Delhi District Court
Fir No. 38/2020, Ps : Pul Prahlad Pur ... vs Jitender Kumar Singh on 2 August, 2022
FIR No. 38/2020, PS : Pul Prahlad Pur State Vs Jitender Kumar Singh
IN THE COURT OF MS. SHIVANI CHAUHAN
CHIEF METROPOLITAN MAGISTRATE
SOUTH-EAST, SAKET COURTS, NEW DELHI
CNR number. DLSE02-008087-2020
Cr. Cases Number. 2097/2020
FIR No. 38/2020
PS : Pul Prahlad Pur
U/s: 3 of The Delhi Prevention of Defacement of Property
Act, 2007
STATE
VS
JITENDER KUMAR SINGH
Date of Institution : 07.08.2020
Date of reserving the judgment : Not reserved
Date of pronouncement of judgment : 02.08.2022.
JUDGMENT
1. Serial No. of the case : 2097/2020
2. Name of the Complainant : HC Shiv
Singh
3. Date of commission of offence : 29.01.2020
4. Name of accused person :
Jitender Kumar Singh, S/o Sh. Prem
Prakash Singh, R/o 29/4, Top Floor,
Right Side, Gali No. 4, Govindpuri,
Kalkaji, South-Delhi. Aged about 30
years.
5. Offence charged : S. 3, the
DPDP Act.
6. Plea of accused : Not guilty
7. Final Order : Acquitted
Page No. 1
FIR No. 38/2020, PS : Pul Prahlad Pur State Vs Jitender Kumar Singh
BRIEF REASONS FOR ORDER:
1. In the present case, the accused has been facing the trial for the offence punishable under Section 3 of the Delhi Prevention of Defacement of Property Act, 2007 (herein after referred the 3 the DPDP Act). Brief facts of the case, as per prosecution, are that on 29.01.2020, complainant HC Shiv Singh was on patrolling duty in the area along with Constable Sarvesh. At about 08:40 p.m., they reached at M. B. Road, near DDA Park, Lal Kuan, Bus Stop Pul Prahlad Pur, New Delhi where they saw two boards hanging on an electricity pole containing the words "FDA ISO 9001:2015 Certified A Computer Institute Basic Computer Tally with GST Advance Excel Graphic Designing Digital Marketing Spoken English 9999196162 Kalkaji Branch". Thereafter, HC Shiv Singh took photographs of the board and removed them with the help of Constable Sarvesh. Thereafter, HC Shiv Singh prepared Tehrir and handed over the same to Constable Sarvesh for getting the FIR registered at the PS. After registration of the FIR, Constable Sarvesh returned to the spot and handed copy of FIR and original Page No. 2 FIR No. 38/2020, PS : Pul Prahlad Pur State Vs Jitender Kumar Singh rukka to HC Shiv Singh. Investigation of the case was marked to HC Shiv Singh. Thereafter, efforts were made to trace out the accused person. Thereafter, they returned to the PS and deposited the case property in the Malkhana of the PS. Thereafter, IO recorded the statement of the witness u/s 161 Cr.P.C. Thereafter, during the course of investigation, IO and Constable Sarvesh went to the address of the accused where they met accused and IO served notice u/s 161 Cr.P.C. upon the accused. Thereafter, IO informed the accused about the commission of the offence and accused admitted his guilt. After completion of investigation the chargesheet was filed in the Court.
2. The cognizance of the offence under Section 3 of DPDP Act was taken by Ld. Predecessor of this Court. The accused was summoned. After compliance of the provisions of Section 207 Cr.P.C, notice for the offence under Section 3 of the DPDP Act in terms of Section 251 Cr.P.C was served upon the accused to which the accused had pleaded not guilty and claimed trial.
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3. The prosecution has examined two witnesses in support of its case.
