Delhi District Court
Central Bureau Of Investigation vs Harinder Singh on 16 February, 2018
IN THE COURT OF MANOJ JAIN
SPECIAL JUDGE (PC ACT) (CBI)-04/ADDL. SESSIONS JUDGE
CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI
CNR No. DLCT01-014054-2017
Criminal Appeal No. 200/2017
Central Bureau of Investigation,
SPE/EOU-IX/EO-III,
6th Floor, 'B' Wing,
5-B, CGO Complex, Lodhi Road,
New Delhi-110003 ........................ Appellant
Versus
Harinder Singh
Son of Sh. Manohar Singh
Resident of WZ-206, Virender Nagar,
Janakpuri, New Delhi-58
........................Respondent
Date of allocation of appeal: 26.09.2017
Date of conclusion of arguments: 16.02.2018
Date of judgment: 16.02.2018
Details of impugned order:
(i) Impugned order passed by: Ms. Vandana Jain,
Ld. ACMM-02 (Central), Delhi
(ii) Date of impugned judgment: 30.01.2017
(iii) Final impugned order: Acquittal of respondent
Memo of Appearance
Sh. A.K. Rao, learned Sr. P.P. for CBI/Appellant
Sh. Shiv Bhatt, learned counsel for respondent
JUDGMENT (ORAL)
1 CBI has taken exception to the acquittal of respondent Harinder Singh.
2 Let me give a very brief backdrop of the case.
CNR No. DLCT01-014054-2017 Page 1 of 203 Complainant Ms. Aarti Dua (PW1) was having e-mail address [email protected] and someone was sending her obscene e-mails on her said e-mail address. Sender was using two e-mail addresses i.e. [email protected] and [email protected]. These obscene e- mails were received by her between 27.09.2007 to 27.11.2007 and the sender had also simultaneously sent copies of such obscene emails to her sister Pooja (PW3) and her one friend Ms. Harsh Sapra (PW2) on their respective e-mail IDs i.e. [email protected] and [email protected]. Complainant also learnt that someone had created her profile on bharatmatrimony.com on 28.03.2008 and had uploaded information related to her without her knowledge and consent. She suspected that the same person, who had been earlier sending the obscene e-mails, had created her profile on bharatmatrimony.com. She, therefore, requested that action be taken against such person and reported the matter to CBI on 22.05.2008.
4 It will also be important to mention that in her such complaint, she did not express her suspicion against anyone as such. FIR was registered by CBI for commission of offence under Section 67 of Information Technology Act 2000 and investigation was taken up which confirmed that complainant had received on 13 obscene e-mails during October 2007 to November 2007 which had been sent from [email protected] and [email protected]. Contents of these e-mails were pornographic in nature and contained nude photographs.
5 IP addresses (Internet Protocol Address) were deciphered which pointed towards the involvement of accused Harinder Singh.
6 Harinder Singh used to work in one travel agency M/s J&S Travel Pvt. Ltd. As per investigation, rediffmail IDs in context of [email protected] and [email protected] were created in Delhi and were accessed by Harinder Singh from his such office situated at Barakhamba Road and also from his residence situated in Janakpuri.
CNR No. DLCT01-014054-2017 Page 2 of 20Investigation also revealed that he was the one who had created profile of Aarti Dua on matrimonial website bharatmatrimony.com on 28.03.2000 by giving her personal details like height, complexion, educational qualification and address etc. without her knowledge and consent and thereby causing damage to her social reputation. IP address used for uploading the matrimonial profile of complainant was also found to be of his office of M/s J&S Travels Pvt. Ltd.
7 During investigation, complainant confirmed that she knew accused who had her personal details. Thus, as per the final outcome of investigation conducted by CBI, the accused was found to be the sender of all such obscene e-mails and creator of profile of complainant on bharatmatrimony.com.
8 Charge-sheet was accordingly prepared and was submitted before the Court with request to summon the accused for commission of offences under Section 67 of Information Technology Act 2000 and under Section 509 IPC.
