Uttarakhand High Court
Vaibhav Aggarwal vs State Of Uttarakhand And Another on 21 March, 2018
Author: V.K.Bist
Bench: V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Appl. No.922 of 2017
Vaibhav Aggarwal ......Applicant
Versus
State of Uttarakhand & another ...Respondents
Mrs. Pushpa Joshi, Senior Advocate assisted by Ms. Chetna Latwal, Advocate holding brief of Mr. Karan Anand, Advocate for the applicant.
Mr. Subhash Tyagi Bhardwaj, Deputy Advocate General for the State of Uttarakhand.
Dated: 21.03.2018 Hon'ble V.K. Bist J.
Present petition has been filed by the applicant for quashing the order dated 27.03.2017 passed by 2nd Additional Chief Judicial Magistrate, Dehradun in Criminal Case No.228 of 2016 State Vs. Vaibhav Aggarwal under Section 66-A of Information Technology Act registered at P.S. Patel Nagar, District Dehradun and also to quash the charge sheet dated 16.02.2017 in reference to Case Crime No.228 of 2016 for the offences cognizable under Section 66-A of Information Technology Act as well as the entire proceedings of Criminal Case No.228 of 2016 State vs. Vaibhav Aggarwal U/s 66-A of Information Technology Act registered at P.S. Patel Nagar, District Dehradun pending in the court of Additional Chief Judicial Magistrate 1st Dehradun.
2. Brief facts of the case are that an FIR was lodged by Shakeb Rizbi (complainant) on the ground that 2 he had a social media account on facebook. On 26th June the complainant received some incriminating articles (message) regarding his religion from an account of Manshi Joshi. It is alleged that due to this incriminating message, his and his friends' religious sentiments were hurt. Matter was investigated. During investigation, the name of the applicant came into light and the chargesheet was filed. After considering the chargesheet, the Magistrate issued summoning order against the applicant under Section 66-A of the Information Technology Act, 2000.
3. Learned Senior Advocate for the applicant submits that the learned 2nd Additional Chief Judicial Magistrate passed the summoning order in a mechanical manner without proper application of mind. She submits that the learned Magistrate failed to consider that the relevant Section 66-A of the Information Technology Act, 2000 has been omitted and deleted by the amendment under the Information Technology Act in the year 2015. She submits that FSL report of the laptop of the applicant is still awaited and the investigating officer had not submitted the entire evidence, if so collected by him during the investigation. She further submits that in Shreya Singhal's case reported in (2015) 5 Supreme Court Cases 1 Shreya Singhal vs. Union of India, the Hon'ble Supreme Court had struck down Section 66-A of the Information Technology Act, 2000, same is being violative of Article 19 (1)(A) of the Constitution of India in the year 2015 and the incident took place in 2016, therefore the 3 applicant is not liable to be prosecuted under Section 66-A of the Information Technology Act.
4. Learned Deputy Advocate General conceded the fact as mentioned by the Senior Counsel for the applicant. He admitted the fact that the cognizance could not be taken under Section 66-A of the Information Technology Act, 2000. But, he submitted that chargesheet was submitted by the police under Section 66-A of the Information Technology Act, 2000 as well as Section 153-A I.P.C.
5. I have considered the submission of learned counsel for the parties. It is expected from the Magistrate that, while accepting the chargesheet, he should apply his judicious mind. In the present case, the Magistrate issued the summoning order under Section 66-A of the Information Technology Act, 2000. It appears that he was not aware about the judgment of the Hon'ble Supreme Court in Shreya Singhal's case in which Section 66-A of the Information Technology Act, 2000 was struck down. Once section 66-A of the Information Technology Act, 2000 is deleted, no cognizance could be taken under that Section. Therefore, the Magistrate committed a great illegality in issuing the summoning order under Section 66-A of the Information Technology Act, 2000. Consequently, the criminal misc. application is allowed. Order dated 27.03.2017 passed by the 2nd Additional Chief Judicial Magistrate, Dehradun in Criminal Case No.228 of 2016 State vs. Vaibhav Aggarwal under Section 66-A of the Information Technology Act, charge sheet dated 4 16.02.2017 as well as entire proceedings of Case Crime No.228 of 2016 pending in the Court of Additional Chief Judicial Magistrate 1st Dehradun are hereby quashed so far same relates to the petitioner.
(V.K.Bist, J.) 21.03.2018 Arti