Orissa High Court
Kalandi Charan Lenka vs State Of Odisha on 16 January, 2017
1
HIGH COURT OF ORISSA, CUTTACK
BLAPL No.7596 of 2016
In the matter of an application under Section 439 of the Code of
Criminal Procedure, 1973.
---------------
Kalandi Charan Lenka ... Petitioner
-Versus-
State of Odisha ... Opposite Party
For Petitioner : M/s. D. Nayak, B.K. Das,
S.K. Das & U.R. Jena
For Opposite Party: Mr. P. B. Tripathy
Additional Standing Counsel
PRESENT:
THE HON'BLE DR. JUSTICE D.P. CHOUDHURY
___________________________________________________ Date of hearing: 15.12.2016 Date of Judgment:16.01.2017 ___________________________________________________ Dr. D.P. Choudhury, J. This is an application under Section 439 Cr.P.C. to release the petitioner on bail who is allegedly involved for the offences under Sections 354-A/354-D/465/469/506/507/509 of the I.P.C. read with Section 66-C/66-D/67/67-A of the Information Technology Act.
2. The factual matrix leading to the case of the prosecution is that the informant is a woman studying in the Pattamundai Women's College at Pattamundai. It is alleged, inter 2 alia, that her father has got three daughters and his first daughter is mentally retarded girl and the second daughter is the informant herself. The victim girl while studying in College unknown obscene messages came in her mobile imputing her character. Before this also from unknown mobile number, obscene messages affecting the character of the informant also had come through Cell phone of her father. Her father after going through the message became remorse and asked the informant-victim about the matter. So, the victim woman was mentally disturbed by seeing these obscene messages. Then during the year 2015-2016 the written letters containing vulgar languages imputing the character of the victim girl came to her father. Such letters came with sexual remark and with a design to denigrate the character of the victim girl. The messages not only affect the character of the victim girl but also connected the other male members to have sex with the victim girl.
3. Not only this but also it is alleged, inter alia, that the pamphlet against the character of the victim girl was also pasted on the wall of the Hostel where the victim girl was residing for which she has to change her place of study. But the culprit did not forget to follow her. Wherever the victim girl studied, the printed pamphlets with sexual remarks against the victim girl 3 were pasted on the walls. Finally a fake Facebook Account in the name of the victim girl was created and in the Facebook the morphed naked photographs of the victim girl were transmitted with intention to outrage her modesty. Then the victim girl was bound to inform the Police in writing to take legal action against the culprit.
4. During course of investigation, Cyber Cell of the Crime Branch examined various witnesses and sent mail to different service providers to trace out the mobile number along with IMEI number. The victim has been examined under Section 164 Cr.P.C. She stated that the petitioner who was very acquainted with the family of the complainant has proposed to marry her and when this marriage could not be finalized, he suspected him to have transmitted the obscene letters, scandalous mail and published the pamphlets imputing the character of the victim girl. Through such obscene and vulgar mails and creation of the fake Facebook Account in the name of the victim girl, the petitioner has exhibited his intention to intimidate her with the purpose to exploit her sexually. So, the Cyber Cell of the Crime Branch after collecting evidence came to know that it is the petitioner who was involved with these types of nepharious cyber crimes. Then the petitioner was arrested and 4 forwarded to court. As per the prosecution, the investigation is going on.
SUBMISSION
5. Learned counsel for the petitioner submitted that the petitioner is an innocent person and he was in love with the victim girl. According to him, the victim girl has got another boy friend who must have committed the offence as alleged. He further submitted that except offences under Sections 506 IPC and 67-A of the Information Technology Act, all other offences are bailable in nature and the offences under Sections 506 IPC and 67-A of the Information Technology Act have not prescribed capital punishment and the petitioner is in custody since last two months for which lenient view may be taken to release the petitioner on bail with any condition as deem fit and proper.
6. Mr. Tripathy, learned Additional Standing Counsel vehemently opposed the bail stating that not only the victim girl has been defamed by the overt act of the petitioner but also through the electronic device the crime has been committed by the petitioner to sexually harass her and to cause intimidation to the victim girl so as to compel her to surrender to the design of the petitioner. He further submitted that the Cyber Cell of the Crime Branch has collected enough materials to find out prima 5 facie case against the petitioner. Since it is a Cyber Crime which is a threat to the society and dignity of the women, the court should not allow the petitioner to go on bail.
