We suggest you to not panic, but act on right time. You have the legal rights against the imposter. Report it to the local authorities before it gets late. We are also here to help you, contact us, and we'll do our best to help you.Read the below case to know more about such humiliation, and your legal rights and remedies.
Criminal Petition No. 257 of 2011
For the Petitioner :- H.R.A. Choudhury, Md. Giash Uddin, Md. M.J. Quadir and S.Y. Admed, Advocates.
For the Respondent :- H. Buragohain, C.G.C.
For the Opposite Parties/Respondent :- Ms. T. Khro, Government Advocate, Nagaland.
For the Amicus Curiae :- Z. Kamar, Advocate.
Criminal Procedure Code, 1973, Section 482 - Indian Penal Code, 1860, Sections 500, 506, 507 and 509 - Information Technology Act, 2000, Sections 66-A, 66-E and 67-A - Offence under the Information and Technology Act - Petition for quashment of F.I.R. and charge-sheet - Every police officer of the rank of Inspector of Police or above that is competent to investigate an offence under the I.T. Act - It is not necessary that he should be specially empowered by the Central Government to investigate the offences under that Act - A reading of F.I.R. as a whole and the facts alleged therein constitute offences under the I.P.C. as well as under the I.T. Act - No case for quashing made out - Petition dismissed. [Paras 12 to 23]
Cases Referred :
1. Kailash Chandra Pareek v. State of Assam, 2003 (10) AIC 566.
2. Latif Ahmed Bin Hussain v. State of Assam, 2003 (7) AIC 704.
3. R.P. Kapoor v. State of Punjab, AIR 1960 SC 866.
4. State of Bihar v. Mohd. Khalique, (2002) SCC 652 = 2002 (44) ACC 587 (SC).
5. State of Haryana v. Bhajanlal 1992 Supp(1) SCC 335 = 1991 (28) ACC 111 (SC).
I.A. Ansari, J. - With the help of this petition, made under section 482 of the Code of Criminal Procedure, read with Article 227 of the Constitution of India, the petitioner, who is accused in G.R. Case No. 135/2011, arising out of Demapur East Police Station Case No. 73/2011, under section 500/506/507/509, I.P.C., read with section 66-A/66-E/67- A of the Information Technology Act, 2000 (hereinafter referred to as 'the I.T. Act'), has sought to get set aside and quashed the first information report, which has given rise to the case aforementioned, and the charge-sheet, which has been submitted on completion of investigation into the case.
2. I have heard Mr. H.R.A. Choudhary, learned Senior Counsel, appearing on behalf of the petitioner, and Ms. T. Khro, learned Government Advocate, Nagaland, appearing for the respondent No. 2. Heard also Mr. H. Buragohain, learned Central Government Advocate appearing on behalf of respondent No. 1, and Mr. Z. Kamar, learned Counsel, appearing as amicus curiae,
3. Making this Court traverse through various provisions of the I.T. Act, Mr. Choudhury, learned Senior Counsel, contends that section 81 of the Act makes it clear that the I.T. Act has been given overriding effect over other penal enactments including the Code of Criminal Procedure. Taking a queue from section 81, that the I.T. Act has an overriding effect, as indicated hereinbefore, Mr. Choudhury refers to section 45 of the I.T. Act to show that the power to try an offence, under the I.T. Act, rests with the adjudicatory authorities mentioned in Chapter IX of the I.T. Act.
4. While considering the above submission, made on behalf of the accused-petitioner, it needs to be noted that Chapter IX runs under the heading, 'Penalties, Compensation and Adjudication'. Sections 43, 43-A, 44, 45, 46 and 47, contained in Chapter IX, embody a scheme for adjudication of various disputes/controversies, which may arise, leading to compensation, penalty, award, etc., for the damage, which may be sustained. Chapter IX does not set any condition precedent for attracting the provisions of Chapter XI, which embodies various offences, which the I.T. Act creates.
5. The question, therefore, which falls for determination is : Who is the competent authority to try offences under Chapter XI of the I.T. Act?
