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2022 DIGILAW 1823 (ALL)

Jagat Singh v. State of U. P.

2022-11-18

JYOTSNA SHARMA

body2022
JUDGMENT : Jyotsna Sharma, J. Heard Sri Kamlesh Kumar Dwivedi, learned counsel for the petitioner and Sri O. P. Mishra, learned A.G.A. for the State-respondent. 2. This petition under Article 227 of the Constitution of India has been moved with a prayer to set aside the orders dated 13.5.2022 and 12.2.2019 passed by the revisional Court and the trial Court respectively whereby the application for discharge preferred on behalf of the petitioner was rejected and the order was affirmed by the appellate Court in a case arising out of case crime No. 209 of 2016, under Section 66 A of I.T.Act. 3. The facts relevant for the purpose of this petition are as below : A. F.I.R. was lodged against unknown persons with the allegation that some unknown person was transmitting obscene messages from a particular mobile number (as given in the F.I.R.) to the mobile of ''would be husband'' of the sister of the informant. On the basis of this F.I.R. investigation was conducted and charge-sheet under Section 66-A of the I.T.Act was submitted against the petitioner and cognizance was taken. An application was moved on behalf of the accused that no case under Section 66 A I.T. Act was made out as that section has been held ultra vires in view of the judgment of Hon'ble Apex Court in the case of Shreya Singhal v. Union of India and others, AIR 2015 SC 1523 . Therefore, he may be discharged. After hearing both the sides, the trial Court came to conclusion that no charge under Section 66 A I.T.Act can be framed. However, prima facie offences under Sections 67, 67 A and 66C of the I.T. Act were still made out. Against the aforesaid order of the trial Court, a criminal revision was preferred but the same came to be dismissed by the Additional District and Sessions Judge, POCSO Act-III, Hapur. Now the petitioner is before this Court under Article 227 of the Constitution of India. 4. The forceful contention of the petitioner is that charge-sheet was submitted only under Section 66 A of the I.T. Act; cognizance was taken for that offence only. Now the petitioner is before this Court under Article 227 of the Constitution of India. 4. The forceful contention of the petitioner is that charge-sheet was submitted only under Section 66 A of the I.T. Act; cognizance was taken for that offence only. Hence in the light of the judgment of Hon'ble Apex Court in the case of Shreya Singhal v. Union of India and others, AIR 2015 SC 1523 , the petitioner should have been discharged and that there was no question of framing any other charge. It may be noted at the very outset that by the impugned order learned trial Court, on the basis of the dictum of the Apex Court, held that no charges can be framed under Section 66 A of the I.T. Act; at the same time it found material to show that prima facie offence under Sections 67, 67A and 66C were made out. 5. I went through papers on record and submissions of the petitioner. It appears that evidence was collected showing that it was the accused-petitioner, who sent obscene message from a mobile to the mobile of would be husband of the sister of the informant. It may be noted that Section 67 of the Information Technology Act prohibits publishing and transmitting or cause to be published or transmitted in the electronic from, any material which is lascivious or appeals to the prurient interest to the persons who are likely to see or hear the matter contained or embodied in it. Offence of such nature is punishable with a term extending upto three years and fine upto five lac rupees on first conviction. If the evidence collected is accepted as it is in the Act, in my view, case comes within the scope of definition of Section 67 of the I.T.Act. It may be noted that no argument has come-forth from the side of the petitioner as to how and why prima facie offence under Section 67 will not be made out. 6. As far as Section 67A is concerned, I doubt that a text message may come within the meaning of ''sexually explicit act or conduct'' as given under Section 67A of the I.T. Act. 6. As far as Section 67A is concerned, I doubt that a text message may come within the meaning of ''sexually explicit act or conduct'' as given under Section 67A of the I.T. Act. And as far as charge under Section 66C is concerned, there is nothing to suggest that any electronic signature, password and any other unique identification feature of any other person has been used fraudulently and dishonestly so as to bring the incident within the definition of Section 66C which punishes incidents of identity theft. 7. It is settled position that an investigating officer and a Court function in different spheres. If at one hand, the Magistrate or a Court cannot compel the I.O. to submit a charge-sheet in a particular section, on the other hand, the Court is not bound to toe the line taken by the I.O. or to concur with his opinion. The Court/Magistrate is expected to apply his judicial mind while filtering through the prosecution papers and the evidence collected by the I.O. for the purpose of framing of charge. It may be noted that such discretionary power is inherent by virtue of his holding of a criminal Court. It will be unmeaning that a Magistrate, while exercising powers of a criminal Court is restrained from applying his judicial mind. In my view, if at the time of framing of charge, the Court comes to conclusion that some other offence for which the accused was not charge-sheeted is prima facie made out from the available material on record, he shall be perfectly within his powers to frame the charge, irrespective of the fact whether cognizance of that particular offence-if I may use the word, is not taken. This is why it is rightly said that cognizance of a case is taken and not of offence. If such a narrow interpretation of judicial powers is made it will lead to unforeseen complications. Moreover, cognizance is a word having different connotations at different stages of a criminal case. The Court is even invested with the power to add or alter charge at any stage of the trial under Section 216 of Cr.P.C. In my view, no fetters can be put on so as to sap out the life from statutory provisions. 8. Moreover, cognizance is a word having different connotations at different stages of a criminal case. The Court is even invested with the power to add or alter charge at any stage of the trial under Section 216 of Cr.P.C. In my view, no fetters can be put on so as to sap out the life from statutory provisions. 8. Having observed as aforesaid, I point out that the Court has not referred to material on record which prima facie made out the offences under Section 66C and 67A of the I.T. Act. The point, thus involved may require filtering through all the material as available in the case diary as well as hearing both the sides. There is also a probability, as suggested by learned A.G.A. that besides offence under I.T Act, offences under Indian Penal Code may be made out. As this may require considering the entire facts and evidence as collected by the I.O. hence matter, in my view, should be left open for the Court concerned to adjudicate. At the same time the trial Court definitely need not go into evidentiary value of the material collected at this stage and need not conduct any roving enquiry, but shall briefly point out the facts which in its view constitute the ingredients of the offence as defined by the statute. 9. In the above circumstances, orders dated 13.5.2022 and 12.2.2019 passed by the revisional Court as well as the trial Court respectively are set aside to the extent that offence under Section 67A and 66C of the I.T. Act are made out. 10. The petition is therefore disposed of with a direction to the Court below to pass an order afresh after affording an opportunity of hearing to both the sides. The Court while passing an order shall not be influenced by the observations made in para-6 of this order.