Gauhati High Court
Raju Das vs The State Of Assam And Anr on 16 June, 2020
Equivalent citations: AIRONLINE 2020 GAU 537
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/5
GAHC010083052020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 330/2020
1:RAJU DAS
S/O- TRALUKYA DAS, R/O- MOUTUPURI, P.S. HOWLY, DIST.- BARPETA,
ASSAM, PIN- 781316
VERSUS
1:THE STATE OF ASSAM AND ANR.
REP. BY P.P., ASSAM
2:KRISHNA DAS
W/O- BABUL DAS
R/O- MOUTUPURI
P.S. HOWLY
DIST.- BARPETA
PIN- 78131
Advocate for the Petitioner : MR. J C GOGOI
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 16.06.2020 Heard Mr. J.C. Gogoi, learned counsel for the petitioner as well as Mrs. S.H. Bora, learned Addl. Public Prosecutor appearing for State respondent no.1.
2) By filing this criminal petition under Section 482 CrPC, the petitioner has Page No.# 2/5 prayed for quashing of the FIR dated 13.09.2019, registered as Howly P.S. Case No. 421/2019 corresponding to GR No. 4735/29 under Section 420 of the Indian Penal Code read with Section 67 of the Information Technology Act, 2000. The FIR by the respondent no.2 is to the effect that the petitioner had sent some derogative and obscene message to the mobile number of the informant since last four days, made her mobile number viral and also sent obscene videos in her mobile number. It is seen from the documents annexed in this petition that that during investigation incriminating material were found against the petitioner and, as such, charge sheet has been submitted by the I.O. of the case on 31.01.2020.
3) The learned counsel for the petitioner has submitted that while granting bail to the petitioner, this Court vide order dated 21.11.2019, passed in A.B. No. 3989/2019, has observed therein that from the case diary, it is observed that though provisions of Section 67 of the Information Technology Act is attracted, but there is nothing in the case diary to indicate the involvement of the petitioner in commission of the alleged offence. Therefore, it is submitted that there is no chance of conviction of the petitioner. It is submitted that ingredients of offence under Section 420 IPC is not present in the FIR. It is also submitted that from the FIR, the mens rea to show guilty mind was not established. It is also stated that there is no evidence of any covert or overt act on part of the petitioner to commit any offence. Moreover, it is further submitted that the petitioner could not show that she has suffered any injury whatsoever. By referring to medical documents filed as annexure-3 to this petition, it is submitted that the petitioner had suffered a rail accident in the year 2008 and since then, he is a psychiatric patient and thus, abnormal and mentally challenged.
4) Perused the documents annexed to this petition. It is seen that FIR was lodged on 13.09.2019. The pre-arrest bail was granted by this Court by order dated 30.11.2019. The charge-sheet was submitted on 31.01.2020. Thus, it can be reasonably presumed that the incriminating materials against the petitioner could be traced out by the I.O. after pre-arrest was granted by this Court. Moreover, the learned counsel for the petitioner could not show any case law on the point that observations made by Court while granting bail can be construed as a material basis so as to return a finding that (i) no case is Page No.# 3/5 made out in the FIR against the petitioner- accused, and (ii) that there is no chance of conviction of the petitioner and to quash the FIR on the said counts.
5) In the charge-sheet, it has been specifically mentioned that from the statement of the witness named therein, the offence under Sec.420 has been clearly established. Once a charge sheet has been filed, the Court shall presume that the I.O. must have submitted the case diary to the Court and that the learned Court before which the charge-sheet has been filed would have the case diary from which copies of relevant document on which the prosecution would rely would be furnished to the petitioner. Therefore, the Court has valid reasons to presume that the copy of statement of witnesses was supplied to the petitioner with other materials on which the prosecution intended to rely upon. Accordingly, as the petitioner has not annexed the statement of witnesses examined by the I.O. under Section 161 CrPC, by invoking the principle of Section 114 Illustration (g) of the Evidence Act, 1872 the Court has to presume that had those statements been produced before this Court, they would have been adverse to the interest of the petitioner, otherwise, there was no reason for the petitioner not to annex those statements in support of this petition.
6) It is no longer res integra that an FIR need not be encyclopedic giving details of offence, to spell out all the ingredients of a particular section of the Indian Penal Code and to also reflect mens rea of the accused and these can be culled out from evidence collected during investigation. In the FIR, it has been stated that the informant (respondent no.2) had received offending obscene messages and videos and as per column no. 5 of the charge-sheet, some material collected in course of investigation was seized by the I.O. and entered as M.R. No. 135/19. Moreover, if the allegedly obscene messages and videos were produced before the Court in support of the charge-sheet, the presumption that can be drawn is that there exists some materials to show the covert or overt act on part of the petitioner to commit the alleged offence as complained of. The learned counsel for the petitioner has not been able to refer to any case law wherein any Court has held that even if obscene messages and videos are received by a lady and if her mobile number, which is Page No.# 4/5 otherwise personal information is made viral, still the lady would not suffered any injury whatsoever.
7) The last point urged by the learned counsel for the petitioner is that medical documents show that By referring to medical documents filed as annexure-3 to this petition, it is submitted that the petitioner is a psychiatric patient and thus, abnormal and mentally challenged. In this regard, "mental illness" is covered by Schedule appended to the Rights of Persons with Disabilities Act, 2016 and that in the present case in hand, the petitioner has not annexed any certificate issued by a competent authority certifying that the petitioner is a person suffering from any disabilities whatsoever. However, the petitioner has annexed (1) prescription from a private hospital at Guwahati dated 10.12.2008, (ii) discharge summary of same hospital dated 04.10.2008, (iii) OPD prescription dated 02.01.2019, which contains another prescription dated 08.02.2019 from another private hospital at Guwahati, none of which contains any medical opinion to the effect that the petitioner is a psychiatric patient and thus, abnormal and mentally challenged as submitted by the learned counsel for the petitioner. Therefore, as on date, in this petition there exists no materials from which the Court can draw an inference that the petitioner would not understand the proceedings instituted against him. The provisions permitting trial to be proceeded with where accused does not understand proceeding is contained in Section 318 CrPC. Moreover, in the present case in hand, this criminal petition has been filed by the petitioner and he has also travelled to Guwahati from his place of residence and appeared before the Notary Public and has sworn an affidavit in support of this petition, as such, there is no way that the Court can now presume that the petitioner is "mentally challenged" as projected in this petition.
8) Resultantly, in view of the discussions above, the Court is unable to return a finding to the effect that no case is made out against the petitioner or that the contents of the FIR, if taken at its face value is covered by the conditions formulated in the case of State of Haryana Vs. State of Haryana, (1992) Suppl. SCC 335 under which FIR can be quashed. Hence, the Court is constrained to hold that no case is made out to quash FIR dated 13.09.2019, registered as Howly P.S. Case No. 421/2009 corresponding to GR No. 4735/2019.
Page No.# 5/5 Accordingly, this petition fails and is dismissed. There shall be no order as to cost.
9) The Registry shall send a copy of this order to the learned Chief Judicial Magistrate, Barpeta, who will do the needful to tag the copy of this order with the record of GR No. 4735/2019 corresponding to Howly P.S. Case No. 421/2009.
JUDGE Comparing Assistant