6. There can be no dispute that the I.T. Act is a special Act and, in terms of the provisions of section 4 of the Code of Criminal Procedure, read with section 81 of the I.T. Act, the offences, under the I.T. Act, shall be investigated, inquired into, tried and, otherwise, dealt with according to the provisions contained in the Code of Criminal Procedure, subject to, however, any provision(s), which may be contained in the I.T. Act, indicating otherwise.
7. The first schedule to the Code of Criminal Procedure divides the entire Code into two parts, viz., part-I and Part-II. Part-I deals with offences under the Indian Penal Code and specifies as to whether a given offence is cognizable or non-cognizable, bailable or non-bailable, and who is competent to try the offence, whether a Magistrate or a Court of Session. Part-II deals with other laws, which, obviously, means and includes special penal acts, such as, the I.T. Act. Part-II classifies the offences into cognizable, non-cognizable, bailable and non-bailable, depending, substantially, upon the length of imprisonment prescribed for a given offence. Even the question as to who can by an offence, under a special law is answered by Part-II on the basis of the length of imprisonment prescribed. For instance, if an offence is punishable with imprisonment for less than three years or with fine only, such an offence is non-cognizable, bailable and triable by any Magistrate: whereas, if an offence is punishable with imprisonment for three years and upwards but not more than seven years, then the offence is cognizable, non-bail-able and is triable by a Magistrate of First Class and, if an offence is punishable with death, imprisonment for life, or imprisonment for more than seven years, the offence is cognizable, non-bailable and is triable by a Court of Session.
8. Admittedly, the I.T. Act does not specify as to who would or which Court would try the offences, which the I.T. Act has created. A close examination of the offences, which have been created in Chapter IV of the I.T. Act, shows that the offences are punishable either by imprisonment up to three years or with fine, or with both, but some of the offences are punishable by imprisonment of seven years and even imprisonment for life.
9. Considering the fact that the offences, which have been mentioned under Chapter XI, are all punishable with imprisonment for three years and above, there can be no escape from the conclusion that all these offences are cognizable offences and, being cognizable offences, the police is competent to register the offences and investigate the same, the only limitation being that a police officer in order to be competent to investigate the case, must be of the rank of, at least, an Inspector.
10. Assailing the legality of the investigation and also the filing of the charge-sheet, Mr. Choudhury, learned Senior Counsel, has also referred to section 80 of the I.T. Act to contend that unless an officer is empowered by the Central Government or the State Government, as the case may be, he is not competent to investigate an offence under the I.T. Act. For the purpose of correctly appreciating the submissions, so made, let me reproduce sub-section (1) of section 80 of the I.T. Act, which reads as under :
- "80. Power of police officer and other officers to enter, search, etc.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974, any police officer, not below the rank of an Inspector, or any other officer of the Central Government or a State Government authorized by the Central Government in this behalf may enter any public place and search and arrest without warrant any person found therein who is reasonably suspected of having committed or of committing or of being about to commit any offence under this Act."
12. In the present case, since the petitioner has sought for quashing of the F.I.R. as well as the charge-sheet, it needs to be pointed out that as far as the law, with regard to quashing of F.I.R. is concerned, it is no longer res integra. A catena of judicial decisions has settled the position of law on this aspect of the matter. In this regard, reference may be made to the case of R.P. Kapoor v. State of Punjab, AIR 1960 SC 866. wherein the question, which arose for consideration, was whether a first information report can be quashed under section 561-A of the Code of Criminal Procedure, 1898. The Court held. on the facts before it, that no case for quashing of the proceeding was made out; Gajendragadkar, J., speaking for the Court, observed that though, ordinarily, criminal proceedings instituted against an accused must be tried under the provisions of the Code, there are some categories of cases, where the inherent jurisdiction of the Court can and should be exercised for quashing the proceedings. One such a category, according to the Court, consists of cases, where the allegations in the F.I.R. or the complaint, even if they are taken at their face value and accepted in their entirely, do not constitute the offence alleged, in such cases, no question of appreciating evidence arises and it is a matter of merely looking at the F.I.R. or the complaint in order to decide whether the offence alleged is disclosed or not. In such cases, said the Court, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the Criminal Court to be issued against the accused. From the case of R.P. Kapoor (supra), it becomes abundantly clear that when a mere look into the contents of a complaint shows that the contents of the complaint, even if taken at their face value and accepted to be true in their entirety, do not disclose commission of offence, the complaint shall be quashed.
