Karnataka High Court
State Of Karnataka vs Avinash R Kashyap on 21 October, 2020
Equivalent citations: AIRONLINE 2020 KAR 2579
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Crl.R.P.No.1028/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 21ST DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL REVISION PETITION No.1028 OF 2016
BETWEEN:
STATE OF KARNATAKA BY
ECONOMIC OFFICE WING
POLICE STATION NEW DELHI
REPRESENTED BY
LEARNED STATE PUBLIC PROSECUTOR
OFFICE OF THE
HIGH COURT BUILDING
BENGALURU-560 001 ... PETITIONER
(BY SRI H.R.SHOWRI, HCGP)
AND:
AVINASH R KASHYAP
AGED ABOUT 31 YEARS
S/O SRI RAMACHANDRA POTTI
DOOR NO.5513, 14TH MAIN
1ST CROSS, VIJAYANAGARA II STAGE
MYSORE-570 017 ... RESPONDENT
(BY SRI C.V.SRINIVASA, ADV. FOR
C.V. SRINIVASA & ASSOCIATES)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH SECTION 401 OF
CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
22.01.2016 PASSED IN CRL.R.P.NO.9/2015 ON THE
FILE OF THE VII ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BENGALURU RURAL DISTRICT, BENGALURU
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Crl.R.P.No.1028/2016
WHEREIN THE ACCUSED/RESPONDENT WAS
DISCHARGED UNDER SECTION 239 OF THE CODE OF
CRIMINAL PROCEDURE FOR THE OFFENCE P/U/S 469
OF IPC AND CONFIRM THE ORDER DATED 04.02.2015
PASSED IN C.C.NO.4456/2014 ON THE FILE OF THE
C.J.M., BANGALORE RURAL DISTRICT, BENGALURU.
THIS CRIMINAL REVISION PETITION HAVING
BEEN HEARD AND RESERVED FOR ORDERS ON
12TH OCTOBER 2020, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
THROUGH VIDEO CONFERENCE MADE THE FOLLOWING:
ORDER
Aggrieved by the order dated 22.01.2016 passed by the VII Additional District and Sessions Judge, Bangalore Rural District, Bangalore in Crl.R.P.No.9/2015 reversing the order of the Chief Judicial Magistrate, Bangalore Rural District, Bangalore dated 04.02.2015 in C.C.No.4456/2014 and discharging the accused/respondent from the charge for the offence punishable under Section 469 of IPC, the above revision petition is preferred by the prosecution.
2. One Barun Mitra, Joint Secretary to the President of India filed complaint dated 26.02.2009 to Shri.S.B.S. Tyagi, Deputy Commissioner of Police (Security), Rashtrapati Bhavan, New Delhi alleging that 3 Crl.R.P.No.1028/2016 somebody has mischievously created false profile of her Excellency Smt.Prathiba Devi Singh Patil the Hon'ble President on the website www.orkut.com. It was alleged that the contents of the said profile were objectionable, incorrect, defamatory and casting imputation concerning the Hon'ble President of India, directly or indirectly lowering dignity of the President in the estimation of the others. Therefore, he requested to investigate into the matter and take action. On that basis, a FIR was registered in Crime No.134/2009 of Economic Offences Wing police station, New Delhi for the offence under Section 469 of IPC.
3. After investigation, the respondent herein was charge sheeted for the offence punishable under Section 469 of IPC. Thereafter, the accused filed transfer petition before the Supreme Court and consequently, the said case was transferred to the Court of Chief Judicial Magistrate, Bangalore Rural District, Bangalore.
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4. The same complainant filed another private complaint against the accused before Tees Hazari Court under Section 199(2) of Cr.P.C., to prosecute the accused for the offence of defamation punishable under Section 500 of IPC.
5. On the petition of the accused before the Supreme Court, even that complaint was transferred to the Court of Principal Sessions Judge, Bangalore Rural District, Bangalore and was registered in C.C.No.1/2011. In C.C.No.1/2011, the accused filed application under Section 245 of Cr.P.C., for his discharge. The learned Sessions Judge vide order dated 30.08.2014, discharged the accused on the following grounds:
i) As on the date of the alleged offence, the alleged defamed person had not occupied the office of the President. Therefore, Section 199 Cr.P.C., does not apply;
ii) To attract Section 199 Cr.P.C., the offence alleged must have been in respect of the conduct of the person 5 Crl.R.P.No.1028/2016 defamed in discharge of his public functions. But the alleged defamation was not in relation to the official function discharged by the said functionary; and
iii) The complaint was made beyond six months from the date of the offence alleged. Therefore, Section 199(5) Cr.P.C., barred the Sessions Court from taking cognizance.
6. In C.C.No.4456/2014, the accused filed application before the Trial Court seeking his discharge on the following two grounds:
i) On the same set of facts, he was tried C.C.No.1/2011 and discharged. Therefore, continuation of the proceedings against him in C.C.No.4456/2014 amounts to double jeopardy in terms of Section 300 of Cr.P.C.;
ii) The perusal of the charge sheet records do not show any grounds to proceed against him.
