Delhi District Court
State vs . Noor Mohammad on 3 October, 2016
IN THE COURT OF SH. SHARAD GUPTA, ACMM / NORTH EAST
KARKARDOOMA COURTS, DELHI
State Vs. Noor Mohammad
FIR No. 1340/14
U/s : 3 (1) DP DP Act
PS : Khajuri Khas
O R D E R
3.10.2016
1 Vide this order, I shall dispose of the point whether notice for the offence u/s 3 Delhi Prevention of Defacement of Public Property Act, 2007 (herein after referred to as DP DP Act) is required to be framed against the accused person or not?
2 The case of the prosecution is that on 6.12.14 at 10.10 p.m one board displaying the name of the accused had been put up on one electricity pole near corner of street no.3, main road, Shri Ram Colony, Khajuri Khas, Delhi.
3 It has been urged by the accused that in view of the law laid down by the Hon'ble Delhi High Court in case titled as T. S. Marwah & Ors. Vs. State 2008 (4 ) JCC 2561, the offence u/s 3 (1) of DP DP is not attracted. The accused may be discharged. It is also urged that the chargesheet also does not mention if any person had seen either the accused himself putting up the board on the Govt. Pole or if any eye witness saw the board being put up on instructions of the accused 4 On the other hand, Ld. APP has argued that this is not the stage to agitate the maintainability of present case. Hence, ld.APP has argued that notice may be framed.
5 I have considered the arguments and gone through the material on record as well as law relied upon by the ld. counsel for the accused. In the present case, the prosecution version is that on 6.12.14 at 10.10 p.m one board displaying the name of the accused had been put up on one electricity pole near corner of street no.3, main road, Shri Ram Colony, Khajuri Khas, Delhi Hence offence u/s 3 (1) of DP DP Act is made out. In this regard, section 3(1) of DP DP Act is reproduced as under:
"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.
6 The bare reading of section 3 of the Act ibid, shows that the necessary ingredient for attracting the offence is that defacement of the property should be a result of writing or marking with ink, chalk, paint or any other material. However, in the present case, there is no such allegations. Only allegation in the present case is regarding tying of board/hoarding showing name of the accused.
7 Section 3 of the DP DP Act 2007 is in fact a reproduction of Section 3 of the West Bengal Prevention of Defacement of Property Act, 1976. Law in this respect has already been settled by the Hon'ble Delhi High Court in judgment in case titled as T. S. Marwah & Ors. Vs. State 2008 (4 ) JCC 2561, wherein it has been held that Section 3 (1) refers to 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. Therefore, even if the submissions of the prosecution are taken to be correct even then no case is made out.
Furthermore, the chargesheet and the annexed documents do not disclose the identity of the person who had put up the board on the Govt. Pole. There is nothing on record to show if the accused authorized any person for putting up of the board on the Govt. or if even the fact of the board being put up on the Govt. pole was within knowledge of the accused. Thus, commission of no offence is disclosed qua the accused.
8 It can now be seen if accused can be discharged at the stage of framing of notice in summons triable case. In Kamala Rajaram Vs. State of Kerala 2006 CrLJ 1447: Hon'ble Kerala High Court has held that the provisions of section 251 read with section 258 Cr.P.C must necessarily be held to clothe the learned Magistrate in a case instituted on the basis of a police report with the power to discontinue proceedings at the stage of Section 251 Cr.P.C., if there be no sufficient allegations or materials to justify continuance of proceedings for an offence punishable under section 304A IPC. In these circumstances it has to be held that the a Magistrate has, at least, in a prosecution in a summons case instituted otherwise than on a police report, the power to discontinue the proceedings at the stage of Section 251 Cr.P.C. by invoking his powers under Section 251 Cr.P.C. along with the powers under Section 256 Cr.P.c. that is explicit in the language of Section 258 Cr.P.C. which I extract below: "Power to stop proceedings in certain cases: In any summonscase instituted otherwise than upon complaint, a Magistrate of the first class or with the previous sanction of the Chief Judicial Magistrate or any other Judicial magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge".
9 It was further held that Section 251 read with Section 258 Cr.P.C. does clothe the learned magistrate with the requisite power to discontinue further proceedings and release the accused at the stage of Section 251 Cr.P.c. or later if the learned Magistrate feels that the allegations and the materials placed before him do not justify continuance of the proceedings against the indictee. Directing continuance of proceedings when allegations and materials collected do not justify such continuance will be the worst form of injustice.
10 Our own Ho'ble High Court in CRL.M.C. 5245/2013 titled as Arvind Kejriwal & Others Versus Amit Sibal decided on16th January, 2014 while relying upon a catena of judicial pronouncements has held as follows:
20. In view of the authoritative pronouncements of the Supreme Court in Bhushan Kumar (supra), Krishna Kumar Variar (supra) and Maneka Gandhi (supra) and of this Court in Raujeev Taneja (supra), Urrshila Kerkar (supra) and S.K.Bhalla (supra), the Crl. M.C.5245/2013 accused are entitled to hearing before the learned Metropolitan Magistrate at the stage of framing of notice under Section 251 Cr.P.C in all summons cases arising out of complaints and the Magistrate has to frame the notice under Section 251 Cr.P.C.
only upon satisfaction that a prima facie case is made out against the accused. However, in the event of the learned Magistrate not finding a prima facie case against the accused, the Magistrate shall discharge/drop the proceedings against the accused. Since there is no express provision or prohibition in this regard in the Code of Criminal Procedure, these directions are being issued in exercise of power under Section 482 read with Section 483 Cr.P.C. and Article 227 of the Constitution to secure the ends of justice; to avoid needless multiplicity of procedures, unnecessary delay in trial/protraction of proceedings; to keep the path of justice clear of obstructions and to give effect to the principles laid down by the Supreme Court in Bhushan Kumar (supra), Krishna Kumar Variar (supra) and Maneka Gandhi (supra).
11 Hence, in view of the aforesaid discussion , even if the prosecution version is to be believed at this stage, in view of law laid down in T. S. Marwah Supra, no offence as alleged is disclosed. The proceedings arising out of present matter will thus be an exercise in futility. In view of law laid down in Kamala Rajaram 's case supra and Arvind Kejriwal supra, there is no legal bar in discharging the accused or dropping the proceedings in this case. Notice cannot be framed against the accused on the basis of material on record. Therefore, the proceedings culminating from this matter are stopped u/s 258 of Cr.P.C. Since notice has not been framed and evidence is not recorded, stoppage of the proceedings shall tantamount to discharge of accused. Accused is accordingly discharged. His bail bond and surety bond stands cancelled. Surety is discharged. Original documents if any be released to the rightful person after cancellation of endorsement if any. File be consigned to Record Room after due compliance.
ANNOUNCED IN THE OPEN COURT (SHARAD GUPTA) ON 3rd OCTOBER, 2016 ACMM/NE/KKD/COURTS/DELHI