Madras High Court
S.M.Balaji vs State Represented By on 28 September, 2020
Author: P.N. Prakash
Bench: P.N. Prakash
Crl.O.P.Nos.26924 & 28725 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 15.09.2020
PRONOUNCED ON : 28.09.2020
CORAM
THE HON'BLE Mr. JUSTICE P.N. PRAKASH
Crl.O.P.Nos.26924 & 28725 of 2018
and Crl.M.P.Nos.15540 & 16774 of 2018
S.M.Balaji .. Petitioner/Proposed accused
in Crl.O.P.No.26924 of 2018
R.Jeyapragash .. Petitioner/Accused No.1
in Crl.O.P.No.28725 of 2018
Vs.
1.State represented by
The Inspector of Police,
CCB, Cyber Crime Cell,
Chennai. .. Respondent/Complainant
in both petitions
2.Dr.R.Gunaseelan .. Respondent/de facto
Complainant in both petitions
Common Prayer: Criminal Original Petitions filed under Section 482 Cr.P.C. to
call for the records and quash the order of summoning the petitioner vide order
dated 28.09.2018 in C.C.No.9238 of 2018 on the file of the XI Metropolitan
Magistrate Court, Saidapet, Chennai.
http://www.judis.nic.in
1/18
Crl.O.P.Nos.26924 & 28725 of 2018
For Petitioner
in Crl.O.P.No.26924 of 2018 : Mr.AR.L.Sundaresan
Senior Counsel for
Mr.J.Suresh
For Petitioner
in Crl.O.P.No.28725 of 2018 : Mr.V.Karthic, Senior Counsel
for Mr.J.Suresh
For R1 in both petitions : Mr.A.Natarajan
Public Prosecutor
assisted by Mr.Md.Muzammil
Government Advocate (Crl.Side)
For R2 in both petitions : Mr.B.Kumar, Senior Counsel
for Mr.V.T.Narendran
COMMON ORDER
This case was taken up through video conferencing.
2. For the sake of convenience, the dramatist personae in this case will be referred to by their names.
3. Dr.Gunaseelan (de facto complainant) and Dr.S.M.Balaji (A2) are Dental Surgeons having specialised in Oral and Maxillofacial Surgery. They both are members of the Indian Society for Dental Research and International Association of Oral and Maxillofacial Surgeons. There was an international conference of Oral and Maxillofacial Surgeons at Barcelona, Spain, on 21th http://www.judis.nic.in 2/18 Crl.O.P.Nos.26924 & 28725 of 2018 October 2013, in which, Dr.Gunaseelan (de facto complainant) and other surgeons from India presented a scientific paper on Oral and Maxillofacial Surgery. On return from Barcelona, one Dr.Kishore Nayak, a friend of Dr.Gunaseelan (de facto complainant), forwarded an e-mail that was received by him from the e-mail ID: [email protected] with derogatory contents against Dr.Kishore Nayak, Dr.George Paul and Dr.Gunaseelan (de facto complainant). It may not be necessary to set out the entire contents in this order, but, it would suffice, if some excerpts are extracted:
“The HMA trust presided by Drs.Kishore Nayak, George Paul, Gunaseelan Rajan had been involved in a series of malpratices supposedly through Dental Counsel of India and has been raided by CBI. Dr.Gunaseelan Rajan was arrested repeatedly by CBI in this regard. Subsequently their DCI memberships were stripped by the Tamil Nadu State Government. The ill gotten money has been spent by HMA trust members to build medical college, hospitals, renovate clinic and build a construction empire for his son at Bangalore.”
4. Apart from the above, the e-mail is replete with insinuations and allegations of fraud. Therefore, Dr.Gunaseelan (de facto complainant) gave a complaint dated 01.11.2013, based on which, the police registered an FIR in Crime No.30 of 2014 on 11.01.2014, for the offences under Sections 500 and http://www.judis.nic.in 3/18 Crl.O.P.Nos.26924 & 28725 of 2018 507 IPC and Section 66-A of the Information Technology Act, 2008 (for short “the IT Act”), against “suspected e-mail ID: [email protected]”.
5. The investigation of the case was taken over by Anbazhagan, Inspector of Police, Cyber Crime. During the course of investigation, it came to light that, on account of personal rivalry between Dr.Balaji (A2) and Dr.Gunaseelan (de facto complainant), a false e-mail ID in the name of [email protected] was created by Jayaprakash (A1), an employee of Balaji Dental and Craniofacial Hospital, Chennai, run by Dr.Balaji (A2) and the impugned e-mail was sent to all the Dental Surgeons through out the world. Jayaprakash (A1) was arrested by the police and Dr.Balaji (A2) was released on anticipatory bail.
