Jharkhand High Court
> vs I. The State Of Jharkhand on 26 February, 2021
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No.454 of 2016
sfo late Hasmukh D. Shah, r'o €/2/49, Quter Campus, Birla
>
titute of Te schno! logy, PROsMesra, P.S-Sadar,{Mesra), District-Ranchi
... Petitioner
Versus
i. The State of Jharkhand
Or Vley Nath, Asstt. Professor, BLT Mesra, Deptt. of ECE, BAST.
Mesra, Pio Mesra, p.S-Sadar (Meare 2), Dist.-Ranchi
NN
.. Opposite Parties
(Through VC }
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
Por the Petitioner > Mr. Praveen Kumar, Advoc -ate
For the State "Mr Shailendra, Kr Tiwari, Spl pp
eee
Order Ne. U/Dated: 26" February, 2021
The aecused has assailed the order dated 21.03.2016 by which
his application under section 239 of 'the Code of Criminal Procedure seeking
discharge in GR Case No.5492 0 of2 2012 has been dismissed, in part ~ the
leamed Magistrate has found tha t the ere is no material to frame charge
against the agcused under section 6? ? of Information Technology Act, 2000,
ay Inthe order dated 21.03.2016, the learned Jt udicial Magistrate,
Ranchi has observed as under:
ch ry Singhal » ¥S. wu inion of} india" 2015) 5 a
BOO E, the 3 sere hi as been declared ulira-vires, Ax such fhe
arged for the said offence.
pscribe s munisienent far publishing or
» material iy efectrenic farm. |
aroseention that the accused fad
4
i mye dat spay Sp cepa dk Apa ee
sare QBDSCENe BIC aerial in ele efron! fe for Ap suek ihe
ri
Me
7
i
eeeHSER EHSO- cut he charges
dct preseribex
ied UPR EEF
af Ee allegat iON ax
e NGALEe of Mr Manish Sie
ISTH
BPP "ars g fh
v slowed oom w was sent was created!
by using the mobile muniser of the accused There is
sufficient miterial avatiable al parc a {9 23,24 of ihe case
diary to Pune charge agains! t the accused named above.
f fg
in above view ar the srorier the geeused ¢ ghoavermcened I
- N eu AL 3 ar WIS
~ SR REE LASSE OF ES
discharged
Alen EN, 1
37 of the Information Fechnology '
2 there iy sufficient materia
available oF record fe frame charge wis 66fD) af the
a
infor metion Freeh AOLOR
Act, AUG ihe accused is directer
fo Fenigy piiysically present in Court on 25.02.2016 jor
bearing the charge.
3, THis is second round of litigation and in the last more than
7 years the trial has struck. Aggrieved of the order dated 03.04.2014 by
w
the discharge petition filed by him was rejected, the petitioner
approached this Court in Criminal Revision No. 763 of 2014 and by ar
order dated 27.02.2015 the order refusing discharge petition af the petitioner
& &
was get aside and the matter was. sent to the Court below to pass a reasaned
2
and speaking order, This revisi ion peti tion was filed on 21.04.2016 and by an
arder dated 25.04.2016 further preceeding in G.R: Case No.S402 of 2012
at
was stayed by a Co-ordinate Bench of this Court. Thereafter, the matter
oy
came on Board on 12.05.2016, 19.05.2015 and 04.07.2016 andthe inferix
order was continued by the Court It was on 06.08.2018 that the petitioner
mnypleaded oppastie party no.2 and thereafter he did not take any step for
early hearing of this revision petition. On.15.02.2021, this criminal revision
netition was listed before me for hearing. On that day, on the 1 request af the
learned counsel for the petitioner hearing of criminal revision petition was
deferred for 26.02.2021,
8
4. Mr. Pravin Kumar, the learned counsel for the petitioner would
submit that the materials collected during investigation de not connect the
neliioner with the alleged crime and, moreover, the materials on record do
not constitute the offence under section 66D of Information Technology
Aet, 2000, The learned counse! would further submit that the letter
dated O5.12.2012 written by Inspector General of Police, CID has deen
taken as a gospel truth and the materials collected by the investigating
a
x
officer which are recorded in case-diary particularly in paragraph nos.i9, 23
and 24 do nat refer fo amy enquiry with regard to LP address 1).03.173,36.
