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2017 DIGILAW 1467 (ALL)

MOHD. NIZAM v. STATE OF U. P.

2017-05-31

PANKAJ NAQVI

body2017
JUDGMENT Hon’ble Pankaj Naqvi, J.—Heard Sri Rakesh Dubey, learned counsel for the applicant and the learned A.G.A. 2. This application under Section 482 CrPC has been preferred for quashing the proceeding of Case No. 925 of 2013 (State v. Mohd. Nizam) related to Crime No. 221 of 2012, under Sections 292 IPC and 66-A and 67 Information Technology Act, at P.S. Babupurwa, Kanpur Nagar, pending in the Court of Metropolitan Magistrate-IV, Kanpur Nagar. 3. The O.P. No. 2 lodged an F.I.R, against the applicants on 21.4.2010 as Case Crime No. 62 of 2010 under Sections 292, 504 and 506 IPC alleging that applicant No. 1 is repeatedly making obscene phone calls, to his married daughter at Pune, extends life threats to her, sends obscene messages, in respect of which he also complained to Ms. Asma, mother of the applicant, but instead of coming to his rescue, she too abused him. After investigation, a charge-sheet was submitted under Sections 292, 504, 506 IPC against the applicant and her mother. The Chief Metropolitan Magistrate, Kanpur Nagar vide his judgment/order dated 7.4.2017 acquitted the applicant and her mother of the charged offences. 4. The O.P. No. 2 lodged another F.I.R, on 5.4.2012 against the applicant as Case Crime No. 221 of 2012 under Sections 292, 504, 506 IPC and under Sections 66-A and 67 of the Information Technology Act, 2000 (in short, the Act) on same allegations that his married daughter at Pune is being harassed by the applicant, by making obscene phone calls, extends life threats, in respect of which he had lodged an F.I.R, as Case Crime No. 62 of 2010, under Sections 292, 504, 506 IPC, P.S. Chamanganj, District Kanpur Nagar, in which after investigation, a charge-sheet had been filed, but the applicant did not mend his way, has now started posting objectionable/obscene material/text, of his daughter on the Net, as a result of which not only the daughter, but the family too is finding it extremely difficult to cope up with. After investigation, a charge-sheet was submitted against the applicant by Sub-Inspector R.P. Singh, on 8.2.2013 for offences under Section 292 IPC and Sections 66-A and 67 of the Act and cognizance taken on 9.4.2013. 5. The submission of learned counsel for applicant is two-fold. After investigation, a charge-sheet was submitted against the applicant by Sub-Inspector R.P. Singh, on 8.2.2013 for offences under Section 292 IPC and Sections 66-A and 67 of the Act and cognizance taken on 9.4.2013. 5. The submission of learned counsel for applicant is two-fold. He first submits that once the applicant has been put on trial in respect of a set of allegations in Case Crime No. 62 of 2010 for offences under Sections 292, 504, 506 IPC, P.S. Chamanganj, Kanpur Nagar and obtained an acquittal under the judgment/order dated 7.4.2017, which attained finality, he cannot be prosecuted in respect of the same allegations in Case Crime No. 221 of 2012 under Section 292 IPC at P.S. Babupurwa, Kanpur Nagar. He then submits that in so far prosecution of the applicant for offences under Section 66-A and Section 67 of the Act is concerned, former having been struck down by the Apex Court in the case of Shreya Singhal v. Union of India, AIR 2015 SC 1523 , investigation of an offence under Section 67 of the I.T, Act having been carried out by a person lower in rank than that of the Inspector, no cognizance of the said charge-sheet could have been taken in view of the embargo of Section 78 of the Act. 6. Learned A.G.A, has opposed the submission. 7. To examine the first plea, the Court finds that the allegations in the F.I.R, as Case Crime No. 62 of 2010 and that of F.I.R, as Case Crime No. 221 of 2012, are one and same, i.e., with regard to sending of obscene/objectionable messages by way of SMS and also of posting the same on the Net. Once applicant has been prosecuted and acquitted for an offence under Section 292 IPC on 7.4.2017 fresh prosecution on the same set of allegations is barred under Article 20 (2) of the Constitution, which provides that a person, who has been once convicted/acquitted by a Court of competent jurisdiction for an offence, shall not be liable to be tried again for the same offence. A similar bar is also contained in Section 300 of the Code. Section 78 of the Information Technology Act is quoted hereunder : “Power to investigate offences. A similar bar is also contained in Section 300 of the Code. Section 78 of the Information Technology Act is quoted hereunder : “Power to investigate offences. -Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), a police officer not below the rank of 94 [Inspector] shall investigate any offence under this Act.” 8. The legislative intent is clear when it confers exclusive power to investigate the I.T. Act offences to a police officer not below the rank of Inspector, who is expected to have certain degree of expertise/knowledge to handle investigation of a technical offence. Once exclusivity to investigate an offence is conferred upon a police officer of a certain rank, investigation by an authority lower than the rank of the designated authority vitiates such investigation, which is not a curable defect, as non-obstante clause, of Section 78 has an overriding effect over the provisions of the Code. 9. It is not disputed that the rank of a Sub-Inspector is lower than that of the Inspector. Consequently, a charge-sheet filed by an incompetent authority is illegal/void in view of the bar of Section 78, on which no cognizance could have been taken. 10. The application is allowed. The proceedings of Case No. 925 of 2013 (State v. Mohd. Nizam) related to Crime No. 221 of 2012, under Sections 292 IPC and 66-A and 67 Information Technology Act, P.S. Babupurwa, Kanpur Nagar, pending in the Court of Metropolitan Magistrate-IV, Kanpur Nagar, are quashed.