9 Charge-sheet was laid before the Court on 20.11.2008. Court took cognizance on 26.11.2008 and summoned the accused.
10 Arguments on charge were heard and accused was directed to be charged for commission of offence under Section 67 of Information Technology Act and under Section 509 IPC. He pleaded not guilty and claimed trial.
11 Prosecution was directed to adduce evidence and has examined twenty four witnesses.
12 Accused also examined thirteen witnesses in his defence.
CNR No. DLCT01-014054-2017 Page 3 of 2013 Learned trial court, vide impugned judgment dated 30.01.2017, held that CBI had not conducted a fair and impartial investigation while also supplementing that investigation smacked of malafide. It also held that intention of the legislature was not to punish those adults who were sharing the contents willingly and that such penal section was meant for those who were transmitting and sending such e-mails publically so that these could come in public domain. Learned trial court was of the view that e-mails in question had been shared amongst the members of a group with their consent and, eventually, granted benefit of doubt to respondent.
14 Before touching upon the rival contentions, it would be interesting to see as to what was the stand of respondent before the learned trial court.
15 I must applaud that he, very candidly, admitted both the vital allegations. He confessed that obscene e-mails in question had been transmitted by him. He also admitted that he was the one who had created the profile of complainant on bharatmatrimony.com. However, his such admission comes with an equally interesting rider. He claimed that he had sent obscene e-mails to the complainant at her instance and on her specific demand only and similarly the profile had been created by him with her consent. His detailed statement recorded under Section 313 Cr.P.C. by the learned trial court on 25.04.2011 would also indicate the same. He contended that the complainant implicated him falsely as he (respondent) got married to someone else. It would be appropriate to extract Q No. 33 and the corresponding answer. These read as under:
Q33 Do you have anything else to say?
Ans. The complainant and myself used to work in M/s Stic Travels Pvt. Ltd. and during that period we developed an affair. Complainant introduced me to her family and friends. The complainant wanted to marry me and also wanted physical relations before marriage. She had tried for the same on many occasions but could not succeed. The complainant used to demand pornographic CDs from me for watching them which she used to see at her friend's house. The complainant also purchased one CD Player with my help to watch the CDs with her sister and friends. She also CNR No. DLCT01-014054-2017 Page 4 of 20 used to compel me to come to her even in my office hours. The complainant insisted that before marriage I should cut my hair which I refused. One Sh. Jaswinder Singh Suri (Jija of complainant) advised me to leave complainant as complainant was having various affairs. I changed my mind but still was hoping that may be complainant may reform herself. I remained in contact with her. I had sent some e- mails to her which were sent to me by Hridesh Gupta. But thing did not improve. Eventually I got engaged with someone else. Later complainant told me to upload her details on the matrimonial site to seek marriage proposal which I uploaded. Thereafter I cut all contacts with her. Later on I was falsely implicated by her in this case.
16 The details of the alleged 13 obscene emails is as under:-
Sl. Date & E-mail ID of sender E-mail ID of recipient(s) Exhibit Remarks No. time Number
1. 19.10.07 [email protected] [email protected] Ex.PW 1/69 No attachment 17:34:13 Mail is only regarding creation of new e-mail ID
2. 23.10.07 [email protected] [email protected] Ex.PW 1/61 2 jpg files attached 13:19:17
3. 25.10.07 [email protected] [email protected] Ex.PW 1/57 1 gif attachment 14:33:18
4. 25.10.07 [email protected] [email protected] Ex.PW 1/52 1 jpg file attached 14:50:03
5. 25.10.07 [email protected] [email protected] Ex.PW 1/48 No attachment 16:52:50 and no obscene material in the body of e-mail
6. 26.10.07 [email protected] [email protected] Ex.PW 1/44 2 jpg files attached 17:07:43
7. 03.11.07 [email protected] [email protected] Ex.PW 1/38 2 doc file attached 15:17:16 cc to [email protected]
8. 05.11.07 [email protected] [email protected] Ex.PW 1/34 1 jpg file attached 14:02:35
9. 07.11.07 [email protected] [email protected] Ex.PW 1/28 3 jpg files CNR No. DLCT01-014054-2017 Page 5 of 20 11:50:51 emails also forwarded to attached sonu_harshsapra@ rediffmail.com & [email protected]
10. 07.11.07 [email protected] [email protected] Ex.PW 1/21 3 jpg files and sonu_harshsapra@ attached 14:01:40 rediffmail.com and and wishes [email protected] of Happy and [email protected] Diwali in the email also forwarded to body [email protected]
11. 08.11.07 [email protected] [email protected] Ex.PW 1/14 2 jpg attachments 15:13:38 cc to [email protected]
12. 22.10.07 [email protected] [email protected] Ex. PW 1/8 4 jpg attachments 12:30:17
13. 20.11.07 [email protected] [email protected] Ex. PW 1/4 No obscene material 17:06:14
17 I have heard Sh. A.K. Rao, learned Sr. P.P. for CBI and Sh. Shiv Bhatt, learned defence counsel for respondent and carefully gone through the material available on record.
