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2020 DIGILAW 685 (GAU)

Tabu Ram Pegu v. State of Assam

2020-09-29

PARTHIVJYOTI SAIKIA

body2020
JUDGMENT : Parthivjyoti Saikia, J. 1. Heard Mr. M. Biswas, the learned counsel appearing for the petitioner in Criminal petition No. 290/2020. Also heard Mr. M.K. Borah, the learned counsel appearing for the petitioner in criminal petition No. 400/2020. I have heard Mr. B.J. Dutta, the learned Additional Public Prosecutor, Assam appearing for all the respondents in both the cases. 2. This is a common order for Criminal Petition No. 290/2020 and Criminal Petition No. 400/2020 as both these petitions have been filed for quashing the same FIR dated 22.02.2020 registered as Kokrajhar P.S. Case No. 104/2020. 3. The factual matrix giving rise to these two criminal petitions have more than one stories inseparably connected with each other. 4. The first incident took place on 15.01.2020 when the petitioner Taburam Pegu, Addl. S.P. (B), Kokrajhar had made a G.D. Entry at Kokrajhar P.S. The said entry reads as follows:- "I Sri Tabu Ram Pegu (APS) Addl. S.P. (B), Kokrajhar has entered the following in the general diary of the said Police Station. Arrived at Kokrajhar P.S. to sent WT MSG regarding availing 60(Sixty) days EL w.e.f. today the 15th January/2020. As per granted by Govt. of Assam vide No. HMA (APS) 1075/pt/15. And also to inform that the Superintendent of Police has withdrawn my allotted vehicles for reason last known to him. It may be mentioned that the S.P. Kokrajhar has been pursuing a Vendetta against me since long. Particularly since the parliamentary election/2020 and this was confidentially reported to the then DGP, Assam. Therefore after vindictive moves of the S.P. Kokrajhar was partly stopped. But again he has started to pursue vendetta against me and closed my vehicles/escort. I am very apprehensive that he is trying to frame me or assassinate me. In this regard I shall take up the matter with higher formation of the deponent during my leave period." (sic) 5. Thereafter on 17.01.2020 Tabu Ram Pegu sent a written complaint (Annexure 8) to the Director General of Police alleging that on 15.01.2020 at about 1 p.m. his officially allotted vehicle and his personal security cover were withdrawn by his superior, the Superintendent of Police, Kokrajhar. 6. The other part of the story is that in a certain party held at Gaurang Valley Resort (date of the party not mentioned), at Kokrajhar, the Superintendent of Police had assaulted one Executive Magistrate. 6. The other part of the story is that in a certain party held at Gaurang Valley Resort (date of the party not mentioned), at Kokrajhar, the Superintendent of Police had assaulted one Executive Magistrate. That incident was recorded in camera by the people who were present there. 7. The third part of the story is that one person named Sri Dulal Borah was arrested by Police on the basis of an FIR lodged by the Director of an NGO, who alleged that the said Dulal Borah, in the guise of an RTI activist, was indulging in cheating, black mailing and extortion etc. 8. On 17.02.2020, Mr. Punam Jit Nath, the Deputy Superintendent of Police had lodged one FIR before the Superintendent of Police, Kokrajhar. In the aforesaid FIR it was alleged that the aforesaid Dulal Borah had admitted before police that the video footage of the incident that took place at Gaurang Valley Resort was handed over to him by the petitioner Tabu Ram Pegu through the other petitioner Naba Chandra Singha. 9. In the aforesaid case against Dulal Bora, the other petitioner Naba Chandra Singha was also examined under section 161 Cr.P.C. and he stated to the investigating officer that the aforesaid video footage was given to him by the petitioner Tabu Ram Pegu, who asked him to deliver that video footage to Dulal Borah. Therefore he did accordingly. 10. The FIR filed by Mr. Punam Jit Nath, was registered by police under Section 66(B) and 72 of the Information Technology Act. 11. Mr. Biswas, the learned counsel for the petitioner has submitted that in order to constitute the offence under Section 66(B) of the Information Technology Act, the following ingredients would be required:- 1. One who dishonestly receive or retain computer resource or communication; 2. The said computer resource or communication should be a stolen one; 3. The recipient of the computer resource or communication must know or have reason to believe that the same is stolen computer resource or communication. 12. Regarding Section 72 of the Information Technology Act, Mr. Biswas has submitted that following three ingredients would be required to constitute this offence:- 1. Custody of electronic record must be vested on the accused under any of the provisions of the Act; 2. The accused without the consent of the person concerned to whom the electronic record belongs; 3. 12. Regarding Section 72 of the Information Technology Act, Mr. Biswas has submitted that following three ingredients would be required to constitute this offence:- 1. Custody of electronic record must be vested on the accused under any of the provisions of the Act; 2. The accused without the consent of the person concerned to whom the electronic record belongs; 3. He has discloses it to any other person. 13. According to the ld Counsel, the present F.I.R. has been filed only for wrecking personal grudge as it was suspected that the petitioner Tabu Ram Pegu had made the video footage viral for damaging the image of the Superintendent of Police. In order to buttress his submission, Mr. Biswas has relied upon the judgment of the Supreme Court rendered in State Of Haryana And Ors. vs. Ch. Bhajan Lal And Ors. reported in 1992 Supp (1) SCC 335 In this case the Hon'ble Supreme Court has held--- "102. In the backdrop of the interpretation of the various relevant provisions of the code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of Magistrate within the purview of Section 155(2) of the Code. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions o f the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 14. The ld. Counsel Mr. Biswas has further relied upon another judgment of the Supreme Court, rendered in Vineet Kumar and others v State of Uttar Pradesh, reported in (2017) 13 SCC 369 . In paragraph 41 of this judgment the Supreme Court has held- "41. Inherent power given to the High Court under Section 482 Cr.P.C. is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories as illustratively enumerated by this Court in State of Haryana vs. Bhajan Lal. