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2013 DIGILAW 1046 (KER)

Shaju Sebastian v. State of Kerala

2013-11-27

P.BHAVADASAN

body2013
ORDER P. Bhavadasan, J. 1. Invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, the petitioner, who is the now shown as an accused in Crime No. 97 of 2013 of Pala Police Station, seeks to have Annexure A3 FIR quashed. The petitioner is alleged to have committed offences punishable under Section 66A(b) of the Information Technology Act . 2. The petitioner, his wife and the second respondent, who is the complainant were working in the same Primary Health Centre. On a particular day, one of the Nursing Staff fainted and there spread a rumour that it was due to the harassment of the second respondent that the incident had occurred. News item regarding the incident came in various news papers and the second respondent had conducted apress conference in which she explained the position which was also reported by the news papers. 3. Subsequently she filed a complaint before the Superintendent of Police, Kottayam accusing of objectionable material having been circulated through internet which caused inconvenience or harassment to her and her husband. 4. The petitioner would say that he has nothing to do with the objectionable news and he has been falsely implicated. The mere fact that the objectionable matter might have originated from the internet connection attached to telephone No.213372, which was the phone allotted to the petitioner, does not mean that he is responsible for the news item. Moreover, it is not within his province top prevent news items being published by the newspapers. Even assuming that he had circulated the news item through internet, it does not mean that he has committed any offence. Relying on the wordings of the provision mentioned above, it is contended by the petitioner that there is no averment in the complaint that itwas he who had created the objectionable reading material. In the absence of any such allegation, proceedings could not have been initiated against him. On these premises, he seeks to have the FIR quashed. 5. Learned counsel appearing for the second respondent submitted that it is not so innocuous as is sought to be projected by the petitioner. In the absence of any such allegation, proceedings could not have been initiated against him. On these premises, he seeks to have the FIR quashed. 5. Learned counsel appearing for the second respondent submitted that it is not so innocuous as is sought to be projected by the petitioner. It is not the news paper clipping that is the objectionable matter, but the caption given about the news item which, it could be seen on a perusal of Annexures 4 and 5, are clearly interpolated entries and that is the creation of somebody. It is because of those captions which defame the second respondent and her husband that the complaint was laid. It could not be said, according to the second respondent, that no cognizable offence is made out. If as a matter of fact a cognizable offence is made out, then it is not within the province of this Court to quash the proceedings and prevent investigation. Accordingly, it is contended that there is no merit in the petition. 6. Learned counsel appearing for the petitioner emphasized what is stated in the petition. He contended that he was not responsible for the news item and he has nothing to do with the publication of the same. There is nothing, according to the learned counsel for the petitioner, to show that the petitioner was the author of the objectionable matter except that it was originated from internet connection of the telephone which was allotted to the petitioner. According to the learned counsel, even assuming the allegations are true, no offence is made out. 7. Learned counsel appearing for the second respondent contended that it is too early to go into the above aspects and prima facie, on going through Annexures A3 and A4, it can be seen that there is an interpolation and the second respondent has only complained about that aspect which has defamed her and her husband. As to who is the author is a matter to be discovered during investigation and it could not as of now be said on the basis of the allegation in thecomplaint no cognizable offence is made out. Whether the offence is under Section 66A (a) or (b) of I.T.Act is a matter for investigation and this Court shall not shut out the investigation into the case. Accordingly, it is contended that the petition may be dismissed. 8. Whether the offence is under Section 66A (a) or (b) of I.T.Act is a matter for investigation and this Court shall not shut out the investigation into the case. Accordingly, it is contended that the petition may be dismissed. 8. In order to appreciate the rival contentions, it becomes necessary to understand the penal provision of law which is being invoked against the petitioner. The provision is Section 66A of the Information Technology Act. And which reads as follows: "66A. Punishment for sending offensive messages through communication service, etc.- Any person who sends, by means of a computer resource or a communication device,- (a) any information that is grossly offencive or has menacing character, or (b) any information which he knows to be false, buyt for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource ora communication device; or (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the original of such messages, shall be punishable with imprisonment for a term, which may extend to three years and with fine. Explanation.- For the purpose of this section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message." 9. It relates to sending of objectionable matter or which is menacing the character by means of computer or any communication device. It does not deal with authorship of the objectionable matter at all. It only speaks about the sending of material. 10. The complaint is produced as Annexure A1. All that the complainant has stated in the said complaint is thatusing the email facility, objectionable materials have been circulated to defame her and her husband. In the complaint, there is no mention that it was the petitioner who was responsible for the same and the complainant has only prayed that necessary steps may be taken to identify the culprit and bring him into book. 11. It is not as if that what is circulated is a newspaper publication as such. In the complaint, there is no mention that it was the petitioner who was responsible for the same and the complainant has only prayed that necessary steps may be taken to identify the culprit and bring him into book. 11. It is not as if that what is circulated is a newspaper publication as such. If that be so, it could have been said that no offence is made out for the simple reason that the petitioner cannot be held liable for the same. But the mischief are the two captions which appear in Annexures A4 and A5 which read as follows: xxx xxx xxx Obviously, on a perusal of Annexures A4 and A5, it can be easily discerned that these captions did not form part of the news item at all , but are subsequent insertions. It cannot besaid prima facie that it is not objectionable. Any how, a further probe into this matter is not warranted at this stage. 12. It is even conceded by the petitioner that the circulation was effected from telephone No.213372 which is in the name of the petitioner and he is the subscriber of the same. Probably because of the said reason, the petitioner now stands arrayed as an accused. The investigation is at an infant stage. 13. As rightly pointed out by the learned counsel for the second respondent, it could not be said that cognizable offence is not made out. Whether the offence attracted is under Section 66A(a) or (b) of the I.T. Act is a matter for ascertainment during investigation. Going by Section 77B of the I.T. Act, the offences are cognizable offences. 14. Learned counsel appearing for the second respondent is justified in his submission that once it is shown that a cognizable offence is alleged to have been committed and an FIR is registered on that basis, it will be inappropriatefor this Court to interfere with the matter and quash the FIR. As is often said, investigation is within the province of the police and the courts have little role to play. It is also well settled that the courts shall not forestall the investigation into a crime. For the above reasons, it has to be held that there is no merit in this petition and it is only to be dismissed. I do so.