DISCUSSION
7. Considered the submissions of both the counsels. Perused the Case Diary and other papers produced in this case. Before going through the fact of the case, the well known principle for considering the bail under Section 439 Cr.P.C. is necessary to be reproduced here for better appreciation. In the case of Neeru Yadav v. State of U.P. and another, reported in 2014(14) SCALE 59, referring to the case of Prahlad Singh Bhati v. NCT, Delhi & another, (2001) 4 SCC 280, the Hon'ble Supreme Court have observed in paragraphs 10 and 11 as follows:-
10. xx xx xx "(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the element of genuineness 6 that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
11. In Chaman Lal V. State of U.P.; (2004) 7 SCC 525, the Court has laid down certain factors, namely, the nature of accusation, severity of punishment in case of conviction and the character of supporting evidence, reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and prima facie satisfaction of the Court in support of the charge which are to be kept in mind."
With due regard to the said principle, the court while considering the bail application under Section 439 of Cr.P.C. has to consider various aspects as observed in the aforesaid decision.
8. In the instant case, the statement of the victim girl recorded under Section 164 Cr.P.C. that while the victim was studying in +3 at Tulasi Womens College, Kendrapara, her father met accident and on 12.12.2013 her father got recovered and came to house. On that day a message came to her father's mobile and through that message the culprit has threatened in obscene language to damage her character. Thereafter continuously messages came for which the victim and her father were alarmed. Then she got her transferred to U.N. Autonomous College, Science and Technology, Adaspur to continue her study. There she remained in a private hostel. There the pamphlets 7 imputing the character of the victim girl was pasted in front of the hostel. Moreover messages continued to come to her father's mobile by using obscene and vulgar languages for exploiting the victim girl sexually. There was also criminal intimidation by threatening to outrage the modesty of the victim girl. Also the unknown culprit sent different messages with slang languages to the friends of the victim for which the hostel owner had to remove her from his hostel. In the College premises also the pamphlets outraging the modesty of the victim girl were pasted on the walls of the College for which the College authorities had to enquire about the matter from the victim girl. It is further stated by her that while the victim girl was searching the Facebook Account she came to know that a fake Facebook Account has been opened in her name and in that Facebook message, the morphed naked photo of victim girl was sent addressing her as lover. By such morphed photo being sent through public post and the message coming from different numbers to her mobile made her alarmed and she was mentally shocked and suffered from trauma. Her statement does not disclose that all these criminal wrong are being committed by the petitioner.
8
9. On further examination under Section 161 Cr.P.C. the victim girl stated that the petitioner has access to her house as her father had no son but three daughters and the petitioner used to lend his hand for helping. She has also stated that when the petitioner came to know from her father about filing of case before the Crime Branch, his behaviour changed and avoided to come to their house. She also stated that due to access to their house the petitioner had already taken the data, photo and contact details from the phone of the victim girl and the petitioner was not tolerating while she was talking with any boy friend but the victim girl had addressed him as brother. It is further found from her statement that the petitioner had proposed in 2012 to marry her although she had no feeling as such and was treating him as brother and tied rakhi.
10. On further scrutiny of her statement, it appears the victim girl has a boy friend, namely, Manoj Kumar Ojha who had family relation with the family of the victim girl and used to work outside Odisha. On query by her, he denied to have sent any sort of obscene and vulgar messages to the victim girl or her father. The statement of the father of the victim girl supports the statement of the victim girl. The statement of Manoj shows that the petitioner has got close access to the family of victim girl as 9 the father of the victim girl had to depend on the petitioner to look after some household work since the victim's father has no any son. He also stated that his E.Mail I.D. and Password had been taken by the petitioner for which he suspects about the misuse of his I.D. while purchasing a SIM to utilize the same for illegal purpose. The statement of Amiya Ranjan Nayak shows that he is a driver and he had got Micromax Bolt mobile in which dual SIM facilities was there for which he had BSNL Number 9439502143 and Vodafone Mobile Number 9853611688. But while he was residing in a rented house, his mobile was stolen away. One month thereafter he got another mobile with Vodafone SIM Card. The statement of Rajanikanta Nayak who happens to be the Heads of the Department of English of U.N. Autonomous College, Adaspur where the victim was studying corroborating the statement of the victim about the obscene and vulgar messages being transmitted to her and about seizure of Facebook Account from the possession of the victim girl.
11. During investigation, Crime Branch has sent mail to Facebook Law Enforcement Response Team and other Mobile Service Providers, namely, Nodal Officers of Vodafone Spacetel Ltd., Bharti Airtel Ltd., AIRCEL, TATA Telecommunications Ltd., Reliance Communications Ltd., IDEA Cellular Ltd., BSNL and after 10 extensive investigation came to know that the accused had accessed and operated the fake Facebook Account using the Vodafone account in the name of the victim girl through internet by using Vodafone ISP and the Airtel ISP. The I.O. also found that good numbers of SIM Cards with different IMEI numbers have been used by the accused to commit the offence. The Enquiring Officers of different service providers have also given certificate under Section 65-B of the Evidence Act about the print out retrieved as to the messages and morphed naked photographs of victim girl.
