Delhi District Court
State vs . Rajesh & Anr. on 9 June, 2022
IN THE COURT OF MS. SNIGDHA SARVARIA : LD. CMM :
NEW DELHI DISTRICT : PATIALA HOUSE COURTS: NEW
DELHI.
CC No.60044/2016
State Vs. Rajesh & Anr.
FIR No. 286/2016
U/s 3 DPDP Act
P.S. INDER PURI
1. S. No. of the Case : 177/02
2. Date of institution of case : 17.10.20216
3. Date of Commission of Offence : 04.04.2016
4. Name of the complainant : Sh. Vedanand
5. Name, parentage & Address : 1. Rajesh
of accused S/o Late Sh. Chand Ram,
R/o H. No. 169, Swarn
Park, Mundka, New
Delhi.
2. Parvinder Tokas
S/o Late Sh. Ram
Kishan Tokas,
R/o H. No.220T, Munirka
Village, Near Vasant Vihar
Bus Depot, New Delhi.
5. Offence complained of or proved : U/Sec.3 DPDP Act
6. Plea of Accused : Accused persons pleaded not guilty for offence U/Sec. 3 DPDP Act
7. Final Order : Acquitted Date of reserving the judgment : 07.06.2022 Date of pronouncement of judgment : 09.06.2022 THE BRIEF BACKGROUND & GENESIS OF FIR :
The present FIR was registered on the complaint that on CC No.60044/2016 State v. Rajesh & Anr.FIR No. 286/2016 PS Vasant Kunj(South) Page 1 of 10
04.04.2016 at Rooftop of Khasra No.836, Vasant Kunj, Mahipalpur Road starting point of MahipalpurVillage, left side road, within the jurisdiction of PS Vasant Kunj(South), accused Rajesh affixed the board of "Hero India Ki Umeed" at the abovesaid place and committed an offence punishable U/Sec.3 of DPDP Act.
Further that on 04.04.2016 at rooftop of Khasra No.836, Vasant Kunj, Mahipalpur Road starting point of MahipalpurVillage, left side road, within the jurisdiction of PS Vasant Kunj(South), the board of "Hero India Ki Umeed" was affixed on the rooftop of the said property and accused Parvinder Tokas being the landlord of the said property committed an offence punishable U/Sec.3 of DPDP Act.
2. After completion of investigation, charge-sheet was filed. Copies supplied to the accused persons and notice U/Sec.251 Cr.P.C. was served upon both the accused persons on 01.06.2022 for offence punishable under section 3 DPDP Act to which they have pleaded not guilty for the notice and claimed trial.
PROSECUTION EVIDENCE
3. To prove its case, prosecution has examined two witness.
PW-1 is ASI Harish who deposed that 04.04.2016 he was posted as Head Constable in PS Vasant Kunj(South) and on that day, one complaint was received by the DO from South Delhi Municipal Corporation, Najafgarh Zone, Delhi regarding unauthorized display of commercial advertisement and on the basis of the complaint, the present FIR was registered by the Duty Officer and the same was marked to him. He deposed that he served notice U/Sec.160 Cr.P.C and U/Sec. 91 CC No.60044/2016 State v. Rajesh & Anr.
FIR No. 286/2016 PS Vasant Kunj(South) Page 2 of 10Cr.P.C to accused Rajesh and accused Rajesh gave reply to the said notice on 27.04.2016. The notice is Ex.PW1/A. He deposed that accused handed over him the copy of agreement of advertisement and ownership ID.
PW-1 deposed that on 27.04.2016, he arrested the accused Rajesh vide arrest memo Ex.PW1/B and after arrest, accused was released on bail bond.
He further deposed that on 28.04.2016, accused Parvinder Tokas gave reply to the notice notice U/Sec.160 Cr.P.C which is Ex.PW1/C and in his reply he stated that he was the owner of the property bearing No. K-II/836, Main Vasant Kunj Road and he gave that property to Outdoor Communication Pvt. Ltd. He deposed that on 28.04.2016 he arrested accused Parvinder Tokas vide arrest memo Ex.PW1/D and after arrest he was released on bail bond.
