of the alleged numbers. It was also within the reach of the IO to obtain CDR/CAF of the number so as to substantiate the case of the prosecution.
16. The PWs examined by the prosecution categorically stated that they had not seen anybody or the accused while affixing the said board at the spot and they also stated that they could not say as to who affixed the said board at the spot.
17. Therefore, considering the facts and circumstances, I am of the opinion that prosecution has failed to prove its case against the accused beyond reasonable doubts.
18. Accordingly, accused Sandeep Mehta is held "not guilty" and is accordingly acquitted of the offence punishable u/s 3 D.P.D.P Act. File be consigned to Record Room.
Announced in the open court Today on 29.05.2019 (Manish Khurana) CMM/ND/Patiala House Courts New Delhi/29.05.2019 FIR No. 745/17 State Vs. Sandeep Mehta 6/6