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2017 DIGILAW 750 (ORI)

BIKRAM CHHOTARAY v. STATE OF ODISHA

2017-07-18

S.K.SAHOO

body2017
ORDER S. K. Sahoo, J. - The petitioner Bikram Chhotaray has knocked the doors of this Court by way of filing this application under Section 438 Cr. P C. seeking anticipatory bail in connection with Bonai P.S. Case No. 66 of 2017 corresponding to G.R. Case No. 269 of 2017 pending in the Court of learned J.M.F.C., Sundargarh. 2. The police machinery swung into motion when the victim presented a first information report on 09.05.2017 before the Inspector in Charge, Bonai Police Station stating therein that she belonged to a middle class family and she came in contact with the petitioner since last three years through facebook. Initially both of them were talking with each other over phone but subsequently they developed love affair. They used to talk more and more over phone and the victim had told her family members about her affairs. After some days, the petitioner came to Bonai and met the victim. The victim was prosecuting her studies in a Government college in Rourkela and doing post graduation. The petitioner also came to Rourkela, met the victim and took her to a hotel for having some discussion. The petitioner gave assurance to the victim that he was doing a Government job and there would be no difficulty if they marry to each other. The petitioner took some photographs with the victim in the hotel room. Four to five times the petitioner met the victim in the hotel and used to take intimate photographs with her and kept physical relationship with the victim against her will and even took some indecent photographs with her. Since the petitioner was giving assurance of marriage to her, she was not disclosing about their meetings at Rourkela to her family members. For last few days, the victim came to realise that the petitioner was not of good character and she started suspecting him and ultimately denied for marriage with the petitioner. The petitioner being aggrieved started threatening to the victim that he had kept different photographs with him so also video and he would show it to others. The petitioner further threatened that in case the victim reports the matter to police, he would kill her. The petitioner being aggrieved started threatening to the victim that he had kept different photographs with him so also video and he would show it to others. The petitioner further threatened that in case the victim reports the matter to police, he would kill her. The victim tried to avoid talking with the petitioner by blocking his phone number and switching off her mobile phone but the petitioner tried to call the parents and brother of the victim for which they also put the phone number of the petitioner in the block list. The petitioner not only threatened the father of the victim by sending messages but also sent different threatening sms in whatsapp to the brother of the victim and his friends. The petitioner sent some obscene photographs of the victim in the mobile phone of the brother of the victim and his friends. He also sent such photographs of the victim to her friends. Two days prior to the lodging of the F.I.R., during the evening hours, the petitioner abused the father and brother of the victim in filthy language and also threatened to kill them. Over this issue, the health condition of the father of the victim became serious and the mental condition of the brother of the victim who was staying at Bangalore also got worsened. The victim gave different phone numbers which were used by the petitioner. 3. On the basis of such first information report, Bonai P S. Case No. 66 of 2017 was registered under Section 354, 506 and 507 of the Indian Penal Code and section 66-A of the Information and Technology Act, 2000 (hereafter 'I.T. Act, 2000'). 4. During course of investigation, the statement of the victim under Section 161 Cr.P.C. was recorded and the copies of the sms forwarded by the petitioner to the mobile phones of the father and relatives of the victim were seized and other witnesses were also examined. The Investigating Officer submitted a letter to Superintendent of Police, Rourkela to move the telecom authority to provide the CDR, location and ownership of the mobile phones which were used by the petitioner from 01.02.2017 to 24.05.2017. After receiving the CDRs of the mobile phone numbers used by the petitioner, it was found that there were frequent calls from those phone numbers to the mobile phones of the victim. After receiving the CDRs of the mobile phone numbers used by the petitioner, it was found that there were frequent calls from those phone numbers to the mobile phones of the victim. The Investigating Officer also verified the hotel register and seized a copy of the register. The statement of the victim under Section 164 Cr.P.C. was also recorded in which the victim categorically stated as to how the petitioner sent her obscene photographs in the mobile phones of her family members and relatives. 5. Mr. Devashis Panda, learned counsel appearing for the petitioner contended that Section 66-A of the I.T. Act, 2000 has been struck down by the Hon'ble Supreme Court and so far as the other offences under which the case has been registered i.e. Sections 354-A and 507 of the Indian Penal Code are bailable in nature and the offences are triable by Magistrate and the investigation has made substantial progress and material documents have also been seized and therefore, the anticipatory bail application of the petitioner may be favourably considered. 