Delhi District Court
Sh. Sameer Sharma vs State (Govt. Of N.C.T Of Delhi) on 3 October, 2020
1
IN THE COURT OF MS. NEELOFER ABIDA PERVEEN
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
Decided on: 03.10.2020
Crl. Revision No. 94/2020
In the matter of :-
Sh. Sameer Sharma
S/o Sh. Surender Kumar Sharma
R/O H.No.D-179, Prashant Vihar,
DELHI-110085 ...REVISIONIST
VERSUS
1. STATE (GOVT. OF N.C.T OF DELHI)
2. Sh. Rajeev Sharma
S/O Sh. Brij Bhushan Sharma
R/O 03/55, First Floor,
Subhash Nagar, Delhi-110027
3. Sh. Sheetal Sharma
S/O Sh. Brij Bhushan Sharma
R/O 03/55, First Floor,
Subhash Nagar, Delhi ...RESPONDENTS
JUDGMENT
The present revision petition impugns the order dated 13.01.2020 passed by the Court of Sh. Rishab Kapoor, Ld. CR. No. 94/2020 Sameer Sharma v. State & Ors. Page 1 2 Metropolitan Magistrate, Tis Hazari, Delhi in C. C. No. 13273/2018, titled as Sameer Sharma v. Rajeev Sharma, vide which the application, filed by the petitioner herein, under section 156(3) Cr. PC was dismissed and the and the complaint came to be listed for recording of Pre Summoning Evidence under section 200 Cr.PC.
1. Ld. Counsel for the petitioner submitted that marriage between revisionist's sister and respondent no.2 was solemnized on 09.08.2002 and two daughters were born out of the wedlock namely Samridhi and Kanupriya but the respondents and their family members inflicted cruelties and atrocities upon the revisionist's sister and she was thrown out from her matrimonial home by the accused and their family who took the custody of both the children. That the respondent no.2 had lodged a false complaint with the Special Commissioner of Police, Law and Order on 23.10.2017 against the revisionist levelling serious allegations against the revisionist and his brother that they have hacked the Google account and created fake illegal Face book account and uploaded some unwanted photographs of Samridhi CR. No. 94/2020 Sameer Sharma v. State & Ors. Page 2 3 Sharma, who is the daughter and niece of the revisionist. The said complaint was investigated by one police official of Cyber Cell namely Sh. Ajit Kumar (Inspector) and the findings of the investigations proved the complaint made by respondent no.2 as false and clean chit was given to the revisionist. In the investigation, it was revealed that all the illegal tasks in regard to fabricating / creating the face book account and further designed to harm the character / reputation of the child namely Samridhi Sharma was carried out from the broadband NO.011-45024831 which was registered in the name of respondent no.3 namely Sheetal Sharma, real uncle of child and real brother of respondent no.2. That respondent no.2 and 3 had used another minor child namely Anjali for their ill motives, who was class mate of Samridhi Sharma. That when the revisionist got the knowledge of hatching pre-planned conspiracy, he decided to make the counter complaint against both the respondents and thereafter, he filed application u/s 156(3) & 200 Cr.P.C before the Ld.MM. That the Ld. Trial Court has passed the impugned order without going through the complaint of the applicant / revisionist and did not consider the facts of the case for seeking the direction to register CR. No. 94/2020 Sameer Sharma v. State & Ors. Page 3 4 the FIR against the accused as per the offence disclosed by him in his complaint. That the matter is related to I.T.Act, the investigation must be carried out by a police officer not less than the Rank of ACP but Ld. MM relied on report of the IO / SI, who also belongs to the higher official in Ministerial staff of the accused persons. That when a complainant disclosed the commission of cognizable offence in his / her complaint in oral or in writing then the police is bound to register the case u/s 154 Cr.P.C and investigate the matter accordingly but the local police has failed to fulfil it's duty as envisaged in statutory provisions made in the Criminal Procedure Code and settled law laid down and confirmed repeatedly by the Hon'ble Supreme Court in its several Judgments. That the revision petition is maintainable as an order dismissing application u/s 156(3) Cr.P.C to direct the SHO of concerned police station to register the case FIR and to investigate and to submit the report, is not an interlocutory order. That present case involves serious allegations levelled against the accused persons u / s 177, 182, 191, 192, 193, 195, 196, 211, 420, 468, 469, 471, 499 r/ w 120B IPC & 65, 66, 66A & 67 of I.T. Act. That in the present matter how the complainant / petitioner can CR. No. 94/2020 Sameer Sharma v. State & Ors. Page 4 5 adduce all the evidences by himself as there are unknown accused persons and that the truth can only come out through a police investigation.
