Delhi District Court
Gurpal Kaur vs . State & Anr. Order Dt. 20.02.2017 on 20 February, 2017
Gurpal Kaur vs. State & Anr. Order dt. 20.02.2017
IN THE COURT OF ADDITIONAL SESSIONS JUDGE
CUM SPECIAL JUDGE03, (PC ACT) (CBI)
PATIALA HOUSE COURTS, NEW DELHI
Criminal Revision No. 03/2016
Gurpal Kaur
W/o Sarabjit Singh
R/o J2/2B, Second Floor,
DDA Flats, Kalkaji, New Delhi ..... Revisionist / complainant
Versus
1. State of NCT of Delhi
2. Ms. Vineeta Panjawani
D/o Mrs. Rita Panjawani,
R/o 323, First Floor,
PocketF, Sarita Vihar,
New Delhi. ..... Respondents
Date of filing of revision : 26.12.2016
Date of arguments : 17.02.2017
Date of order : 20.02.2017
ORDER
This is a revision petition filed under Section 397 Cr.PC against the order dated 03.10.2016 passed by Ld. MM, while refusing to take cognizance against the respondent and also dismissing the Criminal Revision No. 03/2016 Page 1 of 9 Gurpal Kaur vs. State & Anr. Order dt. 20.02.2017 protest petition filed by the revisionist/ complainant.
In brief, the complaint was given by the revisionist/ complainant to the SHO, PS R. K. Puram, with a request to register a case under Section 66A of The Information Technology Act.
During investigation, the alleged mail was found to be sent by the accused from IP address of her mother. However, closure report was filed stating that Section 66A of IT Act has been declared unconstitutional by the Hon'ble Supreme Court of India.
A protest petition was also filed against the cancellation report, but Ld. MM after hearing the arguments found satisfied himself that there was no material, which could suggest that revisionist/ complainant was defamed by the email sent by the accused, so the closure report was accepted.
The impugned order has been challenged by the revisionist/ complainant on various ground which are as under :
A. That the Ld. MM erred in solely relying on the cancellation report and did not appreciate that mere reading down of Section 66A I. T. Act , 2000 by the Criminal Revision No. 03/2016 Page 2 of 9 Gurpal Kaur vs. State & Anr. Order dt. 20.02.2017 Apex Court is not sufficient to exonerate the accused person if the facts otherwise discloses commission of offences u/Ss 463, 464, 469 IPC r/w 120B IPC.
B. The Ld. Magistrate did not appreciate that the investigation discloses the commission of various heinous offences and points towards the complicity and involvement of the respondent/ accused in the commission of said offences.
C. The Ld. MM did not appreciate that heinous offences have been committed upon the revisionist/ complainant by the respondent/ accused along with other known accomplices in a well hatched conspiracy in the nature of forgery, making false documents, forgery for the purpose of harming reputation, sending offensive communication, identity theft and various other heinous offences defined and punishable u/Ss 463, 464, 469 IPC read with Section 120B IPC and under Section 66A and 66C of The Information Technology Act, 2000 as amended in 2008.
D. The Ld. MM did not appreciate the law settled in Surender Kumar Sharma Vs. State and Ors. 2016 (1) JCC1, wherein the Hon'ble Delhi High Court observed that, upon receipt of a police report under Section 173(2) Cr.PC, a Magistrate entitled to take cognizance of an offence under Section 190(1)(b) Cr.PC even if police report was to effect that no case was made out against accused - Magistrate could ignore conclusion arrived at by Investigating Officer and independently Criminal Revision No. 03/2016 Page 3 of 9 Gurpal Kaur vs. State & Anr. Order dt. 20.02.2017 apply his mind to facts emerging from investigation and take cognizance of case, if he thinks fit, exercise of his powers under Section 190(1)(b) Cr.PC and direct issue of process to accused.
E. It is submitted that the present FIR was registered at the instance of the revisionist after being victimized on account of serious offences committed upon her by the respondent/ accused person Ms. Vineeta Panjawani and her unknown accomplices under a well hatched conspiracy in the nature of forgery, making false documents, forgery for the purpose of harming reputation, sending offensive communication, identity theft and various other heinous offences defined and punishable u/Ss 463, 464, 469 IPC read with Section 120B IPC and under the provision of IT Act and 66C of the Information Technology Act, 2000 as amended in 2008.
F. The Ld. MM erred in not independently applying his mind to the facts emerging from the allegations in the FIR and solely relied on the cancellation report filed by the Investigating Officer. That the Ld. MM was entitled to take cognizance of an offence committed/ disclosed u/Ss 463, 464, 469 IPC read with Section 120B IPC and various provisions of I.T. Act, 2000 such as Section 66C of the IT Act, even if the police report is to the effect that no case is made out against the accused.
