Delhi High Court
Shahjahan @ Shahjan Sheikh @ Tunu vs State (Nct Of Delhi) on 20 July, 2017
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: July 20, 2017
+ CRL.REV.P. 427/2017
SHAHJAHAN @ SHAHJAN SHEIKH @ TUNU ..... Petitioner
Through: Mr.Aditya Deshwal, Advocate.
versus
STATE (NCT OF DELHI) ..... Respondent
Through: Mr.Kewal Singh Ahuja, APP
for the State with SI Anand
Singh, Spl. Cell, NDR, Lodhi
Colony
PRATIBHA RANI, J. (Oral)
ORDER
% 20.07.2017
Crl.M.A.9708/2017
1. For the reasons stated in the application, delay of 42 days in
filing the petition is condoned.
2. The application is disposed of.
CRL.REV.P. 427/2017
1. This revision petition has been filed under Section 397/401
Cr.P.C. assailing the order dated 16th January, 2017 whereby the
petitioner/accused has been ordered to be charged for committing
offence punishable under Section 120-B IPC read with Section
489B/489C IPC.
2. Learned counsel for the petitioner submitted that the charge
framed against the present petitioner is groundless. The calls could
not have been intercepted without permission which in itself is an
offence under the Indian Telegraph Act, 1885.
3. Learned counsel for the petitioner is also seeking discharge on
the ground that the case against the present petitioner is based on the
disclosure statement made by the co-accused which in itself is not
admissible in evidence. It has also been contended that the FIR in
this case has been registered on 20th June, 2013 whereas the
petitioner/accused Shahjahan @ Shahjan Sheikh @ Tunu was arrested
on 25th March, 2013 after investigation in this case has already been
completed. Supplementary charge-sheet has been filed against the
present petitioner and further investigation was conducted under the
orders of the Court. The supplementary charge-sheet was filed on
15th December, 2016 against the petitioner/accused Shahjahan @
Shahjan Sheikh @ Tunu as per which five deposit slips were used to
deposit the amount in the account of the petitioner/accused by the
co-accused.
4. Learned counsel for the petitioner has also referred to the
discrepancy in the deposit slip seized by the investigating agency and
date of telephonic conversation. It has been contended that the
material collected by the prosecution against the present
petitioner/accused was not sufficient to frame the charge against him,
hence he may be discharged.
5. Learned APP for the State has submitted that as per disclosure
statement of the co-accused he used to deposit money in the Axis bank
account of the present petitioner/accused Shahjahan @ Shahjan
Sheikh @ Tunu and the petitioner/accused used to provide fake
currency notes. Second bank account with ICICI bank
No.0471201502610 is also in the name of the petitioner/accused and
the nature of the transactions in these two accounts show that these
accounts were being used for pumping and circulation of FICN in the
country.
6. This Court has perused the record including the evidence
collected by the prosecution and reflected specifically in the
supplementary charge-sheet filed by the petitioner.
7. The main contention raised on behalf of the petitioner is about
the interception of call being done in contravention of the provisions
of Section 25 of the Indian Telegraph Act, 1885 and that the same is
inadmissible. This issue has been dealt with by the Supreme Court in
the decision reported as R.M.Malkani vs. State of Maharashtra AIR
1973 SC 157 as under:
"15. Four questions were canvassed in this appeal. The first
contention was that the trial Court and the High Court erred in
admitting the evidence of the telephonic conversation between
Dr. Motwani and the appellant which was recorded on the tape.
The evidence was illegally obtained in contravention of Section
25 of the Indian Telegraph Act and therefore the evidence was
inadmissible. Secondly, the conversation between Dr. Motwani
and the appellant which was recorded on the tape took place
during investigation inasmuch as Mugwe asked Dr. Motwani to
talk and therefore the conversation was not admissible Under
Section 162 of the CrPC. The third contention was that the
appellant did not attempt to obtain gratification. Fourthly, it
was said that the sentence of six months imprisonment should
be interfered with because the appellant has already paid Rs.
10,000 as fine. The appellant suffered heart attacks and
therefore the sentence should be modified.
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17. Section 25 of the Indian Telegraph Act 1885 states that if
any person intending (b) to intercept or to acquaint himself
with the contents of any message damages, removes, tampers
with or touches any battery, machinery, telegraph line, post or
other thin whatever, being part of or used in or about any
telegraph or in the working thereof he shall be punished with
imprisonment for a term which may extend to three years, or
with fine, or with both. "Telegraph" is defined in the Indian
Telegraph Act in Section 3 to mean any appliance, instrument,
material or apparatus used or capable of use for transmission
or reception of signs, signals, writing, images and sounds or
intelligence of any nature by wire, visual or other electro-
magnetic emissions, radio waves or Hertzian waves, galvanie,
electric or magnetic means.
18. Counsel for the appellant submitted that attaching the tape
recording instrument to the telephone instrument, of Dr.