2. I have heard the Ld. Counsel and perused the record.
3. The record reveals that the petitioner instituted one complaint under sections 200 Cr.PC for registration of FIR u/ss 177, 182, 191, 192, 193, 195, 196, 211, 420, 468, 469, 471, 499 r/w 120 B & 34, and sections 65,66,67 of the Information Technology Act, 2005, alongwith an application under sections 156(3) for registration of FIR under the same sections against two accused persons, who are respondents to the present petition. The respondents/accused are brothers and the complainant is the brother of the estranged wife of Respondent No.2. It is alleged under the complaint that the respondent no.1 had instituted one complaint dated 23.10.2017 against the complainant, petitioner herein, levelling allegations that the complainant/ petitioner had hacked a Google Account and created a facebook account uploading some unwanted photographs of his daughter due to CR. No. 94/2020 Sameer Sharma v. State & Ors. Page 5 6 which the complainant received a notice from Cyber Cell on 3.1.2018 with direction to appear on 4.1.2018, upon which he visited the office and filed his response and subsequently he moved an application under the RTI Act, and was supplied with documents reflecting his innocence. That a false complaint was made against the complainant and a false complaint was got registered by the respondents in conspiracy with each other for which act they are liable to be prosecuted under section 177 IPC. That they also rendered themselves liable for the offence of giving false information with intent to cause public servant to use his lawful power to the injury of another person u/s 182 IPC. This also rendered them liable for the offence of giving false evidence u/s 191 IPC as the accused persons are legally bound by the express provisions of law to state the truth but instead of stating the truth the accused in connivance with each other in pursuance to a well hatched conspiracy have made false statement knowing the same to be false. That the accused have fabricated false evidence u/s 192, 193, 195 IPC as the accused under a pre- planned conspiracy caused a circumstance to exist by twisting and creating false facts with an intention to use the same in legal CR. No. 94/2020 Sameer Sharma v. State & Ors. Page 6 7 proceedings. Also the accused in connivance and in furtherance of a conspiracy with dishonest and malafide intention to cause injury to the complainant and his family members without any just or lawful ground, punishable under section 211 IPC. Moreover the accused forged and fabricated and manipulated the documents and used it as a genuine document for the purpose of creating false evidence and for cheating the complainant under sections 420, 464,468,469,471 IPC. That due to the acts of the accused the complainant suffered mental agony thereby causing wrongful loss to the complainant and wrongful gain to them and that the accused persons are also liable for various offences under Information Technology Act as they have created a false/fake facebook account of Minor niece of the complainant. That the accused in connivance and by way of a pre panned conspiracy and with an intention to damage the prestige and reputation of the complainant have deliberately and intentionally filed the false and frivolous complaint and defamed the complainant under section 499 of IPC. That each and every family member was asking about the case and when the police officials came to the house of the complainant, the complainant had to face many CR. No. 94/2020 Sameer Sharma v. State & Ors. Page 7 8 questions from the persons of the vicinity, which injured the reputation of the complainant in the society and also caused lot of harassment and mental agony to the complainant. The accused are liable for the offences under sections 65/67/66 of the IT Act as the accused knowingly and intentionally created the false /fake facebook account and uploaded the false photographs of the minor child after manipulating and altering the same.
