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2016 DIGILAW 126 (JHR)

Vishal H. Shah v. State of Jharkhand

2016-01-18

RONGON MUKHOPADHYAY

body2016
JUDGMENT : In this application the petitioner has prayed for quashing the entire criminal proceedings in connection with Sadar (Mesra) P.S. case No. 273 of 2012 including the order dated 04.07.2013 whereby and whereunder cognizance has been taken for the offences punishable under sections 66(A), 66(D) and 67 of the Information Technical Act, 2000. 2. The prosecution story in brief is that an e-mail was sent by some unknown person in the name of Dr. Vijay Nath and Dr. R. K. Lal to the Head of Department, ECE, prof. S. K. Ghorai regarding standards of VLSI workshop offered by the Department and the competence of the teachers associated therein. Allegation has been made that on enquiry it was found that the fake mail came from private IP address 10.63.173.36. The fake e-mail was sent in the name of one Manish Sinha and accordingly the First Information Report was instituted against him. 3. The informant Dr. Vijay Nath forwarded the alleged e-mail on 31th August, 2012 to Mr. Anurag Gupta, IG, CID and requested him to enquire as to the genuineness of the person who had sent the e-mail and on enquiry it was found that the e-mail ID was created by using mobile no. 9471503579 which belongs to the petitioner. Upon investigation having found the case to be true against the petitioner charge-sheet was submitted and, thereafter, vide order dated 04.07.2013 learned Judicial Magistrate, Ranchi had been pleased to take cognizance for the offences punishable under Section 66(A), 66(D) and 67 of the Information Technology Act. 4. Heard Mr. Praveen Kumar, learned counsel appearing for the petitioner and Mr. Abhinesh Kumar, learned A.P.P. for the State. 5. It has been submitted by the learned counsel for the petitioner that a discharge application was filed before the learned court below in which vide order dated 03.04.2014 the petitioner was discharged for the offences punishable under Section 67 of the Information Technology Act, 2000 but sufficient materials were found to frame charge under Sections 66(A) and 66(D) of the Information Technology Act, 2000. Learned counsel for the petitioner has further submitted that Dr. Vijay Nath and Dr. R. K. Lal are the colleagues of the petitioner and it was at their instance the petitioner has been implicated. 6. Learned counsel for the petitioner has further submitted that Dr. Vijay Nath and Dr. R. K. Lal are the colleagues of the petitioner and it was at their instance the petitioner has been implicated. 6. Learned counsel further submits that an enquiry was made by the petitioner at his own level and he could come to know that the IP address 10.63.173.36 is not a valid IP address on the Internet and it belongs to private network and the IP address is of California, USA. Learned counsel further submits that the entire matter could have been verified at the level of the service provider i.e. Google but without verifying the true facts charge-sheet was submitted against the petitioner. Learned counsel has also submitted that Section 66(D) of the Information Technology Act, 2000 is not made out against the petitioner and so far as the 66(A) of the Information Technology Act, 2000 is concerned, the same has been declared to be ultra virus in the case of Shreya Singhal vs. Union of India reported in (2015) 5 SCC 1 . It has, thus, been submitted that since no prima facie case is made out against the petitioner the entire criminal proceedings deserve to be quashed and set aside. 7. Mr. Abhinesh Kumar, learned A.P.P. for the State, on the other hand, has submitted that this Court while exercising its powers under Section 482 Cr.P.C. cannot look into the defence of the petitioner as whatever has been submitted by the petitioner is with respect to his defence in the case. Learned counsel has further submitted that the petitioner has himself given an unqualified apology by alleging that his mobile number had been misused while sending the fake e-mail. 8. It appears that an application was filed by the petitioner on 24.09.2013 under Section 239 of Cr.P.C. for his discharge and vide order dated 03.04.2014 the learned Judicial Magistrate, 1st Class, Ranchi had discharged the petitioner for the offence punishable under Section 67 of the Information Technology Act, 2000. However, the learned Judicial Magistrate had found sufficient materials to frame charge against the petitioner under Section 66(A) and 66(D) of the Information Technology Act. 9. However, the learned Judicial Magistrate had found sufficient materials to frame charge against the petitioner under Section 66(A) and 66(D) of the Information Technology Act. 9. The order dated 03.04.2014 was under challenge in Criminal Revision No. 763 of 2014 and this Court in its order dated 27.02.2015 had set aside the order dated 03.04.2014 and directed the learned court below to pass a reasoned and speaking order after considering the materials on record and giving an opportunity of hearing to both the parties. It has not been stated either in the instant application or in the supplementary affidavit as to whether the learned Judicial Magistrate had passed a fresh order upon remand by this Court in Criminal Revision No. 763 of 2014. If an order has been passed pursuant to the remand the petitioner should have brought the same on record. If, however, no order has been passed as yet it would be premature for this Court to pass an order, since the learned court below is already in seisin of the matter. 10. Since the petitioner has already taken recourse to the provisions under Section 239 of the Cr.P.C. and which can be presumed to be on remand pending in absence of any statement in the petition to the contrary, the petitioner cannot be permitted to ensue a parallel proceeding by invoking Section 482 of the Code of Criminal Procedure for quashing the entire criminal proceedings. 11. In such view of the matter, therefore, I am not inclined to entertain this application which is, accordingly, dismissed.