Arunraj T. vs State of Chhattisgarh

Heard Mr. Alok Bakshi, learned counsel for the petitioner in CRMP No. 1107 of 2015, Mr. Deepak Kumar, holding the brief of Mr.Jitendra Gupta, learned counsel for the petitioner in CRMP No. 1610 of 2017, Mr. Vikram Sharma, learned Deputy Government Advocate, appearing for the State/respondent No.1 and Ms.Priyanka Mehta, learned counsel for respondent No.2.

Since both the petitions arise out of same Crime Number, they are clubbed and heard together and are being disposed of by this common order.

Both the aforesaid petitions have been filed under Section 482 of the Cr.P.C. for quashing of the charge sheet filed by P.S. Pulgaon, District Durg (C.G.) in Crime No. 363 of 2014 against the petitioner for offence punishable under Section 66A and 66D of the Information Technology Act 2000 (for short ‘the IT Act’) and for quashing of the Criminal Case No. 1121/2015 (State of Chhattisgarh Vs. Arun Raj T. and another), pending in the Court of Judicial Magistrate First Class, Durg, District – Durg (C.G.).

Brief facts of the case are that an application under Section 156(3) Cr.P.C. was filed before the learned Judicial Magistrate First Class by respondent No.2, Sanjay Prasad Gupta against two persons namely Naveen Rathore and Ravindra Sharma. In this application, it was stated that on the e-mail address of the complainant one mail was forwarded by the e-mail address of Ravindra Sharma. The original mail was sent to Mr. Motilal Vora (Member of Parliament – Rajya Sabha) who is member of the All India Congress Committee.

The contents of that e-mail reads as under :

“Respected Vora ji,

We are very much sorry to write this letter as we came to know that you have wrote a recommendation letter to Union Culture Minister Smt. Chandresh Kumari Katoch for considering the transfer request of Mr. Sanjay Prasad Gupta (SP Gupta) to Raipur, Chhattisgarh. I think in the whole of your political carrier (i.e.since 1972) you have done very big mistake by writing this letter for a fraud staff of ASI. Do you know who is Mr. S.P. Gupta??? He is basically a real estate broker who minted many crore rupees in that business in the past by residing/working in Chhattisgarh. And even he cheated many person including a retired school teacher. There is a fraud land case going on Durg court. Actually he is on bail.

His immovable property report will tell you the truth of his property detail in Chhattishgarh.

Apart from this during his entire service in ASI he misbehaved with many ladies one best example for that in the year 2007 he mishaved with some lady labour in Uttar Pradesh and we are evidence for all this. We are under the process of getting the evidence it through RTI (copy enclosed).

Do you know why he got transfer from Chhattisgarh to Derhadun? We will tell you the whole story. He very rudely behaved with his boss in Raipur and even manhandled his boss over petty query. Even he got warning memo from his headoffice, Delhi and it was also decided by his headquarter he should never been posted in central india.

Very shamefully he has published many article in his name in different foreign/ Indian journals but those articles are originally written by some famous foreign & Indian authors. For which he was warned by his present office at Derhadun not to do this type activities. He may investigated and convicted soon as per International copy right Act.

He is not chhattihgari as he is originally halling from Bihar and settled year long time back. Throughout his carrier, neither he has not done any good thing for department nor to Chhattisgarh.

In order to restart his real estate business he wants to come back Chhattisgarh and for that reason he approached you.

Sir, pl. with draw your petition that you have send to Hon' culture Minister and do not support for this type of fraud people as it may ruin your reputation from our heart. People of India / people of Chhattisgarh having faith on you and we hope you will keep it up the trust of us for ever”.

The said e-mail was sent to several other persons. The contents of e-mail were offending. The information were false. The e-mail was also forwarded through the e-mail address of one Navin Rathore also who is resident of Guna (M.P.).