4. The petitioner is aggrieved against the dismissal of his application under section 156 (3) Cr.PC calling for registration of an FIR under sections 177/182/191/192/193/195/196/211/420/468/469/471/499 rws120B/34 IPC, and sections 65, 66, and 67 of the IT Act. No Court in terms of section 195 Cr.PC is capable of taking cognizance of any offence punishable under sections 172 to 188 of the IPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate and in respect of offences punishable under sections 193 to 196, 199, 200, 205 to 211 except on the complaint in writing of the Court or by such officer CR. No. 94/2020 Sameer Sharma v. State & Ors. Page 8 9 of the Court as that Court may authorise in writing in this behalf or of such other Court to which such Court is subordinate. Sections 191 and 192 of the IPC lay down the acts and omissions rendered punishable under the ensuing sections while providing a definition of the offences of giving and fabricating false evidence. It is alleged that the accused forged and fabricated and manipulated the documents and used it as a genuine document for the purpose of creating false evidence and for cheating the complainant under sections 420, 464, 468, 469, 471 IPC. It is not explained as to in what manner with a dishonest intention the complainant was induced to act in any manner in which he otherwise would not have acted but for the inducement, and pertinently what exactly has been the inducement or fraud played upon the complainant and what instrument has been forged and fabricated in what manner. The false allegations in a complaint are not liable to be taken cognizance of under sections 467/468 IPC.
5. The complaint filed by the petitioner is infact in redressal of one complaint filed against the petitioner by the respondent CR. No. 94/2020 Sameer Sharma v. State & Ors. Page 9 10 no.1 and his brother on the allegations that the respondent being a technical person has created a false facebook account in the name of his daughter showing her to be of above age and then posting photos on the said facebook account. The false allegations are emanating from this complaint made by the respondent No.1 as per the contention of the complainant, and the forgery and fabrication is the false accusation raised in the said complaint. The basic ingredients of the offence punishable under sections 467/468 IPC are not borne from the contents of the complaint instituted by the petitioner. The creation of a false facebook account, hacking of google account, uploading of photos are already the subject matter of the inquiry initiated upon the complaint of respondent No.1 father of the minor in whose name the account is floated. So far the allegations in respect of injury to reputation and defamation are concerned, it is prescribed under section 199 of the Code that cognizance can alone be taken of such an offence upon a written complaint, there is no provision of registration of FIR and no requirement of investigation into the allegations.
Under such circumstances there can be found no error CR. No. 94/2020 Sameer Sharma v. State & Ors. Page 10 11 with the order of the Ld. Trial Court dismissing the application under section 156(3) of the Code. There is no infirmity, illegality or error apparent on the face of the record and no cause for interference with the order impugned. The present petition challenging order dated 13.01.2020 passed by the Court of Sh. Rishab Kapoor, Ld. Metropolitan Magistrate, Tis Hazari, Delhi in C. C. No. 13273/2018 is therefore dismissed.
6. Trial Court Record be returned alongwith copy of this order
7. File of revision petition be consigned to Record Room. Announced in the open Court on this 3rd day of October, 2020 (Neelofer Abida Perveen) Additional Sessions Judge : (Central) Tis Hazari Court:Delhi CR. No. 94/2020 Sameer Sharma v. State & Ors. Page 11 12 Crl. Revision No.94/2020 Sameer Sharma v. State & Ors.
03.10.2020 Present: None.
Vide separate judgment of even date, revision petition stands dismissed in the manner indicated therein.
Trial Court record be returned alongwith copy of the judgment.
File of revision petition be consigned to Record Room.
(Neelofer Abida Perveen) Additional Sessions Judge : (Central) Tis Hazari Court:Delhi 03.10.2020 CR. No. 94/2020 Sameer Sharma v. State & Ors. Page 12