Yogesh Goswami vs State Of Uttarakhand And Another

Ravindra Maithani, J

Challenge in the instant petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, "the Code") is charge-sheet dated 22.08.2020, cognizance/summoning order dated 05.09.2020 and entire proceeding of Criminal Case No.2031 of 2020, State vs. Yogesh Goswami (for short, "the case"), under Sections 354(D)(1)(ii), 509 of IPC and Section 67 of the Information Technology (Amendment) Act, 2008 (for short, "I.T. Act"), Police Station Mallital, Nainital, District Nainital, pending in the court of Chief Judicial Magistrate, Nainital.

Briefly stated, the facts necessary to resolve the controversy is that the respondent no.2 ("the informant") filed an FIR on 26.11.2019 at Police Station Mallital, Nainital under Sections 354(D)(1)(ii), 509 of IPC and Section 67 of the I.T. Act. According to it, on 24.09.2019, someone forwarded obscene videos on the facebook account of the informant. She requested the sender not to send messages, but the sender talked to her in objectionable manner and used filthy languages. The messages were sent through an ID "Yogi Boy Yogi". After investigation, charge-sheet was filed in the case under Sections 354(D)(1)(ii), 509 of IPC and Section 67 of the I.T. Act. On 05.09.2020, cognizance was taken and the petitioner was summoned to answer the accusation, this is how the proceedings of the case was instituted. It is this charge-sheet and the cognizance order which is under challenge along with the entire proceedings of the case.

Heard learned counsel for the petitioner and perused the record.

Learned counsel for the petitioner would submit that no case is made out against the petitioner. The mobile phone by which allegedly objectionable messages were sent does not belong to the petitioner. There is no forensic report, which may connect the petitioner with the offence. In addition to it, learned counsel would submit that cognizance order is passed without application of mind in a routine and mechanical manner, it does not reveal that the charge-sheet was perused by the Court before taking cognizance and issuing summon.

Learned State counsel would submit that it is an offence against the State. The mobile phone, by which, the messages were sent was recovered from the possession of the applicant. After investigation, charge-sheet has been submitted against the petitioner. Prima facie case is disclosed against the petitioner and the cognizance order has been passed after perusal of all the materials available on record. Therefore, he would submit that no interference is warranted.

The informant is present in-person. She would submit that earlier the petitioner had filed a criminal writ petition, in which, he had admitted that he sent the messages accidently to her.

Admittedly, taking cognizance is not a routine and mechanical fact on the part of the court. It is the petition under Section 482 of the Code. The jurisdiction is too wide, to prevent abuse the process of any court or to give effect to any order or otherwise to secure the ends of justice, but the jurisdiction is guided by the principles as laid down in various judgments. In the case of State of Haryana and Others Vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335, the Hon'ble Supreme Court discussed the jurisdiction under Section 482 of the Code and observed as hereunder:-

"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 channelised 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."

These principles have been repeatedly followed subsequently. It is settled law that if prima facie case is made out, a legitimate trial should not be stopped at the threshold. What is being argued is that no case is made out against the petitioner.

In so far as cognizance is concerned In the case of Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, 1998 SCC (Cri) 1400, Hon'ble Supreme Court considered the aspect of summoning of an accused in a criminal case and held as hereunder:-

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

In the settled position of law, this matter may be examined. The FIR categorically reveals commission of cognizable offence and it is the case that after investigation, charge-sheet was submitted against the petitioner. The copy of the charge-sheet has been filed along with the petition as Annexure no.2. A perusal of it reveals that, in fact, after lodging of the FIR, the Investigating Officer contacted the facebook and he was informed about three mobile phone numbers involved in sending messages to the informant. They were belonging to Shiv Nagar Colony, Police Station Khurja, District Bulandshahr, Uttar Pradesh. The Investigating Officer visited the place and according to the charge-sheet, from the possession of the petitioner, one of the mobile phones was recovered, which was used for forwarding obscene messages to the informant. There were other mobile phones also, which were in the name of the friends of the petitioner. The forensic evidence as such has not been included in the charge-sheet. What is stated is that the recovered mobile phone has been sent for forensic examination.

The messages were sent through facebook and the Investigating Officer inquired from facebook, thereafter, he got the details of the mobile phones and one of the mobile phones was recovered from the possession of the petitioner and the other mobile phones were belonging to his friends. It connect the petitioner to the crime. The order taking cognizance is dated 05.09.2020, reveals that it is not passed in a routine and mechanical manner. The Court has observed that it perused the documents and, thereafter, a detailed order has been passed, as is expected at the stage of taking cognizance. The Court found that a prima facie case is made out against the petitioner.

The Investigating Officer found material against the petitioner and submitted charge-sheet against him. Although, while recovering the mobile phone from the custody of the petitioner, the Investigating Officer also recorded that the petitioner confessed his guilt.

During the course of arguments, the informant herself would submit that in another writ petition, the petitioner has admitted to have forwarded obscene messages to her and in that petition he had taken the excuse that the messages were sent accidently. During the course of arguments, it has not been rebutted by the petitioner.

Having considered all the facts under the circumstance of this case, this Court is of the view that it is not a case fit for any intervention and the petition is deserves to be dismissed at the stage of admission.

The criminal petition is dismissed in limine.