Dr. Sunil Agarwal vs The State Of Madhya Pradesh Thr
2022 Latest Caselaw 3747 MP

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               High Court Of Madhya Pradesh
                           Bench Gwalior
                       *****************
       SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

                    MCRC 17797 of 2018

                       Dr. Sunil Agarwal
                              Vs.
                     State of MP and Anr.

             ==============================
Shri RK Sharma, learned Senior Counsel with Shri Ankur
Maheshwari, counsel and Shri MK Chaudhary, Counsel for the
petitioner.
Smt. Abha Mishra, Public Prosecutor for the respondent No.1/
State.
Shri AK Upadhyay, counsel for the respondent No.2.
            ==============================
                           ORDER

(Passed on 16/03/2022)

Per Rajeev Kumar Shrivastava, J

By invoking the inherent power of this Court, the present

petition under Section 482 of CrPC has been preferred by

petitioner seeking quashment of FIR vide Crime No.543 of 2015

registered at Police Station Kampoo, Gwalior for offence under

Section 354-A of IPC and under Section 67 of the Information and

Technology Act, 2000 [in short '' the IT Act''] and subsequent

criminal proceedings initiated in connection with RCT

No.1418/2017, pending before the Court of JMFC, Gwalior.

(2) Facts giving rise to present petition in short are that on

14/10/2015, the complainant herein respondent No.2 lodged a

written report at Police Station Kampoo against the petitioner, who

is severing as a doctor in GR Medical College, Gwalior and she

submitted an application to DIG, Women Crime Branch Gwalior

stating therein that she is a Computer Operator in a private

company situated at Karol Bag, New Delhi and she knew the

petitioner because petitioner had treated and operated her elder

brother 11-12 years ago. It is alleged that she was having a cyst on

her stomach which was suspected to be Tuberculosis. Since the

petitioner was known to her family members, therefore, the

complainant was advised to be treated by the petitioner. During

treatment, the petitioner had given his Cell number to complainant

for intimating him if she needs any medical attention. Petitioner

also asked her to provide information if necessary by whats-app.

On 18/04/2015, the petitioner sent message as well as on

26/04/2015 again sent obscene photographs to the complainant

and the complainant tried to avoid the same and later informed

her sister and father about the obscene messages as well as

photographs being sent by the petitioner. The petitioner used to

send obscene messages as well as photographs and wants to

exploit the complainant sexually as a result of which, the

complainant suffered mentally. On the advice of her elder sister,

complainant made a complaint before the Police Inspector General,

Women Crime Cell and informed the incident. Complainant's

father contacted one Mr. Prakash Braru, Advocate for filing a

petition before the High Court, where the said Advocate charged

the amount of fees of Rs.5,000/- and asked complainant and her

father to come on the next date and her father paid Rs.3,500/- to

said Prakash Braru who got her signatures on some blank papers

and stamps. Thereafter, on the next date, when complainant with

her father went to the Office of said Advocate, the petitioner and

his wife were present there. At there, the petitioner and his wife

abused complainant and her father and threatened them of their

life. They have also threatened that in case, the complainant does

not withdraw the petition against the petitioner, they have obtained

certain signed letters typed in stamp papers which can be used

against her. On the basis of impugned FIR, offence has been

registered against the petitioner under Section 354-A of IPC and

Section 67 of the IT Act.

(3) It is contended on behalf of the petitioner that the petitioner is

innocent and has not committed any offence alleged against him.

