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Madhya Pradesh High Court · body

2009 DIGILAW 789 (MP)

PRAKASH CHATTRANI v. STATE OF M P

2009-07-09

J.K.MAHESHWARI

body2009
Judgment ( 1. ) THIS petition has been filed under Section 482 of the Cr. P. C. against the order dated 30. 1. 09 passed in Criminal Case No. 528/07, which was affirmed by the revisional court by a common order dated 16. 4. 2008 passed in Criminal Revisions No. 27/08 and 28/08, by which the charge under sections 509, 506 of IPC and Section 67 of the Information Technology Act, 2000 was framed. ( 2. ) PERUSAL of the order of the trial Court indicates that a Compact Disc (hereinafter referred to as cd), filed along with the challan papers has been seen in the Court, in front of the advocates Shri Mundra, Shri Rawat and Shri n. K. Sharma. The CD was displayed by the S. D. O. P. , Sushri Pratima Patel as directed by Court; on the demand of defence counsel. Later Shri N. K. Sharma, advocate has appeared on behalf of Shri Mundra Advocate and argued on the question of framing of charge. At the out set, it is conceded by him that on the framing the charge under Sections 509 and 506 of IPC, he does not have serious objection, but to frame a charge under Section 67 of the Information Technology act, he is having serious objection; referring the provisions of Section 67 of information Technology Act it is argued that even assuming that the CD is obscene, but no material is available to believe that it was broadcasted by accused Prakash, which is the necessary requirement to framing charge under Section 67 of the information Technology Act. However, it was argued that the CD was not prepared or broadcasted by him; however, charge under Section 67 of the Information technology Act cannot be framed. The Court has recorded a finding that on perusal of the CD, which is seen in the Court, it is apparent that the material available therein is obscene to them who have seen it. The finding has also been recorded that the CD was broadcasted, as apparent from the statements of some of the witnesses recorded by the police under Section 161 of Cr. P. C. wherein it is said that on going through the CD, on its broadcast, it has also come in their knowledge that the girl Mariyam is not the good girl. P. C. wherein it is said that on going through the CD, on its broadcast, it has also come in their knowledge that the girl Mariyam is not the good girl. In some of the statements of witnesses it has further indicated that by using bluetooth obscene photographs have been transmitted to others through cellphone (mobile ). However, looking to over all allegations, and material collected by prosecution in case diary the charge under Section 67 of Information Technology Act against accused Prakash (petitioner herein) has also been framed. ( 3. ) THE said finding recorded by the trial Court has been affirmed by the revisional court, with the observation, in a case of Information Technology Act as per section 78 investigation ought to have done by the Police Officer not below the rank of Deputy Superintendent of Police. However, the investigation was done by such Officer, and if some of the documents have prepared by the Head Constable, it may not vitiate the investigation, and such argument cannot be accepted at the stage of framing the charge. It has also observed, the absence of photographs of girl Mariyam have been transmitted publicly without her knowledge and broadcasted to others it causes bad fame to her. On perusal of the challan papers it appears that while lodging the FIR by the father of the girl Mariyam one CD was supplied to police authorities and another CD was recovered from accused prakash during investigation. The Court has seen the CD on a television/dvd and the Court has recorded its prima facie opinion to frame the charges under section 67 of the Information Technology Act. However, the interference at the stage of framing of charge has been refused by revisional Court. ( 4. ) SHRI Atul Shridharan learned counsel appearing for the petitioner submits that the CD, on the basis of which charge under Section 67 of the Information technology Act has been framed, has not been supplied to him. However, the right to defend himself has been taken away due to such non-compliance of the mandatory provisions. He further submits that in the said CD, no obscene material is available, which is sufficient to frame the charge of Section 67 of the Information technology Act. However, the right to defend himself has been taken away due to such non-compliance of the mandatory provisions. He further submits that in the said CD, no obscene material is available, which is sufficient to frame the charge of Section 67 of the Information technology Act. If it was supplied to him then he may be in a position to establish before the Court that the charge, under Section 67 of the Information