18 Sh. Rao has argued that learned trial court fell in error in granting benefit of doubt to accused. His contentions can be enumerated as under:-
(i) Prosecution case is based on twin allegations of "sending obscene e-mails" and "creation of profile on bharatmatrimony.com" without the consent and knowledge of complainant and both these allegations have been duly proved by the prosecution during the trial and even accused had admitted the same very clearly when his statement under Section 313 Cr.P.C. was recorded.
(ii) Once accused had admitted himself to be the sender of obscene e-mails and creator of such profile, there was virtually no scope left for any sort of adjudication and the Court should have, therefore, returned finding of guilt.
(iii) Even if on one previous occasion, complainant had desired the accused to send some adult material to her e-mail, such fact would not, by itself, mean that accused was liable to be exonerated automatically.
(iv) Section 67 of Information Technology Act is required to be construed strictly and there is no scope for any person who sends obscene material electronically - be it CNR No. DLCT01-014054-2017 Page 6 of 20 with consent or without consent.
(v) Transmission of obscene material by one individual e-mail to other would also constitute an offence and it is not the intention of legislature that the penal section would stand attracted only if such material appears in public domain.
(vi) Electronic transmission from 'one end to another' was complete the moment, e-mail was sent by sender and received in the 'in-box' of the complainant and her sister & friend.
(vii) Non-veg e-mail might refer to 'adult material' but such adult material may not be necessarily obscene also.
Here, there is nothing on record which may show that complainant had, directly or impliedly, desired to have obscene e-mail from the accused.
(viii) Though there is no express or implied consent from the side of complainant for receiving pornographic email yet even if such consent is inferred, it would not absolve the accused.
(ix) Though generally CBI refrains itself from taking up such type of complaints but that, by itself, would not mean that entertaining such complaint and consequent registration of FIR was without any jurisdiction. Since the offence stood made out and a cognizable offence was revealed, CBI was well in its right and jurisdiction to register the case and to investigate the same.
(x) Case was little delicate in nature where collection of electronic evidence was required and, therefore, Cyber Crime Cell of CBI was better equipped to handle the same.
(xi) The very creation of profile of any lady on bharatmatrimony.com, without her consent or knowledge, amounts to invasion of privacy and it really does not matter whether such complainant, eventually, received any call because of uploading of her such profile.
