Delhi District Court
State vs . Ashish Arora on 13 May, 2022
IN THE COURT OF MS. ARCHANA BENIWAL
CHIEF METROPOLITAN MAGISTRATE,
DWARKA COURT, NEW DELHI.
FIR No. 29/2020
PS Janakpuri
State Vs. Ashish Arora
CIS No. : 2093/2020
Date of institution of the case : 11.06.2020
Date of commission of offence : 19.01.2020
Name of the complainant : ASI Prem Singh
Name of accused and address : Ashish Arora
S/o Sh. Rajender Kumar Arora
R/o H.No. C4F/246, Janakpuri
Delhi.
Offence complained of : U/s 3 DPDP Act
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date on which judgment reserved : 13.05.2022
Date of judgment : 13.05.2022
- :: 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 Ashish Arora.
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2. It is the case of the prosecution that on 19.01.2020 at 06:00 PM, at government telephone pole in front of Kendriya Vidyalaya, K.U. Road, C/Z Block Janakpuri, Delhi, one banner/board written description "Session started Call NOW FUSION PERFORMING ARTS & CULINARY ACADEMY JOIN US TODAY COURSES COOKING & BAKING CLASSES DANCE FORMS CONTEMPORARY CLASSICAL JAZZ, HIP HOP, BALLET, INSTRUMENTAL & VOCAL KEYBOARD GUITAR, HARMONIUM, TABLA, FITNESS GYMNASTIC, BELLY ZUMBA, YOGA, THE FUSION HOUSE, C-4, F/246, Janakpuri, New Delhi-9873661100, 9986500863" was found affixed. Charge-sheet for commission of offence punishable u/s 3 DPDP Act was filed against accused Ashish Arora as the said banner/board was bearing his address and mobile number and he was the one who had got the banner/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 two witnesses.
5. PW1/complainant/IO ASI Prem Singh deposed that on 19.01.2020, he alongwith Ct. Vikram was on patrolling duty in beat no.8, C-2 Block and during their patrolling duty, when they reached at C-2 Block, Kendriya Vidyalaya in front of C-2 Road, they saw a banner was affixed on telephone pole having description "Session State Vs. Ashish Arora FIR No.29 of 2020, PS Janakpuri Page No. 2 of 10 started Call NOW FUSION PERFORMING ARTS & CULINARY ACADEMY JOIN US TODAY COURSES COOKING & BAKING CLASSES DANCE FORMS CONTEMPORARY CLASSICAL JAZZ, HIP HOP, BALLET, INSTRUMENTAL & VOCAL KEYBOARD GUITAR, HARMONIUM, TABLA, FITNESS GYMNASTIC, BELLY ZUMBA, YOGA, THE FUSION HOUSE, C-4, F/246, Janakpuri, New Delhi-9873661100, 9986500863". He clicked photograph of the said banner from his mobile phone and seized the same vide seizure memo Ex. PW1/A. He prepared rukka Ex. PW1/B and handed over the same to Ct. Vikram for registration of FIR and Ct. Vikram went to PS and got the FIR registered. After registration of FIR, Ct. Vikram came back at spot and handed over the copy of FIR to PW-1. He prepared site plan Ex. PW1/C. Thereafter, he went to the address given on the banner and met with accused Ashish Arora. He arrested him vide arrest memo Ex. PW1/D and conducted his personal search vide memo Ex. PW1/E. He correctly identified accused before the court. He correctly identified photographs of banner as Ex. P-1 & Ex.P-2.
6. During cross examination, PW1 stated that he was on patrolling duty on the relevant day vide DD No. 13A but he had not placed the same alongwith charge-sheet. He admitted that he had not received any complaint from telephone department regarding the abovesaid material. He admitted that no public persons had joined investigation. He admitted that he had not seen who had affixed the said banner on said telephone pole. He admitted that he had not investigated in respect of making of banner. He deposed that he had not placed certificate U/s 65 B of Indian Evidence Act regarding clicking the photograph of the banner.
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7. PW2 HC Dinesh deposed that on 04.03.2020, he joined the investigation with ASI Prem Kumar and reached at the house of accused Ashish Arora at C-4F/246, Fusion Performing Art and Culinary Academy where accused Ashish Arora was arrested vide arrest memo Ex. PW1/D and personal search of accused was conducted vide memo Ex. PW1/E. He correctly identified the accused before the court.
8. During cross examination, PW2 stated that he did not know about the case in which accused was arrested. He further stated that he reached at the house of accused at about 12.45 pm and they returned back to the police station at about 03:00 pm. He did not know the DD number for departure and arrival on that day.
9. No other witness was examined by the prosecution and hence, PE was closed.
10. Thereafter, separate statement u/s 313 CrPC of the accused was recorded, wherein all the incriminating material 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.
11. Accused opted not to lead defence evidence.
12. Final arguments advanced by Ld. APP for State and ld. counsel for accused heard. Case file perused carefully. State Vs. Ashish Arora FIR No.29 of 2020, PS Janakpuri Page No. 4 of 10
13. It is argued by Ld. APP for State that the prosecution has proved its case beyond a reasonable doubt that the accused has affixed the banner on telephone pole situated at C-2 Block, Kendriya Vidyalaya in front of C-2 Road and therefore, the accused be convicted for offence punishable u/s 3 DPDP Act.
