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2013 DIGILAW 604 (UTT)

Hari Krishna BhattV v. State of Uttarakhand

2013-09-24

U.C.DHYANI

body2013
JUDGMENT : U.C. Dhyani, J. The applicant, by means of present application / petition under Section 482 of Cr. P.C., seeks to quash the charge-sheet dated 03.05.2009, summoning order dated 11.06.2009 as well as the proceedings of criminal case no. 457 of 2009, State vs Hari Krishna Bhatt under Sections 292, 294 of IPC and Section 67 of the Information Technology Act, pending in the court of Chief Judicial Magistrate, Chamoli. 2) Mr. Nakli Singh, Station House Officer, police station Chamoli, District Chamoli lodged an FIR bearing case crime no. 23 of 2009, under Sections 292, 294 of IPC against the accused-applicant on 03.02.2009. After the investigation, a charge-sheet for the offences punishable under Section 292, 294 of IPC and Section 67 of the Information Technology Act was filed against two accused persons, including the applicant. Aggrieved against the submission of charge-sheet, present application under Section 482 of Cr. P.C. was filed by the applicant namely, Hari Krishna Bhatt. 3) According to FIR, an informer informed the Police Inspector, police station, Chamoli that accused Hari Krishna Bhatt has prepared a video clip of his intimate relationship with a woman. Police Inspector operated the said CD in computer and found that the picturisation contained obscene acts. When the Investigating Officer took the statement of Police Inspector, the Police Inspector said that the accused-applicant prepared the video clip, copies of which are available with many a persons. When Police Inspector inquired about the same from the accused-applicant, he said that he prepared the CD with his wife. Accused-applicant also said that somebody stole the CD from his computer and made the same available to others. 4) A bare perusal of the FIR, as also the statement of the Police Inspector, nowhere revealed that the accused-applicant published or transmitted or caused to be published or transmitted 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. Even if it be presumed for the sake of argument that such CD was prepared by the accused-applicant, the fact remains that the same was never published or transmitted or caused to be published or transmitted to any person by the accused-applicant. Even if it be presumed for the sake of argument that such CD was prepared by the accused-applicant, the fact remains that the same was never published or transmitted or caused to be published or transmitted to any person by the accused-applicant. At the most, the said CD was prepared by the accused-applicant with his wife, but never made the contents of the same public so as to attract the punishment under Section 67 of the Information Technology Act, 2000. There is, therefore, no reason to cause annoyance to others so as to attract Section 294 of IPC either. 5) Hon’ble Supreme Court, in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330 has desired the High Courts to follow the following steps while dealing with applications under Section 482 of Cr. P.C. The same reads as under: • Step one: Whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? • Step two: Whether the material relied upon by the accused would rule out the assertions contained in the charges leveled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? • Step three: Whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? • Step four: Whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 6) Hon’ble Supreme Court has provided guideline that if the reply to the aforesaid four steps is in the affirmative, then only proceedings under Section 482 of Cr. P.C. should be allowed. In the instant case, the reply to most of the aforesaid questions is in the affirmative in respect of applicant. 7) Hon’ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986, has laid down certain principles in respect of exercise of jurisdiction under Section 482 of Cr. P.C. should be allowed. In the instant case, the reply to most of the aforesaid questions is in the affirmative in respect of applicant. 7) Hon’ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986, has laid down certain principles in respect of exercise of jurisdiction under Section 482 of Cr. P.C. One of the principle is that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 8) Where no factual foundation of any offence is laid against the accused-applicant, there should be no question of asking him to appear and face the trial. This Court should, therefore, intervene in exercise of its jurisdiction under Section 482 of Cr. 8) Where no factual foundation of any offence is laid against the accused-applicant, there should be no question of asking him to appear and face the trial. This Court should, therefore, intervene in exercise of its jurisdiction under Section 482 of Cr. P.C. in order to prevent the abuse of the process of the Court. 9) The application under Section 482 of Cr. P.C. is, accordingly, allowed. The charge-sheet dated 03.05.2009, summoning order dated 11.06.2009 as well as the proceedings of criminal case no. 457 of 2009, State vs Hari Krishna Bhatt under Sections 292, 294 of IPC and Section 67 of the Information Technology Act, pending in the court of Chief Judicial Magistrate, Chamoli are hereby quashed.