4. Constable Sarvesh Kumar was examined as PW1. He would depose that on 29.01.2020, he was posted as Constable at PS Pul Prahlad Pur and on that day, he was on patrolling duty alongwith HC Shiv Singh. While patrolling, when they reached near DDA Park, Lal Kuan Bus Stop, Pul Prahlad Pur, they noticed two flex boards hanging on a pole containing the words "FDA ISO 9001:2015 certified computer institute basic computer tally with GST advance Excel Graphic Designing Digital Marketing Spoken English 9999196162 Kalkaji Branch". Thereafter, the IO captured the photographs of the board. Thereafter, they got the flex boards removed from the pole. Thereafter, IO prepared tehrir / rukka and handed over to him for registration of the FIR. After registration of the FIR, he returned back to the spot and handed over the copy of the FIR to the IO. Thereafter, IO prepared the site plan and seizure memo Ex.PW1/A and Ex.PW1/B respectively. Thereafter, during the course of investigation, on 31.01.2020, accused Jitender was Page No. 4 FIR No. 38/2020, PS : Pul Prahlad Pur State Vs Jitender Kumar Singh formally arrested vide arrest memo Ex.PW1/C. IO also recorded his disclosure statement of the accused Ex.PW1/D. He identified the case property in the Court. Photographs of the case property are Ex.P-2 (colly).
5. Complainant/IO HC Shiv Singh was examined by the prosecution as PW2. He would depose that on 29.01.2020, he was posted as Head Constable at PS Pul Prahlad Pur. On that day, he was on patrolling duty alongwith Constable Sarvesh Kumar. During patrolling duty, when they reached near DDA Park, Lal Kuan Bus Stop, Pul Prahlad Pur, they noticed two flex boards hanging on the electricity pole containing the words "FDA ISO 9001:2015 certified computer institute basic computer tally with GST advance Excel Graphic Designing Digital Marketing Spoken English 9999196162 Kalkaji Branch". Thereafter, he took the photographs of the board using his mobile phone. Thereafter, he got the flex boards removed from the pole with the help of Const. Sarvesh Kumar. Thereafter, he prepared tehrir / rukka Ex.PW2/A and handed over the same to Constable Sarvesh Kumar for registration of the FIR. After registration of the FIR, Constable Sarvesh returned back to the spot and handed over the copy of the FIR to him. The investigation of the Page No. 5 FIR No. 38/2020, PS : Pul Prahlad Pur State Vs Jitender Kumar Singh case was marked to him. Thereafter, he prepared the site plan and seizure memo in the presence of Constable Sarvesh Kumar. Thereafter, on 31.01.2020, accused Jitender was formally arrested by him vide arrest memo. He also recorded the disclosure statement of the accused. He also obtained bail bond of the accused Ex.PW2/B. After completion of investigation, he filed the charge-sheet in the Court for further proceedings. He correctly identified the case property in the Court.
6. The witnesses were duly cross-examined by Ld. counsel for the accused. Thereafter, on the submissions of Ld. APP for the State, PE was closed vide order dated 06.07.2022. The statement of the accused under Section 313 Cr.P.C. r/w Section 281 Cr.P.C., after putting entire incriminating evidence against him, was recorded on 06.07.2022. The accused has denied commission of the offence and has stated that he had been been falsely implicated in the present case. Accused did not lead any evidence in his defence. Hence, the matter was adjourned for final arguments.
7. It is submitted by Ld. APP for State that the Page No. 6 FIR No. 38/2020, PS : Pul Prahlad Pur State Vs Jitender Kumar Singh prosecution has proved its case against the accused beyond reasonable doubts. The accused has failed to prove any defence. He has failed to produce any permission for installing the boards on the public property. Hence, the accused is liable to be convicted.
8. On the other hand, it is submitted by Ld. counsel for the accused that the prosecution has failed to prove the case against accused beyond reasonable doubts. There is no public witness examined by the prosecution. The complainant himself has conducted the investigation which vitiate the proceedings conducted during the investigation. There is no evidence available on record to prove that the hoarding boards were installed on the instructions of the accused. The accused has been falsely implicated by the police officials to settle some personal score. No offence has been committed by the accused. Hence, it is prayed the accused may be acquitted.