PW-1 deposed that on 03.05.2016, the complainant Mr. Vedanant, Advertisement Inspector, Najafgarh Zone, SDMC has joined the investigation and PW-1 prepared the site plan Ex.PW1/F at his instance. He deposed that at that time there was no advertisement board on the said property and the said board was already dismantled by the SDMC officials. The agreement between Parvinder Totkas and Rajesh is Mark A. PW-1 correctly identified the accused Parvinder Tokas in the Court. PW-1 also identified photograph as Ex.P-1.
During cross-examination by Ld. Counsel for the accused, PW-1 deposed that the complainant did not hand over him the newspaper which was shown in the photograph annexed with the complaint of the complainant Sh. Vedanand. He deposed that the complainant did not hand over him the Certificate U/Sec.65B Indian Evidence Act regarding the photographs of the spot. He stated that he CC No.60044/2016 State v. Rajesh & Anr.
FIR No. 286/2016 PS Vasant Kunj(South) Page 3 of 10visited the property on the next day of FIR but he did not take the photographs of the advertising board from his mobile phone or camera. He admitted that there is no public witness in the present case. He further admitted that there is no any public witness in the case file from nearby shops who can prove that the advertisement board was affixed on the abovesaid property. PW-1 deposed that complainant did not hand over him the dismantled board. He admitted that the advertising board was not seized in the present case. He denied the suggestion that no advertisement board was affixed at the abovesaid spot. He further denied the suggestion that the present FIR was registered in collusion with the officer of SDMC. He denied the suggestion that he is deposing falsely.
PW-2 is Sh. Vedanand who deposed that on 30.03.2016 he was posted as Advertisement Inspector, Najafgarh Zone, SDMC, Delhi and on that day, he was at Mahipalpur /Rangpuri duty for checking the advertisement boards and when he reached at Vasant Kunj, Mahipalpur Road, he saw that one board was affixed on the roof top of one Shop. He took the photographs of the board from his mobile phone. After that on 01.04.2016 he gave complaint Ex.PW2/A in the police station. He deposed that on 03.05.2016, the IO prepared the site plan already exhibited as Ex.PW1/E. He deposed that the board was not seized and it was torn by dismantling/removal. He also identified photograph as Ex.P-1.
During cross-examination, PW-2 admitted that the exact address where the advertisement board was affixed is not mentioned in the site plan and in his complaint. He did not hand over the newspaper dated 30.03.2016 which is shown in the photographs to the police CC No.60044/2016 State v. Rajesh & Anr.
FIR No. 286/2016 PS Vasant Kunj(South) Page 4 of 10officials. He admitted that newspaper is not seized by the police. He stated that he did not provide the Certificate U/Sec.65B Evidence Act to the police regarding the photograph. The advertising board was dismantled on 30.03.2016. He stated that he did not prepare any document for dismantling/removal the advertisement board. After dismantling/removal, the board was left at the same place and same was not taken to the SDMC Office. PW-2 admitted that the dimension of the board is not mentioned in his complaint. He denied the suggestion that no board was affixed at the spot that is why the same was not seized. He further denied the suggestion that the complaint was filed just to create data of removal and dismantling/removal the advertisement board. He denied the suggestion that he is deposing falsely.
4. STATEMENT OF ACCUSED PERSON UNDER SECTION 313 Cr.P.C Statement of accused Rajesh and Parvinder Tokas was recorded in Court wherein all the incriminating facts emerged during evidence were put to them distinctly, separately and specifically. Accused persons stated that no board was affixed at the abovestated place since there is no recovery and seizure of the board persons stated that no board wa affixedhe is innocent and he did not affix any hoarding on the electric pole.
5. DEFENCE EVIDENCE Accused chose not to lead any defence evidence.
6. EVALUATION OF THE PROSECUTION EVIDENCE Accused persons were charged for offence under section 3 DPDP Act.
CC No.60044/2016 FIR No. 286/2016 PS Vasant Kunj(South) Page 5 of 107. I have heard Ld. APP for the State and Ld. counsel for the accused, perused the record and have gone through the relevant provisions of the law.