6. After completing the investigation, Anbazhagan, Investigating Officer, filed a final report dated 02.06.2015 before the XI Metropolitan Magistrate, Chennai, for the offences under Sections 506(I) and 507 IPC and Section 66-D of the IT Act, against Jayaprakash (A1) and Dr.Balaji (A2).
7. At this juncture, it may be apposite to extract a few paragraphs from the final report:
http://www.judis.nic.in 4/18 Crl.O.P.Nos.26924 & 28725 of 2018 “On the above complaint, during the course of preliminary enquiry, the requisition was sent on 12.11.2013 to Google Service Provider to furnish the Internet Protocol (IP) logs for the above said email id [email protected]. The documents furnished by the Google service provider, it is ascertained that the login IP was 101.220.244.157 on 23.10.2013 at 15.24.36 UTC (20:54:36 IST). The user details for the alleged IP was obtained from Aircel broadband service and found to be originated from the Data Card number 7299008833 which belong to one Mr.Jeyapragash, No.37/68, Srirampet CIT Nagar, Nandhanam, Chennai 600035. A case in CCB Crime No.30/2014 U/s. 500, 506(ii), 507 IPC and 66 A of the IT Amendment Act 2008 was registered on 11.01.2014 at 21.00 hrs and taken up for investigation.
There was a previous enmity between the 2nd accused and the complainant and other maxillofacial surgeons, the 2nd accused has instructed the 1st accused to send malicious and defamatory email messages to the members of IOAMS. The 2nd accused has given password of his email id [email protected] and asked him to copy the contents as in the above said email message to forward the same to the email addresses already given by the 2nd accused. The 1st accused had created http://www.judis.nic.in 5/18 Crl.O.P.Nos.26924 & 28725 of 2018 a fake name MFS Surgeons and an email id [email protected] from his machines laptop by using his data Aircel data card no.+917299008833 IMEI no.867648016369751 SIM Aircell 89914100000159577209 on 23.10.2013 at 15.24.35 UTC (20:54:35 IST) IP 101.220.244.157. The 1st accused had sent the content copied from 2nd accused email id [email protected] to all the email addresses provided by 2nd accused. Some addresses were also copied form IOAMS website. On the instruction of 2nd accused the 1st accused had threatened through net calls.”
8. Mr.L.Abraham Lincoln, B.Sc., L.LM., XI Metropolitan Magistrate, Saidapet, Chennai, before whom the final report was filed, refused to take cognizance of the offence disclosed in the final report and dismissed the same on 08.09.2015 without notice to Dr.Gunaseelan (de facto complainant). Therefore, Dr.Gunaseelan (de facto complainant) filed Crl.R.C.No.1170 of 2015 before this Court and this Court, by order dated 29.01.2016, set aside the order dated 08.09.2015 passed by the XI Metropolitan Magistrate, Chennai, by relying upon the judgment of the Supreme Court in Bhagwant Singh Vs. Commissioner of Police1 and held that the Magistrate ought not to have rejected the final report without hearing Dr.Gunaseelan (de facto complainant) and directed the 1 1985 (2) SCC 537 http://www.judis.nic.in 6/18 Crl.O.P.Nos.26924 & 28725 of 2018 Magistrate to give an opportunity to Dr.Gunaseelan (de facto complainant) and thereafter, take a decision on the final report filed by the police.
9. By then, Mr.S.Prakash, B.Sc., L.L.M., succeeded Mr.L.Abraham Lincoln, B.Sc., L.L.M., as the XI Metropolitan Magistrate, Saidapet, Chennai.
10. Mr.S.Prakash, XI Metropolitan Magistrate, Chennai, heard the learned counsel for Dr.Gunaseelan (de facto complainant) and the Assistant Public Prosecutor and by order dated 24.03.2017, directed further investigation under Section 156(3) Cr.P.C., since he found several lacunae like absence of certificate under Section 65-B of the Evidence Act, 1872, etc., in the collection of evidence and in relied upon documents filed by Anbazhagan, Investigating Officer.
