Delhi District Court
State vs . Mahanand Baghel on 15 May, 2019
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 150/17
PS : Vasant Kunj South
U/s : 3 DPDP Act
State Vs. Mahanand Baghel
Unique ID No. : 4103/19
Date of institution of case : 25.08.2017
Date of reserving the judgment : 15.05.2019
Date of pronouncement of judgment : 15.05.2019
JUDGMENT
1. S. No. of the Case : 4103/19
2. Date of Commission of Offence : 17.04.2017
3. Name of the complainant : HC Naval
No. 1486/SD,
PS Vasant Kunj South,
New Delhi.
4. Name,parentage & address of accused : Mahanand Baghel
S/o Late Sh. Babu Ram,
R/o H. No. G638, Phase6,
Aaya Nagar, 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 17.04.2017 at about 5.30 pm near the main gate of Building of Meteorological Department, MG Road, Electricity Transformer on an iron angel, one banner mentioning the election campaigning words with one mobile number was found affixed, FIR No. 150/17 State Vs. Mahanand Baghel 1/6 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 Mahanand Baghel 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 two witnesses.
4. PW1 HC Nawal and PW2 Ct. Jitender deposed that on 17.04.2017, they were on petrolling duty at beat no. 3, Ghitorni Village and at about 5:30 pm during patrolling duty, they reached near M.G. Road, Mausam Vibhag and noticed that in front of main gate of Mausam Vibhag, one banner was affixed on the angle of electric transformer and the said board/banner was related to the MCD Election and details of accused were written on the board. PW1 further stated that he removed the said banner and seized the same vide seizure memo Ex.PW1/A and sealed the banner with the seal of "SP". PW1 further stated that seal after use was handed over to PW2 Ct. Jitender and thereafter PW1 prepared rukka Ex.PW1/B and handed over the rukka to PW2 Ct. Jitender and sent him to PS for registration of FIR and after registration of FIR, PW2 came back at the spot and handed over original rukka and copy of FIR to PW1. They further deposed that on 13.05.2017, they both reached at PhaseVI, Aaya Nagar at the house of accused and PW1 arrested him vide arrest FIR No. 150/17 State Vs. Mahanand Baghel 2/6 memo Ex.PW1/C and thereafter accused was admitted to police bail. Both the witnesses identified the accused in the Court. Witnesses also relied upon case property, photograph of which is Ex.P1.
5. 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 to which accused denied in its entirety and claimed innocence. Despite opportunity, no evidence was led by the accused in his defence.
6. 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
7. Allegation against the accused are that on 17.04.2017 at about 5.30 pm near the main gate of Building of Meteorological Department, MG Road, Electricity Transformer on an iron angel, one banner mentioning the election campaigning words with one mobile number 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.
8. 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 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 FIR No. 150/17 State Vs. Mahanand Baghel 3/6 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.
9. In the case in hand, a banner was allegedly affixed on an iron angel. The similar 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.
10. 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.
11. PW1 HC Naval 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 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 FIR No. 150/17 State Vs. Mahanand Baghel 4/6 Hon'ble Supreme Court in the case titled as Mohan Lal Vs. State of Punjab, MANU SC/0857/2018.
12. Further, PW1 as well as PW2 stated that they were on patrolling duty on the said day but they could not produce/place on record the departure and arrival entry to primafacie show that they were on patrolling duty or visited the spot on the said day which is a crucial aspect left by the police. PW1 and PW2 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 PW2 leaves much to be desired in order to prove the prosecution case beyond reasonable doubt.
13. Further, the prosecution has relied upon one photograph of the banner/board which is Ex.P1, however, none of the PWs examined by the prosecution has stated in their testimonies that they had clicked the photograph. It is also pertinent to note that certificate u/s 65B Evidence Act has not been placed on record. Digital photograph by taken an electronic device is a piece of electronic evidence and electronic evidence can only be proved by way of certificate u/s 65B of the Evidence Act which has not been done in the present case for reasons best known to the police. Merely filing of a 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.
14. Further, no independent witness was joined in the investigation by the prosecution. PWs have not explained in their testimony as to why they did not join any public witness. It was within the reach of the IO to examine the independent witness to primafacie satisfy that the banner was affixed on the wall. No evidence has been brought on record to prove FIR No. 150/17 State Vs. Mahanand Baghel 5/6 that the alleged banner was affixed by the accused or with his authority.
15. It is also pertinent to mention that the board was allegedly affixed on iron angel of electric transformer, however, no complaint was received from any electricity company regarding the said banner.
16. Further, perusal of the record also revealed that the arrest memo of accused Ex.PW1/C does not find mention of any date or time of arrest and PW1 during his cross examination admitted this fact. This lackadaisical approach during investigation also creates doubt over the prosecution case.
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 Mahanand Baghel 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 15.05.2019 (Manish Khurana) CMM/SE/District Court, Saket New Delhi/15.05.2019 FIR No. 150/17 State Vs. Mahanand Baghel 6/6