Motwani was an offence Under Section 25 of the Indian
Telegraph Act. It was also said that if a Police Officer
intending to acquaint himself with the contents of any message
touched machinery or other thing whatever used in or about or
telegraph or in the working thereof he was guilty of an offence
under the Telegraph Act. Reliance was placed on rule 149 of
the Telegraph Rules which states that it Shall be lawful for the
Telegraph Authority to monitor or intercept a message or
messages transmitted through telephone, for the purpose of
verification of any violation of these rules or for the
maintenance of the equipment. This Rule was referred to for
establishing that Only the Telegraph Authorities could intercept
message under the Act and Rules and a Police Officer could
not.
19. In the present case the High Court held that the telephone
call put by Dr. Motwani to the appellant was tapped by the
Police Officers, and, therefore, there was violation of Section
25 of the Indian Telegraph Act. But the High Court held that
the tape recorded conversation was admissible in evidence in
spite of the violation of the Telegraph Act.
20. The Police Officer in the present case fixed the tape
recording instrument to the telephone instrument with the
authority of Dr. Motwani. The Police Officer could not be said
to intercept any message or damage or tamper or remove or
touch any machinery within the meaning of Section 25 of the
Indian Telegraph Act. The reason is that the Police Officer
instead of hearing directly the oral conversation between Dr.
Motwani and the appellant recorded the conversation with the
device of the tape recorder. The substance of the offence Under
Section 25 of the Indian Telegraph Act is damaging, removing,
tampering, touching machinery battery line or post for
interception or acquainting oneself with the contents of any
message. Where a person talking on the telephone allows
another person to record it or to hear it it can-not be said that
the other person who is allowed to do so is damaging,
removing, tampering, touching machinery battery line or post
for intercepting or acquainting himself with the contents of any
message. There was no element of coercion or compulsion in
attaching the tape recorder to the telephone. There was no
violation of the Indian Telegraph Act. The High Court is in
error on that point.
21. This Court in Shri N. Sri Rama Reddy etc. v. Shri V. V. Giri
MANU/SC/0333/1970 : [1971]1SCR399 , Yusufalli Esmail
Nagree v. The State of Maharashtra MANU/SC/0092/1967 :
1968CriLJ103 and S. Pratap Singh v. The State of Punjabi
MANU/SC/0272/1963 : (1966)ILLJ458SC accepted
conversation or dialogue recorded on a tape recording machine
as admissible evidence. In Nagree's case the conversation was
between Nagree and Sheikh. Nagree was accused of offering
bribe to Sheikh."
8. The principles governing discharge under Section 239 Cr.P.C.
and for framing of charge under Section 240 Cr.P.C. have been
considered by the Supreme Court in catena of judgment. In the
decision reported as Sheoraj Singh Ahlawat & Ors. vs. State of U.P.
& Anr. 2013 Cri.LJ 331, in a matrimonial dispute, the discharge was
sought by the husband and parents-in-law contending that the
provisions of Section 498A IPC is a much abused provision to falsely
implicate, harass and humiliate the husband and his relatives.
Discharge was prayed on the ground that there was an inordinate delay
in filing the complaint and the statements of the witnesses recorded
under Section 161 Cr.P.C. were contradictory in nature and the two
Investigating Officers found the allegations to be false. Thus, there
was no reason for the Court to believe the story set up by the
complainant/wife. While negating the contentions raised by the
husband and in-laws it was held:
"10. The case at hand being a warrant case is governed by
Section 239 of the Code of Criminal Procedure for purposes
of determining whether the accused or any one of them
deserved to be discharged. Section 239 is as under:
239. When accused shall be discharged.
If, upon considering the police report and the
documents sent with it under Section 173 and
making such examination, if any, of the accused
as the Magistrate thinks necessary and after
giving the prosecution and the accused an
opportunity of being heard, the Magistrate
considers the charge against the accused to be
groundless, he shall discharge the accused, and
record his reasons for so doing.
11. A plain reading of the above would show that the Court
trying the case can direct discharge only for reasons to be
recorded by it and only if it considers the charge against
the accused to be groundless. Section 240 of the Code
provides for framing of a charge if, upon consideration of the
police report and the documents sent therewith and making
such examination, if any, of the accused as the Magistrate
thinks necessary, the Magistrate is of the opinion that there is
ground for presuming that the accused has committed an
offence triable under Chapter XIX, which such Magistrate is
competent to try and which can be adequately punished by
him. The ambit of Section 239 Code of Criminal Procedure
and the approach to be adopted by the Court while exercising
the powers vested in it under the said provision fell for
consideration of this Court in Onkar Nath Mishra and Ors. v.
State (NCT of Delhi) and Anr. MANU/SC/0134/2008 : (2008)
2 SCC 561. That too was a case in which a complaint under
Sections 498-A and 406 read with Section 34 of the Indian
Penal Code was filed against the husband and parents-in-law
of the complainant-wife. The Magistrate had in that case
discharged the accused under Section 239 of the Code of
Criminal Procedure, holding that the charge was groundless.
