Delhi District Court
Of India vs . Prafulla Kumar Ai R 1979 Supreme Court ... on 23 January, 2013
IN THE COURT OF SH. DEVENDER KR. JANGALA; ACMM ( N/W)
ROHINI COURTS ; DELHI.
FIR NO. 317/06
U/S 292/34 IPC & Section 67 of
Information Technology Act.
P.S. Keshav Puram
S/V Dhan Raj etc.
23.01.13
ORDER ON THE POINT OF CHARGE
1.The present FIR was registered on the statement of complainant Sh. Sachin for commission of the offence punishable U/S 292 IPC and Section 67 of Information Technology Act . It is alleged by the complainant Sachin that he was having the mobile phone make NOKIA 6681 with number 9818023999. He alleged that few days back he has seen the blue film at his mobile phone which has been up loaded by Dev @ Hassan who has taken his phone. He alleged that in this picture one person namely Dhan Raj, who is his neighbour and one girl is seen whom he identified. He alleged that he had seen the movie and felt bad, hence deleted the picture. The complainant further alleged that again on 11.05.06 he received the same picture on his mobile phone at about 9.40 pm. He S/V Dhan Raj etc. Page 1 of 15 stated that the said picture was prepared by Dhan Raj alongwith his girl friend and transmitted the same to him. He alleged that the said obscene picture has been sent to his mobile phone through mobile phone and they have also sent the same on other mobile phone, therefore, appropriate action may kindly be taken.
2. The police registered the FIR on the complaint of the complainant Sh. Sachin and investigated the matter. The investigation was conducted by Sh. Rajinder Singh ACP Ashok Vihar . It is reported in the final report that on the identification of complainant Sachin the accused Dhan Raj and accused Ishan @ Dev were arrested on 12.05.06 and the car bearing No. DL1CF0282 used in the commission of the offence was seized. It is also reported that the mobile phone make ' Sony Ericsson' was seized. It is further stated that the accused Dhan Raj has made disclosure statement and got recovered two CDs of the same picture from his residence. It is reported that the accused persons have disclosed that they have sent the MMS of that picture to their friend Deepak @ Deepu. The said person Deepak @ Deepu was joined in the investigation who has told that he has sold the said phone to one Sh. Ashok Kumar Jain. S/V Dhan Raj etc. Page 2 of 15 Thereafter the said mobile phone was seized from the possession of Sh. Ashok Kumar Jain and sent to FSL for examination. It is further reported that the accused Neha D/O Sh. Ashok Sharma was also searched and on collection of the sufficient material she was formally arrested in the present case and released on bail. It is alleged that the accused persons have committed the offence punishable U/S 292/34 IPC & section 67 of Information Technology Act.
3. Arguments on the point of charge heard. Record perused.
4. It is submitted by Ld. APP for the state that there is sufficient material on record to frame the charge for commission of the alleged offence , therefore, charge may kindly be framed upon all the accused persons.
5. On the other hand it is submitted by Ld. counsel for the accused Dhan Raj that there is no material on record to frame the charge upon the accused Dhan Raj. It is submitted that the accused Dhan Raj cannot be identified in the C.D placed on record. It is submitted that as per the FSL result the 'file' on the mobile phone was created on 11.05.06 at 8.30 am, whereas as per the prosecution story the said C.D. was recovered on 12.05.06. It is stated that the accused in his disclosure S/V Dhan Raj etc. Page 3 of 15 statement has stated that the said C.D. was created one and a half month before the date of his arrest, but the FSL result shows that the C.D was prepared just one day before the arrest. It is also stated that the FSL result is not supporting the story of the prosecution because in the FSL result, the said MMS could not be retrieved from the mobile phone. It is prayed that the accused Dhan Raj may kindly be discharged in the present case.
6. It is submitted by Ld. counsel for the accused Ishan @ Dev that there is no material on record against the accused Ishan @ Dev for commission of any offence. It is stated that as per the story of prosecution the accused Ishan @ Dev has not prepared the said MMS nor he has circulated the same. It is submitted that there is no material on record to establish that accused Ishan @ Dev had transmitted the said MMS to the phone of the complainant. Therefore, it is prayed that accused Ishan @ Dev may kindly be discharged.
7. It is submitted by Ld. counsel for the accused Neha that the accused Neha is falsely implicated in the present case. It is submitted that even as per the chargesheet there is no material on record to proceed against the accused Neha. It is S/V Dhan Raj etc. Page 4 of 15 submitted that the accused Neha was arrested in the present case without any basis and without any material on record. Therefore, it is prayed that accused Neha may kindly be discharged .
8. I have carefully perused the material on record and have gone through the submissions of Ld. APP for the state and Ld. counsel for the accused persons.
