Delhi District Court
Cbi vs . Harinder Singh on 30 January, 2017
IN THE COURT OF Ms. VANDANA JAIN
ACMM-02 (CENTRAL) : DELHI
CBI Vs. Harinder Singh
RC No. : 2/2008
U/s : 67 IT Act & 509 IPC.
Date of Institution : 20.11.2008
Date of reserving of order : 28.01.2017
Date of announcement : 30.01.2017
N Case No. : 299001/16
JUDGMENT
1. Name of the Complainant : Aarti Dua.
2. Date of incident : 27.09.2007 till 28.03.2008
3. Name of accused persons : Harinder Singh S/o Manohar Singh R/o WZ-206, Virender Nagar, Janakpuri, New Delhi-58
4. Offences : U/s 67 IT Act & 509 IPC.
5. Plea of accused : Pleaded not guilty
6. Final Order : Acquitted
7. Date of such Order : 30.01.2017 Page no. 1 of 30 BRIEF REASONS FOR SUCH DECISION:
1. The brief facts of case alleged by CBI are that a complaint was moved by complainant Aarti Dua dated 22.05.2008 that she is working with Malaysian Airline at Barakhamba Road and for last six months she has been receiving obscene e-mails from someone on her e-mail address that i.e. <[email protected] and the sender is using two e-mail addresses, one is [email protected] and second is [email protected]. It is further also stated that such obscene e-
mails have started coming on 27.09.2007 and continued upon 27.11.2007 and the e-mails were also copied to one of her friend namely Harsh Sapra. Initially there were only nude pictures but later on person started sending obscene photographs alongwith remarks wherein he mentioned her mobile number and her personal information. In November 2007, the aforesaid person stopped sending the e-mails but on 28.03.2008 somebody created her profile on Bharat Matrimony.com where person uploaded all information related to her without her knowledge or consent. She also stated in her complaint that she is suspecting that person who was sending her obscene e-mails Page no. 2 of 30 earlier also had created her profile on Bharat Matrimony. The person known her very well as profile created at Bharat Matrimony contained her personal details, phone number and address.
2. On the basis of this complaint a case was registered by CBI u/s 67 IT Act. Investigation was carried out and charge-sheet was filed u/s 67 IT Act and 509 IPC against accused. Charge u/s 67 IT Act and 509 IPC was framed against accused on 24.01.2009.
3. Thereafter matter was listed for prosecution evidence.
4. Prosecution cited twenty seven witness.
5. PW-1 is complainant Aarti Dua
6. PW-2 is her friend Harsh Sapra
7. PW-3 is Puja Tiwari, elder sister of complainant
8. PW-4 is Pankaj Sharma working in Ministry of department of Information and Technology who went with the CBI team to the office of Globetel Pvt Ltd and two computer CPUs were seized from there and also went to the office of M/s JS Travel from where two CPUs, two CDs and attendance register were seized from there. He also went to the house of the accused and hard disk of his computer was also seized. On 26.09.2008, complainant Aarti Dua also downloaded the obscene data and video clips from her e-mail address Page no. 3 of 30 <[email protected] in to a CD. The CD was also seized in his presence.
9. PW-5 Arun Singh from Bharti Airtel.
10. PW-6 is Sandeep Rana, Assistant Manager Legal from rediff.com.
11. PW-7 is Deepaker Chakrawarti from Bharat Matrimony who stated that he was working with Bharat Matrimony since 2008. Their company provides a marriage service site called as Bharat Matrimony.com on internet. Anyone is free to create a profile for matrimony alliance on our site. Our company does not charge any amount for creating of profile on Bharat Matrimony.com. On 27.06.2008, he received a letter from D.S. Maan, DSP, CBI to provide date, time, IP address of using which profile number H1803336 was created on 28.03.2008, Ex PW7/1. In reference to this letter, he submitted a reply on 03.07.2008 to CBI officer alongwith the home page of Bharat Matrimony.com, Ex PW7/2. He informed the IO that profile in question was created on 28.03.2008 at 15:46:11 IST and it was created from IP address 122.163.254.16. The last log in on this profile number H1803336 was on 26.06.2008 at 17:37:29 IST. Their company has no role or check on the person creating profile. Anybody can create such a Page no. 4 of 30 matrimonial ID.
