Delhi District Court
State vs . Rajiv Nanda on 2 July, 2019
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
FIR No. 89/17
PS : Tughlak Road
U/s : 3 DPDP Act
State Vs. Rajiv Nanda
Unique ID No. : 5219/19
Date of institution of case : 11.09.2018
Date of reserving the judgment : 26.06.2019
Date of pronouncement of judgment : 02.07.2019
JUDGMENT
1. S. No. of the Case : 5219/19
2. Date of Commission of Offence : 11.11.2017
3. Name of the complainant : SI Mahesh Kumar
No. D5118,
PS Tughlak Road,
New Delhi.
4. Name,parentage & address of accused : Rajiv Nanda
S/o Sh. Satpal Nanda
R/o H. No. C56, 1st Floor,
Green Wood City, Sec45,
Gurugram, Haryana
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 11.11.2017 at unknown time on the traffic signal pole near Gate No. 11, Lodhi Garden, New Delhi, within the FIR No. 89/17 State Vs. Rajiv Nanda 1/7 jurisdiction of PS Tughlak Road, which is a public property and in public view, one flex board mentioning the words "We Print Wall Papers xxxxxxxx" alongwith mobile number was found affixed/hanging on the aforesaid pole 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. FIR was registered and after investigation, chargesheet was filed against the accused Zuhaib Rana 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 SI Mahesh Kumar, PW2 HC Vinod Kumar and PW3 HC Satyavir deposed that on 11.11.2017 while they were on patrolling duty, they reached at Gate No. 11 of Lodhi Garden where they noticed that on the footpath of Lodhi Road on one traffic signal pole, one flex board mentioning the words "We Print Wall Papers xxxxxxxx" alongwith mobile number was found affixed. Thereafter, PW1/IO photographed the same from his personal mobile phone camera and removed the said flex board and PW1/IO also prepared pullanda and sealed it with the seal of "MK" and thereafter, PW1/IO seized the said flex board vide seizure memo Ex.PW1/A and prepared rukka Ex.PW1/B and got the FIR registered through Ct. Surendra. Thereafter, PW1/IO prepared site plan Ex.PW1/C and thereafter, they returned to PS and PW1/IO deposited the case FIR No. 89/17 State Vs. Rajiv Nanda 2/7 property in Malkhana. PW1/IO recorded statements of witnesses u/s 161 Cr.PC. PW1/IO further deposed that during investigation, he wrote a letter to the DCP for getting the CDR/CAF of the mobile number mentioned over said flex board vide letter Ex.PW1/D and obtained the same vide Ex.PW1/E (colly). Thereafter, PW1/IO also called up on the mobile number and asked the accused to come in the PS. Thereafter, on 27.12.2017, accused Rajiv Nanda appeared in the PS and IO interrogated the accused. Accused also provided the IO one registration certificate of the company Ex.PW1/F. PW1/IO further stated that he also served notice u/s 41A Cr.PC Ex.PW1/G upon the accused. After proper interrogation, PW1/IO arrested the accused vide arrest memo Ex.PW1/H and thereafter, released the accused on police bail. PW1/IO identified the accused in the Court. Witnesses also relied upon three photographs pasted on one A4 size paper, placed on record as Ex.P1 (colly). The aforesaid witnesses were cross examined by Ld counsel for accused.
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 11.11.2017 at unknown time on the traffic signal pole near Gate No. 11, Lodhi Garden, New Delhi, which is a public property and in public view, one flex board mentioning the words "We Print Wall Papers xxxxxxxx" alongwith mobile number was found affixed/hanging on the aforesaid pole which was affixed by the accused or at his behest which constituted commission of offence FIR No. 89/17 State Vs. Rajiv Nanda 3/7 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 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 flex board was allegedly affixed on a traffic signal 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.
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 FIR No. 89/17 State Vs. Rajiv Nanda 4/7 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 SI Mahesh Kumar 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 Hon'ble Supreme Court in the case titled as Mohan Lal Vs. State of Punjab, MANU SC/0857/2018.
12. Further, PW1, PW2 as well as PW3 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, PW2 and PW3 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, PW2 and PW3 leaves much to be desired in order to prove the prosecution case beyond reasonable doubt.
13. Further, the prosecution has relied upon three photographs of the flex board Ex.P1(colly). PW1/IO SI Mahesh Kumar allegedly clicked the photographs. It is 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 FIR No. 89/17 State Vs. Rajiv Nanda 5/7 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 the public witness was not joined in the investigation. It was within the reach of the IO to examine the independent witness to primafacie satisfy that the hoarding was affixed on the spot. No evidence has been brought on record to prove that the alleged flex board was affixed by the accused or with his authority.
15. The PWs examined by the prosecution categorically stated that they had not seen anybody or the accused while affixing the said flex board at the spot and they also stated that they could not say as to who affixed the said flex board at the spot.
16. Further, as per the testimony of PWs, IO took the photographs and allegedly got the same developed from a nearby shop, however, the IO did not join the owner/developer of said photographs in the investigation nor he placed on record any receipt/bill regarding development of photographs nor the IO cited the said developer of photograph as the prosecution witness in the present case.
17. Further, the IO stated that one mobile number was mentioned over the board and he also placed on record photocopy of CAF/CDR of said mobile number, however, the original CDR/CAF of the alleged number is not placed on record nor the concerned Nodal Officer was examined by the IO during investigation nor was he cited as a witness in this case for proving FIR No. 89/17 State Vs. Rajiv Nanda 6/7 the said CAF/CDR. It was also within the reach of the IO to summon/cite concerned Nodal Officer alongwith original CDR/CAF of the number so as to substantiate the case of the prosecution, however, it was not done.
18. 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.
19. Accordingly, accused Rajiv Nanda 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 02.07.2019 (Manish Khurana) CMM/ND/Patiala House Courts New Delhi/02.07.2019 FIR No. 89/17 State Vs. Rajiv Nanda 7/7