7. The said application was opposed by the prosecution. The Trial Court by the order dated 6 Crl.R.P.No.1028/2016 04.02.2015, rejected the said application on the following grounds:
i) The discharge of the accused in C.C.No.1/2011 was not an acquittal as contemplated under Section 300 Cr.P.C. Therefore, principle of double jeopardy does not apply;
ii) The statements of the witnesses and the documents in the charge sheet show that there are grounds to proceed against the accused.
8. The accused challenged the said order before the VII Additional District and Sessions Judge, Bangalore Rural District, Bangalore in Crl.R.P.No.9/2015. The Sessions Court by the impugned order reversed the order of the Trial Court, allowed the application of the accused and discharged him on the following grounds:
i) In C.C.No.1/2011, the accused was discharged on recording the evidence. Therefore, that amounts to acquittal on Trial;7 Crl.R.P.No.1028/2016
ii) The prosecution in C.C.No.1/2011 and C.C.No.4456/2014 are on the same set of facts.
Therefore, the prosecution of the accused in C.C.No.4456/2014 after his discharge in C.C.No.1/2011 amounts to double jeopardy;
iii) According to the prosecution, accused created false profile of her Excellency Smt.Prathiba Devi Singh Patil, the Hon'ble President of India making use of his computer. But, the FSL report which is part of the charge sheet records discloses that necessary data was not found in the hard disc of the said computer. Therefore, there was nothing to connect the accused to the crime. Consequently, there were no grounds to proceed against the accused.
9. Sri.H.R.Showri, learned HCGP assails the impugned order on the following grounds.
i) As per the explanation to Section 300 Cr.P.C., the discharge of the accused is not acquittal for the purpose of Section 300 Cr.P.C. Therefore, the Sessions 8 Crl.R.P.No.1028/2016 Court was in error in holding that the discharge amounts to acquittal.
ii) The profile was created from the I.P. address of the accused. Therefore, there was material to connect the accused to the crime. Under
such circumstance, the Sessions Court was error in discharging the accused without giving an opportunity to the prosecution to prove the role of the accused in the crime.
11. In support of his contention, he relies upon the judgment of the Hon'ble Supreme Court in State of Mizoram v. C.Sangnghina1.
12. Per contra, Sri.C.V.Srinivasa, learned counsel for the respondent seeks to justify the impugned order on the following grounds:
i) Since the accused was discharged in C.C.No.1/2011, after recording the evidence, that amounts to acquittal on trial. Therefore, the second 1 (2019) 4 SCC (Cri) 561 9 Crl.R.P.No.1028/2016 prosecution on the same set of facts in C.C.No.4456/2014 was barred by Section 300 Cr.P.C.;
ii) As per the charge sheet records themselves, the Broadband connection was given to the accused on 07.07.2007. Whereas the offence was allegedly committed on 30.06.2007 i.e, prior to giving the Broadband connection;
iii) Merely on the basis of the IP address the accused cannot be connected to the crime and there was no ground to proceed against the accused; and
iv) The judgment of the Supreme Court in State of Mizoram's case is not applicable to the facts of the case.
13. In support of his contentions, he relies upon the following judgments:
i) Haveli Ram v. Municipal Corporation of Delhi2
ii) Suchana Roy and others v. Paresh Kr. Ray3 2 AIR 1966 Punjab 82 3 1978 Cri. LJ 555 10 Crl.R.P.No.1028/2016 Regarding Section 300 of Cr.P.C.:
14. There is no dispute that the complaint in C.C.No.1/2011 and C.C.No.4456/2014 were based on the same set of facts. On the same set of facts the accused was sought to be prosecuted in C.C.No.1/2011 for the offence under Section 500 of IPC and in C.C.No.4456/2014 for the offence under Section 469 of IPC.
15. In C.C.No.1/2011, since the cognizance was taken otherwise than on the police report, having regard to Section 237(1), 244 and 245 of Cr.P.C., the Sessions Court recorded the evidence before charge. Thereafter, on the grounds already stated the Sessions Court discharged the accused in C.C.No.1/2011.
16. As per Section 300 of Cr.P.C. the accused is entitled to the benefit of Section 300 Cr.P.C., only if he was acquitted in the earlier case on trial. Therefore the whole question is whether such discharge of the accused in C.C.No.1/2011 amounts to acquittal on trial. 11 Crl.R.P.No.1028/2016
17. It is useful to refer Section 300 of Cr.P.C., in the above context:
"300. Person once convicted or acquitted not to be tried for same offence (1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-
section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof. ..............
Explanation: The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purpose of this section."
18. To invoke Section 300 Cr.P.C., there shall be an acquittal on trial. In Criminal Procedure Code, the word 'Trial' is not defined. Chapter XIX deals with Trial of the Warrant-Cases by Magistrates. Part-B chapter XIX deals with the cases instituted otherwise than on police report.