12. PW-8 is Jamesh Joseph.
13. PW-9 is Sunil Kapoor from M/s JS Travels where the accused was working and is also presently working.
14. PW-10 is Vikash Chaudhary from M/s JS Traves.
15. PW-11 is Durgesh Puniyal from Globetel Pvt Ltd who stated that accused used to visit their office to use the internet services and to download the visa form.
16. PW-12 Chander Bhushan Shrivastav from Globtel Pvt Ltd in whose presence the two computers of the Globtel Pvt Ltd were seized by CBI officials.
17. PW-13 is Uday Ram from MTNL who had given the details of MTNL number 23315496 installed in the office of Globtel Pvt Ltd.
18. PW-14 is Kuljinder Singh, the younger brother of the accused who stated that there was only one computer at their residence which had internet connection, the hard disk of which was seized by CBI officials on 13.06.2008.
19. PW-15 is Neeraj Sanger, MD of M/s J.S. Travels where accused was working.
20. PW-16 Aarohi Wadhwa, Manager, Abacus Distributions Pvt Ltd Page no. 5 of 30 who stated that abacus distributions and M/s JS Travels had an agreement with each other for internet connection which was valid for two years i.e. 01.04.2005 till 31.03.2007.
21. PW-17 Charanjeet Singh is a supervisor of cable network who acquired franchise of sify internet service provider whose internent was installed in the house of the accused.
22. PW-18 Shyam S Nair from sifi technology stated that he had submitted information regarding IP address 221.35.95.223.
23. PW-19 Satya Prakash Sharma from MTNL, Kidwai Bhawan who provided IP address which was allocated through telephone no. 23315496 to one Nirmal Kumar Saraf, Nai Delhi House, Barakhamba Road, New Delhi.
24. PW-20 Hridesh Gupta who was working as an internal auditor in M/s Stic Travels Pvt Ltd where complainant and accused were working.
25. PW-21 is Jugal Kishore, SI of CBI who conducted investigation alongwith CBI team.
26. PW-22 Anuj Arya who was marked the investigation of this case after it was carried out by DSP, DS Maan (initial IO of the present case).
27. PW-23 M. Krishna, Assistant, GEQD from DFS, Hyderabad.
28. PW-24 Devinder Singh Mann, DSP, initial IO of the case.
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29. Thereafter, prosecution evidence was closed.
30. Statement of accused was recorded on 25.04.2011 where he denied all the alleged allegations and wished to lead defence evidence.
31. DW-1 is Pritpal Kaur, wife of accused.
32. DW-2 is Jaspal Singh, owner of office from where accused and complainant have done computer course i.e. designing.
33. DW-3 is Ankit Dua, brother of complainant.
34. DW-4 is Jaswinder Singh Suri, sister in law of complainant (husband of Puja Suri)
35. DW-5 Bhupender Kumar Sapra is father of Harsh Sapra, friend of complainant.
36. DW-6 Simran Upadhyay, wife of Aditya nath Upadhyay, friend of accused.
37. DW-7 Aditya nath Upadhyay, friend of accused.
38. DW-8 Tilak Raj Dua, father of complainant.
39. DW-9 Santokh Singh, father in law of Puja Suri (elder sister of complainant)
40. DW-10 is Paramjit Kaur, mother of accused.
41. DW-11, Ramandeep Singh, brother of friend of accused.
42. DW-12 is Sangita Chhabra, aunt of complainant.
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43. DW-13 is Surender Kumar Chhabra, maternal uncle (mama) of complainant.
