Rajasthan High Court - Jodhpur
Sanjay Kumar vs State Of Rajasthan on 11 October, 2022
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 3037/2022 Sanjay Kumar S/o Mohan Lal, Aged About 45 Years, W.no. 11, Sadul Shahar, Sri Ganganagar, Raj.
----Petitioner Versus State Of Rajasthan, Through Pp
----Respondent For Petitioner(s) : Mr. Shree Kant Verma For Respondent(s) : Mr. Anees Bhurat, P. P. JUSTICE DINESH MEHTA Order 11/10/2022
1. By way of the instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') the petitioner has challenged the FIR No.248/2021 registered against him at Police Station Sadul Shahar, Sri Ganganagar for the offences under Section 420 of Indian Penal Code; under Sections 3 & 4 of the Rajasthan Public Gambling Ordinance, 1949 (hereinafter referred to as the 'RPGO') and Section 66 of Information & Technology (Amendment) Act, 2008 (hereinafter referred to as the 'IT Act').
2. Mr. Verma, learned counsel for the petitioner after reading the contents of the FIR, vehemently argued that no offence punishable under Section 420 of IPC can be said to have been made out against the petitioner, as there is no allegation of cheating.
(Downloaded on 13/10/2022 at 08:19:21 PM)
(2 of 6) [CRLMP-3037/2022]
3. It is also argued that no one has complained of being cheated and surprisingly it is the SHO concerned, who has registered the FIR on the basis of search, which was made at petitioner's residential house on 11.10.2021.
4. It was also argued by learned counsel that maybe, ingredients of offence punishable under Sections 3 & 4 of the RPGO are present, but since the sentence prescribed for such offences is less than three years, these offences are non- cognizable and the police cannot directly register the FIR.
5. Mr. Bhurat, learned Public Prosecutor, on the other hand, argued that substantial amount of cash was found and seized during the course of search, which shows that the petitioner has cheated many people by way of alluring them to take part in the betting activities, which is otherwise illegal.
6. He argued that since prima-facie an offence punishable under Section 420 IPC was committed, the SHO concerned was justified in registering the FIR even for the offences under Sections 3 & 4 of RPGO and 66 of the IT Act.
7. Heard learned counsel for the parties and perused the material available on record, including the FIR.
8. A perusal of the FIR reveals that during the course of search the petitioner was found engaged in functioning as a bookie/broker for facilitating betting in cricket matches and during search six mobile phones, one TV, a note book containing accounts and cash of Rs.7,700/- was seized.
9. Without expressing any opinion about petitioner's involvement or guilt qua the offences under Sections 3 & 4 of the RPGO, this Court cannot ignore this position that there are no traces of cheating.
(Downloaded on 13/10/2022 at 08:19:21 PM)
(3 of 6) [CRLMP-3037/2022] 10. Neither any person purportedly been cheated has
approached the police raising grievance nor has anyone been claimed to have been cheated. On the basis of facts narrated in the FIR, which has been registered at the instance of none other than a police officer, it cannot be said that petitioner is guilty of cheating punishable under Section 420 of IPC.
11. Similar is the position qua the offence under Section 66 of the IT Act, which is also not made out.
12. Sections 66 and 43 of the IT Act read thus :
"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.
Explanation. -For the purposes of this section,-
(a) the word "dishonestly" shall have the meaning assigned to it in section 24 of the Indian Penal Code (45 of 1860);
(b) the word "fraudulently" shall have the meaning assigned to it in section 25 of the Indian Penal Code (45 of 1860)."
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 in charge of a computer, computer system or computer network,-
(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 (Downloaded on 13/10/2022 at 08:19:21 PM) (4 of 6) [CRLMP-3037/2022] 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;
(g) provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made thereunder;
(h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network;
[(i) destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means;
(j) steal, conceal, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage;] [he shall be liable to pay damages by way of compensation to the person so affected.] Explanation.-For the purposes of this section,-
(i) "computer contaminant" means any set of computer instructions that are designed- (Downloaded on 13/10/2022 at 08:19:21 PM)
(5 of 6) [CRLMP-3037/2022]
(a) to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network; or
(b) by any means to usurp the normal operation of the computer, computer system, or computer network;
(ii) "computer data-base" means a representation of information, knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepared in a formalised manner or have been produced by a computer, computer system or computer network and are intended for use in a computer, computer system or computer network;
(iii) "computer virus" means any computer instruction, information, data or programme that destroys, damages, degrades or adversely affects the performance of a computer resource or attaches itself to another computer resource and operates when a programme, data or instruction is executed or some other event takes place in that computer resource;
(iv) "damage" means to destroy, alter, delete, add, modify or rearrange any computer resource by any means.
[(v) "computer source code" means the listing of programme, computer commands, design and layout and programme analysis of computer resource in any form.] "
13. A simple reading of Section 66 of the IT Act goes to suggest that the said provision is meant for fraudulent use of computer or computer related devices to commit offence under Section 43 of the IT Act, which provides unauthorised accessing or downloading data from computer.(Downloaded on 13/10/2022 at 08:19:21 PM)
(6 of 6) [CRLMP-3037/2022]
14. When the basic element of unauthorised use of computer or taking away any data is absent, an offence under Section 66 of the IT Act cannot be alleged/claimed.
15. So far as the offences under Sections 3 & 4 of the RPGO are concerned, as the punishment is less than 3 years, the same are non-cognizable and the police cannot register an FIR, as is evident from the provision given under part I of Schedule II of the Code - Classification of Offences Against Other Law of the Code is clear in this regard.
16. In light of what has been discussed hereinabove, the misc.
petition is allowed. The FIR No.248/2021 registered against the petitioner at Police Station Sadul Shahar, District Sri Ganganagar is hereby quashed.
17. Notwithstanding the fact that FIR has been quashed for offences under RPGO on the basis of material collected pursuant to search so conducted, the SHO Police Station Sadul Shahar, District Sri Ganganagar or any competent officer shall be free to file a complaint under the provisions of RPGO within a period of eight weeks from today.
18. In case any complaint is filed, the trial Court shall consider the same in accordance with law.
19. Stay application too stands disposed of.
(DINESH MEHTA),J 13-A.Arora/-(Downloaded on 13/10/2022 at 08:19:21 PM)
Powered by TCPDF (www.tcpdf.org)