Earlier, the Additional Superintendent of Police has made a report

regarding the incident to Superintendent of Police wherein he had

given the details reflecting that there had been exchange of

messages by petitioner and complainant and later on, both of them

entered into compromise. Since matter in dispute is compoundable,

but compromise could not be finalized. It is further contended that

the complainant is a major lady working as a computer operator in

a private company at Karol Bag, New Delhi. She is not an illiterate

lady and was in contact with the petitioner for several months. The

petitioner is a respected person and Assistant Professor in GR

Medical College, Gwalior and he is having no criminal record. Due

to act of the complainant, the future prospects of the petitioner may

be spoiled. It is further contended that on perusal of messages

exchanged between the complainant and the petitioner reveals that

it was the complainant who initially made conversation on

10/04/2015 and sent 12 messages. On 26 th April, the complainant

sent six messages and on 28 th April, again sent five messages to the

petitioner which indicates that the complainant sent messages to

the petitioner informing him that she was emotionally attached by

the petitioner, therefore, exchange of messages is also not

admissible in evidence as they are not duly certified by the

authority concerned. A false and fabricated story has been created

by the complainant by lodging the impugned FIR and the entire

prosecution story is based only on the electronic evidence and

there is no valid certificate under Section 65 of the Evidence Act,

therefore, the said evidence is not admissible. In support of

contention, learned Senior Counsel for the petitioner has relied

upon the judgment of the Hon'ble Apex Court in the matter of

Anvar P.V vs P.K. Basheer & Ors reported in (2014) 10 SCC 473

wherein Hon'ble Supreme Court has held that for any electronic

evidence to be admissible in its secondary form, it is necessary to

meet the mandatory requirements of Section 65-B which includes

giving a certificate as per terms of Section 65B (4), at the time of

proving the record and not anytime later failing which the

electronic record will be considered inadmissible. It is further

contended that while bringing on record the electronic information

which is copied by the mode of magnetic media as is the case

where electronic audio data contained in the cellphone was

transferred into a compact disk with the help of a computer, the

application filed by the interested party who wants such evidence

to come on record, should be supported by an affidavit containing

necessary recitals regarding scrupulous compliance of sub-

section(2) of Section 65-B of the Evidence Act. To buttress his

contention, learned Senior Counsel has further relied on the

judgment of this Court in the matter of Deepankar Bhattacharya

vs State of Madhya Pradesh passed on 23 August, 2018 in

MCRC 3038 of 2018, reported in 2019(1) MPWN 38. It is further

contended that where the allegations do not disclose prima facie

case and the prosecution of accused would result in abuse of

process, then the proceedings can be quashed either at early stage

or at later stage. In support of contention, the learned Senior

Counsel has relied on the judgment of the Hon'ble Apex Court in

the case of Satish Mehra vs. State (NCT of Delhi) and Another,

reported in (2012) 13 SCC 614.On these grounds, the impugned

FIR as well as charge sheet & other subsequent criminal

proceedings initiated thereof, deserves to be quashed.

(4) On the other hand, the State Counsel as well as counsel for

Complainant opposed contentions of the petitioner and submitted

that there is serious allegation against the petitioner. The petitioner

is a Medical Officer by profession working in the Government

Hospital and the complainant is a major and literate lady working

as a Computer Operator at Karol Bag, New Delhi. Looking to the

allegations, prima facie, an offence is made out against the

petitioner. No interference is called for quashing the impugned

FIR as well as charge sheet & other subsequent criminal

proceedings initiated in connection with aforesaid Crime. Hence,

prayed for dismissal of this petition.

(5) Considered the rival contentions of the learned Counsel for

the parties and perused the documents available on record.

(6) On perusal of the entire record, it appears that if the entire

allegations made against the petitioner are accepted as they are,

then it cannot be said that the petitioner has committed any

offence. It is clarified that if a person needs to state in certificate or

affidavit that the same is the best of his or her knowledge and

belief, most importantly, such a certificate or affidavit must

accompany electronic record like present one i.e. cellphone

pertaining to which the statement of complainant is sought to be

given in evidence when the same is produced in evidence. In

absence of any obscene photograph in the charge sheet, the

exchange of messages between the petitioner and the complainant

is also not admissible in evidence because they are required to be

duly certified by the authority concerned in compliance of

provisions of Section 65-B of the Evidence Act. In the case at

hand, it was the complainant who is a major lady, solicited the

conversation and demanded photographs from petitioner in order

to prove her evidence. On perusal of the messages exchanged

between the petitioner and complainant reveals that it was the

complainant who initially made conversation on 10/04/2015 and

sent 12 messages. On 26th April, the complainant sent six messages

and on 28th April, again sent five messages to the petitioner which

indicates that the complainant sent messages to the petitioner

informing him that she was emotionally attached by the petitioner,

therefore, exchange of messages is also not admissible in evidence

as they are not duly certified by the authority concerned. Thus, no

prima facie offence is made out against the petitioner.

(7) Accordingly, exercising the inherent powers of this Court

under Section 482 of CrPC, the present petition stands allowed.

The impugned FIR as well as charge sheet and other subsequent

criminal proceedings initiated in connection with Crime No. 543 of

2015 registered at Police Station Kampoo, District Gwalior and

proceedings pending before the Court of JMFC, Gwalior in

connection with RCT No.1418 of 2017 stand quashed.

(8) A copy of this order be sent to the police station concerned

as well as the Court below for necessary information.

(Rajeev Kumar Shrivastava) Judge

MKB

Digitally signed by MAHENDRA BARIK Date: 2022.03.16 17:14:33 +05'30'