44. Thereafter, DE was closed.
45. Thereafter, matter was listed for final arguments.
46. Ld PP for CBI has argued that during the investigation it was revealed that it was the accused Harinder Singh who had sent obscene e-mails (nude pictures and video clips) to the complainant and her friend or relatives and he had uploaded profile of the complainant on Bharat Matrimony without her consent and thereafter he was arrested. Ld PP for CBI has stated that aforesaid facts has been proved by PW-1 complainant Aarti Dua herself, PW-2 Harsh Sapra and her elder sister Puja Suri who has been examined as PW-3. Ld PP for CBI has also stated that witness Pankaj Sharma is a witness of seizure of computer CPUs from M/s Globetel Pvt Ltd. Ld PP for CBI has further pointed out that though the accused had not disputed that he had not sent the e- mails and obscene pictures to the complainant or her friend or her sister, however, the same has been proved by the prosecution witnesses. Even otherwise he has stated that IP address of the computer were identified by witness Pankaj Sharma. He had identified IP address of M/s JS Travels where accused was working and Globetel Page no. 8 of 30 Pvt Ltd in the office of which accused used to visit to use the internet. The fact of using the internet of the Globetel Pvt Ltd by accused is proved by PW-11 Durgesh Uniyal who had stated that accused used to visit their office to use internet services and to download visa form. Ld PP for CBI has further pointed out that prosecution witnesses have proved that the obscene e-mails were sent from IP address of the computers on which accused was working. He has further elaborated Section 67 of IT Act stating merely publishing or disseminating of such kind of e-mails/pictures are punishable u/s 67 IT Act. As regard 509 IPC is concerned, Ld PP for CBI stated that accused has created the profile of the complainant on Bharat Matrimony without her consent and he uploaded her personal details, phone number and address on the same due to which she received number of marriage proposals on her e-mail ID due to uploading of her profile on Bharat Matrimony and, therefore, Section 509 IPC is also attracted. Ld PP for CBI has also stated that witnesses have proved documents i.e. e-mails sent by accused to the complainant, her friend Harsh Sapra and her sister Puja Suri. He has also stated that case has been proved against accused successfully and, therefore, accused be held guilty and punished as per law.
47. Ld counsel for accused argued that case has been registered by Page no. 9 of 30 CBI u/s 67 IT Act and 509 IPC and CBI had no jurisdiction to register this case as CBI is an autonomous body which has been established to do some defined functions and to carry out investigation as defined in their manual. He has further pointed out that bias investigation has been conducted at the instance of complainant in connivance with CBI official who was head of the department at that point of time. He also stated that despite having a police station Moti Nagar nearby house of complainant, she preferred to lodge complaint at a distance of 20 Kms from her house just in order to falsely implicate the accused. Ld counsel has argued that complaint has deliberately addressed against unknown persons despite the fact that complainant was very well aware that the e-mails in question were sent by accused to her and her friend at their asking as they had a closed group and they used to share obscene e-mails among themselves. He has further argued that it is a settled procedure of CBI that before registration of any case, preliminary enquiry is conducted into the matter, however, PW-24 DS Maan & PW- 23 Anuj Arya both the IOs have clearly stated that they had not conducted any preliminary enquiry and were handed over the case after registration of the FIR which is a material irregularity as per Page no. 10 of 30 procedure of CBI. Ld counsel for accused has further pointed out that profile of complainant at Bharat Matrimony was created with the consent of complainant and she was having the user ID & password of the same. He has further argued that complainant was in touch with accused and having affair with each other which could not materialize as complainant insisted the accused to cut his hair and beard to which accused refused and he married DW-1 Pritpal Kaur. Ld counsel further argued that even after the marriage, complainant was in contact with accused and thereafter she started feeling jealous and that is why she filed this false case against accused in connivance with one Vivek Dutt, CBI official who was known to her. Ld counsel has further pointed out that no unsolicited messages were received by complainant on her e-mails pursuant to the uploading of her profile at Bharat Matrimony and same has been admitted by her in cross examination. Even photograph of the complainant was not uploaded. Ld counsel has further pointed out that e-mails received by complainant in pursuance of uploading of her profile at Bharat Matrimony were computer generated and as such she had not received any unwanted call from any person which could annoy her or insult her. He has pointed out that all the e-mails which was sent to Page no. 11 of 30 complainant were well within her knowledge and rather it was at her asking. Ld counsel has also argued that though the specific word "dishonestly and malafide fraudulent intention" has not been mentioned in 67 IT Act but Section 64, 65, 66 IT Act contains these words and we have to read Section 67 IT Act in continuation of the aforesaid sections.
48. Arguments heard. Record perused.
49. During the course of arguments, Ld counsel for accused has argued that CBI had no jurisdiction to register the case and in this regard it is necessary to discuss the constitution and organization of CBI as under:-
"The Central Bureau of Investigation (CBI) was established vide Resolution no. 4/31/61-T dt 1st April 1963 of the Ministry of Home Affairs, Government of India, which reads as follows:-
The government of India have had under consideration the establishment of a Central Bureau of Investigation for the investigation of crimes at present handled by the Delhi Special Police Establishment, including specially important cases under the Defence of India Act and Rules particularly of hoarding, blackmarketing and profiteering in essential commodities, which Page no. 12 of 30 may have repercussions and ramifications, in several States; the collection of intelligence relating to certain types of crimes; participation in the role of the National Central Bureau connected with the International Criminal Police Organization; the maintenance of crime statistic and dissemination of information relating to crime and criminals; the study of specialized crime of particular interest to the Government of India or crimes having all
-India or interstate ramifications or of particular importance from the social points of view; the conduct of police research; and the coordination of laws relating to crime.