11. Accordingly, Anbazhagan, Investigating Officer, conducted further investigation and filed a final report dated 02.11.2017 before the said Magistrate, deleting the name of Dr.Balaji (A2) from the array of accused and arraigning only Jeyapragash (A1) as the sole accused in the case.
12. The Magistrate, issued notice to Dr.Gunaseelan (de facto complainant) and after hearing his counsel, by order dated 28.09.2018, took http://www.judis.nic.in 7/18 Crl.O.P.Nos.26924 & 28725 of 2018 cognizance of the offences under Section 506(I) and 507 IPC and Section 66-D of the IT Act and issued process to both Jeyaprakash (A1) and Dr.Balaji (A2).
13. Challenging the prosecution, Dr.Balaji (A2) has filed Crl.O.P.No.26924 of 2018 and Jeyapragash (A1) has filed Crl.O.P.No.28725 of 2018, under Section 482 Cr.P.C. before this Court.
14. Heard Mr.AR.L.Sundaresan, learned Senior Counsel representing Mr.J.Suresh, learned counsel on record for Dr.Balaji (A2), Mr.V.Karthik, learned Senior Counsel representing Mr.J.Suresh, learned counsel on record for Jeyapragash (A1), Mr.A.Natarajan, learned Public Prosecutor appearing for the first respondent/State and Mr.B.Kumar, learned Senior Counsel representing Mr.V.T.Narendran, learned counsel on record for Dr.Gunaseelan (de facto complainant).
15. Mr.AR.L.Sundaresan, learned Senior Counsel for Dr.Balaji (A2) submitted that the allegations in the e-mail are not something contrived by Dr.Balaji (A2), but, they were all available in public domain in the form of various news items in newspapers both English and vernacular. He also submitted that there was a debate in the Parliament with regard to the affairs of the Dental Council of India and the CBI did arrest Dr.Gunaseelan (de facto http://www.judis.nic.in 8/18 Crl.O.P.Nos.26924 & 28725 of 2018 complainant), prosecuted him and filed a charge sheet against him. He contended that when Section 66-A of the IT Act has been declared unconstitutional by the Supreme Court, the police cannot use Section 66-D of the IT Act to prosecute the accused. He tried to justify the impugned e-mail by contending that it was an honest opinion expressed by a person, who is interested in the welfare of the organisation. He further contended that Dr.Balaji (A2) had not impersonated anyone at all and even in the confession of Jeyapragash (A1), he has not stated that Dr.Balaji (A2) had asked him to create a false e-mail ID and send the e-mails.
16. Mr.Karthic, learned counsel for Jeyapragash (A1) justified the order dated 08.09.2015 passed by Mr.L.Abrahim Lincoln, XI Metropolitan Magistrate, Chennai. He contended that there is no material to show that Jeyapragash (A1) had intimidated anyone. He further contended that after the order dated 24.03.2017 was passed by Mr.S.Prakash, XI Metropolitan Magistrate, Chennai, for further investigation, nothing has been done by Anbazhagan, Investigating Officer, to address the grey areas referred to in the order. Anbazhagan, Investigating Officer, has not even recorded any fresh statements under Section 161(3) Cr.P.C.
http://www.judis.nic.in 9/18 Crl.O.P.Nos.26924 & 28725 of 2018
17. Mr.A.Natarajan, learned Public Prosecutor submitted that the police have done a fair investigation in this case and they are bound by whatever orders that are passed by this Court.
18. Mr.B.Kumar, learned Senior Counsel appearing for Dr.Gunaseelan (de facto complainant) submitted that along with the second final report dated 02.11.2017, Anbazhagan, Investigating Officer, has enclosed several documents and whether those documents were obtained after the order for further investigation or before, has to be seen only during trial. He further submitted that for issuance of process, the Magistrate need not even pass any detailed order and placed reliance upon the judgment of the Supreme Court in Nupur Talwar Vs. Central Bureau of Investigation and Another2. He contended that the prosecution launched by the CBI against Dr.Gunaseelan (de facto complainant) has been quashed by this Court and the judgment is reported in Dr.S.Murugesan Vs. Deputy Superintendent of Police, CBI, Anti-Corruption Branch, Nungambakkam3. He also placed reliance upon the judgment of the Singapore High Court in Ye Lin Myint Vs. Public Prosecutor4 to drive home the point that the offence of “spoofing” is viewed very seriously by foreign Courts. 2 (2012) 11 SCC 465 3 2019 (1) MWN (Crl) 558 4 (2019) SGHC 221 http://www.judis.nic.in 10/18 Crl.O.P.Nos.26924 & 28725 of 2018
19. In a riposte, Mr.AR.L.Sundaresan placed reliance upon the Pepsi Foods Ltd., and Another Vs. Special Judicial Magistrate and Others5 and contended that summoning of a person to face trial is not a ritual or an empty formality and requires a speaking order by the Court.
