Madhya Pradesh High Court
Dharmendra Singh Bundela @ Chali Raja ... vs The State Of Madhya Pradesh on 9 June, 2022
Author: Anand Pathak
Bench: Anand Pathak
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
MISC. CRIMINAL CASE No. 10854 of 2021
Between:-
DHARMENDRA SINGH BUNDELA @ CHALI
RAJA BUNDELA S/O SHIROMANI SINGH
BUNDELA , AGE- 31 YEARS, OCCUPATION:
LABOUR, R/O OPPOSITE NEAR CENTRAL
BANK CHINOR GWALIOR
.....PETITIONER
(BY SHRI ANOOP NIGAM - ADVOCATE )
AND
THE CYBEL POLICE STATION BHOPAL,
1.
ZONE GWALIOR
MS. JYOTI SINGHE W/O SHRI KUSHAL
SURYAVANSHI R/O LAKKARKHANA, GANJI
2.
WALA MOHALLA, OPPOSITE KUSHWAH
TEMPLE, LASHKAR GWALIOR
.....RESPONDENTS
(BY SHRI B.S.GOUR - PANEL LAWYER/RESPONDENT NO.1/STATE)
(BY SHRI C.P.SINGH - ADVOCATE/RESPONDENT NO.2/COMPLAINANT)
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Matter was heard and reserved : 20.04.2022
Matter is delivered : 09.06.2022
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This application coming on for hearing this day, the court passed
the following:
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ORDER
With consent heard finally.
2. The present petition under Section 482 of Cr.P.C. has been preferred for quashing of FIR, charge-sheet and consequential proceedings in respect of Crime No.26/2020 registered at Cyber Police Station, Gwalior for alleged offence under Section 354(D) of IPC and Section 67(A) of Information Technology Act.
3. Precisely stated facts of the case are that on 11.06.2019, complainant (respondent No.2 herein) lodged a complaint to the State Cyber Police Station Bhopal with the allegation that between 15.04.2019 to 27.05.2019 some indecent/vulgar and inappropriate messages, photographs and video clips were received by her on her WhatsApp (a mobile application) from mobile no.91-6305877094 and a request was made to take appropriate action.
4. It appears that when Kaifiyat and CDR (Call Detail Record) were called for and examined, it was found that same had been registered in the name of Devalla Venkateshwar S/o Shri Rambabu R/o 8-18, Jawaharnagar, Satupalla, Khamman, Andhara Pradesh and was operated in mobile device in IMEI No.863081044069900. On 3 further scrutiny, it was found that in June, 2019, the said device was used by mobile no.8319844671 and the said mobile was in the name of one Sachin Patel S/o Gopal Kachhi R/o Nehru Ward, Kachhi Mohalla, Narsinghpur (M.P.). On further scrutiny, it was found that said mobile number (8319844671) was being operated by one Sandeep Parmar S/o Krishnapal Singh Parmar R/o Village Karhiya, Tehsil Chinor, Gwalior.
5. When Sandeep Parmar was called for interrogation, he made a statement that IMEI NO.863081044069900 was a mobile device of REDMI-Note-5 and had been used by him from June to September, 2019. This device was given to him by his brother-in- law namely Dharmendra Singh Bundela (present petitioner) therefore, he was implicated and charge-sheet has been filed against him.
6. As per the submissions of learned counsel for the petitioner, complainant (PW-1) deposed before the trial Court on 03.12.2021 and she denied even recognizing or knowing the petitioner and turned hostile. It is further submitted that only source of implication of petitioner is the statement of Sandeep Parmar purportedly taken 4 under Section 161 of Cr.P.C. and memo of present petitioner prepared by police under Section 27 of Evidence Act and except these two statements, no other evidence was produced by the police to implicate present petitioner.
7. It is the submission of counsel for the petitioner that obscene messages/videos were sent from no.6305877094 and at the relevant point of time i.e. April-May, 2019 said mobile number was in the name of Devalla Venkateshwarao and no investigation of said person has been made. Neither he was interrogated as witness nor was he implicated as accused. Same is the case with Sachin Patel and Sandeep Parmar. Incidentally, messages were sent from Mobile Number 6305877094 which was of Devalla and another mobile number i.e. 8319844671 found to be used by Sachin Patel and as per the statement of Sandeep Parmar, the said SIM was used by him since April,2017 when Sachin Patel gave that SIM to Sandeep Parmar who happened to be his friend. No cash memo was filed in the charge-sheet to bring home the fact that said device REDMI Note-5 which allegedly used for sending WhatsApp messages was purchased by present petitioner or carried the said device at any 5 point of time during the period when alleged obscene messages were sent. On false pretext, he is suffering vexatious litigation.
