Delhi District Court
Sameer Sharma vs State Govt. Of Nct Of Delhi on 9 August, 2023
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 322/2022
CNR No.: DLCT01-008816-2022
Sameer Sharma
S/o Sh. Surender Kumar Sharma
R/o H. No. D-179, Prashant Vihar
Delhi-110085
..... Petitioner
VERSUS
1. The State (Govt. of NCT of Delhi)
2. Rajeev Sharma
S/o Sh. Brij Bhushan Sharma
3. Sheetal Sharma
S/o Sh. Brij Bhushan Sharma
Both Residents of: 3/55, 1st Floor
Subhash Nagar, New Delhi-110027
..... Respondents
Date of Institution : 03.06.2022
Date of Arguments : 01.08.2023
Date of Judgment : 09.08.2023
JUDGMENT
1. The criminal revision petition under Section 397 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'Cr.PC.') is directed against order dated 26.04.2022 (In short 'the impugned order') in complaint case vide CC No. 13273/2018 titled as 'Sameer Sharma vs. Rajeev Sharma & Anr.' whereby Ld. MM-03, Central District, Tis Hazari Courts, Delhi (In short 'the trial Court') dismissed the complaint case under Section 203 Cr.P.C.
Crl. Rev. No. 322/2022 Sameer Sharma vs. State & Ors. Page No. 1 of 9 BRIEF FACTS:
2. The petitioner filed a complaint under Section 200 Cr.P.C. alongwith an application under Section 156 (3) Cr.P.C. seeking registration of FIR against the respondent No. 2 and 3 alleging commission of offences under Section 177/182/191/192/193/195/196/211/420/468/469/471/499 read with Section 120B and 34 of 'The Indian Penal Code, 1860' (Hereinafter referred to as 'IPC') and under Section 65/66/67 of 'Information Technology Act, 2005' on averments that the respondent No. 2 is brother-in-law (jija) of the petitioner and the respondent No. 3 is brother of the respondent No. 2. The marriage of the respondent No. 2 was solemnized with the petitioner's sister on 09.08.2002. They have two daughters 'S' (14 years) and 'K' (12 years). Due to marital discord, they are litigating against each other. The said children are in custody of the respondent No. 2.
3. The case of the petitioner is that the respondent No. 2 filed a false complaint dated 23.10.2017 with Special Commissioner of Police, Law & Order, Delhi against him alleging therein that on 18.08.2016, the petitioner and his brother breached password of tablet of his daughter 'S' and created a fake facebook account in her name and uploaded some unwanted photographs of 'S'. The petitioner received a notice from Insp. Ajit Kumar, Cyber Cell on 03.01.2018. The petitioner appeared before him on 04.01.2018.
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4. During enquiry, Enquiry Officer sent a letter to facebook to ascertain registrant IP details and login IP details of Facebook account of 'S'. Facebook provided requisite IP logs. Airtel i.e. service provider of IP logs at the relevant time of logging provided Broadband No. 01145024831. The said Airtel Broadband No. 01145024831 was in the name of the respondent No. 3. It revealed that facebook account of 'S' was created from broadband subscribed to the respondent No. 3. Enquiry Officer concluded that the allegations made by the respondent No. 2 are false and baseless. Therefore, the petitioner filed the said complaint for prosecution of the respondent No. 2 and 3. APPLICATION UNDER SECTION 156 (3) CR.P.C.:
5. The trial Court, vide order dated 13.01.2020, dismissed the application under Section 156 (3) Cr.P.C. and provided an opportunity to the petitioner to lead pre-summoning evidence.
PRE-SUMMONING EVIDENCE:
6. In pre-summoning evidence, the petitioner examined himself as CW-1. He relied on Action Taken Report (ATR) dated 29.10.2019 Ex.CW1/A, Action Taken Report (ATR) dated 19.10.2019 Ex.CW1/B, Action Taken Report (ATR) dated 26.08.2019 Ex.CW1/C and Action Taken Report (ATR) dated 01.07.2019 Ex.CW1/D. IMPUGNED ORDER:
7. The trial Court, vide order dated 26.04.2022, dismissed the complaint.
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8. The relevant part of the impugned order is, as under:
"The above discussion is clearly suggestive of the fact that the onus rested heavy on the complainant to substantiate his allegations with some cogent and convincing material on record. The complainant has however failed to establish the allegations with any such convincing material on record. The sole testimony of complainant only reiterates the allegations levelled in the complaint. The allegations levelled by the complainant lacks specificity in the sense that the complaint has failed to mention about the details of documents which have been allegedly fabricated by the proposed accused persons for making out the offence of forgery for the purposes of cheating or harming the reputation of complainant or using a forged document as genuine. The complainant has also failed to establish with any convincing material on record the essential ingredients to establish the offence of defamation u/s 499/500 IPC. The publication of defamatory imputation by an accused constitutes an essential ingredient of offence of defamation as defined u/s 499 IPC but such publication of defamatory imputation harming the reputation of the complainant in the eyes of society at large has not been establish by the complainant with any cogent and convincing material on record. The complainant has also failed to establish through any prima facie material the commission of offences u/s 65/66/67 of IT Act by the proposed accused persons. There are no allegations levelled by the complainant regarding concealment, destruction or alteration of a computer source code by the proposed accused persons to constitute offence u/s 65 of the IT Act. The complainant has also failed to establish the unauthorized access of the facebook account of aforenamed Samridhi Sharma by the proposed accused persons and also about publications / transmission of any obscene material in electronic form concerning the Samridhi Sharma or any other person, therefore, the commission of offences u/s 66/67 of IT Act is also not constituted in the present case.