As a first step in the direction, the Government of India have decided to set up with effect from 1st April 1963, Central Bureau of Investigation at New Delhi with the following six Divisions, namely:-
(I) Investigation and Anti-corruption Division
(Delhi Special Police Establishment)
(ii) Technical Division
(iii) Crime Records and Statistics Division
(iv) Research Division
Page no. 13 of 30
(V) Legal Division & General Division
(Vi) Administration Division
Apart from the regular Branches, certain Specialized Units, called Special Units are constituted to provide support to the regular Branches/Units especially in the field of collection of intelligence relating to incidents of corruption in the higher echelons of Central Government and Public Sector Undertakings.
These Units also provide intelligence related support to investigating branches in investigation of cases. They also carry out internal vigilance work for the organization. These units are presently located at Delhi, Mumbai, Kolkata and Chennai. They have all India jurisdiction and work under DisG/SU and are supervised by Joint Director (Policy) and the DCBI. The Superintendents of Police of different Branches, DIsG and JDs should regularly interact with the concerned Special Units so that quality cases relating to high level corruption and sensitive matters are taken up for enquiry and investigation by CBI".
50. After from the reading of the manual, it is clear that CBI is a special unit which has been established by Central Government to investigate crimes of special importance and having repercussions and Page no. 14 of 30 ramifications in several states in order to protect the interest of the Government or having any particular importance from social point of view. The classification of the matters which the CBI is empowered to investigate as per its manual does not contain the present case. Therefore, the person concerned at whose direction FIR was registered in the instant case in CBI went beyond his duties to do so.
51. Apart from that, perusal of the testimony of PW-22 Anuj Arya and PW-24 DS Maan, both the IOs of the case shows stated that no preliminary enquiry was done in the present case before registration of FIR. PW-22 Anuj Arya in his cross examination has stated that " if any complaint is to be filed in CBI the concerned SP marks the same to the subordinate officers for verification who conduct the investigation ". He also stated that at the time of the taking charge of the present case, he was fully briefed by PW-24 DS Maan (1 st IO). He further stated that in his opinion Aarti Dua was a descent lady and at that relevant time when he had taken the charge of the case, after proper investigation of the complaint, FIR has been registered. During his testimony, he admitted that case was entrusted to him for investigation after it was initially dealt with by DS Maan, DSP for investigation. Meaning thereby that PW-22 Anuj Arya did not conduct any preliminary enquiry in this Page no. 15 of 30 case prior to registration of FIR. Similarly, PW-24 DS Maan also stated that he received the investigation of this case after registration of FIR and he did not verify the present complaint. He also stated that in case complaint is made to SP, CBI then he appoints an IO who verifies the complaint and thereafter, FIR is registered. The entire case clearly shows that in this case IOs namely DS Maan and Anuj Arya had conducted the investigation but none of them had conducted preliminary enquiry as required in the cases of CBI. It is clear that this case was not taken by CBI in routine manner as other cases and it was taken up due to some special reason. Before commenting more upon the conduct of the CBI in the instant case, let us appreciate the evidence of the witnesses.
