High Court
Facts
(1) Cri. Application No. 1688-2020.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 1688 OF 20201.Moiz Ahmed S/o Abdul Razzak,Age : 45 Years, Occ. Business,R/o. Umar Colony, Degloor Naka,Nanded 2.Mohd. Samir S/o Moiz Ahmed,Age : 20 Years, Occ. Business,R/o. As above. Applicants (Ori. Accused Nos 2 & 3)VERSUS1.The State of MaharashtraThrough Police StationNanded2.X. Y. Z. .. Respondents (Resp. No.2 is ori. Complainant) ….Advocate for the applicants : Mr. B. N. Gadegaonkar A.P.P. for Respondent No.1 State : Mr. S. A. GaikwadAdvocate for Respondent No.2 : Mr. J.M. Murkute …..CORAM :SMT. VIBHA KANKANWADI AND ROHIT. W. JOSHI, JJ.DATED : DECEMBER 06, 2024JUDGMENT (Per Rohit W. Joshi, J.):-1.The applicants in the present matter are accused Nos. 2 and 3 inR.C.C. No. 681 of 2021 pending on the file of learned Additional ChiefJudicial Magistrate Court No.4 Nanded. The said Criminal case isregistered pursuant to First Information Report registered with PoliceStation Nanded, District Nanded, for the offences punishable under (2) Cri. Application No. 1688-2020.odtSections 354,354-C, 506 read with Section 34 of the Indian PenalCode (Herein after referred to as” IPC” for brevity) vide Crime No.00560 of 2020 dated 23.07.2020. After the lodging the said FirstInformation Report, the police authority has conducted investigationin the matter and filed final report before the learned Magistrate videCharge Sheet No. 241 of 2021 dated 19.06.2021. Initially, the presentFirst Information Report was lodged against the present applicants.However, during the course of investigation name of one Mohd.Saroar son of Abdul Gafar came to be arrayed as accused No.1 andthe present applicants have been arrayed as accused Nos. 2 and 3.Respondent No.2 is the informant. Taking into consideration contentsof First Information Report, we prefer to mask her name, in order toprotect her identity. After filing of the present application, the learned5th Additional Chief Judicial Magistrate, Nanded has framed in thecharge vide Exh.20 on 24.09.2021. Copy of the same is produced onrecord by the learned Advocate for the applicants. It is taken onrecord and marked as Exhibit “A’ for the identification. 2.Respondent No.2 has stated in the FIR that her husband isengaged in the work of erection of Towers for Cell Phone Companies.She states that around one and half years before lodging of the FirstInformation Report, her husband had a dispute with his tenant namelyMoiz Ahmed son of Abdul Razzak (the applicant No.1) in relation tothe work of installation of Tower and therefore the said work (3) Cri. Application No. 1688-2020.odtremained pending.3.She has stated that on 13.01.2020, due to some dispute in thefamily they left their residential house and went to sleep in a tin shedin front of Malang Baba Building which is adjacent to the house of thetenant Moiz Ahmed. She alleges that while sleeping together whilethey were intending to get into sexual activity being husband andwife, one Saroar who is brother-in-law (wife’s brother) of the saidtenant namely Moiz Ahmed (applicant No.1) moved one of the tin ofthe tin shed and recorded a video clip of the respondent No.2 alongwith her husband. The said Saroar tried to blackmail the husband ofrespondent No.2. However, when evidence regarding their marriagewas shown to him, he left the spot. She states that on 22.07.2020 ataround 4 p.m. a meeting of people in the locality was arranged inorder to discuss the issue regarding installation of Mobile Tower. Inthe said meeting, applicant No.1 and his son applicant No.2 displayedthe video clip recorded by Mohmmad Saroar in front of all thepersons.4.On the basis of said complaint, offence punishable underSections 354, 354-C, 506 read with Section 34 came to be registeredagainst the present applicants.5.As stated above after completion of investigation name ofMohmmad Saroar came to be added as accused No.1 along with the (4) Cri. Application No. 1688-2020.odtpresent applicants who are added as accused Nos. 2 and 3. The saidfinal report has resulted in registration of RCC No. 681 of 2021 whichis pending on the file of learned 5th Additional Chief JudicialMagistrate (Herein after referred to as “ 5th A.C.J.M.” for brevity). Asstated above the charge is framed in the matter on 24.09.2021 videExh. 20. By the present application filed under Sections 482 of theCode of Criminal Procedure, the applicants/accused Nos. 2 and 3 haveprayed for quashing of the said First Information Report. After filingof the charge sheet and registration of the criminal case, they haveamended the application in order to challenge charge sheet No. 241of 2021 dated 19.06.2021 and Regular Criminal Case No. 681 of2021.6.The learned Advocate for the applicants has argued thatingredients of section 354 and 354-C are not made out even if theentire material in the charge sheet is accepted as true and correct. Hestates that the offence of outraging modesty of woman punishableunder Section 354 of the IPC would be attracted only in case whereany woman is assaulted or subjected to criminal force with an intentto outrage her modesty. He would submit that there is no allegationregarding assault or use of criminal force. According to him, the actof displaying video clip in the meeting would not attract the essentialelement of Section 354 as also 354-C of the IPC. He