>. On 04.10.2012, a complaint was received by the officer-in-
charge of Mesra PS from Dr. Vilay Nath and Dr RK. Lal. They have stated
that an e-mail making false allegations about standards of VLSI warkshos
and cermpetence of the teachers was sent on 17.08.2012 to Prof, SK. Ghorai
who was the Head of Department, ECE. Prof. $.K. Ghorai forwarded the
aeerecedans
haba
SEAS NOSES BF LETS
eamall to Dr Viay Math, Dr RR. Lal and Prof. N. Gupta and that is how
he matter carne mito light. The informants through their own efforts at BIT
ryt
H
"hey found that e-mail sent
avork Roam could trace the origin of email.
yrte
git
> Prof S.A. Ghorai was from a private LP 16.63.173.36. The informants
finding that i was a cyber crime and through e-mails reputation of the
Insitute was targeted fodeed a written complaint with the police.
Accordingly, Sadar PS Case No.273 of 2012 was registered on 07.10.26
umler sections 66A(a} & (D) and 67 of Information Technology Act, ;
uirest Manish Sinha.
st
Pres,
ne first e "ail which WAS $ se 2nt On. 17.08.2012 at 10:50 AM in
oy
y
we &
the shadow name: of Manish Sinha reads as under: ;
"Dear Str
fam a pre flaal year student af ECE:
OFiss a. d came fo a Rene ae your department is
SPAS HE PERE
: your Almd notice that in
a regular feature of your
department fe fe arganize suck short iermt courses, This ie
really @ saed prac HCE, bral what hurts me muesl is that
Py at there will be tratners
pind IRV 10 £8 rach He «the cour Se, and wher we atiend,
cudies. who Reve conducted the
organizing if Aforeover the
eement alse iy the samme "Treats ed manpower! blah
on ther ase putes ef INSTITUTE
Ie fG make Roney cnt of I. This
phe
¥
eae be
time Tuam Sune an aay io-gei ike ayfarmation of the
z
"
>
. sy Spagten ty gy de
industrial experts vou have catled for orgcnizing such
"~
Ee)
LA;
we
i
§ .
2
Six we are the people form middie class. We
pee perreaee Fb Iezeves woe ery yp eegig
wadersian' the ' impor tis Ie of such course, Ba 4 vhen we
° od | vere searry fo 8
sy aise, a
Nath ever doesn) know Aa fo
UHS
wat or ee wxtenea FG
coordinator Dr fay
i
speak eagtish, leave aside ihe concept of PLSL
rf < x ¥ " . . see
De Nath was talking about chip level design and
? doubt whether he even
Even ar english would be better than fim, and é
Ho not lenderstand now does he guatifies for a post of
'efesROr
" Simile gelv was the case with Dr Lad Fe
2 ere:
8, OF YOPPY ig say
concepts oF semiconductor device
Do 3 see oye ~ ce
fy knawledee of senvicenductar is pour Gian
oh
ye z
"SPHERE
x
?
md
ition fo
AICTE Ras eh auch
Aur sarry fo seg: ther "they are pust
a sid 6 i Agr Nath e claieis {hey ere "a uning
we will be ready for industry standards, but let me lel? you
he tha
we
we
tee
oe
eennereeceonedaneens
i
ies
ey
cd
ed
ae
Dee
ae
*
ee ree eo = oN frankly affer this, we loose our Guerest in FLAT. hell to de This pobws are beng ment oned fa you HevaHse vou heads the deparanent.
