Andhra Pradesh High Court - Amravati
Nallapareddy Sridhar Reddy vs State Of Andhra Pradesh on 19 December, 2019
HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
CRIMINAL PETITION No.4008 of 2019
ORDER:
This Criminal Petition is filed by the petitioner seeking to quash all further proceedings in C.C.No.1411 of 2019 on the file of the VI Judicial First Class Magistrate, Guntur (Old C.C.No.108 of 2017 on the file of VI Additional Chief Metropolitan Magistrate at Hyderabad).
The charge sheet is filed against the accused under Section 65 and 66 of the Information Technology Act, 2000 (in short "the IT Act") read with Section 469 of IPC. The dispute between the parties has its origin in a matrimonial dispute. The accused is the son-in-law of LW 1.
The accused is a resident of England. He is residing at Suffolk in United Kingdom and is represented by a GPA holder-father. He is also an accused in another case, which is still pending disposal.
The case as stated is that LW 1 has another daughter, who was to be married. L.W.1 furnished her details along with biodata to different marriage bureaus in order to finalize the alliance. Surprisingly, on 04.09.2009 all the ten marriage bureaus received emails in his name with some irrelevant information, which would spoil the matrimonial alliances. Therefore, L.W.1 gave a complaint stating that some unknown miscreants have sent the fake mail trying to spoil the image of 2 the complainant, his daughter and family and to ruin the marriage proposals. The matter was taken up for investigation basing on the complainant given in Crime No.163 of 2009 of Sattenapalli Town Police Station, ultimately the case for the offences under Sections 65 and 66 of IT Act and Section 469 IPC was filed.
Sri Vedula Venkata Ramana, learned senior counsel appearing for the petitioner argued that the crime was registered in 2009 and the charge sheet was filed in 2017. Even the contents of the charge sheet show that there is no material available to link the accused to the allegedly fake emails. Learned senior counsel argues that even in the charge sheet that is filed it is mentioned that as and when the accused is arrested a supplementary charge sheet will be filed after conducting further investigation. He points out that for a full 10 years from 2009 till 2019 the investigation could not be completed and even as on date there is material available to link the petitioner to the fake emails. He also points out that the police have not even filed the allegedly fake emails to enable this court to hold that the accused is prima facie responsible for the offence. He points out that the analysis of the emails shows that they can at best traced to "M/s. O2 Online, Southampton City, United Kingdom". The points out that the said O2 Online is an IT café and that merely because the IP address was traced to United Kingdom it cannot be said that the petitioner alone is responsible for sending this. 3 Learned senior counsel also argues that the case would also improbable for the reason as per the complaint L.W.1 gave his daughter's details for establishing matrimonial alliances to various marriage bureaus. The petitioner who is residing in England could not have ever known the various marriage bureaus or their email IDs etc., to send the alleged incorrect and / or defamatory messages to all the said marriage bureaus. He submits that admittedly the petitioner was living in England at that point of time and the information was given by LW 1 to the marriage bureaus in India. Therefore, learned senior counsel submits that it is inherently impossible for the petitioner to know the details of the marriage bureaus, in which the information was lodged. Apart from this learned senior counsel also argues that neither Section 65 nor 66 of the IT Act would be applicable. He points out that section 65 of the IT Act deals with tampering with the computer source code, which is used for a computer programme and a computer system or network. He points out that from the explanation to the section the computer source code means the following:
Section 65 of the I.T. Act explanation:
Explanation-For the purposes of this section, ― computer source code means the listing of programmes, computer commands, design and layout and programme analysis of computer resource in any form.
Coming to Section 66 of the IT Act, learned senior counsel points out that it is a penal section. Drawing the 4 attention of this Court to Section 43 of the IT Act, learned senior counsel points out that Section 43 of the IT Act deals with the accessing of a computer or the computer system or a computer resource without the permission of the owner. He points out that in the case on hand the petitioners could not establish that the accused had access the computer or computer system belonging to LW 1 to send the emails. Lastly, the learned senior counsel submits that as the offence was committed outside India prior sanction of Central government under Section 188 Cr.P.C. is to be obtained. Therefore, on all these grounds he prays for quashing.
In reply to this, Sri A.T.M. Ranga Ramanujam, learned senior counsel appearing for the 3rd respondent argues at length and points out that the petitioner, who wanted in other crime in C.C.No.358 of 2012 and other crimes, is avoiding to come to India and that his presence is necessary in India and that the police cannot commit any mistake in filing the charge sheet and further charge sheet would be filed later. Apart from that learned senior counsel also submits that a detailed investigation has been carried out as can be seen from the charge sheet that was filed and that this is not the stage to quash all further proceedings. He also argues that the provisions of the I.T. Act, particularly Section 75 of the IT Act makes it clear that an offence can be investigated and accused can be prosecuted even if the offence committed outside India. On the merits of the matter, learned senior 5 counsel submits that there is enough material to link the accused to the crime. Relying upon the written arguments that is submitted and the judgments that are filed learned senior counsel argues that this is not the stage to quash all the proceedings. He points out that even in obscenity and defamatory message sent in an electrical form is cognizable. Relying upon Mahendra Pratap Singh (deceased) and another v Smt. Padam Kumari Devi1 and M. Krishnammal v T. Balasubramania Pillai, Power of Attorney Agent of M.Krishnammal2, learned senior counsel argues that the power of attorney holder cannot prosecute the proceedings under section 482 of Cr.P.C.