9. I have heard the submissions on behalf of both the parties and carefully perused the material available on record. Page No. 7 FIR No. 38/2020, PS : Pul Prahlad Pur State Vs Jitender Kumar Singh
10. It is a settled proposition of criminal law that the prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. The primary burden of proof for proving the offences in a criminal trial rests on the shoulders of the prosecution. Further, an accused is entitled to benefit of every reasonable doubt appearing qua the material facts.
11. It is significant to note that accused in the present case has been charged with the offence under Section 3 of the Delhi Prevention of Defacement of Property Act, 2007, which provides penalty for defacement of 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. Section 3 (2) of the Act further renders the beneficiary of the act guilty of such offence unless he proves that the offence was committed without his knowledge or consent.
12. The term 'defacement' has been defined under Section Page No. 8 FIR No. 38/2020, PS : Pul Prahlad Pur State Vs Jitender Kumar Singh 2(a) of the aforesaid Act, which includes impairing or interfering with the appearance or beauty, damaging, disfiguring, spoiling or injuring in any other way whatsoever, whereas, the term 'writing' has been defined in Section 2(d) of the Act, which includes printing, painting, decoration, lettering, ornamentation etc., produced by stencil. The term 'property' has been defined in Section 2(c) of the Act, so as to include any building, hut, structure, wall, tree, fence, post, pole or any other erection.
13. In view of the aforesaid provisions, before an accused is convicted for the offence under Section 3 (1) of DPDP Act, the prosecution is required to prove following facts beyond reasonable doubts:-
(1) That the accused has defaced any property by writing or marking with ink, chalk, paint or any other material.
(2) That the said property is situated in a public view.
(3) That the writing or marking on the property in a public view was not for indicating the name and address of the owner and occupier of the said property.Page No. 9
FIR No. 38/2020, PS : Pul Prahlad Pur State Vs Jitender Kumar Singh
14. In order to secure conviction of the accused for the offence under Section 3 (2) of the Act, the prosecution was required to prove that the offence as per Section 3(1) of the Act had been committed for the benefit of the accused.
15. Ld. Counsel for the accused would argue that the complainant had also conducted the entire investigation in the present case and, therefore, the entire investigation has come under doubts. It is prayed that benefit of the said doubt may be given to the accused.
16. I have considered the submission. Hon'ble High Court of Delhi in Gurtej Singh Batth vs State, in Crl.A.39/2015, on 27 November, 2018, while relying upon the judgments of the Hon'ble Supreme Court of India in Mohan Lal v. State of Punjab, (2018) SCC OnLine SC 974 and Arif Khan v. State of Uttarakhand, (2018) SCC Online SC 459, has held that in every criminal prosecution, it was essential that the investigation, on the face of it, had to be free, judicious and just, and that it had also to appear to be so, eschewing any conduct or impression Page No. 10 FIR No. 38/2020, PS : Pul Prahlad Pur State Vs Jitender Kumar Singh which may give rise to a real and genuine, and not a mere fanciful, apprehension, in the mind of the accused, that the investigation was not fair. If, therefore, the informant police official in a criminal prosecution, especially one which carries a reverse burden of proof, who had made the allegations, was himself asked to investigate, serious doubts would naturally arise with regard to his fairness and impartiality. Actual proof of bias was not required in such a case. It would be illogical to presume and contrary to normal human conduct, that the IO would, in such a case, conclude the investigation with a closure report, which would mean that he had falsely implicated the petitioner and would result in attendant consequences on the complainant himself.
17. However, the case of the prosecution cannot be disbelieved only because the investigation was conducted by the complainant. There have to be some other grounds to disbelieve the present case of the prosecution.
18. In the present case, as the record would reveal, all the Page No. 11 FIR No. 38/2020, PS : Pul Prahlad Pur State Vs Jitender Kumar Singh prosecution witnesses are police officials. No independent public witness had joined the investigation at any point of time. The place of recovery of the board in question is clearly shown to be located in an area where public persons would be readily available. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. In the case titled as Nanak Chand Vs. State of Delhi, Crl. Revision No. 169/81, decided on 07.11.1990, Hon'ble High Court of Delhi has observed as under:
"The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present Page No. 12 FIR No. 38/2020, PS : Pul Prahlad Pur State Vs Jitender Kumar Singh case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.''
