High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.2908 OF 2024Ashwinkumar Pandhari Sanap,Age 43 yrs., Occ. Labour,R/o Kingaon Raja, Tq. Sindkhedraja,Dist. Buldana. At present R/o Rajput Layout, Buldana,Tq. & Dist. Buldana. … Applicant… Versus …1The State of MaharashtraThrough the Police Inspector,City Police Station, Hingoli,Tq. & Dist. Hingoli. 2Pandit Jagannath Tare,Age 38 yrs., Occ. Police Constable,R/o Mangalwara Bazar, Vanjarwada,Tq. & Dist. Hingoli. 3The Investigation Officer,(Narendra Bhimrao Padalkar)City Police Station, Hingoli,Tq. & Dist. Hingoli. 4Narendra Bhimrao Padalkar(Police Inspector)Age Major, Occ. Service,R/o City Police Station, Hingoli,Tq. & Dist. Hingoli. … Respondents... 2Cri.Appln_2908_2024Mr. B.S. Dhawale, Advocate for applicantMr. A.R. Kale, APP for respondent No.1Mr. S.E. Shekade, Advocate for respondent Nos.2 to 4...CORAM :SMT. VIBHA KANKANWADI &S.G. CHAPALGAONKAR, JJ.RESERVED ON :14rd OCTOBER, 2024PRONOUNCED ON : 23rd OCTOBER, 2024ORDER :(PER : SMT. VIBHA KANKANWADI, J.)1Present application is filed under Section 482 of the Code ofCriminal Procedure, 1973 for quashing First Information Report vide CrimeNo.427/2024 dated 27.06.2024 registered with City Police Station, Hingoli,Tq. & Dist. Hingoli, which was initially registered for the offence punishableunder Section 500 of the Indian Penal Code, 1860 [356(2) of the BharatiyaNyaya Sanhita] and Section 66-A and 66-B of the Information TechnologyAct, 2000 (For short, “I.T. Act”). First Information Report has been lodged byrespondent No.2, who is a Police Constable in his personal capacity and notas a representative of the State. 2It will not be out of place to mention here that by order dated19.08.2024 this Court had taken note of the fact that offence under Section 3Cri.Appln_2908_202466-A of the I.T. Act has been registered on 27.06.2024 even when that sectionwas held unconstitutional by Hon’ble Supreme Court in Shreya Singhal vs.Union of India [AIR 2015 SC 1523]. It was also observed that Section 66-Bof the I.T. Act was not applicable to the facts of the case as it providespunishment for dishonestly receiving stolen computer resource orcommunication device. When these both sections were not attracted at all;yet, the applicant came to be arrested at 00.31 hours on 06.08.2024 i.e.midnight and at the time of arrest the First Information Report was standingfor the offence punishable under Section 66-A and 66-B of the I.T. Act, butlater on when the applicant was produced before the Magistrate at about4.50 p.m. on 06.08.2024 along with a report that Section 66-A and 66-B ofthe I.T. Act should be deleted and Section 67-A of the I.T. Act should beadded; this Court permitted the applicant to carry out the amendment andadd the Investigating Officer and Police Inspector of Hingoli Police Station bytheir names as party respondents. This Court also directed that in the noticeto respondent Nos.2 to 4 it should be mentioned as why they should not beasked to pay the compensation to the applicant. In pursuant to the saidnotice the amendment has been carried out and it appears that the PoliceInspector of Hingoli Police Station and the Investigating Officer is same. Heappeared through Advocate Mr. S.E. Shekade and respondent No.2 is alsorepresented by him. They have not filed any affidavit. 4Cri.Appln_2908_20243Heard learned Advocate Mr. B.S. Dhawale for applicant, learnedAPP Mr. A.R. Kale for respondent No.1 and learned Advocate Mr. S.E.Shekade for respondent Nos.2 to 4. 4It has been vehemently submitted on behalf of applicant that theapplicant is the husband of sister of respondent No.2. Two years prior to theregistration of First Information Report there was divorce between theapplicant and sister of respondent No.2. Applicant’s wife had lodged FirstInformation Report for the offence punishable under Section 307, 498-A,504, 506, 325 of the Indian Penal Code. The applicant had given a messageon the WhatsApp of relative of respondent No.2, which was defamatory. Inthe said message it was contended that sister of respondent No.2 whenstaying with the applicant used to videograph the obscene acts between themand those videos used to be circulated by respondent No.2 on groups. Thefamily of respondent No.2 has no standard. Family of respondent No.2 hasharassed applicant and his family. Sister of respondent No.2 had stolen Turcrop from applicant’s land. Respondent No.2 used to utter bad words againstmother and sister of applicant etc. According to respondent No.2, this post isdefamatory and, therefore, he lodged the said report. This Court had alreadyexpressed that when the applicant came to be arrested at that time it wasunder such an offence which was declared unconstitutional and another 5Cri.Appln_2908_2024offence was not even made out. Therefore, the arrest of the applicant wasunconstitutional and illegal. Now, Section 67-A of the I.T. Act has beenreplaced, but even that section is not applicable taking into consideration thecontents of the First Information Report as it is. The learned Advocate forapplicant relies on Apoorva Arora vs. State (Govt. of NCT of Delhi)[AIRONLINE 2024 SC 188], wherein it has been held that Section 67-Acriminalizes publication, transmission, causing to publish or to transmit inelectronic form any material that contains sexually explicit act or conduct.The Court should consider that literal meaning is not required