Calcutta High Court (Appellete Side)
Code Of Criminal Procedure vs In Re : Dhirendra Kumar Barick @ ... on 6 March, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1 06.03.2017Item No. 234
sdas C.R.R. No. 718 of 2017 In Re : An application under Section 482 read with Section 401 of the Code of Criminal Procedure.
And In Re : Dhirendra Kumar Barick @ Dhirendra Barick @ Barik ... petitioner Md. Aslam Khan ....... for the petitioner Order dated 21.12.2016 passed by the learned Chief Metropolitan Magistrate, Calcutta in G.R. No. 740 of 2012 arising out of Cyber Case No. 15 of 2012 under Section 66A(a)(b) and 66D of the Income Tax Act read with Section 385 of the Indian Penal Code rejecting the prayer to discharge the petitioner from the instant case has been assailed. Gist of the allegations in the impugned charge-sheet is to the effect that the petitioner who had sent threatening and/or vulgar messages to the mobile phone of the defacto complainant from various electronic accounts created for such purpose.
It is submitted by the learned Counsel appearing for the petitioner that his laptop was seized in the course of investigation which, however, did not reflect that the said device had not been used for sending of such messages. It is also contended by the learned Counsel that there is no 2 presumption that the owner of the E.Mail accounts, in fact, had sent offensive messages from the said electronic accounts.
Learned Magistrate refused to discharge the petitioner as the alleged act on his part constitutes offence under Section 385 of the Indian Penal Code. Undoubtedly the electronic messages are offensive and/or threatening in nature and there are materials on record that the offensive messages were sent from the E.Mail accounts mentioned in the F.I.R. It is a question of fact as to whether the said messages were sent by the petitioner or any other person as claimed by misutilising such account. Such defence may be probabilised by the petitioner in the course of trial but cannot be countenanced at the stage of framing of charge in the face of strong suspicion disclosing connection between the petitioner and the transmission of the offensive/threatening messages to the defacto complainant.
With the aforesaid observation, the application is disposed of. Photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(Joymalya Bagchi, J.)