Rathnavath Dharmendar vs Rathnavath Gopal

This Criminal Petition is filed to quash the proceedings against petitioner/Accused in C.C.No.842 of 2021 on the file of I Additional Judicial First Class Magistrate, Khammam.

The case of the 1st respondent is that he is the father of the petitioner herein. He was married to the mother of the petitioner in the year 1983. However, divorce was given after two sons were born. Later the petitioner suspecting that his father did injustice to him and his mother, filed cases against 1st respondent- father. On 09.08.2020 between 14.00 hours to 21.00 hours the petitioner called the 1st respondent on phone 60 times and abused in filthy language. For the said reason, the 1st respondent went to the police station and lodged the complaint which was registered for the offence under Section 294(b) of IPC and Section 67 of the Information Technology Act.

The Police, Khammam II Town Police Station, filed charge sheet for the said offences and cognizance was also taken by the learned Magistrate.

Learned counsel appearing for the petitioner would submit that though there is a mention that petitioner called 60 times, the call details are not made available, as such, the version of the 1st respondent cannot be believed.

On the other hand, it was argued on behalf of the respondents that there was no necessity for the 1st respondent to lodge a false police complaint against the petitioner. Since he was threatening and called 60 times on phone within a span of seven hours on 09.08.2020 complaint had to be lodged.

Since the alleged threats and abusing was on phone, the offences under Section 294 (b) IPC and Section 67 of the I.T.Act are not attracted. For the sake of convenience, the same are extracted hereunder:

“[294. Obscene acts and songs.—Whoever, to the annoyance of others—

(a) …….

(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.”

“Section 67‐ Punishment for publishing or transmitting obscene material in electronic form. ‐ Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.”

To attract an offence under Section 294(b) of IPC, the utterances must be in or near public place. When the petitioner had called on phone, the question of uttering of abusing words in or near public place does not arise. Secondly, to attract an offence under Section 67 of the Information Technology Act, some material has to be transmitted or published containing sexual explicit material in electronic form. There is no such allegation of transmitting any such sexual explicit material but utterances were on phone. In the said circumstances, the offence under Section 67 of I.T.Act 2000 is also not attracted. There is no allegation of electronically transmitting any material which is lascivious or appealing to the prurient interests which tends to deprave and corrupt persons. Unless such material is transmitted electronically, the offence under Section 67 of the Act is not attracted.

Offence under Section 506 of IPC would be made out in the event of threatening any person with injury to the person, reputation or property. The 1st respondent, except saying that there were 60 telephone calls on the same day, however, did not specify what were the utterances made even during one phone call. Using unparliamentarily language and also threatening to kill, would not, prima facie attract an offence under Section 506 of IPC. However, the offence under Section 506 of IPC is non-cognizable offence. Though the police have investigated or registered the case for the offence under Section 67 of IT Act and also Section 294(b) of IPC, both the offences are cognizable, without taking permission, cannot be found fault with. The police while registering the crime ought to have examined the contents of the complaint and register the case under the appropriate provisions. When none of the ingredients of a penal provision are attracted, the police registering the case under such penal provision cannot be held to be proper. Since there is a bar under Section 155(2) Cr.P.C for the police to investigate any cognizable offence, this Court deems it appropriate to quash the proceedings in toto.

In the result, the proceedings against the petitioner/Accused in C.C.No.842 of 2021 on the file of I Additional Judicial First Class Magistrate, Khammam, are hereby quashed.

Accordingly, the Criminal Petition is allowed. As a sequel thereto, miscellaneous petitions, if any, shall stand closed.