The complainant questioned that order before the Revisional
Court which directed the trial Court to frame charges against
the accused persons. The High Court having affirmed that
order, the matter was brought up to this Court. This Court
partly allowed the appeal qua the parents-in-law while
dismissing the same qua the husband. This Court explained
the legal position and the approach to be adopted by the
Court at the stage of framing of charges or directing
discharge in the following words:
11. It is trite that at the stage of framing of charge the court is
required to evaluate the material and documents on record
with a view to finding out if the facts emerging therefrom,
taken at their face value, disclosed the existence of all the
ingredients constituting the alleged offence. At that stage, the
court is not expected to go deep into the probative value of the
material on record. What needs to be considered is whether
there is a ground for presuming that the offence has been
committed and not a ground for convicting the accused has
been made out. At that stage, even strong suspicion founded
on material which leads the court to form a presumptive
opinion as to the existence of the factual ingredients
constituting the offence alleged would justify the framing of
charge against the accused in respect of the commission of
that offence.
(Emphasis supplied)
12. Support for the above view was drawn by this Court from
earlier decisions rendered in State of Karnataka v. L.
Muniswamy MANU/SC/0143/1977 : 1977 Cri.LJ 1125, State
of Maharashtra and Ors. v. Som Nath Thapa and Ors.
MANU/SC/0451/1996 : 1996 Cri.LJ 2448 and State of M.P. v.
Mohanlal Soni MANU/SC/0434/2000 : 2000 Cri.LJ 3504. In
Som Nath's case (supra) the legal position was summed up as
under:
if on the basis of materials on record, a court could come to
the conclusion that commission of the offence is a probable
consequence, a case for framing of charge exists. To put it
differently, if the court were to think that the accused might
have committed the offence it can frame the charge, though
for conviction the conclusion is required to be that the
accused has committed the offence. It is apparent that at the
stage of framing of a charge, probative value of the materials
on record cannot be gone into; the materials brought on
record by the prosecution has to be accepted as true at that
stage.
(Emphasis supplied)
13. So also in Mohanlal's case (supra) this Court referred to
several previous decisions and held that the judicial opinion
regarding the approach to be adopted for framing of charge is
that such charges should be framed if the Court prima facie
finds that there is sufficient ground for proceeding against the
accused. The Court is not required to appreciate evidence as
if to determine whether the material produced was sufficient
to convict the accused. The following passage from the
decision in Mohanlal's case (supra) is in this regard apposite:
8. The crystallized judicial view is that at the stage of framing
charge, the court has to prima facie consider whether there is
sufficient ground for proceeding against the accused. The
court is not required to appreciate evidence to conclude
whether the materials produced are sufficient or not for
convicting the accused.'
9. After summarizing the legal position on the subject, the Apex
Court held that whether or not the allegations are true, is a matter
which cannot be determined at the stage of framing of charge. Any
such determination can take place only at the conclusion of the trial.
While answering the contention of the petitioner that Section 498A
IPC is a much abused provision and declining the prayer for discharge,
it was observed as under:-
"Whether or not those allegations are true is a matter
which cannot be determined at the stage of framing of
charges. Any such determination can take place only at
the conclusion of the trial. This may at times put an
innocent party, falsely accused of commission of an
offence to avoidable harassment but so long as the legal
requirement and the settled principles do not permit a
discharge the Court would find it difficult to do much,
conceding that legal process at times is abused by
unscrupulous litigants especially in matrimonial cases
where the tendency has been to involve as many members
of the family of the opposite party as possible. While such
tendency needs to be curbed, the Court will not be able to
speculate whether the allegations made against the
accused are true or false at the preliminary stage to be
able to direct a discharge."
10. In the instant case, perusal of the chargesheet shows that the
investigation revealed the present petitioner Shahjahan to be the
master mind of the syndicate dealing in FICN. Their calls were
incepted, the language used by them decoded, the recoveries effected
pursuant to the disclosure statement made by the co-accused as well
from the petitioner and the cash transactions in his bank accounts.
11. The material collected during investigation has been detailed in
the chargesheet (as reflected on page Nos.54 to 58 of this petition). It
is not necessary to reproduce all the details of the material against the
present petitioner for the reason that it is not a case based only on
disclosure statement as contended before this Court so as to hold that
charge against him is groundless.
12. Since the order impugned does not suffer from any illegality or
infirmity, the review petition is hereby dismissed.
13. Any observation made herein above is only for the purpose of
dealing with the contentions raised on behalf of the petitioner and
shall not be deemed to be an expression on the merits of the case by
the learned Trial Court at any stage.
Crl.M.A.9709/2017
In view of the above, the application is dismissed as
infructuous.
PRATIBHA RANI, J.
JULY 20, 2017
'hkaur'