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories as illustratively enumerated by this Court in State of Haryana vs. Bhajan Lal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C. to quash the proceeding under Category 7 as enumerated in State of Haryana vs. Bhajan Lal, which is to the following effect: (SCC p.379, para 102) 102 (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. The above Category 7 is clearly attracted in the facts of the present case. Although, the High Court has noted the judgment of the State of Haryana vs. Bhajan Lal, but did not advert to the relevant facts of the present case, materials on which Final Report was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where High Court ought to have exercised its jurisdiction under Section 482 Cr. P.C. and quashed the criminal proceedings." The learned counsel Mr. Biswas has submitted that the present FIR does not even remotely indicate that the petitioner Tabu Ram Pegu was vested with the custody of any electronic record (the video footage), neither does it indicate anything about the actual owner of the said electronic record. 15. I have given my anxious consideration to the submission made by the learned counsel of the petitioner. Here at this stage a brief visit to Section 66(B) of the Information Technology Act would be fruitful. Section 66(B) reads as under:- "66B. 15. I have given my anxious consideration to the submission made by the learned counsel of the petitioner. Here at this stage a brief visit to Section 66(B) of the Information Technology Act would be fruitful. Section 66(B) reads as under:- "66B. Punishment for dishonestly receiving stolen computer resource or communication device.-Whoever dishonestly received or retains any stolen computer resource or communication device knowing or having reason to believe the same to be stolen computer resource or communication device, shall be punished with imprisonment of either description for a term which may extend to three years or with fine which may extend to rupees one lakh or with both." 16. Similarly Section 72 of the said Act also may be quoted and it reads as under:- "72. Penalty for breach of confidentiality and privacy.-Save as otherwise provided in this Act or any other law for the time being in force, if any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made thereunder, has secured access to any electronic record, book, register, correspondence, information, document or other materials without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both." 17. Now the question that arises is as to whether the video footage of Gaurang Valley Resort is a stolen one. Was it given in the custody of the petitioner Taburam Pegu. The materials available with the record show that the aforesaid video footage did not have any owner. In this case there is no materials to suggest that the custody of the video footage was given to Tabu Ram Pegu by someone. Many people present in the party that night had recorded the incident in their mobile phones. Moreover that video footage did not have any secret material relating to National security. It simply contained the visual footage showing the Superintendent of Police of district assaulting one Executive Magistrate of the same district in a party. 18. The learned counsel Mr. Many people present in the party that night had recorded the incident in their mobile phones. Moreover that video footage did not have any secret material relating to National security. It simply contained the visual footage showing the Superintendent of Police of district assaulting one Executive Magistrate of the same district in a party. 18. The learned counsel Mr. Biswas has submitted that the incident of assault upon the Executive Magistrate, took place in front of many people present in the party and many of them had recorded the said incident in their mobile phones. 19. It is clear on the face of the record, that the petitioner Tabu Ram Pegu already had a personal dispute with the Superintendent of Police. It was the Superintendent of Police who had withdrawn the official vehicle as well as the security cover of the petitioner Tabu Ram Pegu, exposing him to violent activities of extremists in the district. No reason has been cited for the said act of the Superintendent of Police. It is a clear case of taking revenge for ongoing enmity. 20. So far as the allegation against the other petitioner Naba Chandra Singha, a Havilder in Assam Police, is concerned, he had taken the video footage from Tabu Ram Pegu and handed it over to the aforesaid Dulal Borah. The ld. Counsel Mr. Bora has submitted that the specific allegation against this petitioner is that he obeyed the order given by his superior officer and acted as a courier. Mr. Bora vehemently submitted that this petitioner is only a Havidar and he carried the said footage on the basis of the order of his superior and delivered it to Dulal Bora. According to Mr. Bora the act of the petitioner is not an offence as the video footage did not have any secret matters pertaining to National security or to the surety interest of anything or anybody. Mr. Borah submitted that the video footage contained the visuals of a responsible police officer assaulting an Executive Magistrate in front of public. According to the Ld. Counsel the impugned F.I.R. was filed for wrecking personal vendetta because the said misdeeds of the Superintendent of Police could be witnessed by people of the State because the video footage was telecast in the local T.V. Channels. 21. According to the Ld. Counsel the impugned F.I.R. was filed for wrecking personal vendetta because the said misdeeds of the Superintendent of Police could be witnessed by people of the State because the video footage was telecast in the local T.V. Channels. 21. Be that as it may, I find that the materials available in the record fail to establish a prima-facie case against both the petitioners under Sections 66(B) and 72 of the Information Technology Act. It is clear on the face of the record that the FIR dated 22.02.2020 was filed in a mala fide intention and an ulterior motive for wrecking vengeance. 22. The power under section 482 of the Cr.P.C. is the inherent power of the High Court. This power is exercised in order to prevent abuse of the process of the Court and to prevent miscarriage of justice. Subjecting someone to criminal prosecution to wreck vengeance is a serious matter; such an act affects his personal liberty. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In the instant case there are no materials for constituting a prima facie case under Sections 66(B) and 72 of the Information Technology Act. I am satisfied that the ratio laid down in Bhajan Lal case (supra), more particularly the category seven is clearly attracted in the facts of the present case. Therefore, I find that this is a fit case for exercising power of this Court under Section 482 of the Cr.P.C. 23. The FIR dated 22.02.2020, filed by Mr. Punam Jit Nath and registered as Kokrajhar P.S. case No. 104/2020 stands quashed. 24. Both the petitioners are disposed of accordingly.