i ef of such institution becanse af suck peaple are al stake. Fours trudy Adanish Simke Yi Afer a verification search the following miormatian wes provided to professor SK. Ghorai on 24.08.2012 tou are able fo vour mail, 2 think ) i ¥ fx if y CeNER: this aes? and SEN Ri §9 VO cyte oy F WHO LENE? oted éHEY Hu cd SENG &O ¢ HAE PST reading the mua! in details, Rip one atudent.in the nante of Munish Sinha witaued my course frit SSFD-20)1 fo FFESO-20 2 Deve ped recurs bay ne. owt HS : is a ma very parte » HOST € Cede mil DD receyyne . Whenev ver SOUR d : in, :
Se ye : oy a rey RF DeeEsiy ., PERS OE > He wand fp é STuP be the continneus "progr af © a : eos Mlisex ye 3 Deparment, { am not working for siyself, £ cam working:2
for Department & fasitiute with a compliant group. 2 ant ? epartment, Department iy not front ate, About the money TO oF earning ge fo Tastifute ' ne keene very fhe wos: ig students that will claim for igiOuty hock ate Professan interview & expert ney With you decide yy eligibility criteria. 2 apr sol. vig dS COMNNENTIAS o fob nor efigible (point indicaes a PePSOH ie to de any Challe i forahe post Any 3 "hy 8.
He want disturb me ¢ on the stirs hui shall try {0 de best pagsibie work continuous. | believe on GOD.
i Please take care such type of mallleliers. Thanks & best regards.
* An email was sent to cyber cell of Jharkhand Polee on 31.08.2012 for verifying whether Manish Sinha the sender of c-mall at daied 17.08.2012 was a fake or a real person and whe ts the person. who has sent email from IP 10.63.173.26. In course of the investigation, & report fom Mr Anurag Gupta, Inspector General of Palice, CID vide Letter No.320/C dated 06.12.2012 was received by Dr. 8.6. Ghorai that on inquiry # was found that the impugned e-mail 1D was created by using mobile no.9471503579 and the said mobile number belonged to the petitioner, namely, Visha) H. Shah. By an order dated 04.07.2013, cognizance for the offence under sections 66A(a), 66D and 67 of Information 'Technology Act, is "
ne .
ke yen "
os 2 , r m one sO00 was taken by the learned Chief Judicial Magistrate, Ranchi.
o, fection 66D of Infermation Technology y Act, 2000 reads as under:
"Punishment for cheating by personation by sing compater -- resorrce- Whoever, by omeany of any commnmication device or compnter rexonrve Cheats bre personaticn, shail be punished w uh Imprisonment of ether des $¢ scription for a term which may exter: d to three years sand £ ces fo oF Po gn 4 ope ew yeor ;.
give Se Hable to Ane which may extend io one Lar a x The offenee under section 66D refers to cheating by peeee pin, wns personation which vous necessarily imply impersonating an yidividual, Cheating is det ned under si ection 415 of the indian Penal Code under which there can be three snoid8s of cheating @ by de cetyl ngany ; person to induce Mee » to deliver any property 16 other person (a) by deceiving ary person fc x gonsent that another person shall reta in any property, and Gu) by AL yh rt intentionally inducing the per son so. deceived to do or omit te do anything. The third category of acts constituting cheating do not refer ie property alone as the subject matter and th e offence would be complete if the act or omission causes or is likely to cause damage or harm to the person in boc iy, mind, reputakon ar property. The offence of cheating by perso onation is defined under sec ction 416 of the Indian Penal Code atid ex planation to the ve MAL Provision provi ides that. the. offence ig conus ited whether the individual impersonated 'sa real or imaginary person, Section G6D takes within its sweep use of "computer resource" for an act of cheating by et impersonation. The term "computer resource" which defined under section 2¢k) means computer, computer system, computer network, data and cornmater data base or software, Yi, The materials collected during the investigation establish that someone impersonating in the name of Manish Sinha, a fictitious person, hag sent emails which contain serious allegations against the Institute. UP the imputations made by the sender are proved false and the preseculicm esiablishes during the trial that the petitioner is the person who has seri the gee 33 aite ding e-mails he would be Hable under section GOD of information and ener Ee HreQ ras 'Technology Act. The learned Magistrate in the order dated 21.03.2016 referred to judgment of the Hon'ble Supreme Court and having taken note that there is sufficient yet of the materials on record came to a conolustor material to frame charge under section 66D of Information Technology Act, Sogo.
