Simranjit Singh Gill vs State Of U.P. And Another
2021 Latest Caselaw 1744 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on - 21.1.2021
 
Delivered on - 29.1.2021
 

 
Case :- APPLICATION U/S 482 No. - 1107 of 2021
 
Applicant :- Simranjit Singh Gill
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Pragya Pandey,Mehul Khare
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Factual matrix of the case are that :-

1.01. Applicant - Simranjit Singh Gill married to Prabhjot Kaur on 18.12.2015, who was his batch mate in College. A girl child was born out of their wedlock on 3.8.2017.

1.02. Within a period of two years, their relations got strained and she left her matrimonial house along with her daughter in June, 2017. A petition for restitution of conjugal right u/s 9 of Hindu Marriage Act, filed by applicant, is pending before the Court of Principal Judge, Family Court, Amritsar.

1.03. Prabhjot Kaur (wife of applicant) lodged First Information Report bearing Case Crime No.0046 of 2019 u/s 406 and 498-A IPC, Police Station - Women, Amritsar against applicant and his family members where Punjab and Haryana High Court at Chandigarh has stayed arrest of applicant by order dated 18.2.2020.

1.04. Thereafter, brother of the wife of applicant (Sandeep Singh) lodged First Information Report dated 25.11.2018 against applicant u/s 67 of Information and Technology Act, 2000 (hereinafter referred as 'the Act, 2000'), P.S. - Sector 49 NOIDA, alleging that after her sister left her matrimonial house, applicant started sending him abusive and highly vulgar messages about his sister, wife and mother. Applicant used abusive and vulgar words on phone and he also called her wife and threatened her.

1.05. After investigation, police submitted charge sheet dated 6.11.2019 against the applicant u/s 504/506 IPC and Section 67 of the Act, 2000 on which Chief Judicial Magistrate, NOIDA took cognizance and passed summoning order dated 13.12.2019.

1.06. Being aggrieved, applicant has approached this Court challenging above referred charge-sheet dated 6.11.2019, summoning order dated 13.12.2019 as well as the entire proceedings of aforesaid case.

2. Submission on behalf of the applicant -

2.01. Ms. Pragya Pandey, learned counsel for the applicant submitted that present criminal proceedings are motivated and maliciously initiated with ulterior motive to harass the applicant.

2.02. Learned counsel further contended that in the facts and circumstances of case, no offence is made out u/s 67 of the Act, 2000 as in the present case neither there is any publication nor transmission of any material in the electronic form which tend to deprive and corrupt persons as it was allegedly only between applicant and first informant, nor any other person or persons has occasioned to saw it and further, learned counsel relied upon a judgment dated 11.4.2017, passed by a co-ordinate bench of this Court in Amlendu Rai vs. State of U.P. and Another passed in U/s 482/378/407 No.1351 of 2016, wherein it has been held that if there is no allegation that accused published or transmitted any obscene material in electronic form, no offence under Section 67 of the Act, 2000 is made out.

3. Shri Abhai, learned A.G.A. for the State opposed the submission and contended that from bare perusal of contents of First Information Report, essential ingredients of Section 67 of the Act, 2000 are made out. Applicant has transmitted text messages in electronic form to first informant which are lascivious and obscene, which tend to deprive and corrupt persons who are likely to read, see or hear the contents. Learned counsel further submitted that even in a case where there is likelihood of reading of obscene material by any person, such offence u/s 67 of the Act, 2000 is made out.

4. Discussion and Conclusion.

4.01. Law on Inherent powers of the High Court u/s 482 Cr.P.C. could be explained in following words :-

I)The inherent power of the High Court under section 482 CrPC, is with the purpose and object of advancement of justice, which is to be exercised 'to give effect to any order under the CrPC', or 'to prevent abuse of process of any court', or 'to secure ends of justice', making arena of the power very wide, yet it is to be exercised sparingly, carefully and with caution, that too in the rarest of rare cases.