6. Mr. Arupananda Das, learned Additional Government Advocate on the other hand produced the case diary and placed the statements of the victim as well as the copies of the sms and contended that the manner in which the petitioner has conducted himself, he is not entitled to be released on anticipatory bail particularly when the investigation is under progress and custodial interrogation of the petitioner is very much necessary. 7. Mr. Sangram Kumar Das, learned counsel appearing for the informant also opposed the prayer for bail and submitted a letter dated 27.05.2017 of the Commanding Officer of the petitioner which indicates that the petitioner was granted leave for thirty days from 20th January 2017 to 18th February 2017 to proceed to his home but he has not returned to the unit till date and Court of inquiry for desertion was held at unit location on 19th February 2017 and the petitioner was declared as deserter. It is further indicated that since the petitioner has deserted the Army and not present in the unit, no disciplinary action against him could be taken. 8. Section 66-A of the I.T Act, 2000 has been struck down by the Hon'ble Supreme Court in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2) in Shreya Singhal v. Union of India reported in (2015)61 OCR 20. 8. Section 66-A of the I.T Act, 2000 has been struck down by the Hon'ble Supreme Court in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2) in Shreya Singhal v. Union of India reported in (2015)61 OCR 20. The judgment was pronounced on 24.03.2015. Therefore, the registration of F.I.R. under such offence on 09.05.2017 is quite unjustified. It shows that even more than two years after the pronouncement of the judgment, the Inspector in charge of Bonai police station was not aware about such judgment. It is the duty of the Home Department and other senior police officials to update the police department in respect of such affairs by regularly holding training programmes. If the investigating agency remains unaware of update laws of the land, the sufferers would be the innocent citizens. 9. Section 67 of the I.T. Act, 2000 deals with punishment for publishing or transmitting obscene material in electronic form and it prescribes punishment for three years and with fine which may extend to five lakh rupees and Section 67-A of the I.T. Act, 2000 deals with punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form and it prescribes punishment upto five years and fine which may extend to ten lakh rupees. 'Electronic form' as per Section 2 (r) of the I.T. Act, 2000 with reference to information, means any information generated, sent, received or stored in media, magnetic, optical, computer memory, microfilm, computer generated microfiche or similar device. On going through the accusation made by the victim against the petitioner, prima facie materials for commission of offences under Sections 67 and 67-A of the I.T. Act, 2000 are attracted. Mere registration of the F.I.R. under wrong offence or offence which has been struck down by the Hon'ble Supreme Court is not a ground for grant of bail. It is duty of the Court to verify the contents of the F.I.R. and materials on record to find out if any other offence/offences are made out or not otherwise if inadvertently or deliberately the F.I.R. is registered under lesser offences and the Court decides the bail application of the accused looking at such offences without looking at the contents of the F.I.R. then there is every likelihood of failure of justice. Instances are not wanting in this country where taking advantage of registration of the F.I.R. under lesser offences than what it really discloses, the accused persons have got the benefit of bail. If a Court decides the bail looking at the formal registration page of the F.I.R. and the offences mentioned therein without going into the details of occurrence as narrated in the body of the F.I.R., it may cause injustice not only to the victim but also to the accused. 10. The law is well settled that while considering the application for anticipatory bail, the Court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and verify whether these allegations are corroborated by other materials and circumstances on record or not apart from examining the nature and gravity of the accusation, the exact role played by the accused, the possibility of the accused fleeing away from justice, the possibility of the accused committing similar offences or other offences, impact of grant of anticipatory bail on society in such matters, any obstacle likely be caused in the free, fair and full investigation as well as reasonable apprehension of the accused in tampering with the evidence or apprehension of threat to the informant or the victim. 11. Considering the submissions made by the respective parties, the materials available on record and without entering into a detailed examination of the materials available against the petitioner at this stage but on a brief examination of such materials and after evaluating the same with utmost care and caution particularly the FIR and the statements of the victim recorded by the police as well as by the Magistrate and the copies of the sms details, I am of the view that in view of the nature and gravity of the accusation and the conduct of the petitioner in threatening the victim and other witnesses, necessity of custodial interrogation of the petitioner and the fact that the investigation is under progress, I am not inclined to exercise the discretionary power under Section 438 of the Code by granting pre-arrest bail to the petitioner. 12. Accordingly, the ABLAPL application stands dismissed. Final Result : Dismissed