Madras High Court
J.Samuel Diwakar vs The Deputy Superintendent Of Police on 17 October, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 26.09.2022
Pronounced on : 17.10.2022
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.R.C.No.778 of 2022
J.Samuel Diwakar ..
Petitioner
Versus
The Deputy Superintendent of Police
Crime Branch Cyber Crime Cell
Chennai
(Crime No.10/2007) .. Respondent
PRAYER: Criminal Revision` Case filed under Section 397 r/w 401(2) of
Cr.P.C, may be pleased to call for the records in connection with the Order
dated 30.11.2021 in C.A.No.122 of 2020 passed by the Learned XX
Additional District Judge, Chennai confirming the order dated 01.10.2020 in
C.C.No.9224 of 2010 passed by the learned XI Metropolitan Magistrate,
Saidapet and set aside the same as illegal and improper.
For Petitioner : Mr.S.Kingston Jerold
For Respondent : Mr.S.Sugendran
Additional Public Prosecutor
ORDER
This petition has been filed seeking to call for the records in connection with the Order dated 30.11.2021 in C.A.No.122 of 2020 passed by the https://www.mhc.tn.gov.in/judis 2 Learned XX Additional District Judge, Chennai confirming the order dated 01.10.2020 in C.C.No.9224 of 2010 passed by the learned XI Metropolitan Magistrate, Saidapet and set aside the same.
2. The respondent police registered the case as against the petitioner in Crime No.10 of 2007 for the offences under Sections 67 of the Information Technologies Act, 2000, 509 of IPC and 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998. After investigation, they laid down the Chargesheet before the XI Metropolitan Magistrate, Saidapet, Chennai. The learned Magistrate taken the charge-sheet on file in C.C.No.9224/2010. The learned Magistrate framed the charges for the abovesaid offences and on completion of the Trial, the petitioner was found guilty for the offences under Sections 67 (4 counts) of the Information Technologies Act, 2000 for a period of one year simple imprisonment and fine for a sum of Rs.500/- for each count and failing which 1 month simple imprisonment, in connection with 509 of IPC, 6 months simple imprisonment and for Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998, six months simple imprisonment and fine for a sum of Rs.10,000/- failing which one month simple imprisonment and directing to undergo the sentence concurrently and https://www.mhc.tn.gov.in/judis 3 the period of remand which were already undergone from 07-12-2007 to 07- 01-2008 were set-off under Section 428 Cr.P.C. and total fine imposed is sum of Rs.12,000/-.
3. Challenging the said judgment of conviction and sentence passsed by the learned Magistrate, the petitioner herein filed an appeal before the learned XX Additional District Judge, Chennai. The appeal was taken on file in Crl.A.No.112/2020 and after hearing the arguments dismissed the appeal and the judgment of conviction and sentence passed by the learned XI Metropolitan Magistrate, Saidapet, Chennai. Aggrieved, the accused has filed this revision case before this Court.
4. The learned counsel for the revision petitioner would submit that the allegation against the petitioner are that the petitioner had taken half nude photographs of PW1 with Sony Erricson mobile phone and uploaded on the internet. Further, the investigation officer has not produced the said Sony Erricson mobile in which the alleged photographs were taken and PW11 also in his evidence has stated that he has not investigated in respect of the mobile phone. Further, submitted that the prosecution has failed to produce any pen https://www.mhc.tn.gov.in/judis 4 drive, hard disc, compact disc or floppy disc and without the same, they had produced the photos as material objects. The petitioner and PW1 were seperated and not living together. The copy of the alleged e-mail was produced before this Court without producing the hardware from which the e-mail was sent, moreover, the PW12 in his evidence also admitted that it is not necessary for this case to get an expert opinion that the mails were sent from the alleged address.
5. No instrument or evidence was produced by the prosecution to show how the petitioner had transferred the photos to the email. The prosecution has not produced the original photos or the instrument or they hardware or memory card for the source of transfer of photos to the mail. There must be a possibility of misusing the petitioner's email ID by some third parties. The prosecution did not obtain any information from the service provider about the details of the author of the emails and from which the IP address mail was accessed. There was only one mail communication between the petitioner and PW2 and assuming that if the petitioner had sent the mail, he would have definitely be in continuous communication with PW2. However, since, there was only one communication with the PW2 there might be a high possibility that the email https://www.mhc.tn.gov.in/judis 5 woul have been sent by some third parties. The PW2 himself admits that he is a stranger to the petitioner and the prosecution had failed to prove that how the petitioner had obtained the email ID of PW2.
6. The prosecution had not recovered any hardware such as computer parts to prove that the petitioner had created the email address in the PW6 Shop. The prosecution had failed to prove the origin of the mail and the source on which the photos were transferred. If a person wants to use his name in the mail address. Hence, some third party with an intention of putting the petitioner behind the bars had done such act and petitioner is innocent. The PW1, wife of the petitioner in her cross examination had stated that she had got divorced and now she is not interested to proceed further in the case.Hence, by setting the evidence of the PW1, it is clear that her motive is to get divorce from the petitioner and for the purpose she had foisted the cae against the petitioner and made him not appear before the divorce proceedings and obtained an exparte decree.
7. The case was proved beyond reasonable doubts without looking into the fact that the prosecution failed to prove the origin and source of the mail https://www.mhc.tn.gov.in/judis 6 address and how the photos were transferred from Sony Erricson mobile to the mail. He would further submit that the Appellate Judge had confirmed the order passed by the learned XI Metropolitan Magistrate without any materials and failed to exercise the power of the Appellate Court, reappreciate and go into the independent conclusion and simply endorsed the view of the learned Magistrate without any iota of evidence. Therefore, this revision is to be allowed and the judgement passed by the Appellate Court is liable to be set aside.