G. That the Ld. MM while dismissing protest petition of the revisionist/ complainant and accepting the cancellation Criminal Revision No. 03/2016 Page 4 of 9 Gurpal Kaur vs. State & Anr. Order dt. 20.02.2017 report in the present matter did not appreciate that the cancellation report in the present matter is erroneous.
H. That the Ld. MM erred in satisfying himself on the basis of cancellation report filed and came to the conclusion that the version given by the revisionist/ complainant does not make out a case for an offences u/Ss 463, 464, 469 IPC read with Section 120B IPC and section 66C of IT Act, 2000.
I. That the revisionist/ complainant will certainly be prejudiced as the First Information Report lodged becomes wholly ineffective if the said order dated 03.10.206 passed by the Ld. MM is not set aside.
I have heard the Ld. Counsel for revisionist/ complainant, Ld. Asst. Public Prosecutor Sh. Anil Kumar and Ld. Counsel on behalf of the respondent/ accused.
According to the closure report, during the investigation, it has been brought on record that the contents of the said alleged e mail which was sent by the accused to the Principal of Delhi Public School, R. K. Puram, New Delhi, wherein certain allegations were made against the revisionist/ complainant, are according to the internal enquiry of the school, were found false and fabricated. It has also come in the investigation that the said email was sent by the Criminal Revision No. 03/2016 Page 5 of 9 Gurpal Kaur vs. State & Anr. Order dt. 20.02.2017 accused through the IP address of her mother.
Ld. Counsel for the revisionist/ complainant has contended that assuming that Section 66A IT Act, 2000 is not made out, even then other Sections such as Section 66(C) and 66(D) of IT Act, 2000, seems to be attracted and closure report could not be filed nor the same could be accepted by the Ld. MM. It has also contended that besides these Sections, offences u/Ss 464 and 469 IPC also seems to be committed, in which cognizance could have been taken. Ld. Asst. Public Prosecutor, Sh. Anil Kumar has supported the arguments of the revisionist/ complainant.
In support of his contentions, Ld. Counsel for the revisionist/ complainant has relied upon 1953 Cri. L.J. 979 (Nagpur) titled as Krishnarao Raojirao and others v. The State, Madhya Pradesh and Criminal Appeal No. 1054 of 1943, titled as Emperor v. Abdul Hamid.
According to the said alleged email, the accused made false allegations against the present revisionist/ complainant to the extent that the revisionist/ complainant is conducting tuition classes Criminal Revision No. 03/2016 Page 6 of 9 Gurpal Kaur vs. State & Anr. Order dt. 20.02.2017 for Class XI hostellers after school hours where she had discussed most of the questions that were tested in the half yearly exam for class XI accountancy. She is charging Rs.500/ per student per hour and having 810 student. While teaching these students she is leaking out most of the questions being tested in the exam.
This email was referred to Mrs. S. Mehta, however, enquiry report was given by Sh. Shyam Sunder, HOD, Accountancy, DPS, R. K. Puram, New Delhi, according to which the anonymous letter was false and baseless.
On the other hand, Ld. Counsel for R2 has contended that it is not found prima facie that the accused had used the said IP address as alleged and the CFSL report was not filed with the cancellation report. It is further contended on behalf of the accused that the contention of the revisionist/ complainant that she has been overlooked in promotion is false and she has not suffered any defamation as alleged.
After considering the arguments of Ld. Counsel for revisionist/ complainant, Ld. Asst. Public Prosecutor for the State and Criminal Revision No. 03/2016 Page 7 of 9 Gurpal Kaur vs. State & Anr. Order dt. 20.02.2017 Ld. Counsel for R2, I found the arguments addressed on the part of revisionist/ complainant are forceful. The chargesheet filed was incomplete and was without any CFSL report. If Section 66A of IT Act was not made as the same has been declared unconstitutional, then it was to be seen by the Investigating Officer as to whether any other offences were made out or not and there is no finding on this aspect. Ld. Trial Court has overlooked this fact. The closure report was filed only for offence under Section 66A I. T. Act and the same was accepted as it is. Whereas, the Ld. Trial Court was required to see and consider whether other offences except Section 66A IT Act were attracted or not, but no such findings have ben given on this aspect, therefore, impugned order dated 03.10.2016 is not sustainable in the eyes of law, hence, the same is set aside. Ld. Trial court is directed to consider the submissions of revisionist/ complainant as argued before this court and to give findings as to whether any other offences seem to be committed or not. Accordingly, the revision petition stands allowed and disposed of.
Revisionist is directed to appear before the Ld. MM on 21.02.2017 at 02:00 p.m. Criminal Revision No. 03/2016 Page 8 of 9 Gurpal Kaur vs. State & Anr. Order dt. 20.02.2017 Trial Court Record be sent back with the copy of this order. Revision file be consigned to Record Room.
Announced in the open court on 20.02.2017 (Virender Kumar Goyal) Additional Sessions Judge cum Special Judge03, (PC Act) (CBI), Patiala House Courts New Delhi Criminal Revision No. 03/2016 Page 9 of 9