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2013 Supreme(UK) 642
THE HIGH COURT OF UTTARAKHAND AT NAINITAL
U.C. Dhyani, J.
Hari Krishna Bhatt - Applicant
Versus
State of Uttarakhand - Respondent
Criminal Misc. Application (C-482) No. 739 of 2009
Decided On : September 24, 2013
Advocate Appeared:
Mr. Prashant Khanna, Advocate for the applicant
Mr. P.S. Saun, AGA with Mr. S.S. Adhikari, Brief Holder for the respondent State
The main legal point established is that for an offense to be established, there must be sound and reasonable material to support the allegations, and the court should prevent the abuse of its process.
Headnote:
Information Technology Act - Quashing of Criminal Proceedings - Section 292, 294 of IPC, Section 67 of the Information Technology Act
Fact of the Case:
The applicant sought to quash the charge-sheet and proceedings of a criminal case under Sections 292, 294 of IPC and Section 67 of the Information Technology Act. The case involved the preparation of an obscene video clip and the alleged transmission of the same.
Finding of the Court:
The court found that there was no evidence of the accused-applicant publishing or transmitting the obscene material, and thus, the charges under Section 67 of the Information Technology Act and Section 294 of IPC were not applicable.
Issues: The issues revolved around the interpretation of the legal provisions under Section 67 of the Information Technology Act and Section 294 of IPC, and whether the accused-applicant's actions constituted an offense.
Ratio Decidendi: The court applied the principles outlined by the Hon’ble Supreme Court in Rajiv Thapar and others vs. Madan Lal Kapoor and Amit Kapoor vs Ramesh Chander, emphasizing the need for sound and reasonable material to establish the offense and the prevention of abuse of the court's process.
Final Decision: The court allowed the application under Section 482 of Cr. P.C. and quashed the charge-sheet, summoning order, and proceedings of the criminal case.
U.C. Dhyani, J.
The applicant, by means of present application / petition under Section 482 of Cr. P.C., seeks to quash the charge-sheet dated 03.05.2009, summoning order dated 11.06.2009 as well as the proceedings of criminal case no. 457 of 2009, State vs Hari Krishna Bhatt under Sections 292, 294 of IPC and Section 67 of the Information Technology Act, pending in the court of Chief Judicial Magistrate, Chamoli.
2) Mr. Nakli Singh, Station House Officer, police station Chamoli, District Chamoli lodged an FIR bearing case crime no. 23 of 2009, under Sections 292, 294 of IPC against the accused-applicant on 03.02.2009. After the investigation, a charge-sheet for the offences punishable under Section 292, 294 of IPC and Section 67 of the Information Technology Act was filed against two accused persons, including the applicant. Aggrieved against the submission of charge-sheet, present application under Section 482 of Cr. P.C. was filed by the applicant namely, Hari Krishna Bhatt.
3) According to FIR, an informer informed the Police Inspector, police station, Chamoli that accused Hari Krishna Bhatt has prepared a video clip of his intimate relationship with a woman. Police Inspector operated the said CD in computer and found that the picturisation contained obscene acts. When the Investigating Officer took the statement of Police Inspector, the Police Inspector said that the accused-applicant prepared the video clip, copies of which are available with many a persons. When Police Inspector inquired about the same from the accused-applicant, he said that he prepared the CD with his wife. Accused-applicant also said that somebody stole the CD from his computer and made the same available to others.
4) A bare perusal of the FIR, as also the statement of the Police Inspector, nowhere revealed that the accused-applicant published or transmitted or caused to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. Even if it be presumed for the sake of argument that such CD was prepared by the accused-applicant, the fact remains that the same was never published or transmitted or caused to be published or transmitted to any person by the accused-applicant. At the most, the said CD was prepared by the accused-applicant with his wife, but never made the contents of the same public so as to attract the punishment under Section 67 of the Information Technology Act, 2000. There is, therefore, no reason to cause annoyance to others so as to attract Section 294 of IPC either.
5) Hon’ble Supreme Court, in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330 has desired the High Courts to follow the following steps while dealing with applications under Section 482 of Cr. P.C. The same reads as under:
• Step one: Whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
• Step two: Whether the material relied upon by the accused would rule out the assertions contained in the charges leveled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
• Step three: Whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
• Step four: Whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
6) Hon’ble Supreme Court has provided guideline that if the reply to the aforesaid four steps is in the affir