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19. Section 244 contemplates recording the evidence of the prosecution before charge and Section 245 provides when the accused shall be discharged. Nowhere in Section 245 Cr.P.C., it is stated that if the accused discharged under Section 245 after recording the evidence under Section 244 of Cr.P.C., that shall be treated as acquittal, much less the acquittal on trial.
20. Section 248 deals with the acquittal or conviction. Part - C of chapter XIX deals with conclusion of Trial. Section 248 of Cr.P.C., which is contained in part - C of chapter XIX deals with acquittal or conviction. Section 248(1) states that if, in any case under the said chapter where charge has been framed, the Magistrate found that the accused is not guilty, he shall record an order of acquittal. If the legislature intended that discharge under Section 245 was to be treated as acquittal or amounts to acquittal, Sections 245 or 248 Cr.P.C. would have spelt that. 13 Crl.R.P.No.1028/2016
21. The Hon'ble Supreme Court in C.Sangnghina case in para 15 of the judgment held as follows:
"15. The whole basis of Section 300(1) CrPC is that the person who was tried by a competent court, once acquitted or convicted, cannot be tried for the same offence. As discussed earlier, in the case in hand, the respondent-accused has not been tried nor was there a full-fledged trial. On the other hand, the order of discharge dated 12-9-2013 passed by the Special Court was only due to invalidity attached to the prosecution. When the respondent-accused was so discharged due to lack of proper sanction, the principles of "double jeopardy" will not apply. There was no bar for filing fresh/supplementary charge sheet after obtaining a valid sanction for prosecution. The Special Court once it found that there was no valid sanction, it should have directed the prosecution to do the needful. The Special Court has not given sufficient opportunities to produce valid prosecution sanction from the competent authority. The Special Court erred in refusing to take cognizance of the case even after production of valid prosecution sanction obtained from the competent authority and the High Court were not right in affirming the order of the Special Court. The Special Court and the High Court were not 14 Crl.R.P.No.1028/2016 right in holding that the filing of the fresh charge- sheet with proper sanction order for prosecution was barred under the principles of "double jeopardy".
(Emphasis supplied)
22. The ratio laid down in the above said judgment shows that the discharge of an accused prior to the stage of Section 248 Cr.P.C., does not amount to acquittal. In such event, Section 300 Cr.P.C., is not attracted.
23. In the light of the judgment of the Supreme Court the other judgments relied upon by the learned counsel for the accused as well as by the Sessions Court cannot be followed. Therefore, this Court is not persuaded to accept that the discharge of the accused in C.C.No.1/2011 amounted to acquittal and Section 300 Cr.P.C., barred the trial of the accused in C.C.No.4456/2017. Therefore Sessions Court's finding on Section 300 Cr.P.C. is unsustainable. 15 Crl.R.P.No.1028/2016 Regarding material to proceed against the accused:
24. The second ground of discharge was that there was no material to proceed against the accused.
Accused was connected to the crime only on the basis of his I.P. address. As per the complaint itself, the alleged profile was created on 30.06.2007. As per the report of the Senior S.D.E. of Vigilance Cell of the office of the General Manager Telecom, Jayalaxmipuram, Mysore, the new phone connection was provided to the father of the accused on 20.06.1997. The Broadband connection was provided on 07.07.2007.
25. An Internet Protocol address (IP address) is a numerical label assigned to each device (e.g., computer, printer) participating in a computer network that uses the Internet Protocol for communication. Generally all Broadband customers are allotted dynamic I.P. address by BSNL. Until the Broadband connection is given router/modem is provided, internet does not work through I.P. address. 16 Crl.R.P.No.1028/2016
26. As per the aforesaid report, the Work Order for the provision of Broadband was issued on 30.06.2007. On that day, only some amount was demanded as advance rental deposit. As per the said document, Broadband connection itself was provided on 07.07.2007 i.e., after the date of the commission of the alleged offence. There was nothing to show that Broadband internet connection to the I.P. address was activated on 30.06.2007. As per the record of SDE (NIB) of Telephone exchange Mysuru, on 07.07.2007 the Broadband account was created to the telephone number of father of the accused and that was closed on 29.08.2007.
27. The report of the Junior Scientific Officer (Physics) Central Forensic Science Laboratory, M.H.A., Chandigarh dated 19.02.2010, states that the suspect storage media was forensically imaged and analyzed. On such analyzation, the suspect storage media H1 did not contain any data relevant to the case. Therefore, the Scientific examination report was also negative. 17 Crl.R.P.No.1028/2016
28. With such material, proceeding against the accused only on the basis of the IP address was futile. Under the circumstances, the Sessions Court was wholly justified in holding that there were no grounds to proceed against the accused. The impugned order of discharge passed by the Sessions Court sustains on that ground. Therefore the Revision Petition is dismissed.
Sd/-
JUDGE KG