Affixing Removable Election Campaign Material Does Not Constitute Defacement of Property or Criminal Mischief

The petitioner, a candidate in the 2022 Municipal General Election, was accused of affixing election campaign materials (posters/banners) on a temple wall and an electricity pole.

An FIR (Thakurganj P.S. Case No. 163 of 2022) was registered based on a complaint by the Revenue Officer/Model Code of Conduct Officer.

Following an investigation, the police submitted Charge-Sheet No. 231 of 2022 alleging offences under Sections 426 (mischief) and 427 (mischief causing damage to the amount of fifty rupees) of the Indian Penal Code (IPC) and Section 3 of the Defacement of Property Act, 1987.

The petitioner sought quashing of the FIR and charge-sheet under Section 482 of the CrPC.

1. Whether the act of affixing removable election campaign material on a wall or pole constitutes "defacement" under Section 3 of the Defacement of Property Act, 1987.

2. Whether the allegations in the FIR and charge-sheet establish the foundational elements of mischief under Sections 426 and 427 of the IPC.

Section 3 of the Defacement of Property Act, 1987, which penalizes defacing property in public view by writing or marking with ink, chalk, paint, or other materials.

Sections 426 and 427 of the IPC regarding mischief and consequential damage.

The persuasive precedent of the Delhi High Court in T.S. Marwa & Ors. vs. State (2008), which held that merely putting up a banner does not constitute defacement under analogous anti-defacement statutes unless there is a permanent marking.

The Court observed that the prosecution’s case rested solely on the presence of election materials on a wall and pole.

On a plain reading of Section 3 of the Defacement of Property Act, the Court reasoned that "defacement" requires a degree of permanence, such as marking with ink or paint, which was absent here as the materials were removable.

Regarding the IPC charges, the Court found that neither the FIR nor the charge-sheet provided any factual foundation to suggest the petitioner caused "wrongful loss or damage" or met the monetary threshold for damage required under Section 427.

Consequently, the Court determined that the essential ingredients of the alleged offences were not disclosed, and continuing the proceedings would constitute an abuse of the process of the law.

The quashing application was allowed, and the FIR (Thakurganj P.S. Case No. 163 of 2022) and Charge-Sheet No. 231 of 2022 were quashed insofar as they related to the petitioner.