Technology act may not be made out. It is also argued by him that the trial Court in its order at one place stated that the Advocate of the petitioner Shri Mundra was present, but in the later part of order at the time of argument his junior Shri N. K. Sharma addressed the Court, because Shri Mundra was not well. However, it is argued that, in fact, the CD was not seen in front of the advocates of the accused, but behind their back, Thus, the fact as stated of its seeing by advocate at the time of framing the charge is contrary to record, hence, the findings are perverse. It is also contended, the Court has not acted with fairness, depriving the petitioner from his right to address at the time of framing of charge by not supplying the material documents. ( 5. ) AT last, it is argued that the language of Section 207 of Cr. P. C. indicates that whatever the material which is being used against him and collected by the prosecution ought to have been supplied to him, with a view to furnish a reasonable opportunity, the non-supply of CD has caused serious prejudice at the time of framing of charge to the accused. He has placed reliance on three judgments. First judgment is of this Court in the case of Sadhvi Ritumbhara v/s State of M. P. reported in 1997cri. LJ 1232, while another judgment is of Allahabad High court in the case of Suresh Kumar Upadhayay and another v/s State of U. P. and another, reported in 2002 Cri. L. J 1852 and the third judgment is of the Supreme court in the case of Jitendra and another v/s State of M. P. , reported in 2003 Cri. L. J 4985 (SC ). ( 6. L. J 1852 and the third judgment is of the Supreme court in the case of Jitendra and another v/s State of M. P. , reported in 2003 Cri. L. J 4985 (SC ). ( 6. ) ON the other hand Shri C. R. Karnik, learned Deputy Government Advocate has argued with vehemence and submits that at the time of framing of the charge the allegations ought to have been seen with an intent to bring home the charges for which the offence was registered against the accused. After perusal of the material collected by the prosecution and on perusal of the CD on a television in the Court, in front of the defence counsel the trial Court has recorded a prima fice opinion that the charge under Sections 509 and 506 of the IPC read with Section 67 of the Information Technology Act is made out against the petitioner. It is also argued by him that all the material documents have been supplied to the petitioner except the CD, which was made available in Court, which is seen in front of the advocate of the petitioner. The advocate of the petitioner, after visualizing the picture of that CD, has addressed the Court without making demand of its supply; however, at the stage of framing of charge raising objection of non-supply of document even on seeing the CD in Court is unsustainable, particularly the said cd was recovered from his possession. It is also argued by him that the counsel for the petitioner has conceded to not to have any objection in framing charge under Sections 509 and 506 of the IPC, he merely raised objection of framing of charge under Section67 of the Information Technology Act. Once the objection has not been raised for framing of charge under Sections 509 and 506 of the IPC he may riot object for framing the charge under Section 67 of the Information technology Act, because the charge under Sections 509 and 506 of the IPC relates to the said offence. In that view of the matter, the charge as framed by the trial court is not liable to be interfered with at this stage. Learned counsel further submits that when the CD was displayed counsel for the petitioner and Shri Mundra, shri Rawal and Shri N. K. Sharma (all the three) were present. In that view of the matter, the charge as framed by the trial court is not liable to be interfered with at this stage. Learned counsel further submits that when the CD was displayed counsel for the petitioner and Shri Mundra, shri Rawal and Shri N. K. Sharma (all the three) were present. But, at the time of arguments it was expressed by Shri N. K. Sharma that his senior is not well; however, he is advancing the argument before Court. Thus, looking to all the facts, the grievance as ventilated is upon after thought and liable to be rejected. At last it is submitted that present petition filed by the petitioner is devoid of any merit, hence, liable to be dismissed. ( 7. ) AFTER having heard learned counsel for the parties and on perusal of the fir it is apparent that there is an allegation against the present petitioner of taking; the obscene photographs of one girl Mariyam and to prepare a CDJ which is broadcasted. The photographs were also transmitted by using bluetooth and infrared function through mobile, the said mobile and CD are recovered from the present petitioner. Some of the witnesses deposed under Section 161 of the Cr. P. C. , and said