The impugned order dated 21.03.2016 caes not confain elaborate ussions on merits of the matter ~ and, which is not a requirement at this deetes stage; but the learned Magistrate has applied his mind can be easily gathered fom a plain reading of the order under challenge. The learned Magistrate was aware of the judgment in "Shreya vo Union of intia * P2073) SSO 2 and he has rightly declined to take cognizance of section 664A. The learned Magistrate has righty observed that section 67 involves transmission of obscene material m ele SctrORIc form. and Finding, no allegation in this regard the learned Magistre ate has rightly y held th at acl arge-under section 67 of Infermiatior Te eohnoloy sey Act, 2000 cannot be framed agaitis the petitioner. id. In exercising, jurisdiction cunder section 397 read with section 401 of the Code of PCr iminal Provedure, the revisional Court would not go into the merits of the case to find out whether there is sufficient evidence for conviction. Wi ile he rev isional Court can look into the factual + tax of the case, the revisional jurisdiction should normally be exercised ma s™ rly on a question of law Ia. In "Supdi and Rementhrancer of Legal A fairs y Anil Aunar Bhunja" ¢? aE mS ord the Hon'ble § Supreme Court! has s observ ed as under: S at the stage SEF ee Ie coheed pest coe of sromine ¢ osecution evide nee » hate Ht vet } RB xmewed eo seecpien barter Peexgrg) eed ~ scoeastetes the commenced. The ? Magisirat aie had, therefore, fo consider ire Vv is sep OFLA y Ay > th ROVE Quest ion on a general consideration ray the puaterials : .
i placed defore ale bv the jnvesligaling po Nice Of Sfage, as way polated oui by thas Conrt ia State © Ramesh Siagh the inuth, veracity and effect ef (he evidence ich ite prosecutor proposes fo adduce are meticulous) fudged. The standard af test, fademid which is to be applied Rnatly before fs HECUBEC } guilty or othemwixe, is nol exactly ie be a ihe stage of Section 22? ov 228 of the Code of Procedure, i#?3, At ils stage, even a verv sireng suspic 2H g munded EpON materials before the Me agisirate, which fecels 8"
ho fo form a presuayive oninion as fo ihe existence of tie Peer ¥ se Sores ite ryt he :
packed Inge eallent fs constituting the afferace alles a 3 wok i + Pasty ihe framing of charee against the acensec nM . "ghee grey Sopdet op dk nag ee Qf TIS CONISTON OF TaT GFfeENce, LXER A +4 The case of the prosecution is that an e-mail through a fake poo be.
e-mail ID was sent ts Prof. $.K. Ghorat which according t&: the complainants was intended at lowering the reputations of the Institute and in ? C& Ben Neth ad S828 tam their reputation in the eyes of their peers. At this stage © the stand taker by an accused is not relevant except to the extent that an admitted document and the faets emerging from the materials collected by the proseculhim must be kept in mind. Looking at the materials on record, particularly, allegations by the informants which they have reiterated in their statements under section 161 of the Code of Criminal Procedure, the learned Magistrate has held that a prima-facle case constituting the offence under section 66D of information Technology Act, 2000 is made aut. The plea raised by the petitioner are essentially his defence truth or otherwise of which can be tested only during the trial. Whether the e-mail LD was fake one, whether a private person can create = fake e-mail 1 Dor whether: the mobile number of ihe petitioner can be used by a third person are the ! ssue s which the Courts rot beg experts cannot decide without evidence tS, in view of the afor sank merit in this criminal revision petition. The 'mepoaned order dated 21.03. 2016 passed by the learned Judicial Magistrate, Ranchi does not warrant interference by this Court and, accordingly, Criminal Revision No.454 of 2016 is dismissed. 1, The interim order dated 25.04.2016 is vacated. Vo Let a copy of this order be transmitted to the Court concermed crough Bag 2 gg ae .
(Shree Chandrashekhar,J}