Allahabad High Court
Vijay Veer Singh vs State Of U.P..And Another on 6 April, 2022
Bench: Syed Aftab Rizvi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 91
Case :- APPLICATION U/S 482 No. - 22815 of 2021
Applicant :- Vijay Veer Singh
Opposite Party :- State Of U.P..And Another
Counsel for Applicant :- Shailendra Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Syed Aftab Husain Rizvi,J.
Heard learned counsel for the applicant, learned AGA for the State and perused the material on record.
This criminal misc. application U/s 482 Cr.P.C. is filed to quash the judgment and order dated 16.08.2021 passed by learned Special Judge (E.C. Act)/ Additional Sessions Judge, court no.4, District Moradabad in Criminal Revision No. 207 of 2019 (Vijay Veer Singh vs. State of U.P. and another) and further to quash the order dated 25.07.2018 passed by learned Chief Judicial Magistrate, District Moradabad in Case No.16116 of 2016 arising out of case crime no.877 of 2016 under section 67 of I.T. Act, P.S. Civil Lines, District Moradabad.
The applicant is accused in the aforesaid case. The FIR was lodged against unknown persons by the complainant alleging therein that some unknown person is sending obscene messages on the mobile number of his sister, during course of investigation, the name of the applicant came in the light and the charge-sheet submitted. Applicant moved an application for discharge before the learned Magistrate who by the impugned order dated 25.07.2018 has rejected the aforesaid application. Aggrieved with it, the applicant preferred a criminal Revision No.207 of 2019 which has also been dismissed by the Special Judge (E.C. Act)/ Additional Sessions Judge court no.4 on 16.08.2021.
The contention of the learned counsel for the applicant is that as per the prosecution case, the CDR report reveals that in the mobile bearing IMEI No.353242047175600 mobile no. 9837272585 was also used on some occasions which was found to be registered in the name of the applicant. Thereafter police on 9.8.2016 arrested the applicant and recovered two mobiles from his possession and taken in its custody some screen shots of certain whats-app messages. However, perusal of the same, it would clearly show that no filthy messages was sent to the alleged victim. The applicant is absolutely innocent and has not committed any offence. As per the prosecution case, the alleged messages were sent on 01.08.2016 and till lodging of the FIR. Informant and the alleged victim had no knowledge about the person sending messages however, soon after lodging the FIR on 06.08.2016, they came to know about the complicity of the applicant and disclosed his name in their statement under section 161 Cr.P.C. which clearly shows that an absolutely false case has been built up against the accused-applicant. The mobile number mentioned in the FIR from which the alleged indecent message were sent to the victim were never recovered from the possession of the applicant nor was found to be registered in the name of the applicant. The perusal of recovery of the arrest memo further shows that mobile phones recovered from the applicant do not bear the IMEI numbers from which the obscene messages were sent to the victim. False recovery of mobile of the applicant has been shown. From the entire material available on record, it is evident that the police has failed to collect any filthy material or indecent photo for which the present case has been lodged. No offence under Section 67 of IT Act is made out. Absolutely malicious prosecution has been lodged against the applicant, to usurp Rs.5 lacs taken from the applicant. The impugned order passed by the learned court below are absolutely illegal and arbitrary and not sustainable in the eye of law. Learned court below has not considered the grounds taken by the applicant of his application.
Learned AGA contended that FIR was lodged in the name of unknown person. So there is no question of any malicious prosecution or false implication. During course of investigation, on the basis of CDR and other electronic evidence, the complicity of the accused applicant has come in the light, the mobile phone from which the indecent message was sent has been recovered from the possession of the accused applicant. So there is sufficient evidence against the accused applicant on the basis of which charge has been framed. There is no illegality or infirmity in the impugned orders passed by the courts below.
The FIR was lodged against unknown persons with particulars of mobile numbers from which and on which indecent message were send. On the basis of surveillance, CDR and other electronics modes, the complicity of the accused applicant has come into the light. The Investigating Officer has collected material evidence in this regard and charge-sheet on its basis has been submitted. So it cannot be said that there is no material evidence on the basis of which charge cannot be framed. The remaining arguments as assailed by the learned counsel for the applicant are matter of trial which cannot be considered and adjudicated at this stage in a proceeding under section 482 Cr.P.C. For framing charge, it is sufficient that the evidence available, if left uncorroborated will culminate into conviction or not. In this case, there is sufficient material to implicate the accused and hence there is sufficient ground to frame charge. There is no illegality or infirmity in the impugned orders. Learned Magistrate has rightly rejected the aforesaid application. Learned revisional court has agreed with the findings of the learned Magistrate.
Accordingly, this application U/s 482 Cr.P.C. is devoid of merits and is hereby dismissed.
Order Date :- 6.4.2022
C. MANI