to beconsidered. The common usage of these words is reflective of emotions ofanger, rage, frustration, grief or perhaps excitement. There could be sexuallyexplicit act or conduct which may not be lascivious. Equally, such act orconduct might not appeal to prurient interests. On the contrary, a sexuallyexplicit act or conduct presented in an artistic or a devotional form may haveexactly the opposite effect, rather than tending to deprave and corrupt aperson. Therefore, by applying the said standards and the ratio it cannot besaid that the contents even if considered that it was given by the presentapplicant will not attract section 67-A of the Indian Penal Code. As regardsSection 500 of the Indian Penal Code is concerned, it is a non cognizableoffence and cognizance of the same can be taken by a Magistrate only upon acomplaint. Therefore, the First Information Report needs to be set aside as 6Cri.Appln_2908_2024well as the present applicant needs to be compensated. 5Learned Advocate for respondent Nos.2 to 4 submitted that theFirst Information Report was got registered by Police Station Officer underwrong sections, but prior to production of applicant before the Magistratethat mistake was realized and by submitting report that Section 66-A and 66-B of the I.T. Act are required to be deleted, addition of Section 67-A of the I.T.Act was informed and then the learned Magistrate by order dated 06.08.2024took the accused in Magisterial Custody. On the same day the applicant cameto be released on bail by learned Judicial Magistrate First Class, Hingoli(Court No.1). There was no ill intention on the part of the InvestigatingOfficer. As regards respondent No.2 is concerned, he has given the FirstInformation Report and it was for the police to register the offence. It cannotbe said that all this has been done in the mala fide way. 6We would like to deal with the point of arrest of applicant first.At the cost of repetition, it is to be noted that we have already observed on19.08.2024 that when the applicant came to be arrested at 00.31 hours on06.08.2024 i.e. intervening night of 05.08.2024 and 06.08.2024, the sectionson record were Section 66-A and 66-B of the I.T. Act. The I.O. has not filedaffidavit-in-reply and has not explained when the investigation was handed 7Cri.Appln_2908_2024over to him, but certainly it would be prior to the arrest of applicant. It isbeyond imagination that before the arrest the Investigating Officer will notapply his mind, as to which are the sections those are invoked, what is thepunishment, that is, prescribed and whether he can make a legal arrest insuch situations ? The realization of the wrong section, after the arrest of aperson, would be a suicide attempt by an Investigating Officer, because he isbound to follow the law before and at the time of effecting arrest. TheInvestigating Officer should take note of Section 41-A of the Code of CriminalProcedure and the decisions in Arnesh Kumar vs. State of Bihar [2014 (8)SCC 273] and Satender Kumar Antil vs. Central bureau of Investigation andanother [(2022) 10 SCC 51]. These two decisions mainly will have to bestrictly observed by any Investigating Officer. The Investigating Officer i.e.respondent No.3 (respondent No.4 also) cannot arrest a person forcommitting an offence which was declared unconstitutional by the SupremeCourt. That means, it was not in books at the time of the arrest of thatperson. At the cost of repetition, we would once again observe that in spiteof declaration of Section 66-A of the I.T. Act being unconstitutional still theoffences are being registered. This is the indication of high handedness ofthe police machinery in utter disregard to the law laid down by Hon’bleSupreme Court. Section 67-A of the I.T. Act was not at all attracted takinginto consideration the facts of the case/contents of the First Information
Legal Reasoning
8Cri.Appln_2908_2024Report reproduced above. That means, the arrest of applicant was in respectof an offence which was declared unconstitutional and in respect of anotheroffence which was not made out. Certainly, when this arrest is made atmidnight, it is in total violation of the personal liberty enshrined under theConstitution of India. 7As aforesaid, it is the bounden duty of the Investigating Officerto give reason for arrest of a person when such person is produced before theMagistrate and such reasons are necessary when the offence is punishablewith imprisonment of less than seven years i.e. as per section 41-A of theCode of Criminal Procedure. Similar provision is there in Section 35 of theBharatiya Nagarik Suraksha Sanhita, 2023. Copy of the remand report whichis stated to be under Section 187 of the B.N.S.S. is made available. There isabsolutely no reason given by respondent No.3 as to why the applicant cameto be arrested. Further, that report shows that panchnama of the spot waseffected (when that message is given on mobile, why panchnama of the spotand of which place was required is not understandable.), statements ofwitnesses were also recorded and it is said that when the applicant wasfound, he admitted the guilt and then he has been arrested, his mobile hasbeen seized. It is not stated that when the accused was given information asto the ground of arrest, then at that time which sections were told to him, in 9Cri.Appln_2908_2024other words, respondent No.3 is not explaining as to