Crl. Rev. No. 322/2022 Sameer Sharma vs. State & Ors. Page No. 4 of 9 It is also perceives from record that due to matrimonial disputes between the complainant's sister and proposed accused No. 1, the relations between the parties are strained to such an extent that the parties have indulged in various litigations and the overall material on record is also suggestive of the fact under the garb of present complaint case, the complainant is trying to give a criminal colour to the matter so as to settle the personal scores with the proposed accused persons.
As an outcome discussion made above, this Court is of the considered view that the complainant has failed to substantiate allegations levelled by him with any cogent and convincing material on record. Therefore, the present complaint deserves dismissal. The present complaint is accordingly dismissed u/s 203 Cr.P.C."
CRIMINAL REVISION:
9. Feeling aggrieved and dissatisfied with the impugned order, the petitioner preferred the criminal revision petition.
APPEARANCE:
10. I have heard arguments of Mr. Sudhir Vats, Advocate for the petitioner and Mr. H.S. Kohli, Advocate for the respondent No. 2 and 3, and carefully examined trial Court record.
CONTENTIONS OF LD. COUNSEL FOR THE PETITIONER:
11. Ld. Counsel for the petitioner contended that the trial Court did not consider the case in right perspective and passed the impugned order without application of judicial mind.
He contended that there is sufficient material on record that the respondent No. 2 filed a false complaint against the petitioner.
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12. Ld. Counsel for the petitioner contended that Enquiry Officer, vide report dated 05.01.2018, concluded that the complaint is false and frivolous. He contended that during enquiry, it revealed that the said facebook account in the name of 'S' was created from Airtel broadband in the name of the respondent No. 3. He contended that the allegations made in the complaint have caused harm to the reputation and character of the petitioner and his brother. He contended that the respondent No. 2 and 3 also compelled friend of 'S' i.e. 'A' to make false statement against the petitioner. He contended that the trial Court wrongly concluded that the respondent No. 2 and 3 cannot be prosecuted in view of bar under Section 195 Cr.P.C. He contended that the said bar would only come into operation if false document is given in evidence during the proceedings before the Court. He contended that the impugned order is not sustainable and it deserves to be set-aside. CONTENTIONS OF LD. COUNSEL FOR THE RESPONDENT NO. 2 AND 3:
13. Ld. Counsel for the respondent No. 2 and 3contended that there is no manifest error, material illegality or jurisdictional error in the impugned order. He contended that the impugned order is a reasoned order and the trial Court considered the material on record and relevant statutory provisions. He contended that the said complaint is an off-shoot of marital discord between the respondent No. 2 and his wife i.e. the petitioner's sister.
Crl. Rev. No. 322/2022 Sameer Sharma vs. State & Ors. Page No. 6 of 9 ANALYSIS AND DISCUSSION:
14. As already noted above, the genesis of the complaint has its seeds in the marital discord between the petitioner's sister and the respondent No. 2. The custody of both the children is with the respondent No. 2. The marital discord and custody issue have taken within its fold not only the spouses but also their children, relatives and friend of their children. The respondent No. 2 filed a complaint dated 23.10.2017 with Special Commissioner of Police, Law and Order, Delhi that the petitioner and his brother breached password of tablet of his daughter 'S' and created a fake facebook account in the name of 'S' and uploaded some unwanted photographs with the help of his daughter's friend 'A'.
Enquiry Officer, vide report dated 05.01.2018, concluded that the said photographs were uploaded on facebook account of 'S' through broadband subscribed to the respondent No. 3. He further concluded that the allegations levelled by the respondent No. 2 were false and baseless.
15. During enquiry, it revealed that the photographs uploaded on the facebook account were not obscene or objectionable. In this regard, it would be relevant to take note of observation made in status report dated 29.10.2019 that no injury or annoyance was caused to the petitioner and therefore, no action was initiated or recommended against the respondent No. 2.
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16. Giving false information to any public servant with intent to cause such public servant to use his lawful power to the injury of another person is punishable under Section 182 IPC. However, the Court cannot take cognizance of the said offence in the absence of a complaint made by a public servant under clause (a) of sub-section (1) of Section 195 Cr.P.C. Therefore, there is no infirmity in the impugned order that the Court cannot take cognizance of the said offence in view of bar under Section 195 Cr.P.C.
17. As regards contention that the said complaint caused harm to image and reputation of the petitioner and his brother, it can be stated that it is not the case of the petitioner that the respondent No. 2 and 3 made the said complaint public. Mere filing of a complaint to a law enforcement agency cannot harm image and reputation of any person.
CONCLUSION:
18. Accordingly, the criminal revision petition filed by the petitioner is dismissed. A copy of judgment alongwith trial Court record be sent to the trial Court. The criminal revision file Digitally signed be consigned to record room. by SANJAY SANJAY SHARMA SHARMA Date:
2023.08.09 18:01:28 +0530 Announced in the open Court SANJAY SHARMA-II on this 09th August, 2023 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Crl. Rev. No. 322/2022 Sameer Sharma vs. State & Ors. Page No. 8 of 9 Sameer Sharma vs. State & Ors.
CNR No.: DLCT01-008816-2022 Crl. Revision No. 322/2022 09.08.2023 Present : Mr. Sudhir Vats, Advocate for the petitioner.
Mr. H.S. Kohli, Advocate for the respondent No. 2 and 3.
Vide separate judgment, the criminal revision petition filed by the petitioner is dismissed. The criminal revision Digitally signed file be consigned to record room. SANJAY by SANJAY SHARMA SHARMA Date:
2023.08.09 18:01:40 +0530 Sanjay Sharma-II ASJ-03, Central District Tis Hazari Courts, Delhi NK 09.08.2023 Crl. Rev. No. 322/2022 Sameer Sharma vs. State & Ors. Page No. 9 of 9