19 All such contentions have been refuted.
20 Sh. Shiv Bhatt has argued that accused is a victim of circumstances. He was a very close and intimate friend of complainant and they both wanted to marry each other but it was only because of the fact that respondent was a Sikh who did not want to sacrifice his hair, which was the CNR No. DLCT01-014054-2017 Page 7 of 20 prime requirement of complainant, that he has been falsely implicated in the present matter. Sh. Bhatt has contended that complainant became annoyed when she learnt that wife of accused had become pregnant and to teach him a lesson, she, therefore, exploited her contacts within CBI and has implicated him. He has argued that there was a close user group of complainant, respondent and many other common friends and within the group they all were sharing such types of obscene material though email and since complainant herself had desired such obscene material, she cannot now be permitted to raise grudge and grievance. He has argued that matter should have been reported to the local police station, if at all she felt agitated but since complainant knew someone in CBI and wanted to frame the accused, she used her such contacts in CBI and did not deliberately reveal the material facts before the CBI. She knew very well that such obscene e-mails were solicited by her only and had been, therefore, sent by respondent Harinder Singh but kept mum on said vital aspect during investigation. It has also been claimed that investigation is lopsided, partisan and biased. In context of Section 67 of Information Technology Act, Sh. Bhatt has contended that the Court should take aid of statutory construction and statutory interpretation by following ejusdem generis rule. It has been contended by him that Section 67 of IT Act would come into play only when the alleged accused is shown dishonest and is found sending the material in a fraudulent manner. He wants prosecution to prove the element of "deliberate transmission, dishonest or fraudulent act, intentional act" by taking cue from such words used in some other sections viz Section 65, 66, 66B, 66E, 66 (8), 66E & 66 F of IT Act 2000. Sh. Bhatt has also relied upon following judgments:
(i) Maqbool Fida Husain Vs. Raj Kumar 2008 Crl. L.J 4160 Delhi
(ii) Bachpan Bachao Andolan Vs. Union of India & Ors. WP (C) No. 51/2006 (DOD: 18.04.2011)
(iii) Aneeta Hada Vs. M/s Godfather Travels & Tours Pvt. Ltd.
Criminal Appeal No. 838/2008 (DOD: 27.04.2012) 21 Written submissions have also been filed.
22 I have given my thoughtful consideration to the rival contentions.
CNR No. DLCT01-014054-2017 Page 8 of 2023 Undoubtedly, generally CBI does not entertain such type of private complaints but that by itself would not mean that CBI could neither have registered the FIR nor investigated the matter. As per Section 2 of Delhi Special Police Establishment Act (DSPE Act), CBI can suo moto take up the investigation of offences which are duly notified under Section 3 of DSPE Act and committed within the jurisdiction of Delhi. However, for taking up investigation committed outside Delhi and in the boundaries of any other State, prior consent of that State is required as per Section 6 of DSPE Act. Central Government can authorize CBI to investigate such a crime committed in a State but only with the consent of such concerned State Government. Additionally, the Apex Court and High Courts can direct CBI to investigate any such crime committed anywhere in the country without the consent of State Government. Reference be made to various notifications issued from time to time by the Central Government whereby various offences have been specified which can be investigated by CBI under Section 3 of DSPE Act. Section 509 of IPC and Information Technology Act 2000, as a whole, are found duly covered by such notification. Undoubtedly, primarily CBI takes the matters of serious nature which generally come to it either through Central Government/State Government or by virtue of directions given by Writ Courts but that itself would not be mean that CBI was not competent to entertain any private complaint and to register the FIR and to go ahead with the investigation. Merely because a private complaint had been entertained, investigation should not be presumed to be tainted or biased. Nonetheless, since such act of entertaining the complaint was little unusual, the court should, in order to be fair to accused, act with extra circumspection.
24 Let me now touch the core issue of sending of obscene e-mails.
25 As already noticed above, task of the court becomes little easy and uncomplicated in view of the 'candid confession' made by accused. CBI has also been able to show the accused to be the sender in question by collecting the details from all the vital quarters. IP details clearly suggested that it was accused who had sent the emails using system available with him CNR No. DLCT01-014054-2017 Page 9 of 20 at his office through Airtel Internet connection provided to subscriber from M/s Abacus Distribution System, 203, New Delhi House, 27 Barakhamba Road, New Delhi where accused used to work and was having two computers for his exclusive use as well as from the office of M/s Globetel Pvt. Ltd. situated in same building i.e. New Delhi House, Barakhamba Road where also accused used to visit for using Internet services (provided by MTNL) and finally from his house of Janakpuri. Such aspect has been clearly brought on record during the trial and the forensic expert has also confirmed the same.