9. Law regarding considerations at the stage of charge is well settled now. The court has power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against accused has been made out. It is held that when the material placed before the court discloses great suspicion against the accused which has not been properly explained the court will be justified in framing charge. The judge should not make a roving inquiry into the pros and cons of the matter and weigh the evidence is if he was conducting a trial. If on the basis of materials on record a court could come to the conclusion that commission of the offence is a provable consequence, a case of framing of charge exists. To put it differently, if the courts were to think that the accused might have committed the offence it can S/V Dhan Raj etc. Page 5 of 15 frame a charge, though for conviction the conclusion is required to be that the accused has committed the offence. At the stage of framing of a charge probative value of the materials on record cannot be gone into, the material brought on record by the prosecution has to be accepted as true at that stage. The truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weigh to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter under S. 227 or S. 228 of the code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an S/V Dhan Raj etc. Page 6 of 15 offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. While deciding the question of framing of charge in a criminal case, the court is not to apply exactly the standard and test which it finally applies for determining the Guilt or otherwise. This being the initial stage of the trial, the court is not supposed to decide whether the materials collected by the investigating agency provides sufficient ground for conviction of the accused or whether the trial is sure to culminate in his conviction. What is required to be seen is whether there is strong suspicion which may lead to the court to think that there is ground for presuming that the accused has committed an offence. Reliance placed on the cases of Union of India vs. Prafulla Kumar AI R 1979 Supreme Court 336 :
State of Maharashtra and others vs. Som Nath Thapa and others JT 1996 (4) SC 615 : State of Bihar v. Ramesh Singh, AI R 1977 S C. 2018: (1997 CRI LJ 1606) ; Umar Abdula Sakoor Sorathia vs. Intelligence Officer narcotic control bureau JT 1999 (5) SC 394 ; Kallu Mal Gupta vs. State 2000 I AD Delhi 107.
10.Our own Hon'ble High Court in case titled as "Sapna Ahuja Vs. S/V Dhan Raj etc. Page 7 of 15 State" reported as 1999(5) AD, Delhi 407 has observed that at the time of framing of charge FIR and the material collected by the investigating agency cannot be sieved through the call ender of the finest gauzes to test its veracity. A roving inquiry into the pros and cons of the case by weighing the evidence is not expected or warranted at the stage of framing charge.
11. In the present case the accused persons are charged for commission of the offence punishable U/S 292 IPC & Section 67 of Information Technology Act. The perusal of both the sections reveals that both the sections are giving the definition for publication or transmission of any obscene /lascivious material etc. The Information Technology Act2000 is a special Act and the same offence as defined U/S 292 IPC are also defined U/S 67 of the Information Technology Act. There are allegations of the prosecution that the obscene/ lascivious material was published or transmitted in the "electronic form". As per the definition of term "electronic form" given in Section 2 (r) of Information Technology Act, the material placed on record by the prosecution i.e. mobile phone and CD are covered within the definition of "electronic form" as defined U/S 2(r) of the Act. Since the alleged material was published or transmitted in the S/V Dhan Raj etc. Page 8 of 15 "electronic form",therefore, the provision of Information Technology Act2000 shall be applicable instead of provision of Section 292 IPC. Hence, none of the accused can be charged for commission of offence punishable U/S 292 IPC.
12.Now, I will proceed to examine the primafacie material on record against each of the accused persons. The prosecution has alleged that accused Dhan Raj has transmitted an obscene/ lascivious material by his mobile phone to co accused Ishan @ Dev and other persons including the complainant. The prosecution has allegedly recovered the CD of the said obscene material from the house of the accused Dhan Raj. The complainant has also specifically identified and named the accused Dhan Raj in his statement. It is submitted by the Ld. APP for the state that there are sufficient material on record to frame the charge for commission of the offence punishable U/S 67 of Information Technology Act upon the accused Dhan Raj. On the other hand it is submitted by the Ld. counsel for the accused Dhan Raj that identity of accused Dhan Raj is not clear or established in the CD while played in the chamber. It is stated that the accused Dhan Raj cannot be identified in the CD placed on record. It is also submitted that as per the FSL result S/V Dhan Raj etc. Page 9 of 15 placed on record , "the file" on the mobile phone was created on 11.05.06 at 8.30 am whereas as per the prosecution story the said CD was recovered on 12.05.06.