further states thatSection 506 of the IPC is non cognizable offence. He sums up (5) Cri. Application No. 1688-2020.odtsubmissions stating that since offence under cognizable sections is notmade out, the FIR and consequently charge sheet and criminal caseare liable to be quashed against the present applicants.7.As against this, Shri. S.A. Gaikwad, learned A.P.P submits thatthe act committed by respondent Nos. 2 and 3 of disseminating videoclip of a man and woman being together just before indulging in aprivate sexual activity as husband and wife is a heinous crime. Hesubmits that ingredients of Section 354-C of the IPC are certainlyattracted and as such the FIR and consequent criminal prosecutioncannot be quashed against the applicants. He would further submitthat the learned public prosecutor appearing in the proceeding belowso also the learned Magistrate has missed to notice some otherprovisions of the IPC and Information Technology Act, 2000 (Hereinafter referred to as “I.T. Act” for brevity). He has drawn our attentionto provisions of Section 292 of the IPC and Section 66-E and 67 of theI.T. Act. The learned A.P.P. has drawn our attention to the statementof witnesses recorded during the course of investigation which confirmthe fact of display of video clip during the course of meeting attendedby a sizable number of people. Shri J. M. Murkute, the learnedAdvocate for the respondent No.2 has advanced similar submissions.He further states that if charge under Section 354-C is framed againstaccused No.1 for recording the objectionable Video Clip, it shouldhave been certainly framed against the present applicants as well who
Legal Reasoning
(6) Cri. Application No. 1688-2020.odthave disseminated the said Video Clip.8.We agree with the submission of the learned Advocate for theapplicants that offence under Section 354 of the IPC is not made out.Section 354 speaks of an act by a person assaulting or using criminalforce against any woman with an intent to outrage or knowing thatsuch act would outrage modesty of woman. Use of criminal force oract of assault are essential pre-requisites to attract Section 354 of theIPC. The terms, ‘force’ and ‘criminal force’ are defined under Sections349 and 350 respectively of the IPC. Section 349 states that a personis said to use force to another if he causes motion, change of motion orcessation of motion to a person or to any object which may then comeinto contact with the person either by his bodily powers or by anyobject or by inducement to any animal. When force is used withoutconsent of person subjected to force and it causes or is likely to causeinjury fear or annoyance the force become criminal force as perSection 354 of the IPC. Likewise the term assault as defined underSection 351 of the IPC means any gesture or preparation that cancause any person present to apprehend that the person makinggesture or preparation is about to use criminal force. Both theseelements of criminal force and assault are completely absent. Sinceassault and/ or criminal force are essential elements of Section 354,offence under Section 354 of the IPC is also not made out. Offence (7) Cri. Application No. 1688-2020.odtunder Section 354 of the IPC is made out only if a woman is assaultedor subjected to criminal force with an intention to outrage hermodesty.09.We are of the considered opinion that the learned A.C.J.M.completely erred in framing charge against the the applicants (accusedNos. 2 and 3)for the offence punishable under Section 354 of the IPC.10.The second charge framed by the learned A.C.J.M. is underSection 354C of the I.P.C. This charge is framed only against accusedNo.1. The charge is framed on the ground that he had recorded VideoClip of the respondent No.2 engaging in a private act within themeaning of Explanation 1 to Section 354C. Dissemination of anobjectionable Video Clip will also be an offence punishable underSection 354C. The allegation against present applicants/accused Nos.2 and 3 is that they have disseminated the said Video Clip recorded bythe accused No.1. It is therefore, obvious that charge under Section354C of the IPC should also have been framed against presentapplicants/accused Nos. 2 and 3.11.We are also of the opinion that Section 66-E of the I.T Act 2000may also be attracted. Section 67-E of the I.T. Act has closeresemblance with Section 354-C of the IPC. Whereas Section 354-Cpertains to recording and dissemination a woman engaged in a privateact, Section 66-E speaks about recording and/or transmitting image of (8) Cri. Application No. 1688-2020.odtprivate area of any person without his or her consent. Section 354-Capplies only when the wrong is committed against a woman. Section66-E of the IT Act applies when wrong is done against a male orfemale. Section 354C speaks of ‘private act’ which may expose privateparts posterior or breast of a woman exposed or covered in underclothes. Section 66-E refers to ‘ private area’, of a male or femaleexposed or covered by under clothes. The term ‘ private area’ meansprivate parts, posterior or breast of a female. Since charge underSection 354-C of the IPC is framed, charge under Section 66-E mayalso be required to be framed. The distinguishing feature between354-C of the IPC and 66-E of the IT Act are that 354-C is attractedonly against a woman whereas Section 66-E of the IT act applies