26 It has been vehemently contended by Sh. Bhatt that since obscene e-mails had been solicited by the complainant and since complainant and accused were close and intimate friends, respondent obliged her by sending such e-mails and, therefore, no offence is made out.
27 As per the specific complaint of Aarti Dua, she had been receiving obscene e-mails from two IDs i.e. [email protected] & [email protected]. However, in the brief facts of the case as incorporated in the charge-sheet, there is reference of one more e-mail i.e. [email protected] which was used by the same sender for sending pornographic material. Investigating agency has, however, come up with a specific case that thirteen obscene e-mails were sent by the accused during the period 19.10.2007 to 20.11.2007 from two emails only. There are certain e-mails of prior period which seem to have originated from e-mail ID [email protected] to complainant, her sister and Ms. Harsh Sapra. Printouts of several such e-mails are found to be part of record and have been exhibited as Ex. PW1/70 to Ex. PW1/90. However, it is not made comprehensible by CBI as to why these were eventually excluded from the charge-sheet. Since these e-mails are not within the scope of the charges framed by the learned trial court, I would refrain myself from commenting over those to the disadvantage of defence. However, I would, certainly, look into those for the benefit, if any of accused.
CNR No. DLCT01-014054-2017 Page 10 of 2028 Accused Harinder Singh was having one e-mail ID [email protected]. Accused also admits such fact. It was known to his circle as well. Right here, I would also mention that accused has owned up email ID [email protected] as well in his statement. PW20 Hridesh Gupta, who somewhat looked its subscriber due to similarity in the name, claimed that his email ID was [email protected] and he out-rightly denied knowing anything about e-mail ID [email protected]. He claimed that he had never sent any obscene messages or photographs to Aarti Dua. He knew Aarti Dua as well as accused Harinder Singh as they were working with him in M/s Stic Travels Pvt. Ltd. but supplemented that he had no concern with email ID [email protected]. He, however, looks part of group which used to exchange some obscene emails. When his attention was drawn to e-mail Ex. PW20/D1, he admitted that he had sent the same to Ms. Harsh Sapra and Ms. Aarti Dua There is one more email Ex. PW20/DA whereby obscene material has been forwarded by Hridesh Gupta to several persons including accused Harinder Singh on his e-mail ID [email protected].
29 Defence contention is very simple. According to defence, Harinder Singh had merely obliged his friend Aarti Dua who had desired such obscene material to be sent to her on her e-mail ID. In this regard profound reliance has been placed upon e-mail Ex. PW1/D4. This mail has been sent by Aarti Dua from her e-mail ID [email protected] and was addressed to respondent Harinder Singh on his known e-mail ID [email protected]. In such mail, it is mentioned as under:
Thank You and same to you par sardar abhi tak tune HRIDESH ki mails (non-veg) nahi dikha hai anyway"
30 It does not require any exceptional skill to figure out as to what is meant by Non-Veg in the present peculiar context. Though prosecution may, albeit awkwardly and ineptly, keep on harping that it related to chicken, meat etc. it is crystal clear that it meant adult and pornographic material only and CNR No. DLCT01-014054-2017 Page 11 of 20 not about ordering any chicken, meat etc. Inference needs to be drawn while taking a holistic approach and keeping in mind the entire factual matrix. It clearly demonstrates that Aarti was interested and keen in watching pornographic emails. She knew that accused was getting such material from his friend Hridesh and sent him a specific request to forward such email. It is an enormous indication of the fact that she had no reservation in receiving and viewing such emails containing sexually explicit material. She should have laid bare such fact to the investigating agency. Her holding back such fact is certainly going to raise an eyebrow or two. Who knows, on learning such fact, CBI itself might have closed the investigation? Thus on one hand, she demands such obscene material to be sent to her and on the other when her demand is met by her close friend, she raises grievance and wants the sender to be sent behind the bars. She invited the pornographic material herself and, therefore, cannot be permitted to raise any grudge. She has knowingly and voluntarily agreed to suffer the risk involved and It would be travesty of justice if in such a unusual situation, accused is hauled up.
