Birendra Kumar Jha S/O Sri Hari Nath Jha vs State Of Assam Rep. By The PP

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Gau) 190

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Kalyan Rai Surana, J.
Birendra Kumar Jha S/O Sri Hari Nath Jha - Petitioner
Versus
The State Of Assam Rep. By The PP, And Anr. – Respondents
Crl.Pet./1005 OF 2022
Decided On : 01-03-2023

Advocates:
Advocate Appeared:
For the Petitioner: Mr. D Bora

Headnote:
Criminal procedure Code, 1973 - Section 482, 397 – Indian Penal Code, 1860 - Sections 419, 471, 193, 506, 292 - Information Technology Act, 2000 - Sections 66, D, 81, 67 - Impersonated a fake identity - Forged document - Fabricating false evidence - Petitioner has prayed for quashing of proceedings - Held, Court ought not to marshal record with a view to decide admissibility and reliability of records - However, on examining materials available on record, Court is unable to hold that prosecution materials available on record is so absurd that no person trained in law would accept that ingredients of offence for which petitioner is made an accused, was totally absent - As prosecution under section 419 IPC and section 66D of IT Act is concerned, if learned trial Court, on perusal of evidence finds that investigation was not carried out by a competent police officer, it would definitely have power to pass appropriate order, by taking note of legal provisions that may be placed by learned counsel representing petitioner - Case of (a) Mohd.Nizam(supra), and (b) N.Santhosh (supra), would not have better persuasive value - Now coming to case of Sharat Babu Digumarti (supra), cited by learned counsel for petitioner is concerned, case was decided on question which arose in that case as to whether appellant who was discharged under section 67 of IT Act could be proceeded against under Section 292 IPC - Said question does not arise in this case because charges are yet to be framed - Petition dismissed.

JUDGMENT :

Heard Mr. B.K. Mahajan, learned counsel for the petitioner. Also heard Mr. D.P. Goswami alongwith Mr. Bankim Sarma and Mr. Bhaskar Sarma, learned APP for the State respondent no.1 as well as Mr. N. Deka, learned counsel for the respondent no.2.

2. By filing this criminal petition filed under section 482 Cr.P.C., the petitioner has prayed for quashing of the proceedings of PRC No. 2574/2022, arising out of Noonmati PS Case No. 265/2022 under sections 419/471/193/506 IPC read with sections 66 and 66D of the Information Technology Act, 2000 (IT Act for short).

3. The learned counsel for the petitioner had extensively referred to the FIR dated 02.06.2022, lodged by the then Chief General Manager (HR) on behalf of Indian Oil Corporation Limited, Guwahati Refinery. By extensively referring to the provisions under which the case was registered, it was submitted that if at all the allegations were true, the petitioner had merely impersonated a fake identity, but the ingredients of cheating by personation (sec.419 IPC), using as genuine a forged document (section 471 IPC), giving or fabricating false evidence in a judicial proceeding (section 193 IPC), criminal intimidation (section 506 IPC), hacking with computer system (section 66 IT Act), and cheating by personation by using computer resource (section 66D IT Act) were not present in this case. It was also submitted that the computer related crime can only be investigated by a police of the rank of Inspector, but in this case, the FIR reveals that the investigation was carried out by a police officer of the rank of Sub-Inspector. Accordingly, it was submitted that this was a fit case for quashing the complaint.

4. It was also submitted that as per section 81 of the IT Act, the said Act would have an overriding effect. Hence, it was submitted that in view of the provision of section 66D of the IT Act, the case would not proceed under section 419 IPC.

5. In support of his contention, reliance has been placed on the following cases, viz., (i) Sharat Babu Digumarti v. Government (NCT of Delhi), (2017) 2 SCC 18, (ii) Mohd. Nizam v. State of U.P. & Anr., 2017 SCC Online All 3017, (iii) N. Santhosh v. State by Basavanagudi Police, Crl. Rev. Petition No. 994/2015, decided by Karnataka High Court on 23.03.2016.

6. The learned Addl. P.P. has made his submissions. The learned counsel for the respondent no. 2 has also made his submission and has placed reliance on the case of (i) R.A.H. Siguran v. Shankare Gowda @ Shankara & Anr., (2017) 16 SCC 126, (ii) State of M.P. v. Chunnilal @ Chunni Singh, (2009) 12 SCC 649, and (iii) H.N. Rishbud and Inder Singh v. State of Delhi, AIR 1955 SC 196.

7. Perused the materials available on record and the cases cited by the learned counsel for the petitioner and the respondent no.2 have been given due consideration.

8. As per the statement made in the instant petition, charge-sheet has been submitted by the I.O. and the learned trial Court had taken cognizance of the offence. No statement has been made as to whether charges have been explained and/or whether charges have been framed.

9. It may be stated at the outset that in the said FIR, in short, it was stated that in the month of April, 2022, a complaint dated 01.04.2022 was received by the Director (R) through an e-mail mentioned therein, purportedly by one Monika Anand with certain allegations against the employees of the Guwahati Refinery that they have disproportionate assets and were engaged in illegal gratification and taking bribes. The Corporation sought for supporting documents, but by e-mail dated 05.05.2022, the said complainant had refused to provide documents in support of the allegations. Amongst other statements, it was also stated that it was suspected that the complaint was sent by a person by concealing his identity with fake e-mail identity and impersonated as Monika Anand. Therefore, request was made for investigating the matter.

10. The petitioner was one of the employees of the Indian