52. PW-1 Aarti Dua had moved the complaint before CBI on 22.05.2008 which is Ex PW1/A. As per her allegation, she had received obscene e-mails and nude photographs from 27.09.2007 till 26.11.2007 from e-mails IDs i.e. [email protected], [email protected] and [email protected]. She had placed on record the hard copies of the obscene e-mails and nude photographs which are Ex PW1/2 to 90 & 90-A. She had also stated that her profile was created in Bharat Matrimony which is a Page no. 16 of 30 matrimonial site in March 2008. She had also stated that these obscene e-mails were also sent by unknown person to her elder sister, Pooja Suri and her friend Harsh Sapra. Though, complaint was made in 22.05.2008, however, the statement of witnesses show that complainant and her friend and relatives were in touch with the CBI officials since March 2008. PW-2 Harsh Sapra who is friend of complainant had stated in her cross examination that she went to CBI officials at Lodhi Road in the month of April 2008. Similarly, PW-3 Puja Suri stated that complainant initially made oral complaint to CBI officer Vivek Dutt whose telephone number was taken from internet. She has also stated that within one week or ten days, they came to know of uploading profile of complainant on matrimonial site. She has also admitted that complaint was not made in the month of March but in the month of May 2008. The complainant, PW-3 Puja Suri or her friend PW-2 Harsh Sapra has not explained any reason for delay in filing of complaint, after coming to know about uploading of profile of the complainant on site of Bharat Matrimony. The case of the CBI further is that accused was found to have sent the obscene e-mails to the complainant and PW-2 her friend Harsh Sapra and her elder sister PW-3 Puja Suri. In this regard, it is important to mention here Page no. 17 of 30 that complainant and accused were working in a travel company i.e. M/s Stick Travels and they were very good friends which is concluded from the fact that complainant and accused used to spent time with themselves. Accused had even visited the house of grandmother of complainant at Meham in Haryana alongwith her and other family members. She had clearly admitted in her cross examination that no other friend of her's had visited her Nani's house. She has also admitted that her Jija (husband of PW-3 Puja Suri) had also not visited her Nani's house before his marriage with Puja Suri. Meaning thereby that accused was a special friend of complainant, though complainant had given a complaint of sending of obscene e-mails against unknown persons. The CBI by examining its witnesses had tried to prove that it was accused who had sent these e-mails to complainant and her friend Harsh Sapra, her sister Puja Suri. The defence counsel has argued that it was in the knowledge that complainant and both aforesaid witnesses that messages were sent by accused. Ld counsel for accused had gone to the extent of saying that it was complainant herself who had asked for the obscene e- mails from the accused. In this regard, he had brought the attention of this court towards PW-1/D4 wherein complainant from her e-mail Page no. 18 of 30 ID i.e. [email protected] to accused at his e-mail ID [email protected] wherein had asked him to forward the non veg e-mails sent to him by their friend Hridesh Gupta. It is pertinent to mention here that complainant had admitted sending of e-mails Ex PW1/D1 to Ex PW1/D24 by her to the accused. Perusal of these e-mails show that accused and complainant were having intimate relationship with each other. It would also not be out of place to mention here that accused got married with DW-1 Pritpal Kaur on 14.10.2007, though these e-mails which Ex PW1/D1 & PW1/D24 shows that both of them were in contact with each other even after the marriage of the accused and used to communicate with each other through e-mail. Perusal of these e-mails clearly shows deep intimacy of both of them towards each other. Further complainant in her cross examination admitted that she and accused used to e-mail with each other till April, 2008. It is again reminded at the risk of repetition that complaint was moved in May 2008 and the complainant was having in contact with accused till April 2008. Complainant had stated that she had received obscene e-mails from two e-mail IDs i.e. [email protected] and [email protected]. During her examination in chief, she had Page no. 19 of 30 added one more e-mail ID [email protected]. She also stated that in September 2007, she has also received obscene mails/nude pictures from [email protected]. The CBI had not investigated anything in respect of this e-mail address i.e. [email protected]. At this place, it is important to mention here that two computers were seized from company M/s JS Travels where accused was working. Two computers from M/s Globetel Pvt Ltd were also seized and one hard disk of the computer installed in the house of accused was also seized by CBI, however, the computers or hard disk of the complainant or her friend Harsh Sapra or her sister Puja Suri were not seized by CBI. In this regard, the testimony of PW-4 Pankaj Sharma is relevant who was called by CBI to join the raid and was only witness to the identification of the IP addresses. He had stated that complainant had opened her e-mail box in front of him and had shown e-mails to him, backup of which were taken in CD and were sealed. He clarified that only inbox was checked and sent box and trash box of complainant were not checked at all and CBI had not taken his advice in relation to seeing or examining the trash box and sent box relating to Aarti Dua. He also stated that he was only witness relating to the seizure and identification of the computers and Page no. 20 of 30 IP addresses. The CBI had taken the photographs in CD given by complainant as per its convenience, however, it did not check the sent e-mail of the complainant either before September 2007 or even after September 2007. PW-22 Anuj