Karnataka High Court
Santhosh Sha vs Amrutha Halli Police on 29 June, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO.1604 OF 2017
Between:
Sri. Santhosh Saha
S/o Madusudhan Saha
Aged about 36 years
No.217, Mahaveer Palms
Near Vijaya Colony
Kodichikkanahalli
Bengaluru South
Pn:560 076.
...Petitioner
(By Sri. B.Ravindra, Advocate)
And:
1. The State of Karnataka
By Amruthahalli
Police Station, represented
By S.P.P. High Court
Bangalore-560 001.
2. Sri. Chiranjeevi Bedi
S/o. M.S.Bedi
Age Major
Residing at Maple A 1304
Godrej Woodsman Estate
2
Bellary Road, Hebbal
Bengaluru-560 024.
...Respondents
(By Sri Showri H.R., HCGP for R1;
R2 served)
This Criminal Petition is filed under Section 438 of
Cr.P.C. praying to quash the entire proceedings in
C.C.No.11649/2013 pending on the file of I ACMM,
Bengaluru U/S 66(A) of IT Act.
This Criminal Petition coming up for Admission
this day, the Court made the following:
ORDER
1. The petitioner is before this Court seeking for quashing of the proceedings in C.C.No.11649/2013 pending on the file of the I Additional Chief Metropolitan Magistrate, Bengaluru stated to be for the offences under Section 66 of the Information Technology Act and Section 500 of IPC.
2. Admit 3
3. With the consent of both parties, the matter is taken up for final disposal
4. The brief facts are that on 03.03.2011 at about 5.00 P.M., the complainant Chiranjeevi Bedi a resident of Godrej Woodsman Estate, Bellary Road, Hebbal, Bengaluru had filed a complaint before the Station House Officer, Amruthahalli alleging that three defamatory e-mails had been received by him. The first two mails from Imrana Malik and the third from Ahmed Idris, both of them claiming to be residents of Godrej Woodsman Estate, however, there was nobody by the said name/s either as owner or resident of the apartment complex. Hence, he had requested the police authorities to take necessary action.
5. Initially, the complaint was filed under Section 66A of Information Technology Act; First information report was registered against 4 unknown persons. Post investigation a charge sheet was laid under Section 66 of the IT Act read with Section 500 of the IPC against Mr. Kunal Saha and Mr. G.R. Srinivas stating that they had created e-mail IDs' and sent the e-mails complained off.
6. On cognizance being taken and notice being issued, the petitioner had filed an application under Section 258 of Cr.P.C requesting for dropping of the proceedings on the ground that Section 66(A) of the Information Technology Act has been held ultra vires by the Hon'ble Apex Court in the case of Shreya Singhal v. Union of India reported in (2015) 5 SCC 1. The Magistrate had rejected the said application holding that apart from Section 66(A) offences are stated to have been committed under Section 66 of the said Act and Section 500 of IPC, hence the 5 decision of the apex court under Section 66A was not applicable.
7. The petitioner is before this Court contending that the complaint was not maintainable, the Magistrate ought to have looked into the Section under which the offences are stated to have been committed, which would indicate that no such offence was in fact committed. Furthermore, the complaint for defamation could be filed before the police, complaint if any ought to have filed as a private complaint before the jurisdictional Court. On these grounds, the learned counsel for the petitioner seeks for quashing of the proceedings.
8. Per contra, the learned HCGP appearing for the respondent-State would contend that though initially the complaint was filed under Section 66A of the IT Act, Charge sheet was laid and cognizance taken for the offence under Section 66 6 of the Information Technology Act more so on account of e-mail being used for the purpose of carrying out the offence of defamation. Hence, he contends that the order passed by the learned Magistrate which is impugned herein does not require any interference by this Court.
9. Heard Sri. B. Ravindra, learned counsel for the petitioner and the learned HCGP for respondent- State. Perused the papers.
10. A perusal of the papers would indicate that the complaint was initially filed under Section 66 (A) of the IT Act by Mr. Chirnajeevi Bedi before Amruthahalli Police Station. However, subsequently, the charge sheet would indicate that offences complained against the petitioner are that under Section 66 of the Information Technology Act read with Section 500 of IPC. 7
11. A perusal of Section 66 of the IT Act, would indicate that the same is also not attracted in the present facts and circumstances. The said Section 66 relates to computer-related offences and is extracted below for easy reference.
"66. Computer-related offences.- If any person, dishonestly or fraudulently, does any act referred to in Section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both."
12. As can be seen the said Section 66 references to Section 43 and is only a provision prescribing punishment for the offences stated to have been committed under Section 43 of the Act. The said Section 43 is extracted below for easy reference:
"43. (Penalty and compensation) for damage to computer, computer system etc.- If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network,-8
(a) accesses or secures access to such computer, computer system or computer network (or computer resource);
(b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;
(c) introduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network;
(d) damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network;
(e) disrupts or causes disruption of any computer, computer system or computer network;
(f) denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by any means;"9
13. A perusal of the said Section 43 indicated that the offence necessarily is to have been committed involving a computer system or a computer network. The said provision does not refer to any e-mail or misuse of e-mail. If at all the allegations against the petitioner is as regards creation of false e-mail ID and making use of the same to commit an offence under Section 500 of IPC.
14. Having considered the contents of Section 43 and 66 of the IT Act, I am of the considered opinion that even these provision are not attracted to the present facts and circumstances. Hence, the proceedings under Section 66 of the IT Act cannot continue in these circumstances.
15. Coming to the next contention as regards the charge sheet having been filed for the offences under Section 499 of IPC and punishable under Section 500 thereof is also sustainable. If any 10 person is aggrieved by an offence stated to have been committed coming within the purview of Section 499 of the IPC, he is required to file a private complaint under Section 200 of the Cr. P.C following the requirement under section 199 thereof. That not have been done so, the Station House Officer could not have registered a complaint for an offence under Section 499 or 500 of IPC and could have guided the complainant to file a private complaint.
16. In the above circumstances, the complaint filed before the Station House Officer, Amrutahalli for an offence under Sections 499 and 500 of IPC is also not sustainable and is therefore quashed.
17. The quashing of the complaint would not however come in the way of the complainant initiating appropriate proceedings by filing a private complaint.
11In the above circumstances, the proceedings in C.C.No.11649/2013 pending on the file of I Additional Chief Metropolitan Magistrate, Bengaluru are hereby quashed. Accordingly, the petition is allowed.
Sd/-
JUDGE SSD