The said application was forwarded to the concerned Police Station for investigation and FIR was registered against Naveen Rathore and Ravindra Sharma for offence u/S 66A and 66E of the IT Act. During the course of investigation, the police investigated that the said e-mail was generated and forwarded form the Lap Top of the petitioner in CRMP No. 1107 of 2015 through the e-mail I.D. rnsharma756@gail.com. After investigation, police had filed challan against the both the petitioners for offence u/ 66A and 66D of the IT Act. After filing of the challan, the Criminal Case No. 1121 of 2015 (State of Chhattisgarh Vs. Arun Raj T. and another) in pending in the Court of Judicial Magistrate First Class, Durg, District – Durg (C.G.).

So far as offence under Section 66A of the IT Act is concerned, Mr. Alok Bakshi, learned counsel for the petitioner in CRMP No. 1107 of 2015, referring to the judgment passed by the Hon’ble Supreme Court in the case of Shreya Singhal v. Union of India reported in (2015) 5 SCC 1, submits that the said provision has been declared ultra vires to the Constitution and therefore, is not sustainable any further against the present petitioner. So far as offence under Section 66D of the IT Act is concerned, he submits that taking into consideration the nature of allegation levelled against the petitioner which is of generating e-mail message from the e-mail ID of one Ravindra Sharma and circulating the same among the senior level office bearers and the party to which the respondent No.2 belongs, the offence of cheating is not made out. He further submits that apart from the Section 66D of the IT Act, no offence under Indian Penal Code has been charged against the present petitioner. It is further submitted that as the petitioner is a Class-I officer of the Central Government, Department of Archeology, the proceedings before the learned Magistrate, registration of offence and filing of challan against the petitioner deserves to be quashed on the solitary ground that sanction, as required under Section 197 Cr.P.C., has not been taken by the prosecution.

On the other hand, Ms. Priyanka Mehta submits that the respondent No.2 has filed an application under Section 91 Cr.P.C. for taking additional document on record which has been obtained by respondent No.2 under R.T.I. and the same pending before the learned trial Court for consideration.

Since Section 197 of Cr.P.C. hereby quotes as under :

“197. Prosecution of Judges and public servants. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the lime of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:

Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article section 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted.

Explanation — For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section376AB, section 376C, section 376D, section 376DA, section 376DB or section 509 of the Indian Penal Code.

(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union whole acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of Sub-Section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that Sub-Section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted.

(3A). Notwithstanding anything contained in Sub-Section (3),no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.

(3B). Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon.

(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge,Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.

Question of sanction as per Section 197 Cr.P.C. can be raised at the time of framing of charge and it can be decided prima facie of the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage and referring to the present case, challan has already been filed and the trial is pending, therefore, the Court deems it proper to be adjudicated by the trial Court.

Section 66A of of the IT Act, reads as follows :

“66A. Punishment for sending offensive messages through communication service, etc.--Any person who sends, by means of a computer resource or a communication device,--

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device;

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.

Explanation.--For the purposes of this section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.

Considering the facts and circumstances of the case and in the light of judgment passed by the Hon’ble Supreme Court in the case of Shreya Singhal (supra), by which, the provision under Section 66A of the IT Act has been declared ultra vires to the Constitution. In present case, there has been no connivance with essential of Section 66A of the IT Act and the therefore, punishment under Section 66A cannot be attracted. Hence, the trial, so far as it relates to Section 66A of the IT Act is concerned, the same is quashed.

Section 66D of of the IT Act, reads as follows :

“Punishment for cheating by personation by using computer resource. - Whoever, by means for any communication device or computer resource cheats by personating, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees.”

So far offence under Section 66D of the IT Act is concerned materials which have been collected during course of investigation has to be tested and proved by the prosecution during the course of trial and at this stage only prima facie offence is to be examined and from perusal of the materials available on record, it cannot be said that no offence under Section 66D of the IT Act is disclosed against the present petitioner. It transpires from the evidence collected during the course of investigation that personation was done by using computer resource i.e., e-mail was sent and thus, the ingredients of offence under Section 66D are fulfilled, hence, this Court directs the trial under Section 66D of the IT Act to proceed against the petitioners and be concluded expeditiously.

With the aforesaid observations, both the petitions are partly allowed.

Interim orders granted earlier stands vacated.

Registry is directed to send a copy of this order to the trial Court concerned for necessary information and compliance forthwith.