14. On the other hand, it is argued by Ld. Counsel for accused that prosecution has miserably failed to prove its case as there is nothing on record to show that the impugned banner was affixed by the accused. There are no public witnesses to substantiate the commission of the offence. The photograph is not annexed with certificate U/s 65 B of Indian Evidence Act. It is further submitted by Ld. Defence counsel that accused be acquitted.
15. 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 State Vs. Ashish Arora FIR No.29 of 2020, PS Janakpuri Page No. 5 of 10 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."
16. Though in the present matter a banner mentioning "Session started Call NOW FUSION PERFORMING ARTS & CULINARY ACADEMY JOIN US TODAY COURSES COOKING & BAKING CLASSES DANCE FORMS CONTEMPORARY CLASSICAL JAZZ, HIP HOP, BALLET, INSTRUMENTAL & VOCAL KEYBOARD GUITAR, HARMONIUM, TABLA, FITNESS GYMNASTIC, BELLY ZUMBA, YOGA, THE FUSION HOUSE, C-4, F/246, Janakpuri, New Delhi-9873661100, 9986500863" was found affixed on telephone pole, yet it has to be decided as to whether all the ingredients as mentioned in Section 3 DPDP Act have been fulfilled or not.
17. In the present matter, complaint was made by ASI Prem Singh 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.
18. PW1 stated that he alongwith Ct. Vikram were on patrolling duty on the said date, but they could not produce/place on record the departure and arrival entry to show that they were on picket duty or visited the spot on the said day which is a crucial aspect left by the police. PW1's presence at the spot at the alleged time has to be proved beyond doubt and in the present case, it is a vital missing State Vs. Ashish Arora FIR No.29 of 2020, PS Janakpuri Page No. 6 of 10 link in the prosecution case. Therefore, the testimony of PW1 leaves much to be desired in order to prove the prosecution's case beyond reasonable doubt.
19. The prosecution has relied upon photograph of spot. The photograph was allegedly taken through an electronic device i.e. mobile phone. It is pertinent to note that certificate u/s 65B of Indian Evidence Act has not been placed on record. Digital photograph taken from an electronic device is a piece of electronic evidence and electronic evidence can only be proved by way of certificate u/s 65B of Indian Evidence Act, which has not been done in the present case for reasons best known to the police. Merely filing of 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.
20. Further, no independent witness was joined in the investigation by the IO. PW has 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 corroborate the fact that the poster was affixed on the spot. No evidence has been brought on record to prove that the alleged poster was affixed by the accused or with his authority.
21. In the present matter, the allegation against the accused is that one banner mentioning "Session started Call NOW FUSION State Vs. Ashish Arora FIR No.29 of 2020, PS Janakpuri Page No. 7 of 10 PERFORMING ARTS & CULINARY ACADEMY JOIN US TODAY COURSES COOKING & BAKING CLASSES DANCE FORMS CONTEMPORARY CLASSICAL JAZZ, HIP HOP, BALLET, INSTRUMENTAL & VOCAL KEYBOARD GUITAR, HARMONIUM, TABLA, FITNESS GYMNASTIC, BELLY ZUMBA, YOGA, THE FUSION HOUSE, C-4, F/246, Janakpuri, New Delhi-9873661100, 9986500863" was found affixed on telephone pole at C-2 Block, Kendriya Vidyalaya in front of C-2 Road. Now, it has to be seen whether installing of banner 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 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."
22. 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."
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23. 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, affixing of a banner mentioning "Session started Call NOW FUSION PERFORMING ARTS & CULINARY ACADEMY JOIN US TODAY COURSES COOKING & BAKING CLASSES DANCE FORMS CONTEMPORARY CLASSICAL JAZZ, HIP HOP, BALLET, INSTRUMENTAL & VOCAL KEYBOARD GUITAR, HARMONIUM, TABLA, FITNESS GYMNASTIC, BELLY ZUMBA, YOGA, THE FUSION HOUSE, C-4, F/246, Janakpuri, New Delhi-9873661100, 9986500863" would not amount to an offence u/s 3 of DPDP Act.
24. 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.
25. 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 State Vs. Ashish Arora FIR No.29 of 2020, PS Janakpuri Page No. 9 of 10 reasonable doubt entitles the accused to acquittal.
26. 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 Ashish Arora is hereby acquitted from the offence punishable under Section 3 of DPDP Act.
27. Accused is directed to furnish personal bond and surety bond in terms of Section 437-A Cr.P.C on next date of hearing.
Digitally signed Pronounced in the open court on this ARCHANA by ARCHANA BENIWAL 13th May 2022 BENIWAL Date: 2022.05.18 16:59:52 +0530 (ARCHANA BENIWAL) Chief Metropolitan Magistrate South West District, Dwarka Courts New Delhi State Vs. Ashish Arora FIR No.29 of 2020, PS Janakpuri Page No. 10 of 10