Learned Public Prosecutor appearing for the State essentially supports the case that is argued by the learned senior counsel appearing for the 3rd respondent.
This Court after hearing both the learned counsel has to agree that there is no strict dispute about certain facts. The accused is son-in-law of LW 1. The marriage between the accused and another daughter of L.W.1 has run into trouble and there are number of disputes which are pending. The accused has not appeared in other matters which are pending in the courts in India. The accused is also now permanently residing in England. These facts are not really in dispute. However, what needs to be considered is that whether charge 1 AIR 1993 AII 143 2 AIR 1937 Madras 937 (FB) 6 sheet makes out a case for proceeding against the accused. As rightly pointed out by the learned senior counsel for the petitioner more than 10 years has elapsed since the date of compliant. The FIR was filed on 26.11.2009. the final arguments are being heard in November, 2019. Learned senior counsel for the petitioner rightly points out that even after 10 years of time what could only be established is that some emails reached the marriage bureaus from a certain email ID. These emails were received from September, 2009 till November, 2019. Learned senior counsel points out that all that could be ascertained was that the IP address from which the emails were sent and trace the address in Southampton City, United Kingdom. Learned counsel points out that these originated from a place called "O2 Online". According to him the said Southampton is 500 Kms., from Ipswich, U.K. He points out that there is absolutely no evidence to show that the accused was in Southampton or that he used email ID that he used the computer system in O2 Online to send the mails. He points out that even after lapse of 10 years the charge sheet is still not complete and link to the petitioner is not established. He also points out that the charge sheet makes it very clear that only when the accused is arrested the supplementary charge sheet will be filed after further investigation. Learned senior counsel submits that the fact that till date the link has not been established is a factor that cannot be lost sight of. This 7 prosecution / allegation has been hanging on the head of the petitioner till date. No reasons are forthcoming why no further data was collected from this location from O2 Online.
The right to a speedy trial and the trauma that is caused to a person when he arrayed as an accused and the case is not disposed has been decided in a number of cases. The Hon'ble Supreme Court of India has held time and again that a right to speedy trial is a fundamental right which is available to a person. The long and protracted criminal trials lead to unimaginable trauma. In the case on hand this Court is still unable to appreciate why the material could not be collected linking the petitioner to O2 Online or the emails. If the petitioner used the computer system from that place or was in anyway connected with the said IP address, it should have been clarified by now. The fact that till date the same was not clarified and the link between the petitioner and the spurious emails has not been established, lead this Court to come to a conclusion that the police have failed in establishing the commission of the offence. The evidence collected in support of the complaint do not lead to a conclusion that the offence was committed. This factor in the opinion of this court falls within para-3 of the guidelines laid down in the land mark judgment of State of Haryana Vs. Bajanlal3, wherein the Hon'ble Supreme Court of India laid down seven grounds under which the power of quashing 3 1992 Supl. 1 SCC 335 8 should be exercised. This Court also notices that there is an element of spite or hate in this matter. The fact that the custodial interrogation of the accused is sought and it is highlighted more than one place that the accused has evaded in the arrest and prosecution makes it clear that there is a motive behind the application. The passage of time and the failure of the investigating agency to collect the relevant investigation leads this Court to come to this conclusion.
Even the other ground urged by the learned senior counsel that an offence under Section 66 of I.T. Act is not committed, is correct in the opinion of this Court. This is not a case of tampering of a computer sources code etc. The email that is sent from an unknown source has not been traced even till date. Lastly, the issue about Section 188 Cr.P.C and Section 75 of the I.T.Act needs to be addressed. This Court is of the opinion that the Information Technology Act is special enactment which has been enacted to meet this class of offence. It very clearly stated that the Act shall apply even if any offence or contravention is committed outside India to any person. It also applies to any offence committed outside India provided it involves computer system or computer network located in India. In that view of the matter, this Court is of the opinion that the provisions of Section 188 of the Cr.P.C., requiring sanction are not really applicable. The last submission of the learned senior counsel appearing for the respondent that the power of attorney 9 holder cannot file an application is also not a tenable contest. This is not a case of a power of attorney holder giving evidence during the course of a trial. This is merely a case of a power of attorney holder filing an application to quash further proceedings. In the opinion of this Court, there is no prohibition under law for such a procedure. The case laws cited by the learned senior counsel appearing for the respondent, in the opinion of this Court do not apply to this case. This is also a rule of procedure and when substantive justice and rules of procedure are pitted against one another, substantial justice will have to prevail.
Therefore, for all these reasons this Court holds that the petitioner is entitled to relief as prayed for. Accordingly, all further proceedings in C.C.No.1411 of 2019 on the file of the VI Judicial First Class Magistrate, Guntur (Old C.C.No.108 of 2017 on the file of VI Additional Chief Metropolitan Magistrate at Hyderabad) are quashed.
Miscellaneous Petitions, if any, pending in this Criminal Petition, shall stand closed.
__________________________ D.V.S.S. SOMAYAJULU, J Date: 19.12.2019.
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