that after going through the CD it has come to their knowledge that Mariyam is not a good girl. By some of the statements it has also come on record that those photographs have been transmitted to them by way of bluetooth. In such a situation prima facie involvement of the petitioner to frame the charge was found by trial, therefore, charge under Sections 509 and 506 of the IPC read with Section 67 of the Information Technology Act has been framed. ( 8. ) NOW to advert the argument as advanced by Shri Shridharan regarding nonavailability of the counsel Shri Mundra in the Court at the time of when the cd was displayed and seen, is of merit-less and liable to be turned down. In this respect, the proceedings of trial Court indicates, after calling the OIC, S. D. O. P. , sushri Pratima Patel, she had displayed the CD on television in the Court in presence of Shri Mundra, Shri Rawat and Shri N. K. Sharma (all three) advocates, but the argument had advanced by Shri N. K. Sharma showing inability being not well of Shri Mundra. Thus, it is apparent when the CD was displayed in the Court when Shri N. K. Sharma was also present and on visualizing the CD he has advanced the arguments at the of stage framing charges without raising any objection to supply CD, therefore, the argument of Shri Shridharan is not acceptable on the point that the Court has seen the CD behind the back of the counsel for the petitioner. ( 9. ) THE next argument as advanced by Shri Shridharan regarding non-supply of the CD causes serious prejudice to accused is of no consequence for the reason that bare reading of the order of trial Court dated 31. 1. 09 itself indicates that the counsel appearing on behalf of the accused were ready to peruse the CD in front of the Court; however, whatever the material collected by the prosecution has been shown to the advocates, who were representing the accused, but none of the advocate has raised any objection that without supply of the CD they cannot advance the argument. On the contrary, they were ready to address the Court at the stage of framing of charge without raising demand of CD. In such circumstances, in my opinion, the argument advanced by Shri Shridharan regarding noncompliance of Section 207 of the Cr. P. C, and of causing serious prejudice to the accused person and depriving him in putting his effective defence at the time of framing of the charge is not of any substance and liable to be turned down. In fact, the purpose of supply of the police report and other documents at the time of framing of the charge to the accused is required to be followed with a view to have an opportunity of hearing. In the facts and circumstances of the present case in the opinion of this Court, counsel for the applicant is unable to make out a case of deprivation of an opportunity of hearing, because prior to advancing the argument of framing of charge the CD was seen by the Court and the advocates of both the sides. Thereafter, the arguments were advanced and the charge was framed. Thus, in the opinion of this Court the compliance of Section 207 of the Cr. P. C. has been completed. ( 10. Thereafter, the arguments were advanced and the charge was framed. Thus, in the opinion of this Court the compliance of Section 207 of the Cr. P. C. has been completed. ( 10. ) THE decisions relied upon by Shri Shridharan are also of no help to them, because in the case of Sadhvi Ritumbhara (supra) the video cassettes were not supplied by the Magistrate on the ground of nonavailability of the Machinery required for preparing the copies of those audio/video cassettes. In the case in hand the CD was recovered from the petitioner himself on production in the Court, the same was seen on display in front of the advocates representing the accused. The Court has also recorded its opinion after seeing those CDs that prima facie case under Section 67 of the Information Technology Act is made out; however, in the facts and circumstances of the present case the judgment of Sadhvi Ritumbhara (supra) is having no application. The another judgment of Allahabad high Court is only with respect to supply of statements prior to framing of the charge. In the present case it is not the case of the petitioner that other statements have not been supplied to him. It is merely on the basis of the CD, which has been seen by the counsel for the petitioner in the Court the argument has been advanced of non-supply of the same; such argument cannot be accepted. So far as judgment of the apex Court in the case of Jitendra and another (supra) is concerned, it is the judgment after recording the statement, on merit. On going through the said judgments it is apparent that one of the letter written by the Superintendent Datia to the Director State Forensic Laboratory was considered by the Court, which was not produced during trial; however, the inference of non supply of document was