8. RELEVANT PROVISIONS AND INGREDIENTS OF THE OFFENCE At this juncture it is relevant to reproduce the relevant provision of law, which is as under:
"Section 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 pun- ishable with imprisonment for a term which may extend to one year, or with fine which may extend to fifty thou- sand 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 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."
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 CC No.60044/2016 State v. Rajesh & Anr.
FIR No. 286/2016 PS Vasant Kunj(South) Page 6 of 10act guilty of such offence unless he proves that the offence was committed without his knowledge or consent. The term 'defacement' has been defined under Section 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.
9. 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.
10. In order to secure conviction of the accused persons 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 persons.
11. As has been alleged by Ld. Counsel for accused persons, that even board was not seized by the Advertisement Inspector there is not even an iota of evidence led by the prosecution to prove that the board/hoarding was either installed by the accused persons herein or that the same was installed at their instance.
CC No.60044/2016 FIR No. 286/2016 PS Vasant Kunj(South) Page 7 of 1012. In fact, the witnesses PW1 & PW2 have failed to point out as to how accused was pinned down as the installer of the Board in question in as much as, IO has neither recorded the statement of residents of the locality where the board in question was found affixed nor has he recorded the statement of the printer.
13. None of the witnesses examined by the prosecution in its evidence have stated that they had seen the accused putting up the Board in question.
14. The prosecution has relied upon photograph of spot. The photograph was allegedly taken through an electronic device i.e. mobile phone. However, 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 filed in the present case. 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.
15. There is nothing on record to show that any board "Hero India Ki Umeed" was affixed at the rooftop of Khasra No.836, Vasant Kunj, Mahipalpur Road starting point of Mahipalpur Village, starting point of Mahipalpur, left side road.
CC No.60044/2016 FIR No. 286/2016 PS Vasant Kunj(South) Page 8 of 1016. Furthermore, no independent witness was joined in the investigation by the IO. PW1 and PW2 have not explained in their testimonies as to why the public witnesses were not joined in the investigation. It was within the reach of the IO to examine the independent witness to prima facie satisfy that the board in question was affixed on the spot.
17. The fact that alleged board was not even seized in this case, the newspaper shown in the photograph Ex.P-1 is also not seized and no documents regarding dismantling of board was prepared shows that prosecution has failed to prove its case.
18. 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 Deface- ment of Property Act, 1976. It is true Section 2 (aa) de- fines 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."
19. Thus, in the absence of any proof as to the installation of the alleged board by or at the behest of the accused persons, much less, the proof beyond reasonable doubts qua the said fact, there is no question of the accused persons being guilty for the offence of defacement of the property within the meaning of Section 3 of DPDP Act.
CC No.60044/2016 FIR No. 286/2016 PS Vasant Kunj(South) Page 9 of 1020. In view of the aforesaid discussions, accused Rajesh and Parvinder Tokas are entitled to be acquitted and is hereby acquitted of the offence punishable U/Sec.3 of the DPDP Act.
16. CONCLUSION
21. In view of the aforesaid discussions, accused Rajesh and Parvinder Tokas are hereby acquitted for the offences punishable u/s 3 of the DPDP Act.
22. Previous Bail bonds and supardarinama, if any, is cancelled. Surety, if any, is discharged. Endorsement, if any, be cancelled. Originals, if any, be returned.
23. Fresh Bail Bonds in terms of Section 437-A Cr.PC have been furnished by the accused persons today. Considered. Accepted. The same shall remain in force for a period of six months from today.
Digitally signed by Announced in the open court SNIGDHA SNIGDHA SARVARIA on 09.06.2022 SARVARIA Date: 2022.06.09 17:28:40 +0530 (Snigdha Sarvaria ) CMM/ND/Patiala House Courts New Delhi/ 09.06.2022 CC No.60044/2016 State v. Rajesh & Anr. FIR No. 286/2016 PS Vasant Kunj(South) Page 10 of 10