II)It is no more res integra that exercise of inherent power could be invoked to even quash a criminal proceeding/FIR/Complaint/charge sheet, but only when allegation made therein does not constitute the ingredients of the offence/offences and /or are frivolous and vexatious on their face, without looking into defence evidence, however such power should not be exercised to stifle or cause sudden death of any legitimate prosecution. Inherent power does not empower the High Court to assume the role of trial court and to embark upon an enquiry as to reliability of evidence and sustainability of accusation, specifically in a case where the entire facts are incomplete and hazy, similarly the Supreme Court has not approved quashing of criminal proceedings by assessing the statements under section 161 CrPC at initial stage, scuttling a full fledged trial.

III)There can not be any straight jacket formula for regulating the inherent power of this Court, however the Supreme Court has summarised and illustrated some categories in which this power could be exercised in catena of judgments. Some of them are State of Haryana Vs Bhajan Lal : 1992 Supp (1) SCC 335, Zandu Pharmaceutical Works Ltd Vs Mohd Sharaful Haque: (2005) 1 SCC 122, Ahmed Ali Quarashi and Anr Versus The State of Uttar Pradesh : 2020 SCC Online SC 107, Joseph Salvaraja A v. State of Gujarat (2011) 7 SCC 59, Sushil Sethi and another Vs The State of Arunachal Pradesh and others (2020) 3 SCC, 240 and few categories are : allegations made in FIR / complaint / Chargesheet, if are taken at their face value and accepted do not prima facie constitute any offence or are so absurd and inherently improbable to make out any case or no cognizable offence is disclosed against the accused, criminal proceedings is maliciously instituted with an ulterior motive and with a view to spite the accused due to private and personal grudge, or where there is a specific legal bar engrafted in any of the provisions of the Code or in the concerned Act to the institution and continuance of the proceedings or when dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out.

IV)In Sau. Kamal Shivaji Pokarnekar v. The State of Maharashtra : (2019) 14 SCC 350 , the Apex Court has laid emphasis on the principles laid down in two of its previous judgements namely, State of Karnataka v. M. Devendrappa : 2015 (3) SCC 424 and Indian Oil Corporation v. NEPC India Ltd. & Ors.: (2006)6 SCC 736 and held that quashing of criminal proceedings is called for only when the complaint does not disclose any offence, or the complaint is frivolous, vexatious, or oppressive and further clarified that defences available during a trial and facts/aspects whose establishment during the trial may lead to acquittal cannot form the basis of quashing a criminal complaint. The criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature, if the ingredients of the alleged offence are prima facie made out in the complaint."

4.02. It is relevant to quote Section 67 of Information Technology Act, 2000 :-

"67. 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."

4.03 From careful reading of the contents of Section 67 of the Act of 2000, obscene material should be published or transmits or causes to be published in electronic form and in the present case, obscene text message is found to be transmitted from mobile phone of applicant to mobile phone of first informant, therefore, in the present case, there is transmission of obscene material, a copy of which is annexed to the present application which tends to deprive and corrupt, persons who are likely to read such messages which has been established during investigation and charge sheet is submitted.

As mentioned above, if the allegations are taken at their face value and accepted, prima facie constitute offence as alleged in First Information Report and charge sheet. Inherent powers of this Court could not be invoked. In the present matter, from the perusal of First Information Report and charge sheet, offences u/s 67 of the Act, 2000 and Section 504/506 IPC are prima facie constituted and ingredients of referred offences are present. As mentioned earlier, inherent power should not be exercised to stifle or to cause sudden death of any legitimate prosecution as in the present case and further judgment relied upon by counsel for applicant is not applicable in facts and circumstances of the present case.

4.04 In view of above discussion and looking to the facts and circumstances of present case, this Court is of the view that present case do not warrant invoking of inherent powers of this Court. Hence, present application is rejected.

Order Date : 29.1.2021

Rishabh

(Saurabh Shyam Shamshery, J.)