Arya in his cross examination had stated that he could not comment about the e-mail ID of Aarti Dua and sent box of Aarti Dua. He also stated that it was not felt necessary to request Pankaj Sharma to see sent box and trash box of e-mail ID [email protected]. He also stated that it was not felt necessary to demand IP address to which the e-mails were sent as they had gone through the headers of the mails received by complainant Aarti Dua. He further added that he was having twenty years experience in this field and he was totally neutral and fair in the investigation and that is why he judged that complainant is an aggrieved person. Accused has been charge-sheeted in this case for the reason that experts have found that obscene e-mails from [email protected] and [email protected] were sent to e-mail ID of complainant [email protected] from the computers which were used by accused. Though, it has not been proved that it was the accused who had sent those e-mails, however, accused himself had not denied the same. He had stated that at Page no. 21 of 30 request of complainant herself, he had created e-mail ID [email protected] and thereafter it was changed to [email protected] in October 2007. He denied having email ID [email protected]. CBI has not been able to prove that e- mail ID of [email protected] was created by accused or messages were sent to complainant through this ID by accused. In regard to the messages sent to complainant, the defence of the accused is that messages were sent at the request of the complainant herself. Ex PW1/D4 is clear to this extent that she had demanded non veg e-mails forwarded by Hridesh Gupta from accused. PW-20 Hridesh Gupta had admitted that he has sent obscene e-mails Ex PW20/D1 to his friends. He has also admitted that page no. 20 of Ex PW20/D1 was sent to Harsh Sapra and Aarti Dua. From reading out the e-mail, it is clear that e-mails had sent from Hridesh Gupta to accused and PW-20 Hridesh Gupta in her cross examination has admitted that telephone number 9811898325 belongs to him. The complainant in her initial complaint had not stated anything about [email protected], though she had receiving obscene e-mails from this ID also. Perusal fo PW1/D-8 shows wherein it is stated that ID [email protected] is not Page no. 22 of 30 working and, therefore, person is creating new e-mail ID, [email protected]. It shows that complainant knew who had sent these e-mails to her. This e-mail is dated 19.10.2007, which says "I have some problem in my previous ID ([email protected]), this is my new ID. Do you like my ID's new name, I too bye".
53. It is pertinent to mention here that reaction to this e-mail by Aarti Dua has not been checked and placed on record by CBI which could show whether she was aware who send this mail to her. This e-mail Ex PW1/D8 clearly shows that complainant was well aware that the person who forwarded the e-mails through [email protected] and [email protected] was one and the same, whether that be accused or somebody else. Further perusal of PW1/D38 shows that this e-mail has been sent by e-mail ID [email protected] and copy was also sent to e-mail ID of Puja Suri at [email protected]. The content of this e-mail ID is "all of you, happy deepawali or happy marriage life to you harender". This e-mail shows that it was sent to accused and it was sent by complainant as well as to her sister. Attachment alongwith this message obscene story which is running into two pages, Page no. 23 of 30 meaning thereby that elder sister of complainant was also sharing vulgar messages with the accused and here he had disclosed his identity. Here also the sent mail box of complainant or her sister has not been checked in order to see the reaction to the obscene e-mail. Similarly with Ex PW1/D14 dated 26.10.2007, accused sent messages containing full intimacy to complainant after his marriage. Similarly, Ex PW1/D16 shows that complainant is telling her conversation with somebody to accused wherein she had described accused to be her best friend. Further in e-mail Ex PW1/D2, complainant had asked the accused to meet her somewhere. It is important to mention here that even after marriage of accused with DW-1 Pritpal Kaur, they were showing messages fully of intimacy towards each other. Ex PW1/D15 has been sent by accused to complainant which contains poem regarding missing her. These e- mails shows that complainant and the accused were having an affair which could not be materialized, though they remained in touch with each other after marriage of accused. It is also concluded from these e-mails that complainant and her friend Harsh Sapra and her elder sister Puja Suri were having a closed group where they used to share these kind of obscene e-mails. The reaction of these three witnesses Page no. 24 of 30 cannot be seen to these e-mails. Sent e-mail of witnesses and complainant have not been checked by CBI which shows that fair and impartial investigation have not been conducted by CBI. Further coming to profile created at Bharat Matrimony, it is relevant to mention here that complainant came to know about the same within one week or ten days as stated by PW-3 in her cross examination. PW-1 in her examination in chief has stated that in March 2008, somebody created her profile on Bharat Matrimony which is a matrimonial site on internet and all her personal details were uploaded on this site containing her residential telephone number, mobile number, her name, address, height, weight, complexion etc. She also stated that she did not receive any unsolicited calls on telephone due to uploading of her personal details on matrimonial site. In this regard, Ex PW1/118 to 130 are important wherein the proposals have come. Perusal of these exhibits shows that these proposals are computer generated proposals and it is clearly mentioned therein that "dear member, as you have not set your partner preference, we have selected some matches for you based on your profile. Please check them out."