13. As a corollary to what has been discussed above, it is also clear that if the contents of the F.I.R./complaint constitute offence, such a complaint cannot be quashed.
14. Laying down the scope of interference by the High Court in matters of quashing of F.I.R. or complaint, the Apex Court in the leading case of State of Haryana and others v. Bhajanlal and others 1992 Suppl(1) SCC 335 = 1991 (28) ACC 111 (SC). laid down as follows :
- "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter-XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the inherent powers under section 482 of the Code, which we have extracted and reproduced above, we give the following categories of cases by way of illustration, wherein such power could be exercised either to prevent abuse of the process of the any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines of rigid formulae and to give an exhaustive list of myriad kinds of cases, wherein such power should be exercised-
- (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirely, do not prima facie constitute any offence or make out a case against the accused.
- (2) Where the allegations made in the first information report and other materials, if any. accompanying the F.I.R. do not disclose a cognizable offence justifying an investigation by police officers under section 1 56 (1) of the Code except under an order of a Magistrate within the purview of section 155 (2) of the Code.
- (3) Where the uncontroverted allegations made in the F.I.R. or complaint and evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
- (4) Where the allegation in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155 (2) of the Code.
- (5) Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
- (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which criminal proceeding is instituted) to the institution and continuance of the proceedings and or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party.
- (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance of the accused and with a view to spite him due to private and personal private grudge."
- "103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extra-ordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."
(Emphasis is added)16. It is clear from a close reading of the principles laid down in the case of R.P. Kapoor (supra) and Bhajanlal (supra) that broadly speaking, quashing of a first information report or a complaint is possible, (a) when the allegations made in the first information report or the complaint, even if taken at their face value and accepted in their entirely as true, do not prima facie constitute any offence or make out a case against the accused; (b) when the uncontroverted allegations made in the F.I.R. or complaint and evidence collected in support of the same do not disclose the commission of any offence and/or make out a case against the accused; and (c) when the allegations made in the F.I.R. or complaint are so absurd and inherently improbable that on the basis of such absurd and inherently improbable allegations, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
17. In other words, when the allegations made in a complaint disclose commission of an offence, such a complaint cannot be quashed by relying upon some other materials on which will depend the defence of the accused, for, in such cases, truthfulness or otherwise of the allegations contained in the complaint or the probability of the defence plea can be determined only by effective investigation or at the trial. I am also guided to take this view from the case of State of Bihar and another v. Mohd. Khalique and another, (2002) SCC 652 = 2002 (44) ACC 587 (SC). wherein the Apex Court, while dealing with the quashing of F.I.R., observed as follows :
- "7. In Bhajanlal case, this Court has also held that the power of quashing a criminal proceeding should be exercised sparingly and with circumspection and that too in the rarest of rare cases. The present case is not rarest of rare case.
- 8. In view of the settled legal position and as offences have been disclosed in the F.I.R., the High Court ought not to have interfered with the investigation and should have permitted the police to complete it. We, accordingly, hold that the High Court has committed a grave error in quashing the entire proceedings and ought not to have thwarted the prosecution."
- (See also:- Latif Ahmed Bin Hussain v. State of Assam. 2003 (7) AIC 704 and Kailash Chandra Pareek v. State of Assam. 2003 (10) AIC 566
19. In the case at hand, the F.I.R., which has become the basis for registration of the case, reads
- The Officer-in-Charge,
- East Police Station,
- Dimapur, Nagaland.
- Sub : F.I.R.
- I have the honour to state that in the month of June, 2009, 1 got a phone call during my class hours from a friend of mine, namely, Pritam Ghosh, claiming to have seen obscene pictures of me in a social networking site (Face book). I immediately went to an internet cage to check if what my friend said was true. To my disbelief I found my pictures on a profile that claimed to be mine with certain disturbing details of me, which claimed to be true, i.e.,. that I am a thief, a call girl and I had a "three some gang bang".
