Delhi District Court
Nhk Japan Broadcasting Corporation vs State (Nct Of Delhi) on 7 December, 2015
IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Crl. Revision No. 48/2015
I.D. No 02403R0213582015
1. NHK Japan Broadcasting Corporation
6th Floor, Maridian Commercial Complex,
8 Windsor Place, Janpath,
New Delhi.
2. Takeaki Yoda,
2-33-2-101
Uehara, Shibuya-Ku.
Tokyo, Japan.
.......Petitioners
Versus
State (NCT of Delhi)
......... Respondent
Date of institution of the revision petition : 19.10.2015
Date of reservation of orders : 19.11.2015
Date of announcement of orders : 07.12.2015
ORDER
1 This revision petition has been filed under section 397 of the Code of Criminal Procedure (Cr.P.C.) against the impugned order dated 04.09.2015 by which the Ld. Trial Court directed framing of charges under Sections 20 and 21 of the Indian Telegraph Act, 1885 (hereinafter referred to as the 'said Act') against the petitioners / accused persons.
2 Mr. Rajiv Bhatnagar, the Ld. counsel for the petitioner has argued that no charge under Section 20 of the said Act was made out as the only allegation contained in the charge-sheet is that the petitioner no.2 Takeaki Yoda illegally used a Thuraya satellite phone (number 88216511044733, handset IMEI no. 350093-90-8029698) to contact mobile numbers 9899524521 and 9810004117.
NHK Japan Broadcasting Corporation vs. State CR No. 48/2015 1/4 3 Ld. Counsel for the petitioner submitted that the ambit of Sections 20 and 21 of the said Act were different. He submitted that while Section 21 provided for use of a telegraph in contravention of the provisions of the said Act, Section 20 was in respect of establishing and maintaining such a telegraph. He submitted that no case was made out for the offence under Section 20 as it was not the case of the prosecution that either of the petitioners had established and maintained such a telegraph. Counsel for the petitioner relied upon the following case law:-
(i) Shiv Cable vs. State of Rajasthan, AIR 193 Rajasthan 197;
(ii) Vodafone Mobile Services Limited & Others vs. Union of India, MANU/TD/0093/2012;
(iii) Tata Teleservices (Maharashtra) Limited vs. Union of India, MANU/TD/0111/2011; and
(iv) Union of India vs. Association of Unified Telecom Service Providers of India, (2011) 10 SCC 543.
4 On the other hand, Ld. Addl. PP for the State supported the impugned order and submitted that the charges under both the Sections were made out.
5 I have heard the ld. counsels for the parties and have perused the record of the case.
6 In order to appreciate the contentions made, it will be pertinent to refer to the provisions of Section 20 (1) and 21 of the said Act which reads as under :
"20. Establishing, maintaining or working unauthorised telegraph -
(1) If any person establishes, maintains or works a telegraph within India in contravention of the provisions of Section 4 or otherwise than as permitted by rules made under that section, he shall be punished, if the telegraph is a wireless telegraph, with imprisonment which may extend, to three years, or with fine, or with both, and, in any other case, with a fine which may extend to one thousand rupees."
(emphasis supplied) "21. Using unauthorized telegraphs - If any person, knowing or having reason to believe that a telegraph has been established or is maintained or worked in contravention of this Act, transmits or NHK Japan Broadcasting Corporation vs. State CR No. 48/2015 2/4 receives any message by such telegraph, or performs any service incidental thereto, or delivers any message for transmission by such telegraph or accepts delivery of any message sent thereby, he shall be punished with fine which may extend to fifty rupees."
(emphasis supplied) 7 Perusal of Section 20 (1) of the said Act reveals that the key words constituting the offence under the said Section are "establishes, maintains or works" a telegraph in contraventions of provisions of Section 4 or otherwise than as permitted by rules made under that Section. Section 4 of the said Act provides that the Central Government shall have the exclusive privilege of establishing, maintaining and working telegraphs within India. The proviso to Section 4 authorises the Central Government to grant a license to any person to establish, maintain or work a telegraph within any part of India.
8 In the opinion of this Court, from a consideration of the provisions of section 20 (1) read with section 4 of the Act, the words "establishes, maintains or works" in respect of a telegraph would necessarily apply to setting up the entire infrastructure for a telegraph and the offence under Section 20 (1) of the said Act would be committed when any person without any authority of the Central Government establishes, maintains or works such a telegraph.
9 In the present case, the telegraph used are Thuraya Satellite phones. Having gone through the contents of the charge-sheet, I do not find any material to show that either of the petitioners had established, maintained or worked the network of Thuraya satellite phones within the meaning of Section 21 read with Section 4 of the said Act. It is not the case of the prosecution that the petitioners are responsible for establishing, maintaining and working Thuraya Satellite phones in India. The allegations against them are of use of the same which is punishable separately under Section 21 of the said Act. Thus no charge for the offence under Section 20 of the said Act is made out.
10 For the reasons recorded above, the revision petition is allowed in NHK Japan Broadcasting Corporation vs. State CR No. 48/2015 3/4 part. The impugned order in so far as it directs framing of charge under Section 20 of the said Act is set aside. However the order pertaining to framing of charge under Section 21 of the said Act is left undisturbed. TCR along with copy of this order be sent back to the Ld. Trial Court. Revision file be consigned to record room.
Announced in the open Court (REETESH SINGH)
on 7th December, 2015 ASJ-02/FTC, PHC/NDD
07.12.2015
NHK Japan Broadcasting Corporation vs. State
CR No. 48/2015 4/4