Offences under Section 420 IPC and Section 66 of IT Act not made out; RPGO offences non-cognizable

JUDGMENT

Dinesh Mehta, J. - By way of the instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') the petitioner has challenged the FIR No. 248/2021 registered against him at Police Station Sadul Shahar, Sri Ganganagar for the offences under Section 420 of Indian Penal Code; under Sections 3 & 4 of the Rajasthan Public Gambling Ordinance, 1949 (hereinafter referred to as the 'RPGO') and Section 66 of Information & Technology (Amendment) Act, 2008 (hereinafter referred to as the 'IT Act').

2. Mr. Verma, learned counsel for the petitioner after reading the contents of the FIR, vehemently argued that no offence punishable under Section 420 of IPC can be said to have been made out against the petitioner, as there is no allegation of cheating.

3. It is also argued that no one has complained of being cheated and surprisingly it is the SHO concerned, who has registered the FIR on the basis of search, which was made at petitioner's residential house on 11.10.2021.

4. It was also argued by learned counsel that maybe, ingredients of offence punishable under Sections 3 & 4 of the RPGO are present, but since the sentence prescribed for such offences is less than three years, these offences are non-cognizable and the police cannot directly register the FIR.

5. Mr. Bhurat, learned Public Prosecutor, on the other hand, argued that substantial amount of cash was found and seized during the course of search, which shows that the petitioner has cheated many people by way of alluring them to take part in the betting activities, which is otherwise illegal.

6. He argued that since prima-facie an offence punishable under Section 420 IPC was committed, the SHO concerned was justified in registering the FIR even for the offences under Sections 3 & 4 of RPGO and 66 of the IT Act.

7. Heard learned counsel for the parties and perused the material available on record, including the FIR.

8. A perusal of the FIR reveals that during the course of search the petitioner was found engaged in functioning as a bookie/broker for facilitating betting in cricket matches and during search six mobile phones, one TV, a note book containing accounts and cash of Rs. 7,700/- was seized.

9. Without expressing any opinion about petitioner's involvement or guilt qua the offences under Sections 3 & 4 of the RPGO, this Court cannot ignore this position that there are no traces of cheating.

10. Neither any person purportedly been cheated has approached the police raising grievance nor has anyone been claimed to have been cheated. On the basis of facts narrated in the FIR, which has been registered at the instance of none other than a police officer, it cannot be said that petitioner is guilty of cheating punishable under Section 420 of IPC.

11. Similar is the position qua the offence under Section 66 of the IT Act, which is also not made out.

12. Sections 66 and 43 of the IT Act read thus:

"66. Computer related offences. -If any person, dishonestly or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both.

Explanation. -For the purposes of this section,-

(a) the word "dishonestly" shall have the meaning assigned to it in section 24 of the Indian Penal Code (45 of 1860);

(b) the word "fraudulently" shall have the meaning assigned to it in section 25 of the Indian Penal Code (45 of 1860)."

43. [Penalty and compensation] for damage to computer, computer system, etc.- If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network,-

(a) accesses or secures access to such computer, computer system or computer network [or computer resource];

(b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removab