31 Learned Addl. PP has raised two points here.
32 Firstly, such e-mail was never sent by Aarti Dua to Harinder Singh on [email protected] and that even the defence has also not been able to place on record any e-mail or any reply e-mail sent by Aarti Dua to e- mail [email protected]. It has been contended that the traffic between [email protected] and [email protected] was one-way only and all the e-mails were emanating from [email protected] to [email protected]. This shows that Aarti Dua never knew as to who was the sender of such e-mails. She never received any obscene material from Harinder Singh from his known email ID of [email protected]. Secondly, the alleged e-mail (Ex. PW1/D4), which was containing request for sending non-veg material, is of 14.08.2007 and the first obscene e-mail (Ex. PW1/52) is sent on 25.10.2007 i.e. after approximately two months. Thus, according to leaned prosecutor, accused is trying to dig out some undue advantage from previous email Ex PW1/D4.
CNR No. DLCT01-014054-2017 Page 12 of 2033 I would not mince any words in holding these contentions to be without any substance.
34 Accused candidly claimed himself to be sender of emails and was also claiming that he had sent those as per specific request. He admitted the same even during investigation. In such a situation, the outbox of email ID of complainant should have also been thoroughly checked. Alas, no attempt, even namesake, was even made to see the same. It was never opened even as per CBI's own witnesses. To make thing worse for accused, accused could not demonstrate and establish that complainant had either made further appeal or acknowledged such emails as both the said email IDs i.e. [email protected] and [email protected] were blocked by CBI immediately, rendering those completely inaccessible to anyone. Reference be made to CBI's own documents D-23 and D-29 which clearly indicates that said two email IDs were blocked on 30.05.2008. It has thus seriously jeopardized and prejudiced the defence. Perhaps, scrutiny of same might have shown further demand by complainant or acknowledgment coupled with some gratitude even.
35 Accused seems to have created new email IDs as per the desire of complainant who did not want him to send pornographic material on her known email ID. Precisely, therefore, accused created new email ID and also asked complainant as to whether she liked the same or not.
36 Accused created [email protected] to impress complainant. The name says it all. The concerned official of rediffmail has proved certain facts which clearly show that such email was created by accused but there is one very important aspect proved by him which cannot be ignored at all. While creating any such email ID, user was also prompted to give alternate email address. In the present case, as per the record of said service provider rediffmail, the alternate email ID, provided by the user, was [email protected]. Accused would not be that foolish that on one hand, as per CBI, he wanted to send pornographic material clandestinely and CNR No. DLCT01-014054-2017 Page 13 of 20 on the other, he would give alternate email ID address as that of complainant only. The moment such new email was created, an automatic congratulatory intimation must have been received on [email protected] regarding such creation. Complainant must have, for sure, come to know about the said fact, then and there. Reference be also made to deposition of PW6 Sandeep Rana of rediffmail in this regard.
37 Things do not stop here.
38 First alleged obscene e-mail has been proved as Ex. PW1/69 whereby the sender i.e. [email protected] informed the recipient Aarti Dua that there was some problem with his previous ID [email protected]. He claimed that [email protected] was his new ID and also asked the recipient whether she liked the name of his new ID or not. There is no objectionable or obscene material either in the body of said e-mail or attached with said e-mail. It is not at all clear as to why such email has been labeled as obscene. Email Ex. PW1/69, however, goes on to show that sender was the same person who was earlier using [email protected] and he was the one who had created new email ID as [email protected].