13.The accused Dhan Raj has been specifically named by the complainant in his statement. The complainant in his statement has specifically stated that he know the accused Dhan Raj because he is his neighbour and he has identified him in the CD. Therefore, the submissions of the Ld. counsel for the accused is not tenable in the eyes of law that the accused Dhan Raj cannot identified in the CD. Moreover the accused Dhan Raj is visible in the CD played in the presence of Ld. counsel for the accused persons in the chamber of undersigned. Ld. counsel for the accused has also raised the contention that as per the FSL result the file on the mobile phone was created on 11.05.06, whereas the CD was recovered on 12.05.06 and even as per material on record the creation of the file on the mobile phone shortly before the arrest or recovery does not ipso facto creates a ground for discharge of the accused. It is also stated that the accused in his disclosure statement stated that the CD was created one and a half month before the date of arrest whereas the FSL result shows that the CD was prepared one S/V Dhan Raj etc. Page 10 of 15 day before his arrest. The allegations or the material on record produced by the prosecution need no corroboration with the disclosure statement of the accused. The disclosure statement of the accused is voluntarily act of the accused for which the prosecution is having no control. The disclosure statement may be true, may be false , may be partly true and may be partly false. Therefore, the contradiction of the prosecution story with the disclosure statement is having no relevancy on the merits of the case.
14. It is further stated that the said obscene material/MMS could not be retrieved from the mobile phone seized from the possession of the accused by the FSL. The complainant in his complaint has specifically alleged that the accused has transmitted the obscene material in the electronic form on his mobile phone. The CD containing the obscene material has been recovered from the possession of the accused. Therefore, this contention raised by the Ld. counsel for the accused is not tenable in the eyes of law and cannot be considered at this stage.
In view of the above discussions, I am of the considered opinion that at this stage there are primafacie material on S/V Dhan Raj etc. Page 11 of 15 record to frame the charge for commission of the offence punishable U/S 67 of Information Technology Act upon the accused Dhan Raj.
15. Now, I will proceed to examine the role of accused Ishan @ Dev. It is submitted by Ld. counsel for the accused Ishan @ Dev that there is no material on record. It is stated that as per story of the prosecution the accused Ishan @ Dev has neither prepared the said material nor circulated the same. It is also stated that there is no material on record to establish that accused Ishan @ Dev had transmitted the said material/MMS to the phone of the complainant. The complainant in his complaint has specifically alleged that accused Ishan @ Dev has up loaded the obscene file on his mobile phone which the accused has borrowed from him. It is further stated that on feeling bad about the movie he deleted the same but again on 11.05.06 he received the same movie on his mobile phone at about 9.40 pm. The Investigating Officer has also recorded the statement of one person namely Deepak @ Deepu. The prosecution witness Deepak @ Deepu in his statement recorded U/S 161 CrPC has specifically stated that he received the MMS on his mobile phone which was sent by the accused Ishan @ Dev and the S/V Dhan Raj etc. Page 12 of 15 said MMS was containing the obscene picture. The perusal of the statement of the complainant and the witness Deepak @ Deepu reveals that there are sufficient incriminating material on record against the accused Ishan @ Dev to frame the charge for commission of the offence punishable U/S 67 of Information Technology Act. The contentions raised by the Ld. counsel for the accused are not tenable in the eyes of law and contrary to the material on record.
16. Now, I will proceed the examine the role of accused Neha. The prosecution in its charge sheet even though has stated that on collection of sufficient material against accused Neha , she was formally arrested in the present case and was released on bail. However, the prosecution has failed to explain what are the material placed on record against the accused Neha. The accused Neha was neither named by the complainant Sh. Sachin nor witness Deepak @ Deepu. Neither any circumstantial evidence nor any other material has come on record that accused Neha has published or transmitted the obscene material in electronic form. There is not even a single iota of evidence against the accused Neha but still she was arrested and sent for trial. At the time of arguments on the point S/V Dhan Raj etc. Page 13 of 15 of charge the concerned IO the then ACP Rajinder Singh was called to explain the role of accused Neha but even he has failed to satisfy the court regarding presence of incriminating material on record against the accused Neha.
17. The perusal of the record reveals that there was no material at all on record, either to arrest the said accused or to sent her to face the trial. Therefore, considering the facts and circumstances accused Ms. Neha is discharged in the present case. In the present case it has come on record that accused Ms. Neha was arrested by the police officials without existence of sufficient ground but there was no sufficient ground for causing her arrest and sending her to face the trial but even then she was formally arrested by the Investigating Officer and she was also sent to the court to face the trial. Therefore, I am of the considered that the accused Ms. Neha need to be compensated under the provision of CrPC by the police officials. Accordingly issue show cause notice to the (arresting officer) Investigating Officer the then SHO and the then ACP to appear in person to explain why they be not ordered to pay the compensation. The process upon the police officials be S/V Dhan Raj etc. Page 14 of 15 served through DCP ( N/W).
A copy of this order be also sent to the Jt. C.P. ( Northen Range) for information and necessary action. Put up for framing of charge on 31.01.13.
Announced in the open court ( Devender Kr. Jangala) on 23.01.13. ACMM (N/W): Rohini Court : Delhi S/V Dhan Raj etc. Page 15 of 15