Jharkhand High Court
Ajay Chavda @ Ajay Kishorebhai Chavda @ ... vs The State Of Jharkhand on 8 April, 2021
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 109 of 2021
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Ajay Chavda @ Ajay Kishorebhai Chavda @ Ajay Kishore @ Bhai Chavda @ Ajay Chawda, aged abut 28 years, son of Kishore Ramesh Chavda, resident of Shri Chamenda Krupa, P.O. and P.S. Rajkot, District Rajkot, State Gujrat ... .... .... Petitioner Versus
1.The State of Jharkhand
2.Anuja Rai, aged about 29 years, daughter of Ajay Kumar Rai, permanently residence 161, Saket Nagar, Sankat Mochan Lanka, Varanasi, P.O. and P.S. Sundarpur, Hindu Vishwa Vidyalaya, District-Varanasi, State U.P., presently residing at Room No. 17, TFER, Hostel, XLRI, Bistupur, Jamshedpur, P. O. + P.S. and District East Singhbhum, Jamshedpur, Jharkhand ... .... Opposite Parties CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner : Mr. Prashant Pallav, Advocate For the State : Mr. Shailendra Tiwari, A.P.P. For the O.P. No. 2 : Mr. Madhav Prasad, Advocate 06/08.04.2021 Heard, Mr. Prashant Pallav, learned counsel for the petitioner, Mr. Shailendra Tiwari, learned counsel for the State and Mr. Madhav Prasad, learned counsel for the O.P. No. 2.
2. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.
3. The petitioner has filed the present criminal miscellaneous application for quashing of order dated 04.11.2019 whereby court below took cognizance for the offence under sections 354D/509 of the Indian Penal Code and under Section 67A of the Information Technology Act, 2000, pending in the Court of Additional Sessions Judge, Jamshedpur.
4. O.P. No. 2 has filed written statement before the police stating therein that in order to ruin the reputation and to defame O.P. No. 2, the 2 petitioner has posted certain obscene pictures of intimate moments on Google Photos. The specific case of the O.P. No. 2 is that the same may be shared publicly for further humiliation and hence the case was filed.
5. On the basis of F.I.R., learned court below took cognizance for the offence under sections 354D/509 of the Indian Penal Code and under Section 67A of the Information Technology Act, 2000.
6. Mr. Prashant Pallav, learned counsel for the petitioner submits that petitioner is an engineer and was working in Infosys at Pune. He submits that the petitioner and informant while working together in a Project at Pune developed intimate relationship. He submits that the petitioner and informant were dating and established physical relationship and continued in live in relationship and with consent of each other both of them captured many such moment when they were in actual physical relationship and photos were retained by both the parties. He further submits that informant subsequently was selected in XLRI, Jamshedpur and wanted to end a long distance relationship with the petitioner and the same has been intimated to the petitioner. He submits that the petitioner came to Jamshedpur to meet the informant and tried to convince the informant. He submits that the informant disclosed that the informant is dating someone else.
7. Learned counsel for the petitioner further submits that the informant has lodged the F.I.R. only under apprehension that those pictures will be made viral. The informant has lodged this F.I.R. to prevent herself from humiliation. He further submits that those photographs were not uploaded on Google and was not made viral. He further submits that the informant has given her statement under section 161 Cr.P.C. whereby it transpires that the pictures were clicked after obtaining consent from both the parties and no pictures were made viral by the petitioner. 3
8. Learned counsel for the petitioner further submits that now parties have settled the matter by way of compromise which was entered into between the parties and they have filed joint compromise petition before the court below in Cyber Crime P.S. Case No. 04 of 2020 whereby it was requested to close the matter, however, learned trial court held that the sections are not compoundable and the same cannot be closed.
9. Mr. Pallav, learned counsel for the petitioner further submits that this is not a case of heinous crime i.e. murder, rape, dacoity etc. He submits that this is a case of live in relationship and petitioner and informant are major and in that view of the matter, this Court has jurisdiction under section 482 Cr.P.C. to quash the entire criminal proceeding as this is not crime against public at large. To buttress his argument, learned counsel for the petitioner relied upon judgment in the case of " Gian Singh Vs. State of Punjab" reported in (2012) 10 SCC 303 wherein para 58 & 61 the Ho'ble Supreme Court has held as under:-
"58. Where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the court. In respect of serious offences like murder, rape, dacoity, etc., or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly 4 any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed.
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61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
10. Mr. Madhav Prasad, learned coun"sel for the O.P. No. 2 by referring counter-affidavit filed on behalf of O.P. No. 2 submits that the matter has been compromised which has been disclosed in para 6 and 7 of the counter-affidavit. He submits that in para 7 of the counter-affidavit it 5 has been stated that photos were not uploaded nor made viral and the informant is ready to compromise the case with the petitioner.
11. Mr. Shailendra Tiwari, learned A.P.P. appearing on behalf of the State submits that in the facts and circumstances of the case it is within the jurisdiction of the Court to decide whether the said impugned order can be quashed or not.