toboth man and woman. Likewise, Section 354-C speaks of a private actand 66-E speaks of ‘private area’. The learned Magistrate shouldconsider as to whether 66-E of the IT Act is attracted.12.Apart from the above, Section 67 of the Information TechnologyAct, 2000 (Hereinafter referred as “IT” Act for brevity) also appears tobe attracted. Section 67 of the I.T Act is synonymous to Section 292of the I.P.C. Whereas Section 292 deals with offence regarding sale,distribution or public exhibition of a book, pamphlet, paper etc. whichis lascivious or appeals to prurient interest. Section 67 of the IT Actin turn deals with transmission of lascivious material or materialwhich appeals to be prurient interest or tends to deprave and corrupt (9) Cri. Application No. 1688-2020.odtpersons who may read or see it in electronic form.13.The material on record indicates that the video clip wasrecorded by accused No.1 while respondent No. 2 and her husbandwere about to get intimate as husband and wife. Viewing of suchmaterial in electronic form can be considered to be lascivious or suchmaterial appeal to be prurient interest or tend to deprave and corruptpersons who viewed it.14. Section 67 of the I.T Act, 2000 is a cognizable offence in viewof Section 77-B of the said Act. The mobile phone of applicant No.2and the memory card in which recording was stored by accused No.1Mohd. Saroar has been seized during the course of investigation. Thesaid video clip should be viewed in order to find out whether thematerial answer to the description of being obscene on account ofbeing lascivious or appealing to be prurient interest or tending todeprave and corrupt persons who viewed it.15.Normally when the applicants have approached us, we wouldnot have passed any order which would put them to moredisadvantageous position than to one which they would have beenhad they not approached this Court. However, the applicants haveapproached this Court under Section 482 of the Code of CriminalProcedure. The said provision is a salutary provision which preservesinherent powers of the High Court to do complete justice. One of the (10) Cri. Application No. 1688-2020.odtobjects of Section 482 of the Code of Criminal Procedure is to preventabuse of legal process so also to prevent miscarriage of justice. We areof the considered opinion that on account of collective failure of theinvestigating agency, the learned public prosecutor appearing beforethe learned trial Court as well as the learned Magistrate, provisions oflaw which appear to be attracted have skipped the attention of all theconcerned and therefore have not been invoked in the present case. Insuch circumstances, we are of the opinion that we should not turn ablind eye and must do the needful to address the situation. Learned5th Additional Chief Judicial Magistrate, Nanded is directed to revisitthe matter with view to consider as to whether charge can be framedagainst the applicants under Section 354C of the IPC along withSection 66-E and 67 of the Information Technology Act.16.Framing of charge is very important stage in any criminal trial.The provisions of Chapter XVII of the Code of Criminal Procedure dealwith forms of charges. The charge has to be framed by providing briefdescription of the offence, provisions of law and specific name of theoffence, if any. The date time and place and manner in which theoffence is committed must be stated. The persons against whom thecharge is being framed are required to be named. The charge must beso framed that it gives the accused a sufficient idea of exact nature ofallegations levelled against him. Section 216 of the Code of Criminal (11) Cri. Application No. 1688-2020.odtProcedure provides that a Court may alter or add any charge at anytime before the judgment is pronounced. However, duty is cast on theCourt to read out and to explain such additional charge or alterationin the charge. Depending on whether prejudice would be caused tothe accused or not, the Court may either proceed with the matter as ifthe altered or added charge had been framed along with the originalcharge or may direct fresh trial or adjourn the trial for a reasonableperiod.17. The present case would be one of warrant trial. The procedurefor conducting warrant trial initiated on police report is provided inChapter XIX-A of the Code of Criminal Procedure. Section 239 of theCode of Criminal Procedure provides that the learned Magistrate isrequired to consider the police report and documents sent to himalong with the police report under Section 173 of the Code of CriminalProcedure and after giving the prosecution and the accused anopportunity of hearing if the Magistrate feels that the charge againstthe accused is groundless, he shall pass an order discharging theaccused for reasons to be recorded in the order. However, uponconsideration of the material and hearing the parties, if the Magistrateis of the opinion that there is a reasonable ground for assuming thatthe accused has committed the offence, he shall frame the charge,provided the matter falls within his jurisdiction. (12) Cri. Application No. 1688-2020.odt18.A valuable right is conferred upon the accused at the stage offraming of charge. If the charge is groundless, he has right to get orderof discharge forthwith. In such circumstances, he will not have toface the agony of undergoing