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GAUHATI HIGH COURT (Aizawl Bench)
M.R. Pathak, J.
State of Mizoram - Petitioner
Versus
Sh. K. Chhawnthuama - Respondent
Criminal Revision Petition No. 1 of 2015
Decided On : 26-02-2016
Subject
Criminal Law - Offences Against Public Order
Act Referred
CRIMINAL PROCEDURE CODE : S.399(3), S.397(3), S.202, S.173, S.239, S.240, S.482, S.395, S.396, S.397, S.398, S.399, S.400, S.401, S.402, S.403, S.404, S.405
INDIAN PENAL CODE : S.503, S.171(g), S.201, S.204, S.506, S.507
INFORMATION TECHNOLOGY ACT : S.66(A), S.66(B)
Headnote
Constitution of India,1950 - Articles19(1)(a) and 19(2) - Indian Penal Code,1860 - Sections 171G., 201/204/506/507 - Information Technology Act - Sections 66A (a) & (b), 66A (a) & (b) – Criminal Procedure Code,1973 - Sections 399, 482, 397 , 397(3) and 173 - Investigating authority was seized - Prosecutor for the prosecution - Mizoram Assembly Election - Prima facie materials - Alleging that he indulged in certain malpractices during last concluded Assembly Election and said FIR informant requested O.C. concerned to take appropriate legal action against perpetrator of said serious crime - FIR registered and numbered as Aizawl PS Case No. Sections 171G IPC read with Sections 66A (a) & (b) of Information Technology Act - During investigation, a mobile handset of NOKIA bearing IMEI said malicious SMS was presumed to be sent as per investigating authority seized from house of accused respondent and later, said accused was arrested in connection with said case - On completion of investigation, police vide number filed Charge-sheet in said Aizawl PS Case Sections 201/204/506/507 IPC read with Sections 66A (a) & (b) of IT Act against accused/appellant - Public Prosecutor for prosecution and counsel for defence and consideration of matter - Magistrate by its order passed in Criminal Trial No. arising out of said Aizawl PS Case framed charges under Section 201 IPC read with Sections 66A (a) & (b) of I.T. Act against accused respondent - Trial Magistrate Charge-sheet disclose any prima facie materials - Alleged charges of guilty of offences under Sections 201/506/507 of IPC and accordingly dropped those charges against accused respondent – Held, Magistrate on consideration of reports documents available before him, being prima facie satisfied, did not frame charge Sections 506 & 507 of IPC against accused respondent since a criminal Court would frame charge only if to his prima facie satisfaction there are grounds for presuming that accused have committed offence alleged against him - Court to alter charge against respondent accused - It is a settled law that inherent powers of Court Section 482 of Criminal Procedure Code are to be exercised only in cases where Court or it is necessary to pass orders in order to secure ends of justice - Courts have exercised their discretion in a legal manner found that Trial Magistrate by applying his judicious mind did not frame charge under Sections 506 & 507 IPC, it would not be appropriate to exercise inherent powers in such a situation and to set aside impugned orders - It is seen that Trial Magistrate while issuing impugned Order in Criminal Trial No. considered all materials available before him carefully - After considering submissions - Reasoning of Trial Magistrate - Court is of considered opinion approach adopted by Trial Magistrate cannot be termed as either materially irregular or contrary to law – Court would not be justified either to exercise its inherent power or to exercise its revisional jurisdiction to interfere with impugned orders passed by Judicial Magistrate, 1st Class, Aizawl in Criminal Trial No. in not framing charges under Sections 506 & 507 IPC against accused respondent as well as order passed by Additional Sessions Judge in Criminal Revision No. by which it upheld said decision of Trial Magistrate – Petition is dismissed
For the Petitioner: Ashok Kumar Rokhum, PP.
For the Respondents:L.H. Lianhrima, Sr. Advocate and H. Lalmalsawmi, Advocate.
M.R. Pathak, J.
Heard Mr. A.K. Rokhum, learned Public Prosecutor, Mizoram appearing for the petitioner and Mr. L.H. Lianhrima, learned senior counsel assisted by Ms. H. Lalmalsawmi, learned counsel appearing for the accused respondent.
2. Brief fact of the case is that on 13.12.2013 the informant (present Chief Minister of the State) lodged a written FIR before the Officer-in-Charge of Aizawl Police Station stating that around 07:00 pm on 11.12.2013, he received a malicious SMS from a Mobile Phone No. 8575891878' alleging that he indulged in certain malpractices during the last concluded Mizoram Assembly Election and by the said FIR the informant requested the O.C. concerned to take appropriate legal action against the perpetrator of the said serious crime. Accordingly, the said FIR was registered on 14.12.2013 and was numbered as Aizawl PS Case No. 373/2013 under Sections 171G IPC read with Sections 66A (a) & (b) of the Information Technology Act. During investigation, a mobile handset of NOKIA E72 bearing IMEI No. 353784040626139 from which said malicious SMS was presumed to be sent as per the investigating authority was seized from the house of the accused respondent on 13.12.2013 and later, on 17.12.2013 the said accused was arrested in connection with the said case. On completion of the investigation, police vide number 64/2014 dated 06.03.2014 filed the Charge-sheet in the said Aizawl PS Case No. 373/2013 under Sections 201/204/506/507 IPC read with Sections 66A (a) & (b) of the IT Act against the accused/appellant.
3. After hearing the Public Prosecutor for the prosecution and the counsel for the defence and after consideration of the matter, finding prima facie materials in the said Charge-sheet, learned Judicial Magistrate, 1st Class, Aizawl, the Trial Magistrate by its order dated 26.05.2014 passed in Criminal Trial No. 2195/2013 arising out of said Aizawl PS Case No. 373/2013, framed charges under Section 201 IPC read with Sections 66A (a) & (b) of the I.T. Act against the accused respondent, but at the same time the Trial Magistrate came to an opinion that the Charge-sheet does not disclose any prima facie materials to frame the alleged charges of guilty of offences under Sections 201/506/507 of the IPC and accordingly dropped those charges against the accused respondent.
4. Being aggrieved with the aforesaid order of the Trial Magistrate, the Petitioner State preferred a Criminal Revision Petition under Section 399 Cr.P.C. before the learned Sessions Judge, Aizawl, which was registered as Criminal Revision No. 27/2014 with a prayer to set aside the said order of the Trial Magistrate dated 26.05.2014 with regard to the dropping of Sections 201, 506 & 507 of the IPC against the accused respondent. The said matter on being transferred was taken up for consideration by learned Additional Sessions Judge, Aizawl.
5. The Revisional Court after hearing the parties, going through the records, Charge-sheet etc. and following the decision of the Hon'ble Supreme Court in the case of Roshan Lal v. State of Punjab reported in AIR 1965 SC 1413 came to a finding that there is a material ground to charge the accused respondent under Section 201 IPC but upheld the decision of the Trial Magistrate with regard to the discharge of the Sections 506 & 507 IPC and hence, came to a conclusion that the order dated 26.05.2014 of the Trial Magistrate requires interference. Accordingly, the Revisional Court of learned Additional Sessions Judge, Aizawl by its Order dated 23.02.2015 passed in said Criminal Revision No. 27/2014 set aside the order dated 26.05.2014 of the Trial Magistrate passed in Criminal Trial No. 2195/2013 and directed him to frame charges against the accused respondent under Sections 201/204 of IPC and Sections 66A (a) & (b) of the I.T. Act, 2000.
6. The Petitioner State not being satisfied with the aforesaid decision of the learned Revisional Court preferred this petition under Section 482 Cr.P.C. read with Sections 397