- Upon investigating further, I found out the disturbing fact that this profile was created by the brother of a friend of mine (Richa Saraswat). This fellow and I had a brief relationship of 2 months, which I ended and he did not take it very well. When, I approached him about the profile he finally denied it but later came clean and afterwards said he is even proud of what he has done. It has been more than a year and a half and during this time he has created a total of 3 fake profiles that I am aware of, but this is just what he has done to me for the world to see. Now I will tell you what I went through personally. I was confident, cheerful girl but became a tortured soul. Everywhere I went, I was questioned, mocked at and even sneered at. Needless to say I was stressed both physically and emotionally. I started sleeping lesser and eating even lesser. There was time when I never even saw the light of day, I would stay cooped up in my room the whole day without food or sleep for day. This horrific incident has not only affected me but my family and friends as well. I have been under such a great deal of emotional trauma that finally at the end of 2009, I started seeing a psychologist. I could not concentrate on my studies and as a result had to drop out of university It has been awhile but the scars are still fresh.
- Getting back to the case in hand, the person responsible for this dreadful crime is Shashwat Kumar, right now an unemployed merchant navy officer. According to him the only reason he is doing this is because I refused to marry him and if he cannot have me then he will make sure no one else will want to have me. This is why he is tarnishing my name in the hope that someday when I cannot bear this humiliation I will go back to him.
- He has gone to the extent of hacking into my e-mail id (shadocat scratch @ yahoo.co.in) and an account I had closed long time back in facebook and uses it to send vulgar messages to my friends and strangers claiming to be me.
- He even has the audacity to call me till date and ask me to be his friend forever or his wife or to love him, if I comply to his demands he says he will remove the profiles and delete all degrading comments and contents.
- The cell phone number he uses to call me through my sister's and mothers numbers is 9430235480. He is from Patna, Bihar. His sister, through whom I got to know him while studying in Kolkata, is currently studying in National Law School, Bangaluru. He, along with his parents currently resides in Patna University campus.
- I have substantial evidence like voice recording, proving him to be the mastermind behind the fake profiles where he is impersonating the identity of 2 individuals named Abhi and Nick who are supposedly trying to track me down to retrieve their cash and diamond bracelet that they claim I have stolen from them when they hired me as an escort for a party. I also have messages where he has threatened to kill me and destroy me life. The photographs that he has uploaded in these fake profiles are pictures that he had taken when we were together. He has also sent messages disrespecting all girls from my region calling us 'whores' and 'chinky'.
- I do agree that I have been silent about this matter for a long time hoping it would eventually lie down but now that he has been adding the whole of Nagaland, threatening to tarnish not only my name but my family's as well I have decided to stand up and fight him because I have nothing to hide and be ashamed of.
- So please Sir, help me punish this man for all the wrong he has done against me and my loved ones, for all the pain and doubt he has put us through and help us move on without lives again. I hope the information I have provided has proved to me sufficient.
- I look forward to co-operating with you fully in the future should the need arise.
(Zena Marie Kire)
D/O David Kire,
Burma Camp United North Block 'A'
#9436006632"20. When the contents of the F.I.R. are read as a whole, it clearly emerges that the facts, alleged therein, constitute offences not only under the Indian Penal Code, but also under the I.T. Act. The present one is not a case, where the facts, as alleged in the F.I.R., do not disclose commission of any offence if the same are assumed to be true. Further-more, being covered by Part-II of the first schedule of the code, the offences are as already indicated above, triable in accordance with the classification made under Part-II of the first schedule of the Code of Criminal Procedure. In such circumstances, the question of quashing of the F.I.R. does not arise.
21. As far as the issue of quashing of the present charge-sheet is concerned, no infirmity, in the investigation, could be pointed out, which would have impelled this Court to quash the charge-sheet. In fact, the charge-sheet has been sought to get quashed on the ground, as indicated above, that the procedure, prescribed in Chapter-IX, has not been followed. In this regard, suffice it to point out that this Court has already indicated above that recourse to Chapter-IX is not a precondition for registration of an offence by the police or for investigation thereof leading to trial of the accused.
22. Situated thus, it becomes clear that the present application has no substance and must, necessarily, fail.
23. In the result and for the foregoing reasons, this criminal petition fails and the same shall accordingly stand dismissed.
Petition Accordingly Dismissed.