39 This brings the mysterious email [email protected] again to the fore and also somewhat explains as to why CBI was hesitant in taking the same into account. It is quite obvious that complainant very well knew that accused was the user of both said email IDs. Reference be made to her immediate and instant response as contained in email wherein the subject has been shown as [email protected]. Though, it was sent by complainant to accused on his known email ID of [email protected] but it certainly establishes that Aarti was in thick of things and knew that even [email protected] was of accused, else she would not have sent reply with said subject. Such email has been duly admitted by complainant herself. This automatically establishes that she was fully aware that accused was the creator of [email protected] and CNR No. DLCT01-014054-2017 Page 14 of 20 also the purpose behind such creation. In such a situation, there was no reason for her to have concealed said fact and to have misled CBI by claiming that she was getting porn emails from unknown source. Moreover, in one later email Ex. PW1/38, accused had even revealed his name as Harinder. Of course, accused also kept on teasing in one or two such emails by daring her to decipher him, though admitting that he would be caught, but that itself would not be of much significance in light of what has been discussed above.
40 There is only one e-mail sent from [email protected]. It has been proved as Ex. PW1/4. There is no attachment as such with that email and no obscene matter is found in the body either. Again, it is not clear as to why such email was taken as obscene by CBI.
41 Prosecution has examined twenty four witnesses in order to prove the allegations in question.
42 PW1 Ms. Aarti Dua has claimed that she had been receiving obscene emails from [email protected], [email protected] and also from [email protected] and these emails were containing nude photographs of female with some lewd comments. She has proved her complaint as Ex. PW1/1. She handed over the printouts of all such emails to the investigating agency. She deposed that her email account of [email protected] was opened, during the investigation, in the office of CBI where also she had shown all such obscene emails which were containing nude video clipping of female also. All such obscene emails and video clippings were put in one CD. Such CD has been proved as Ex. PW1/92. She was cross-examined by defence wherein she admitted that she knew accused since 2004 when she joined M/s Stic Travels Pvt. Ltd. She also admitted that once accused had accompanied her to the house of her maternal grandparents in Haryana. She also attended the marriage of accused on 14.10.2007. She did admit that earlier they used to exchange emails but volunteered that those were normal emails. She admitted sending CNR No. DLCT01-014054-2017 Page 15 of 20 various other emails to accused which were also given exhibit number as Ex. PW1/D1 to D-24. As regards email Ex. PW1/D4, she categorically admitted that she had sent the same to accused on 14.08.2007. Her cross- examination would also show that she was not inclined to take any action for obscene emails but she got disturbed when someone had created her profile on matrimonial site.
43 PW2 Ms. Harsh Sapra has claimed that she started receiving obscene emails on her email ID [email protected] from [email protected] and thereafter from [email protected]. She knew accused who was colleague of Aarti Dua. In her cross-examination, she claimed that when the matter was reported to CBI, she did not know as to who was sending those pornographic emails. PW3 Pooja Suri (sister of complainant) has also deposed that she received obscene messages, nude photographs and nude obscene video clippings on her email ID [email protected] from [email protected] and [email protected] from September 2007 to November 2007. She claimed that accused Harinder Singh was colleague of her sister and used to visit their house also. In her cross-examination, she claimed that initially they did not make any complaint and ignored the obscene emails thinking those to be Spam. She denied the suggestion that it was Aarti who had sought obscene emails from accused and when such fact came to the knowledge of other female members, Aarti implicated the accused in order to protect her own image.
44 Both the sides have examined number of witnesses. Accused has also examined thirteen witnesses including his own wife. Interestingly, he also dared to call parents and brother of complainant in his defence which is suggestive of his believing in the truth.
45 As already discussed above, accused has taken a very unusual and extraordinary stand. He has, in no uncertain words, admitted that he had sent all the obscene emails in question including those emanating from CNR No. DLCT01-014054-2017 Page 16 of 20 [email protected]. He, however, supplemented that he sent those emails at the instance of complainant. His stance gets firm and sufficient corroboration from said email Ex. PW1/D4. Sh. Bhatt has contended that complainant is guilty of suppressio veri and suggestio falsi. It has been elaborated by him that it is the rule of equity that a person who knocks the doors of the Court to seek justice should come with clean hands and should not suppress the material facts. Sh. Bhatt has reiterated that complainant suppressed a very vital fact about her own demand and had CBI learnt about the same, it would not have even registered the FIR. His such contention does hold water.