criminal trial. Likewise, it is alsoessential for the prosecution that appropriate charge is framed againstthe accused unwarranted complications do not arise at the advancedstage of the case. Although error in framing of charge is not amaterial defect, in the event the accused can establish any consequentprejudice or failure of justice, it becomes a material defect in view ofSections 215 & 464 of the Code of Criminal Procedure. To avoid suchpossibility, it is essential that proper and definite charge underappropriate provision/s of law is/are framed under Section 240 of theCode of Criminal Procedure. In this regard, we refer to judgment ofthe Hon’ble Supreme Court in the matter of Sandarajan Vs. Staterepresented by Inspector of Police Vigilence Anti-Corruption Dindigulreported in 2023 SCC Online (SC) 424, wherein commenting upon theimportance of the stage of framing of charge, the Hon’ble SupremeCourt has observed as under :- “16.We find that, in this case, the charge has beenframed very casually. The Trial Courts ought to be verymeticulous when it comes to the framing of charges.In a given case, any such error or omission may leadto acquittal and/or a long delay in trial due to anorder of remand which can be passed under sub-section (2) of Section 464 of Cr.P.C. Apart from theduty of the Trial Court, even the public prosecutor has (13) Cri. Application No. 1688-2020.odta duty to be vigilant, and if a proper charge is notframed, it is his duty to apply to the Court to frame anappropriate charge.” 19.Framing of charge is very important stage in a criminalproceeding. Trial of the case commences with framing of charge.Charge has to be framed after hearing the public prosecutor as alsoafter upholding opportunity of hearing to the accused. Framing ofproper charges is essential to provide the accused a fair idea of theallegations against him which he has to meet. This is an essentialelement of principles of natural justice. Apart from this, just as afailure to frame proper charge may cause prejudice to the accused,omission to frame appropriate charge with respect to an offence/s willdefinitely cause prejudice to the victim of a crime and will lead totravesty of vigijustice. In fact from the stage of taking cognizance ofthe matter, the Court should be vigilant about the particular sectionsof law which are attracted in the matter. Particularly at the stage offraming charge, it is duty of the Court to ensure that all the applicableprovisions are properly adverted to and considered and charge isframed under the provisions of the law that are attracted in the factsof the case. However, we are constrained to observe that thisimportant stage regarding framing of charge is being observedmechanically without application of judicial mind. 20.In the present case, we find that this important stage has been (14) Cri. Application No. 1688-2020.odtobserved in a rather casual manner. The learned Magistrate has notadverted to and has not properly appreciated essential ingredientsSection 354 of the IPC and has erroneously framed charge under thesaid provision against the present applicants/accused Nos. 2 and 3although it is undisputed that they had not used any criminal force orcommitted any act which amounting to assault. Likewise, whileframing the charge under Section 354-C of the IPC against the accusedNo.1 for recording the video clip, same charge has not been framedagainst the present applicants/accused Nos. 2 and 3 who havedisseminated the said video clip, which is also an offence underSection 354-C of the IPC. We also find that the provisions of Section66-E and 67 have completely skipped the attention of the learnedMagistrate.21. We must however also record that, we are aware of the burdenof judicial work on all Magistrates. It is duty of the learned publicprosecutor so also the learned counsels representing the accused, toproperly assist the Magistrate at all stages of a criminal proceedingsincluding at the stage of framing of charge. It is unfortunate that inmost of the cases, charge is framed with respect to offences which arementioned in the 173 report mechanically without application ofprudent mind. The present case, unfortunately, is one more such casewhere non application of mind is writ large on the face of the charges (15) Cri. Application No. 1688-2020.odtframed.22. We therefore direct the learned Magistrate to frame thecharges once again, in the light of above observations. We also clarifythat the observations made herein above with respect to material onrecord and provisions of law are prima facie observations for guidanceof the learned Magistrate. The learned Magistrate must apply hismind independently to determine what charges must be framedagainst the accused persons and under which provision of law. Hence,we pass the following order. ORDER (I)The charge framed on 24.09.2021 vide Exhibit 20 in Regular Criminal Case No. 681 of 2021 pending on the file of the learned 5th Additional Chief Judicial Magistrate, Nanded is hereby quashed.(II)The learned 5th Additional Chief Judicial Magistrate, Nandedis directed to revisit the matter from the stage of Section 239 and 240 of the Code of Criminal Procedure for considering discharge/framing of charge in accordance with law, in the lightof observations made herein above. (ROHIT W. JOSHI) (SMT. VIBHA KANKANWADI ) JUDGE JUDGEY.S. Kulkarni