12. After going through all the materials, it appears that through the electronic form there is stalking, online transmission of sexual explicit or obscene morphed naked picture of the victim. So, the offences under the Information Technology Act (hereinafter called the "I.T. Act") prima facie cannot be ruled out. Moreover, in Sharat Babu Digumarti v. Govt. of NCT of Delhi (S.L.P. (Criminal) No.7675 of 2015, disposed of on 14th December, 2016) the Hon'ble Apex Court have been pleased to observe in para-28 which is as follows:-
"28. Having noted the provisions, it has to be recapitulated that Section 67 clearly stipulates punishment for publishing, transmitting obscene materials in electronic form. The said provision read with Section 67A and 67B is a complete code Page 28 28 relating to the offences that are covered under the IT Act. Section 79, as has been interpreted, is an 11 exemption provision conferring protection to the individuals. However, the said protection has been expanded in the dictum of Shreya Singhal (supra) and we concur with the same. Section 81 also specifically provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. All provisions will have their play and significance, if the alleged offence pertains to offence of electronic record. It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 of the IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent".
13. With due regard, in the above case under Sections 292, 294 of I.P.C. and Sections 67, 67A and 67B of the I.T. Act, charge was made but the Hon'ble Apex Court was pleased to opine that when the offence under the I.T. Act is made out, similar offence under Section 292 of I.P.C. cannot go together for the reason that the I.T. Act being special provision would operate in the field of offence committed through electronic form. Applying the ratio of the case, in the instant case the entire obscene message and fake Facebook account showing stalking and obscene representation or morphed naked photograph of the victim are all prima facie committed by the petitioner through electronic form as per the Police papers. Moreover, the material about the pamphlets or any other form of defamation to the 12 character of the victim pasted on the wall of the College or hostel as alleged being not investigated to have been made by the present petitioner except a suspicion is raised about his involvement with such crime. But offences under the I.T. Act are prima facie made out against the petitioner. On the other hand, the offences under the I.P.C. against the petitioner is yet to be made out. Be that as it may, offence under Section 67A of the I.T. Act as made out prima facie in this case against the petitioner is non-bailable.
14. Now adverting to the statement of the victim again it appears that through the electronic form the petitioner had made it clear that he has got a one side love and being not successful in materializing the design of love, he took shelter of cyber law to commit crime. The dignity of woman is always required to be protected and under Article 51-A of the Constitution every citizen has got fundamental duty to protect the dignity of the woman. Even if the offence prima facie committed through electronic form but the punishment under Section 67-A of the I.T. Act is up to five years if committed at first. It appears that the investigating agency has made detailed investigation and brought the petitioner to book but did not 13 disclose any criminal antecedent of the present petitioner. The petitioner is in custody since 28.10.2016.
15. Considering the punishment prescribed for the offence prima facie found out, most of the offences as alleged by prosecution are bailable, character of evidence as discussed above including absence of criminal antecedent of petitioner and period of his custody, lenient view is taken to release him on bail. But the dignity of the woman as discussed above has to be kept in view as stalking or opening of fake Facebook account or obscene representation including morphed naked photographs are menace to the society and the right of the woman.
16. Thus, balancing the act committed, prima facie offence found out against the petitioner and protection of the dignity/right of victim woman, the petitioner should be released on bail by imposing strict conditions. So, let the petitioner be released on bail of Rs.50,000/- (Rupees fifty thousand) with two solvent sureties each, out of which one surety should be one of his parents, for the like amount to the satisfaction of the learned J.M.F.C., Pattamundai in G.R. Case No.225 of 2015 arising out of Cyber Crime P.S. Case No.07 of 2016 on conditions that (i) he would appear before the Investigating Officer on every Sunday at 10.00 A.M. till Final Form is submitted and also would be 14 available to the I.O. as and when required for the purpose of further investigation, if any, after submission of Final Form; (ii) He would not commit any offence including the offence through the electronic form while on bail; (iii) He would not induce or threaten the victim woman or her parents or any prosecution witnesses directly or indirectly through any manner; and (iv) He would also not visit the town of Pattamundai where the victim or her family members reside and place where the victim is studying or working except in the occasion when he would have to appear before the I.O. or before the Court in seisin of the matter till submission of Final Form and in the event of filing of charge-sheet till conclusion of the trial.
The BLAPL is accordingly disposed of.
..................................
Dr. D.P. Choudhury, J.
ORISSA HIGH COURT: CUTTACK Dated 16th January, 2017/Kar