drawn by the apex Court. But, in the facts of the present case wherein the issue has been raised at the stage of framing of the charge, when all the material has placed along with the challan paper before the Court and the CD has been displayed before the counsel for the petitioner; however, no benefit may be denied to him from the said judgment. In view of the said facts the argument as advanced by Shri Shridharan is of no help to them. ( 11. In view of the said facts the argument as advanced by Shri Shridharan is of no help to them. ( 11. ) AT this stage it is to be seen when the petitioner has not raised any serious objection to frame the charge under Sections 509 and 506 of the IPC, can be objected only to frame charge under Section 67 of the Information Technology act. Sections 509 and 506 of the IPC is relevant, however, reproduced here as under:- "509. Word, gesture or act intended to insult the modesty of a woman.-Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. "506. Punishment for criminal intimidation.- Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; "if threat be to cause death or grievous hurt, etc- And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. " the Criminal intimidation has been defined under Section 503 of the IPC, which is also reproduced hereunder:- "503. Criminal intimidation.- Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. " ( 12. " ( 12. ) ON going through the ingredients of Section 503 of the IPC it is apparent that whosoever threatens another with an intention to cause any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or omit to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding of such threat the said persons commits an act of criminal intimidation which is punishable under Section 506 of the IPC. The language of Section 509 of the IPC indicates that when any person intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished. Once the counsel for the petitioner was not having any objection regarding framing of charge under Section 509 of the IPC but having objection with respect to framing of charge under Section 67 of the Information Technology Act, which relates to publishing of information, which is obscene in the electronic form i. e. , cd cannot be said to be accepted, in the facts and circumstances of the present case. It would be relevant to refer Section 67 of the Information Technology Act, for ready reference: "67. Publishing of information which is obscene in electronic form. It would be relevant to refer Section 67 of the Information Technology Act, for ready reference: "67. Publishing of information which is obscene in electronic form. Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees. ( 13. ) BARE reading of the above, it is apparent that if any person publishes or transmits or causes to be published in the electronic form any material lascivious or appeals to prurient interest or its effect is such to deprave and a corrupt person who having regard to all relevant circumstances read, see or hear the matter contained or embodied is amounting to publishing of information obscene in electronic form. In the present case photographs of a girl were taken, transmitted by bluetooth in the electronic form, it was published by the CD recovered from the applicant; however, on conceding to frame a charge under Section 506 and 509 of the IPC, on availability of the CD objection to not to frame charge under section 67 of the Information Technology Act cannot be accepted. Therefore, the argument as advanced by Shri Shridharan is liable to be turned down. ( 14. ) IN the present case the charge was framed under Sections 509 and 506 of the IPC and Section 67 of the Information Technology Act. The basis for framing of the charge as per the allegations is that some obscene photographs and gestures of one girl Mariyam have been taken in the CD, which is seen by the Court on display in front of defence counsel and some gesture of the words were also there. Those photographs have been transmitted by SMS by using bluetooth and infrared function to the others. Those photographs have been transmitted by SMS by using bluetooth and infrared function to the others. The said CD was seized from the possession of the petitioner. On visualizing the CD the arguments were advanced by the counsel representing the petitioner. However, in such case the objection raised to not to to frame the charge under Section 67 of the Information Technology Act ,cannot be accepted. Once the charge under Sections 509 and 506 of the IPC have been conceded to be framed, as per the statement made at Bar, objection of not framing the charge of Section 67 of the Information Technology Act is not acceptable. Thus, I do not find any substance in this petition, therefore, it is liable to be dismissed: ( 15. ) ACCORDINGLY, this petition is dismissed with no order as to costs. Petition dismissed.