Jharkhand High Court
Harinder Singh Mongia vs State Of Jharkhand on 25 April, 2024
Author: Rajesh Kumar
Bench: Rajesh Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr) No.284 of 2023
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Harinder Singh Mongia .... .... Petitioner
-Versus-
1. State of Jharkhand
2. The Superintendent of Police, Giridih
3. The Officer-in-Charge, Muffasil Police Station, Mohulichuan, P.O. Giridih, P.S. Muffasil, Giridih
4. The Assistant Director of Income Tax (Investigation), Dhanbad
5. The Inspector of Income Tax (Investigation), Dhanbad .... .... Respondents
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Petitioner : Mr. Sumeet Gadodia, Advocate
: Mr. Ritesh Kumar Gupta, Advocate
For the Resp.-State : Mr. Praveen Akhauri, S.C. (Mines)-I
For the Resp.-Income Tax Dept : Mr. Kumar Vaibhav, Sr. S.C.
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08/Dated: 25th April, 2024
1. Heard the parties.
2. Present criminal writ petition has been filed for quashing the First Information Report dated 19.12.2022 in connection with Muffasil P.S. Case No.319 of 2022, registered for the offence under Sections 186, 201, 204 & 120B of the Indian Penal Code and Sections 65 & 66 of the Information Technology, Act, now pending in the court of learned Additional Sessions Judge-II-cum-Special Judge, Cyber Crime, Giridih.
3. The contents of the F.I.R dated 19.12.2022 is as follows:-
From Indrajit Ravidas.
Asst. Director of Income Tax (Inv.), Dhanbad To The SHO, Muffasil Thana, Giridih, Jharkhand Subject: Filing of First Information Report against Shri Harinder Singh Mongia, age 34, S/o Gunwant Singh Mongia Director of Mongia Steel Ltd., Burhiadih, Tundi Road, Giridih under sections 186, 201,204 read with section 120B of the Indian Penal Code and section 65 and 66 of Information Technology Act.
Sir, A search and seizure action under section 132 of the Income Tax Act is in progress at the office premises of Shri Harinder Singh Mongia, S/o Gunwant Singh Mongia Director of Mongia Steel Ltd., Burhiadih, Tundi Road, Giridih.
During the course of search at the office premises of Mongia Steel Ltd., it was found that the whatsapp data (mobile number 9931543208) of Shri Harinder Singh Mongia was saved in a computer in the application 'Whatsapp Desktop". From the analysis of the whatsapp data, it was found that details regarding huge tax evasion (and may be money laundering also) by Mongia Steel Ltd. & Shri Harinder Singh Mongia were available in the said whatsapp chat data On 18.12.2022, at around 10:40 PM, when Shri Harinder Singh Mongia was sitting in the office room where the computer was kept, he deleted the said WhatsApp data from the computer (for which imaging of computer date has already been done by computer expert) He deleted the data containing documentary evidence in criminal conspiracy with intention to break to the law and obstruced the proceedings under the Income Tax Act It is requested that the FIR be registered against Shri Hrinder Singh Mongia under sections 186, 201 204 read with section 120B of the Indian Penal Code for indulging in criminal conspiracy to obstruct public servants in discharge of public function, causing disappearance of evidence of offence and to destroy the evidence of offence and section 65 and 66 of Information Technology Act for tampering with computer source documents."
4. The factual matrix of the present case is that some "WhatsApp Data" have been downloaded by the Income Tax Department, while making the search and seizure. Subsequently, "WhatsApp Data" have been erased by the accused person, who is the Director of the Mongia Limited Company Limited.
5. Learned counsel for the petitioner has submitted that so far as the offence under the Information Technology Act, 2000 is concerned, that is not made out.
6. In the present case, there is no allegation for destruction of computer source code. For this purpose, learned counsel for the petitioner has relied upon the judgment of the High Court of Andhra Pradesh at Hyderabad in the case of Syed Asifuddin and others versus The State of Andhra Pradesh and Another reported in 2005 SCC OnLine AP 1100. Paragraph Nos.12 & 13 of the said judgment is quoted herein below:-
"12. A computer has to be appropriately instructed so as to make it work as per its specifications. The instruction issued to the computer consists of a series of Os and is in different permutations and combinations. This machine language can be Page | 2 W.P. (Cr.) No.284 of 2023 in different form different manner, which is called computer language. The communicator as well as the computer understand "a language" an mutually respond with each other. When specified or particular instructions are given, having regard to the capacity of the computer it performs certain specified functions. The instructions or programme given to computer in a language known to the computer are not seen by the users of the computer/consumers of computer functions. Known as source code in computer parlance, the programme written is whatever computer language by the person who assembled the programme are not seen by the users. A source code is thus a programme as written by the programmer. Every computer functions as a separate programme and thus a separate source code.