46 Thus, it is evident that complainant herself wanted such obscene emails from accused. Her act of soliciting the same and then hiding such crucial fact does not augur well for her. It is rather suggestive of her having some malafide intention.
47 There is no real legal hassle if two or more adults share obscene information privately. Other things being equal, the law will not interfere in the matters of two consenting adults. If two consenting adults can indulge in sexual activity in private then it would be absolutely ridiculous to hold that they were prohibited to send or receive sexually explicit material privately.
48 I am of the considered view that section 67 of Information Technology Act cannot be applied mechanically and blindly when it comes to two consenting adults. If such plain and evident interpretation is not adopted in the modern era, most of the netizens would rather stop forming chat- groups who, quite often, share lewd, salacious and adult material within the group. Section 67 of IT Act, therefore, needs desired elasticity and is required to be construed liberally when it comes to two consenting adults. If one adult asks the other to transmit any obscene material electronically and such other adult obliges him or her then, to my mind, Section 67 IT Act would not come into play provided such electronic transmission is strictly between one person to another, to the exclusion of all others.
CNR No. DLCT01-014054-2017 Page 17 of 2049 There is one more interesting perspective of the matter. If such interpretation is not resorted to and sender is eventually held accused, I am afraid that even the person, who raises a demand, becomes an abettor by instigating the other. This could not have been the intention of legislature by any stretch of imagination. Thus, if accused was to be held guilty then, complainant herself would rather be the 'first accused' by abetting the offence by instigating Harinder to send her obscene emails. Offence on her part was rather complete irrespective of the fact whether accused obliged her or not.
50 Even as regards the creation of profile on bharatmatrimony.com, there is a remote possibility that even such profile might have been created by the accused as per the desire and instructions of complainant. Moreover, complainant herself admitted that she had not received any unsolicited call in context of such profile. She seems to have received email which was auto created by the website suggesting her some matches. It is also admitted position that no incorrect or false or misleading particulars were uploaded during the creation of such profile. No obscene remark about the complainant was uploaded. So much so, her photograph also does not seem to have been uploaded. Additionally, the testimony of PW-7 Deepankar Chakravorty does not take the case of the prosecution anywhere as he has no been able to give even the basic details about the person who had created such profile. It is not clear as to which mobile number was used. He also admitted that such profile could be accessed only by the person who had user ID and password. Even as per CBI, such profile was lastly accessed on 26.6.2008 but by whom, nobody knows. CBI should have collected all such details. Such aspect has not been investigated properly. Be that as it may, the evidence of complainant does not inspire much confidence on said aspect either.
51 Thus, no fault can be found in the approach of learned trial court which seems fully justified and reasonable in view of the peculiar factual matrix. I fully agree with her view-point and rather compliment her for interpreting the statutory provision in a meaningful and pristine manner.
CNR No. DLCT01-014054-2017 Page 18 of 2052 Before wrapping up, I would add that it happens to be an appeal against acquittal. It has always been on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and law. In Chandrappa v. State of Karnataka, (2007) 4 SCC 42, it has been observed as under by Apex Court:-
"From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."CNR No. DLCT01-014054-2017 Page 19 of 20
53 Viewed from that angle and since the view of trial court seems fully appealing, there is no reason to disturb the finding even if other conclusion is assumed as remotely possible.
54 Resultantly, the appeal is dismissed. Appellant is, however, directed to submit personal bond and surety bond in a sum of Rs. 10,000/- each u/s 437-A Cr.P.C.
55 A copy of this judgment be sent to learned trial court with TCR.
56 Appeal file be consigned to record Room.
(MANOJ JAIN) Special Judge (PC Act) (CBI)-04/ASJ Central District Tis Hazari Courts: Delhi Announced in the open Court On this 16th day of February 2018 Digitally signed by MANOJ JAIN MANOJ Date:
JAIN 2018.02.16
16:32:44
+0530
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