12. The Court has gone through the impugned order dated 04.11.2019 whereby cognizance has been taken cognizance for the offence under sections 354D/509 of the Indian Penal Code and under Section 67A of the Information Technology Act, 2000. A joint compromise petition has been filed in the Court below wherein it has been mutually decided to compromise the matter with condition that there shall be no means of communication or attempt of communication between them. In para 7 and 8 of the joint compromise petition it was agreed between the parties that they will not contact each other in future. It has been stated in para 10 of the joint compromise petition that the informant decided not to pursue the case.
13. There is no doubt, Sections in which compromise petition has been taken is not compoundable. Sofar as section 509 of the I.P.C. is compoundable. Section 67A of the Information Act clearly stipulates punishment for publishing, transmitting obscene materials in electronic form. There is additional protection granted under section 81 of the Information Technology Act. Section 79 of the said Act also cannot be ignored. Provision of Information Technology Act if the alleged offence pertains to offence of electronic record are covered by the Information Technology Act which is special law. It is settled principle of law that special law shall prevail over general law and Indian Penal Code. This aspect of the matter has been considered by the Hon'ble Supreme Court in the case of "Sharat Babu 6 Digumarti Vs. Government (NCT of Delhi)" reported in (2017) 2 SCC 18 . Paragraph Nos. 25, 28, 32 and 37 of the said judgment are quoted here-in-below:-
"25. Section 67 of the IT Act which provides for punishment for publishing or transmitting obscene material in electronic form reads as follows:
"67. Punishment for publishing or transmitting obscene material in electronic form.--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."
28. We have referred to all these provisions of the IT Act only to lay stress that the legislature has deliberately used the words "electronic form". Dr Singhvi has brought to our notice Section 79 of the IT Act that occurs in Chapter XII dealing with intermediaries not to be liable in certain cases. The learned counsel has also relied on Shreya Singhal as to how the Court has dealt with the challenge to Section 79 of the IT Act. The Court has associated the said provision with exemption and Section 69-A and in that context, expressed that:
"121. It must first be appreciated that Section 79 is an exemption provision. Being an exemption provision, it is closely related to provisions which provide for offences including Section 69-A. We have seen how under Section 69-A blocking can take place only by a reasoned order after complying with several procedural safeguards including a hearing to the originator and intermediary. We have also seen how there are only two ways in which a blocking order can be passed--one by the Designated Officer after complying with the 2009 Rules and the other by the Designated Officer when he has to follow an order passed by a competent court. The intermediary applying its own mind to whether information should or should not be blocked is noticeably absent in Section 69-A read with the 2009 Rules.
122. Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook, etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not. We have been informed that in other countries worldwide this view has gained acceptance, Argentina being in the forefront. Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject-matters laid down in Article 19(2). Unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79. With these two caveats, we refrain from striking down Section 79(3)(b).7
123. The learned Additional Solicitor General informed us that it is a common practice worldwide for intermediaries to have user agreements containing what is stated in Rule 3(2). However, Rule 3(4) needs to be read down in the same manner as Section 79(3)(b). The knowledge spoken of in the said sub-rule must only be through the medium of a court order. Subject to this, the Information Technology (Intermediaries Guidelines) Rules, 2011 are valid."
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32. Section 81 of the IT Act also specifically provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. All provisions will have their play and significance, if the alleged offence pertains to offence of electronic record. It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent. This is the mandate behind Section 81 of the IT Act. The additional protection granted by the IT Act would apply. ..................................................................................................
37. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission are covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC."
14. The parties have settled disputes between themselves. It is the case of live in relationship. It is admitted fact now this is not case of public interest. This is not a case of heinous crime i.e. murder, rape, dacoity etc. The case of the petitioner is fully covered with the judgment particularly para 58 & 61 of "Gian Singh" (supra) .
15. In a given situation, this is a case of exercising discretionary power under Section 482 Cr.P.C. Here both the parties have reached settlement and on that basis petition for quashing criminal proceeding has been filed and in that light of this factor would be secured ends of justice or prevent abuse of process of any court. If these two aspects are being fulfilled the Court can exercise its power under Section 482 Cr.P.C. In the 8 case in hand it has also been transpired that during investigation as stated in affidavit of the informant that photos were not uploaded nor made viral. In the Trial Court nothing has proceeded further.
16. Since there are harmony between the parties that they will not contact each other in future. The informant decided not to pursue the case. The parties are major and they resolved the dispute, the Court can exercise its power under section 482 Cr.P.C. Accordingly, cognizance order dated 04.11.2019 passed in Cyber Crime Case No. 04 of 2020 including criminal proceeding is hereby quashed.
17. The Cr.M.P. No. 109 of 2021 stands allowed and disposed of. I.A., if any, stands disposed of.
(Sanjay Kumar Dwivedi, J.) Satyarthi/-