19. In the present case, non-joining of any public person as a witness creates doubt on the case of the prosecution. However, this Court is conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. I get strength from the judgment of the Hon'ble supreme Court of India in Appabhai and Another v. State of Gujarat, AIR 1988 SC 696. The aforesaid fact merely casts an additional duty on the Court to be more vigilant while scrutinizing the testimony of the police witnesses. However, in the present case, there are other circumstances too, which raise suspicion over the prosecution version.
20. The witnesses PW-1 and PW-2 have stated that they were on patrolling duty when they had noticed the boards on an electricity pole. They had removed the boards and seized them. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the Page No. 13 FIR No. 38/2020, PS : Pul Prahlad Pur State Vs Jitender Kumar Singh purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"22.49 Matters to be entered in Register No. II "The following matters shall, amongst others, be entered "(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
"Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
21. In the present case, no DD entry record of the presence of PW1 and PW2 on the spot on patrolling duty is proved by the prosecution. Hence, the fact of presence of the complainant and the constable on the spot on the relevant date and time has come under the clouds of reasonable doubt. As already stated the public witness who could have deposed regarding the presence of the witnesses on the spot have not been examined by the prosecution which also creates reasonable doubt on the case as projected by the prosecution.
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22. The PWs i.e. PW1 and PW2 who had allegedly seen the board have not stated that they had seen anybody or the accused while affixing the said boards at the spot and they could not say as to who had affixed the boards at the spot. The prosecution also did not examine any witness who might have seen any person affixing the boards at the spot. As argued by the Ld. Counsel for accused, there is not even an iota of evidence led by the prosecution to prove that the hoarding boards in question were either installed by the accused herein or that the same were installed on his instructions.
23. The only allegation against the accused, as per chargesheet, is that the hoarding boards had been installed on the electricity pole, a public property.
24. Prior to enactment of the DPDP Act, the West Bengal Prevention of Defacement of Property Act, 1976 was prevalent in Delhi. Section 3 of the West Bengal Prevention of Defacement of Property Act is similar to Section 3 of DPDP Act which reads as under:
Page No. 15
FIR No. 38/2020, PS : Pul Prahlad Pur State Vs Jitender Kumar Singh "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."
25. Hon'ble High Court of Delhi in case title "T.S. Marwah & Ors. Vs. State 2008 (4) JCC 2561" has held that the offence u/s 3(1) of the Act would be punishable only if the defacement is done in respect of property in public view by writing or marking with ink, chalk, paint or any other material. Mere putting of the banner will not get covered u/s 3(1) of the West Bengal Prevention of Defacement of Property Act.
26. Section 3 of the Delhi Prevention of Defacement of Property Act, 2007 is similar to the Section 3(1) of the West Bengal Prevention of Defacement of Property Act except with one change in the definition of word "Writing". Section 2(d) of the Delhi Prevention of Defacement of Property Act, 2007 defines writing as including printing, painting, decoration, lettering, ornamentation etc. produced by stencil. In West Bengal Prevention of Defacement of Property Act, word "Writing" has Page No. 16 FIR No. 38/2020, PS : Pul Prahlad Pur State Vs Jitender Kumar Singh been defined as including decoration, lettering, ornamentation etc. produced by stencil. Except this difference in the definition of writing, the provisions of both the Acts are same. Therefore, the ratio of the judgment of the Hon'ble High Court of Delhi in "T.S. Marwah(supra)"' still holds good for the present case as the facts of the present case are similar to the facts of the case in that of "T.S. Marwah's case (supra)".
27. In the present matter, in view of the discussion hereinabove, it can be safely held that the prosecution has failed to prove its case against the accused beyond reasonable doubt. The accused is entitled to the benefit of reasonable doubts. Hence, the accused is given benefit of reasonable doubts and he is hereby acquitted. Ordered accordingly.
Pronounced in the open Court on this 02nd Day of August, 2022.
(Shivani Chauhan) Chief Metropolitan Magistrate South East, Saket Courts:
New Delhi.Page No. 17