13. Computer source code or source code, or just source or code may be defined as a series of statements written in some human readable computer programming language constituting several text files but the source code may be printed in a book or recorded on a tape without a file system, and this source code is a piece of computer software. The same is used to produce object code. But a programme to be run by interpreter is not carried out on object code but on source code and then converted again. Thus, source code is always closely guarded by the computer companies, which develop different function specific computer programmes capable of handling various types of functions depending on the need. The law as we presently see is developing in the direction of recognizing a copyright in the source code developed by a programmer. If source code is copied, it would certainly violate copyright of developer. With this brief background in relation to computer source code, we may now consider in brief the technological aspects of a cell phone and how it works. This is necessary to understand the controversy involved in this case."
7. Referring to the contents and interpretation given by the Hon'ble High Court of Andhra Pradesh at Hyderabad, it has been submitted that since there is no destruction of computer source code and as such, no offence under Section 65 of the Information Technology Act, 2000 is made out.
Section 66 of the Information Technology Act is quoted herein below:
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)".
Page | 3 W.P. (Cr.) No.284 of 2023
8. Thus, Section 66 of the Information Technology Act is applicable only when the ingredients of Section 43 is present with mens rea. The opening line of Section 43A, reads as under:-
"43A. Compensation for failure to protect data- Where a body corporate, possessing, dealing or handling any sensitive personal data or information in a computer resource which it owns, controls or operates, is negligent in implementing and maintaining reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, such body corporate shall be liable to pay damages by way of compensation to the person so affected."
9. It has been submitted that it is an offence against the owner/In-charge of the computer which has been subjected to hacking. In the present case, the petitioner himself is the owner of the computer and as such, no offence under Section 66 of the I.T. Act is made out.
So far as Section 186 IPC is concerned, it has been submitted that there is no allegation of causing hindrance to the raiding party and as such, the ingredient of Section 186 IPC is absent.
So far as the Sections 201 & 204 of the IPC are concerned, that is with regard to the destruction and disappearance of the evidence.
10. Referring to Sections 65A & 65B of the Indian Evidence Act, 1872 and it has been submitted that the F.I.R itself suggest that the entire "WhatsApp Chat" has already been downloaded and thus, the evidence is available with the Income Tax Department and there is no destruction and disappearance of the evidence. Once, there is no disappearance of evidence as such, no offence under Sections 201 & 204 of the IPC is made out.
11. It has been submitted that so far as Section 120B of the IPC is concerned, it has to be charged with some criminal activity. In the present case, no crime is made out and as such, Section 120B is not applicable.
12. On the strength of above submissions, it has been submitted that the F.I.R does not disclose any offence and as such, F.I.R is not maintainable. The F.I.R can sustain, if cognizable offence has been committed.
13. In the present case, the allegation does not disclose any commission of cognizable offence and as such, the F.I.R itself has to be quashed. For this purpose, learned counsel for the petitioner has relied upon the judgment of the Hon'ble Apex Court in the case of State of Haryana and Others vrs. Bhajan Lal and Others reported in 1992 Supp (1) SCC 335. Paragraph No.102 of the said judgment is quoted herein below:-
Page | 4 W.P. (Cr.) No.284 of 2023 "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
14. On the other hand, learned counsel for the respondents have supported the F.I.R and it has been submitted that Sections 66 and 43 of the I.T. Act, suggest that if any act of destruction of any electronic record has been done, the offence is made out. Further, evidence has been destroyed and as such, Sections 201 & 204 of the IPC is also made out.
15. Having heard the learned counsel for the parties and from perusal of records, it appears that the allegation has been made that 'WhatsApp Chat' has been deleted, but Page | 5 W.P. (Cr.) No.284 of 2023 at the same time, it has been mentioned in the F.I.R itself that the same has been downloaded. Thus, there is no destruction and disappearance of any material more or less the evidence. No allegation has been made that the petitioner has not co-operated with the raiding party, rather, he has extended for cooperation. Section 65 of the IT Act applies, when there is a complaint regarding the computer source code and in the present case that arena is not available.
So far as section 66 of the I.T. Act is concerned, it is an anti-hacking and in the present case, the accused person himself is the owner of the computer and as such, the arena of Section 66 and Section 43 of the I.T. Act is not available. Since there is no destruction and disappearance of material/evidence and as such, Sections 201 & 204 of the IPC are also not applicable.
16. In view of the above discussions, this Court finds that the F.I.R does not disclose commission of cognizable offence and accordingly, the F.I.R dated 19.12.2022 in connection with Muffasil P.S. Case No.319 of 2022, registered for the offence under Sections 186, 201, 204 & 120B of the Indian Penal Code and Sections 65 & 66 of the Information Technology Act, pending in the court of learned Additional Sessions Judge-II-cum-Special Judge, Cyber Crime, Giridih is hereby, quashed and set-aside.
17. The present criminal writ petition stands allowed and disposed of.
(Rajesh Kumar, J.) Raja/-
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