20. This Court gave its anxious consideration to the rival submissions.
21. In the complaint dated 01.11.2013 lodged by Dr.Gunaseelan (de facto complainant), he has stated that Dr.Kishore Nayak had received an e-mail from [email protected] and he forwarded that e-mail to him and the contents of the e-mail were malicious. Thus, at that juncture, Dr.Gunaseelan (de facto complainant) did not suspect Dr.Balaji (A2). The police did not register the FIR immediately thereafter. They conducted preliminary enquiry by contacting Google Service Provider, gathered materials that [email protected] was created with a mobile data card belonging to Jeyapragash (A1), who was an employee of Dr.Balaji (A2) and only thereafter, the FIR was registered. Mr.Anbazhagan, Investigating Officer, arrested Jeyapragash (A1) and gathered several materials implicating Jeyapragash (A1) and Dr.Balaji (A2) in the offence. 5 AIR 1998 SC 128 http://www.judis.nic.in 11/18 Crl.O.P.Nos.26924 & 28725 of 2018
22. In the statements of some other Surgeons, they have stated that they had also received the e-mail from the same e-mail ID:
[email protected]. Dr.Kishore Nayak, in his statement, has further stated about the rivalry with Dr.Balaji (A2) and his group in the affairs of the society.
23. In the teeth of such overwhelming materials, it is indeed strange that Mr.L.Abraham Lincoln, XI Metropolitan Magistrate, Chennai, dismissed the final report by saying that the opinion expressed in the e-mail is a bona fide one and the same is protected by Article 19 of the Constitution of India. However, that order was set aside by this Court, of course, on other grounds.
24. Coming to the order dated 24.03.2017 passed by Mr.S.Prakash, XI Metropolitan Magistrate, Chennai, he found that the police require to do their homework better for strengthening the allegations and therefore, directed further investigation under Section 156(3) Cr.P.C. before taking cognizance. In the order dated 24.03.2017, the Magistrate had not stated that there is no material for taking cognizance, but, had stated that the police should obtain the certificate under Section 65-B of the Evidence Act, for various electronic data and records that they had collected. Strangely, Anbazhagan, Investigating Officer, the same Inspector, who filed the first final report dated 02.06.2015, filed the second final http://www.judis.nic.in 12/18 Crl.O.P.Nos.26924 & 28725 of 2018 report dated 02.11.2017 dropping the name of Dr.Balaji (A2) from the array of accused. He has not given any plausible reason for this change of heart. This clearly shows that some invisible hand had worked behind the screen, otherwise, there was no reason for Anbazhagan, Investigating Officer, to somersault.
25. However, Mr.S.Prakash, XI Metropolitan Magistrate, Chennai, went through the entire materials and found that there were materials to take cognizance of the said offences and after taking cognizance, found that there were materials against both Jeyapragash (A1) and Dr.Balaji (A2) and therefore, issued process.
26. In Nupur Talwar (supra), the Supreme Court has held as follows:
“All that the Magistrate has to do at the stage of Section 204 Cr.P.C. is to see whether on perusal of the evidence there is sufficient ground for proceeding against the accused. At this stage, the Magistrate is not required to weigh evidence meticulously as if he was the trial court nor is he required to scrutinise the evidence by the same standard by which the Sessions Court scrutinises the evidence to decide whether to frame or not to frame charges under Sections 227/228 Cr.P.C. Section 204(1) itself does not impose a legal requirement on http://www.judis.nic.in 13/18 Crl.O.P.Nos.26924 & 28725 of 2018 the Magistrate to record reasons in support of the order to issue a process. The Magistrate is not required to record reasons at the stage of issuing the process against the accused. In the absence of any legal requirement in Section 204 Cr.P.C. to issue process, it was not legally necessary for the Magistrate to have given detailed reasons in her order dated 09.02.2011 for issuing process. The fact however remains that the Magistrate has given detailed reasons in the order dated 09.02.2011 issuing process.”