8. The learned Additional Public Prosecutor appearing for the respondent police submitted that the revision petitioner and PW1 are the husband and wife. While, she was taking bath, the petitioner took half nude photographs of her in different angles. When the PW1 has witnessed the same, she enquired about taking photographs to the petitioner. The petitioner stated that since, he is going to abroad and in order to keep her memory, he had taken such photos. While so, PW1 received a call from the PW2 stating that he has seen the nude photographs of her which was sent by the revision petitioner's email ID and therefore, she lodged a complaint and the investigation were completed. During the investigation, they found out that the petitioner had https://www.mhc.tn.gov.in/judis 7 uploaded the nude photographs of PW1 in the adult website. Therefore, from the evidences of PW1, PW2 as well as PW6 and PW7, which are the prinout of the emails received from the petitioner would clearly show that the revision petitioner had committed the said offences.
9. Though the learned counsel for the revision petitioner has taken a different defence, the revision petitioner has admittted and has not denied the fact of taking half nude photographs of PW1 and in fact other materials would clearly show that the revision petitioner has uploaded the obsence photographs taken from his phone in the websites. Since, the PW2 has seen such photographs and contacted the PW1. The PW1 who already knew the photographs were taken by the petitioner while she was bathing had uploaded her photographs in the websites and transferred to third parties email. Though, he has stated that the hard disk and other things have not been produced before this Court as material objects, however, even in the confession statement, the revision petitioner has admitted that he has taken the half nude photographs of PW1. Therefore, he would submit that the prosecution has proved its case beyond reasonable doubts. Hence, he submits that the conviction order as well as the first appellate Court Judgment does not require interference from this https://www.mhc.tn.gov.in/judis 8 Court and seeks dismissal of this revision case.
10. Heard both sides and perused the materials placed on record. The case of the prosecution is that the petitioner during November 2007 by using Sony Ericcson mobile phone with an intent to publish nude photographs and to insult the modesty of the woman namely PW1, intruded upon her privacy, caused fear, shame and embarrassment. On 09.11.2007, the petitioner from the internet browsing centre namely Sunny-Net sent obscene text and photographs from his email ID to the witness PW2's email ID. The PW2 contacted the PW1 and stated that he has seen her obsene photographs. Therefore, subsequently, the complaint came to be lodged and the matter was investigated. The person in the said photographs is PW1, who is none other than wife of the revision petitioner.
11. Of-course, subsequently, the revision petitioner got divorce from her and one of the grounds taken by the petitioner is that the PW1 in order to get divorce from the petitioner has taken such photographs herself and foisted the petitioner with this false complaint. However, the entire materials and facts clearly shows that the PW1 herself cannot take photos appears in the exhibits https://www.mhc.tn.gov.in/judis 9 as a selfie. Therefore, except the petitioner, none other would have taken such photographs. PW1 has clearly stated while taking bath, the revision petitioner has only taken the photos, when she enquired about the same, he has given his own reasons. Neverthless, subsequently the photos were sent through the petitioner's e-mail ID to other persons. Therefore, it is obvious from the evidences of PW2 that the revision petitioner has put the obscene photographs and had sent the email to PW2 and other third parties.
12. Though, the defence taken by the learned counsel for the petitioner that someother third party might have seen it and might have sent it to other persons. Once, it is proved that it was sent from the petitioner's email ID to the PW2, it is for the petitioner to substantiate that it was sent by the petitioner. From the facts and evidences borne out from the records, it is clear that except the petitioner, none would have taken such photographs and transferred it to the third parties using the petitioner's email ID.
13. It is not the case of the defence that somebody has taken the nude photographs of PW1 and sent the email to third parties. The only defence is that the petitioner has taken the photographs from his phones, however, he has https://www.mhc.tn.gov.in/judis 10 not transferred the photos to the third parties as alleged. Neverthless, the said nude photographs have been transmitted from the email ID of the petitioner to the third parties. It is for the petitioner to substantiate the said defence.
14. Though the petitioner has stated that the hard disk, the instrument or memory card for the source of transfer of photos to the mail has not been filed and Section 65 of the Indian Evidence Act has not been complied with. Further, in this case, the evidence of the prosecution witnesses have clearly spoken about the relationship between the petitioner and the PW1 and the same is also not in dispute. Admittedly, both were living together in the same roof and subsequently, they got divorce. Though, PW1 in the initial cross examination had enumerated the facts before the Court and subsequently, she stated that she wanted to get divorce from the petitioner and intended to say anything, which shows the frustration of the PW1 on the petitioner.
15. A careful reading of the entire materials, this Court as a Revision Court does not find any perversity in the appreciation of the evidence of the witnesses by both the Trial Court as well as the first Appellate Court. It is a settled principle of law that jurisdiction of the Revision Court is limited, the https://www.mhc.tn.gov.in/judis 11 Revision Court cannot step into the shoes of the Appellate Court and exercise the powers of the Appellate Court and revisit the entire evidences independently. The Revision Court can only find out to the effect of finding any irregularity, infirmity, non proper appreciation of the evidences or perversity in the order of the Appellate Court.
16. With the above discussion, this revision case stands dismissed. No costs.
17.10.2022 Index : Yes/No Speaking order/non speaking order dhk P.VELMURUGAN, J., dhk https://www.mhc.tn.gov.in/judis 12 To
1.The Deputy Superintendent of Police Crime Branch Cyber Crime Cell Chennai
2.The Public Prosecutor High Court, Chennai Pre-Delivery Judgment in Crl.R.C.No.778 of 2022 and Crl.M.P.No.7935 of 2022 17.10.2022 https://www.mhc.tn.gov.in/judis