54. This message shows that not even a single person had contacted Page no. 25 of 30 the complainant on the basis of profile set up in Bharat Matrimony. Even otherwise, the details of the complainant in Bharat Matrimony were true and correct. It does not contain even photograph of complainant. It is not the case of complainant at all that she had received any call or message from anyone which could annoy her by uploading of that profile. It is clearly shown in the statement of witnesses and complainant herself that she was in touch with accused till April 2008 , though, this profile was created in March 2008. PW-7 Deepankar Chakarvorty, branch manager of Bharat Matrimony has stated that as per record of their company, they cannot give identity of the person who created such a profile of matrimony. He also stated that this matrimony ID which is created can be opened only by the person who possesses the user ID and password which is created at the time of creation of e-mail ID. PW-7 Deepankar Chakarvorty also stated that last log in on this profile no. H1803336 was on 26.06.2008. It is pertinent to mention here that complaint was registered on 22.05.2008 and and accused could not open the same as case was already registered against him. It is important to mention here that since the complainant had stated that her personal details have been uploaded in the profile and she could Page no. 26 of 30 come to know about the same only when she had visited the homepage of the profile which could not done with knowing the user ID and password. It is further pertinent to mention here that e-mails which were received by complainant on her e-mail ID did not contain details uploaded in the profile. Therefore, it can be gathered that she was in the knowledge of this fact that profile was created and was having the user ID and password. Even otherwise, it has not at all been proved by prosecution that it was the accused who had uploaded this profile of the complainant. Since the side of the complainant has not been investigated, it cannot be said whether the same was created with the consent of the complainant or without her consent but at the same time, accused cannot be held responsible for the same. The conduct of the witnesses and complainant is crystal clear. The father of the complainant had appeared as a defence witness who had stated that complainant is residing just five minutes away from the police station PS Moti Nagar but instead of moving the complaint before police station Moti Nagar, she preferred to move her complaint before CBI in May 2008. As per the statement of witnesses, she had been visiting the office of CBI in April 2008 also but she moved the complaint in May 2008. It is also stated no Page no. 27 of 30 preliminary enquiry was conducted in this case before registration of FIR. The testimony of witnesses shows that e-mails were sent by accused at the time of asking of the complainant herself. There was a closed group of friends who used to share these e-mails and messages amongst each other.
55. Section 67 of IT Act provides as under:-
Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
56. Though, this section does not state any where that intention of the person sending the e-mail should be dishonest or fraudulent but this section clearly shows that intention of legislature was not to Page no. 28 of 30 punish the person/adults who share these kinds of e-mails with the willingness but it was against those persons who were transmitting or publishing these kind of e-mails publically so as to come in public domain without even knowing as to who would be reading or watching the same and those e-mails would be such so as to deprave and corrupt person who would see them. In this case, the e- mails have been shared among some persons with their consent.
57. From the background of the discussions made above, it is clear that a fair and impartial investigation in order to elicit the true picture has not been conducted by CBI for the best reasons known to the officers. Only one sided investigation has been done where documents which were against accused were seized and brought on record. The investigation was not carried out fairly. The computers of the complainant, her friend Harsh Sapra, her elder sister Puja Suri and other friend could be checked but it was not done for the best reasons known to them. The investigation smacks of malafide on the part of investigating officers, therefore, I am considered view that prosecution has not been able to prove its case beyond reasonable doubt and moreover this is not merely an irregularity, this is deliberate act on the part of the CBI officials of not carrying out Page no. 29 of 30 investigation completely and not examining both the parties properly. Therefore, accused is given benefit of doubt. Accused Harinder Singh is acquitted from the charge framed for the offence u/s 67 of IT Act & 509 IPC.
58. Put up for furnishing of bail bond u/s 437-A CrPC.
Announced in the open court (VANDANA JAIN)
on 30.01.2017 ACMM-02/CENTRAL
DELHI
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