27. The short question is, on the materials filed by the police, whether there is sufficient ground for proceeding against the accused. The materials collected by the police show that Jeyapragash (A1) is not a Dental Surgeon, but, an employee of Dr.Balaji (A2), who is a Dental Surgeon. Dr.Balaji (A2) is a member of the Dental Surgeons Association of India. The e-mail ID [email protected] is not the personal e-mail ID of either Jeyapragash (A1) or Dr.Balaji (A2).
28. The police investigation shows that the said e-mail ID was created with the Mobile No:7299008833 of Jeyapragash (A1). Jeyapragash (A1) has no animosity towards either Dr.Gunaseelan (de facto complainant) or Dr.Kishore http://www.judis.nic.in 14/18 Crl.O.P.Nos.26924 & 28725 of 2018 Nayak. The statement of Dr.Kishore Nayak shows that there was rivalry between his group and Dr.Balaji's (A2) group in the affairs of the Association. This, by itself, is sufficient for an ordinary prudent man to draw a legitimate inference that Jeyapragash (A1) and Dr.Balaji (A2) had, in tandem, acted in creating the e-mail ID and sending the impugned e-mail to all the Dental Surgeons, both in India and abroad. If they had wanted to express their honest opinion about the way Dr.Gunaseelan (de facto complainant) and Dr.Kishore Nayak are administering the Association, they could have sent the e-mail from their personal e-mail ID. The impugned e-mail ID [email protected], proprio vigore, would make one think that it is an official e-mail ID. This is one form of “spoofing”. This is far more dangerous than printing and circulating scandalizing materials. By using the medium of e-mail, thousands of persons can be reached in one stroke all over the world and the reputation of a person can be marred. This Court posed the following question to the counsel. “If a person creates an e-mail ID, “[email protected]” and sends a mail to all the lawyers in the country saying, “On account of spike in the spread of COVID-19 pandemic in the city of Chennai, holidays have been declared for the High Court from 7th September to 11th September 2020, both days inclusive, under the Negotiable Instruments Act, 1881.
- Registrar General” http://www.judis.nic.in 15/18 Crl.O.P.Nos.26924 & 28725 of 2018 disastrous consequences will follow. Lawyers, who would have wanted to file cases in that week to save limitation, may not file and thereby lose their remedy. There are thousands of Lawyers, who are not tech-savvy, may not even know what is the official e-mail ID of the Madras High Court. To this question, there was no answer from any counsel. In this case, since the parties are affluent, they are all able to engage the cream of the Chennai Bar to doggedly fight the legal battles at all levels. The police also shifted sides like the weathercock. One cannot imagine the plight of ordinary mortals, who suffer daily and silently the onslaught to their reputation by internet guerilla warriors. The sentry in the police station will not even permit the aggrieved to enter the station for giving complaint. Anyone can be named and shamed in this internet age and post truth world.
29. Coming to the facts of this case, the final report and the accompanying documents are sufficient enough to take cognizance of the offences and issue process to Jeyapragash (A1) and Dr.Balaji (A2). Therefore, in the opinion of this Court, there are sufficient materials against Jeyapragash (A1) and Dr.Balaji (A2) to be prosecuted for the said offences, justifying the order of issue of process by the XI Metropolitan Magistrate, Chennai. http://www.judis.nic.in 16/18 Crl.O.P.Nos.26924 & 28725 of 2018 In the result, these criminal original petitions are dismissed as being devoid of merits. The order of interim stay already granted by this Court vide orders dated 20.11.2018 and 10.12.2018 in Crl.M.P.Nos.15540 & 16774 of 2018, respectively, shall stand vacated. It is made clear that whatever is stated above is only for the limited purpose of deciding these criminal original petitions and the trial Court shall proceed with the case in accordance with law unmindful of this order. Jeyapragash (A1) and Dr.Balaji (A2) are directed to appear before the XI Metropolitan Magistrate Court, Chennai, on at 10.30 a.m. on 02.11.2020.
28.09.2020 nsd To
1.The XI Metropolitan Magistrate, Chennai.
2.The Inspector of Police, CCB, Cyber Crime Cell, Chennai.
3.The Public Prosecutor, Madras High Court, Chennai – 600 104.
http://www.judis.nic.in 17/18 Crl.O.P.Nos.26924 & 28725 of 2018 P.N. PRAKASH, J.
nsd Crl.O.P.Nos.26924 & 28725 of 2018 28.09.2020 http://www.judis.nic.in 18/18