8. Learned counsel for the respondent/State opposed the prayer and submitted on the basis of case diary that he has been rightly implicated and trial will bring the truth.
9. Learned counsel for the complainant also opposed the prayer and submitted that as per statement of Sandeep Parmar, device was in possession of present petitioner therefore, he has to face trial.
10. Heard the counsel for the parties and perused the documents appended thereto.
11. It is a case where petitioner is facing allegations for the offence under section 354(D) of IPC and Section 67A of Information Technology Act.
12. From the charge-sheet and submissions of parties, it appears that complainant (respondent No.2 herein) received obscene messages on her mobile number as referred in charge-sheet and said obscene messages were sent from mobile number 6305877094 and from the charge-sheet itself it appears that said mobile number is in the name of Devalla Venkateswararao and said service provider 6
-JIO activated on 26-10-2018. As alleged, messages were sent from mobile number of Devalla but device was different because device was REDMI Note-5 and said REDMI Note-5 carried SIM vide number 8319844671 and found to be in the name of Sachin Patel of Narsinghpur. Said mobile number of JIO was approved on 08.12.2016 and as per the statement of Sandeep Parmar, he was carrying this mobile since April,2017 because Sandeep Parmar and Sachin Patel were good friends and were room-mates during their service at Indore therefore, direction of investigation ought to had been either towards Devalla or towards Sachin Parmar and Sandeep Sachin Patel, but no such aspect has been investigated and easy way out is found by implicating petitioner.
13. True it is that WhatsApp is a "device-based mechanism" and when device (REDMI Note-5 mobile handset) was admittedly used by Sandeep Parmar from June to September,2019 then it is highly improbable that without any document seized/recovered from retail outlet to suggest that device belonged to petitioner. However, the conclusion was drawn by Investigating Officer against the petitioner ascribing his role. No attempt appears to have been made 7 to track the real owner of device (REDMI Note-5 mobile handset) and said ownership could have been ascertained through IMEI number and the retail counter from which this device was sold and to whom because usually cash memo or bill is provided by the shopkeeper who sells mobile handsets to the customers. In absence of any such document, inference regarding implication of petitioner appears to be hypothetical.
14. In the present case, the only source of implication of petitioner is the statement of Sandeep Parmar (whose role itself is doubtful) recorded under Section 161 Cr.P.C. and memo prepared under Section 27 of Evidence Act of petitioner himself. So far as statement under Section 161 of Cr.P.C. of Sandeep Parmar is concerned, he only referred the fact that said mobile device was kept by him between June to September, 2019 and said mobile was given to him by his brother-in-law i.e. present petitioner. When Sandeep Parmar himself carried the mobile between June to September, 2019 then possibility cannot be ruled out that he might have used the mobile prior to June also i.e. April and May 2019 when alleged incident took place.
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15. Even otherwise on the statement of a suspect, it could not have been relied to the extent wherein petitioner was arrayed as accused. Even otherwise, in his statement, Sandeep Parmar did not clarify that whether his brother-in-law kept the device for sometime with him or when did he give this device to him therefore, story of prosecution becomes doubtful. So far as memo under Section 27 of Evidence Act of accused is concerned, it has negligible evidentiary value except when at his instance some discovery is being made. Although, said mobile has been recovered from the possession of petitioner but it has not been cross-checked whether that device was used by petitioner in his mobile No.9755404004 and whether tower location of mobile number of petitioner as referred above was in said device with IMEI number as referred above to connect the petitioner with the crime.
16. When obscene messages were received through mobile No.630587709494 (Devalla) and later on device was found to be with mobile No.8319844671 which was used by two persons namely Sachin Patel and Sandeep Parmar then, in that condition filing charge-sheet against the petitioner further smacks casualness 9 if not malafide prima facie.
17. Criminal jurisprudence is based upon the principle that prosecution has to prove its case beyond reasonable doubt and when complainant herself refused recognizing the petitioner and Investigating Officer did not show any inclination regarding investigation of case from vantage point of other accused then the case becomes lopsided and petitioner cannot be put to trial on such flimsy pretext.
18. Resultantly, petition filed by the petitioner stands allowed. FIR vide Crime No.26/2020 registered at Cyber Police Station, Gwalior for offence under Section 354(D) of IPC and Section 67(A) of Information Technology Act and other consequential proceedings including charge-sheet and trial stand quashed. Petitioner is exonerated from the charges levelled against him.
19. Petition stands allowed and disposed of.
(Anand Pathak)
Ashish* Judge