Delhi District Court
State vs . Narender Khosla & Another. on 7 April, 2014
IN THE COURT OF SH. AKASH JAIN, MM06, PATIALA HOUSE COURT,
NEW DELHI DISTRICT, NEW DELHI
FIR No.64/10
PS Parliament Street
State vs. Narender Khosla & another.
07.04.2014
ORDER ON CHARGE
1.In brief the facts of the present case as per prosecution are that on 22.04.2010 a complaint was received from Shri Devji M. Patel, MP (Lok Sabha) that on 13.04.2010 he received one abusive message on his mobile phone no.9013180388. Thereafter, on the same day he further received one life threatening message from the same mobile number i.e.9210782038. On the complaint of the aforementioned complainant, FIR was registered by the police and the IO Inspector Vijay Chandel collected the hard copy of the SMS received from complainant. The contents of the SMS received by the complainant were elicited as "randi ke pillo, tumhari bhen baityo ko chodu. Poori Rajneeti me gand mara rakha hain behn choud tujhe jaan se marwa dege randi ke bij tera maa chude gye".
2. It is reported by the IO that during investigation, it was found that the SMS in question was sent on the number of complainant from mobile No.9210782038 and the said SIM was issued in the name of one Manik Verma. However, on interrogation of Manik Verma nothing fruitful came out and on 20.04.2010 one information through W/T message from Special Cell, Crime Branch was received vide which it was revealed that both the present accused had been arrested in case FIR No.47/10 U/s. 420/468/469/471/507 IPC and 66 A IT Act and both the accused persons disclosed that the above mentioned threatening and vulgar SMS was sent by them to the MP on his mobile number. It is reported by the IO that accused Rohit Kumar disclosed that both of them had prepared fake ID of Manik Verma and got one SIM card in his name on the fake ID and sent various threatening and vulgar SMSs from the said SIM to various MPs in India. Both the accused persons were accordingly arrested in the present case and were chargesheeted by the IO.
3. On filing of the charge sheet, the Court took cognizance of the offences in question against both the accused persons. Upon appearance of both the accused persons, copy of documents were supplied to them. Arguments on charge were consequently heard. An application for discharge U/s. 239 Cr.P.C is moved on behalf of both the accused persons by the counsel.
4. It is argued on behalf of accused persons that the entire case of prosecution is based on contents of alleged SMS purported to be sent by the accused to the complainant, however, no such electronic record of the SMS in question is produced by the IO on record. It is argued that the IO has even failed to seize the mobile phone in question belonging to complainant wherein alleged SMS was received. It is further argued that the CDR of complainant and alleged mobile number only proves the transmission of SMS which is of no consequence as it nowhere provides the content, without which the offence in question is not made out. It is argued that the contents of alleged SMS have not been brought on record by the IO in either primary or secondary form. Moreover, with respect to allegation of procuring fake SIM in the name of Manik Verma by forging his ID, the same had already been investigated by the concerned IO in FIR No.47/10, PS Tughlak Road which is reportedly pending trial. It is argued that since no investigation qua aforesaid allegation is carried out by the IO in present FIR, the accused persons should not be subjected to double jeopardy.
5. Ld. APP for State on the other hand has argued that there is sufficient material on record against the accused persons for proceeding further with the charge against them. He has further argued that the question of seizure of contents of SMS in question by the IO is to be seen after conclusion of trial while appreciating evidence and not at the pre mature stage of charge.
6. Before discussing the rival contentions of the parties and material on record, it is imperative to refer to the judgment of Hon'ble Supreme Court in the matter of Union of India vs. Prafulla Kumar Samal and Anrs. reported as AIR 1979 SC 366, wherein Hon'ble Apex Court enunciated following 4 principles for determining whether in a given case accused is to be discharged or not (Para 10): ".........1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:
2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial.
3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
4) That in exercising his jurisdiction under section 227 of the Code the judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouth piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial......."
7. The chargesheet in the present case has been filed on behalf of State under section 507 IPC and 66A IT Act. During the course of arguments on charge, it has been fairly conceded by the Ld. APP for state that the IO in the present case has neither seized the electronic record of SMS in question nor seized the mobile phone of the complainant. He further stated that IO concerned has affirmed that the SMS in question had already been deleted by the complainant. As such, there is no likelihood of emergence of any further incriminating evidence against the accused during the trial. It is admitted case of prosecution that apart from the SMS in question, there is no other communication either oral, written or otherwise allegedly received by the complainant from accused. The SMS sent by mobile phone is electronic record in terms of section 2 (t) of IT Act, 2000 which clearly comes within the definition of 'document' as defined in Section 3 of Indian Evidence Act. In the absence of seizure of obscene SMS in question in its original form by the IO and in the absence of seizure of the mobile phone in question which allegedly received the said obscene SMS, the prosecution has failed to bring either primary or secondary evidence to prove the contents of alleged SMS in question. Mere collection of printout of the SMS in question by IO during investigation is of no consequence. Disclosure statements of the accused persons are also not admissible in the eyes of law. Thus, the essential ingredients of the offences in question i.e. 507 IPC and 66 IT Act are not made out.
8. With respect to the allegation of procuring fake ID in the name of Manik Verma by the accused persons, the same has already been investigated by the police in a separate FIR no.47/10 PS Tughlak Marg against accused persons. As such, the finding in the present matter does not pertain to the said allegation being subject matter of another case FIR. As it is well settled that the court cannot act merely as a post office or a mouth piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before it, while exercising its jurisdiction u/s 227/239 Cr.P.C., as such, keeping in view the material on record and aforesaid observations, no offence u/s 507 IPC & 66A IT Act is made out against the accused persons. Accordingly, both the accused persons namely Narender Khosla and Rohit Kumar are discharged in the present case. Bail bonds of both the accused persons already furnished on record shall remain in force for the period of six months from now.
(Akash Jain) MM06/PHC/ND/07.04.2014