what he communicatedto applicant that his arrest is under which provisions and for which offence.Therefore, we take that it would have been certainly disclosed that hisoffence was under Section 66-A and 66-B of the I.T. Act when arrested. Weare constrained to observe that learned Judicial Magistrate First Class,Hingoli (Court No.1) has also not taken into consideration as to whether thearrest was necessary and whether it was under the provisions of law or not.Even if we take at the time of production of the accused Section 67-A of theI.T. Act was invoked, then it can be seen that for the first offence theimprisonment prescribed is to the extent of five years and with fine, whichmay extend to ten lac rupees. There was no document produced before thelearned Magistrate to show that it was the second or subsequent offencealleged against accused. Section 67-A of the I.T. Act further prescribes that ifthe offence is second or subsequent, then upon conviction such accused canbe convicted with imprisonment of either description for a term which mayextend to seven years and also with fine which may extend to ten lac rupees.Therefore, even for Section 67-A of the I.T. Act in the present case, whichshould be taken as first offence, the arrest was not mandatory. That arrestought to have been under Section 41-A of the Code of Criminal Procedure orSection 35 of the B.N.S.S. together with the law laid down in Arnesh Kumar(supra) and Satender Kumar Antil (supra). It ought to have been seen by the 10Cri.Appln_2908_2024Magistrate that whether arrest is legal before he takes the said accused underMagisterial Custody. The said order passed by the concerned Magistrate iswithout application of mind. Though he has released the accused on bail onsame day, it was his duty to consider the said legal position. We haveconstrained to observe, taking into consideration the recent experiences, thatthe Magistrates including the Judges who are having powers of Magistratelike the Special Courts (before whom the accused persons are produced afterarrest) are not considering the ratio laid down in Arnesh Kumar (supra) andSatender Kumar Antil (supra) seriously. Mechanical orders are passedwithout considering whether there is compliance of the mandatory provisionsand requirements by the Investigating Officer. We deprecate such kind ofpractice. The Magistrates should avoid such situation in view of theobservations in Arnesh Kumar (supra) when directions are given that eventhe Magistrates will be held responsible for any such negligence. 8The conduct of the prosecution and respondent Nos.2 and 3 isalso required to be considered when the bail application was filed and it hasbeen opposed. We also clarify that prosecution is a separate wing thaninvestigation and, therefore, it is the duty of the Prosecutors also to seewhether the arrest is legal or not. Unnecessary objection to the bailapplications should be avoided. Here, in his say, respondent No.3 has again 11Cri.Appln_2908_2024quoted Section 66-B of the I.T. Act, which shows that still he had no intentionto apply his mind to the facts of the case. The say given by respondent Nos.2and 3 expresses only concern that the applicant would defame the informantand his sister. 9As aforesaid, taking into consideration contents of the allegedmessage on the WhatsApp it cannot be said that offence under Section 67-Aof the I.T. Act has been made out, which criminalizes publication,transmission, causing to publish or transmit in electronic form any materialthat contains sexually explicit act or conduct. We have observed in the pastalso that if the said message is on WhatsApp, which is encrypted end to end,unless the recipient chooses to forward it, it can only be read by the personwho receives it. The sender then cannot have or intended to have intentionto defame a person in society. Here, the First Information Report does notsay that, that message was put on some group or to various personsindividually. When the First Information Report not even discloses Section67-A of the I.T. Act, it deserves to be quashed and set aside, definitely, to thateffect and as regards Section 500 of the Indian Penal Code is concerned, thecognizance of the same can be taken by a Magistrate only, upon a complaint,defined under Section 2(d) of the Code of Criminal Procedure. Here, in thiscase, respondent No.2 being Police Constable himself was aware that he 12Cri.Appln_2908_2024could not have lodged First Information Report only for the offence underpunishable under Section 500 of the Indian Penal Code and, therefore, itappears that he lodged the First Information Report with the Sections underthe I.T. Act. It cannot be said that he has lodged the First Information Reportand then rest was not in his hand as to which section would then beapplicable and it was not his intention to get the applicant arrested.Certainly, there appears to be dispute going on between the applicant and hiswife, who is the sister of respondent No.2 and, therefore, the present FirstInformation Report has been lodged with mala fide intention. Theobservations from the decision in Apoorva Arora (supra) are certainly helpfulto the applicant and those parameters have been considered by us. 10For the aforesaid reasons, we consider this to be a fit case wherethe First Information Report needs to be quashed and set aside. We haveheard respondent Nos.2 and 3/4 on the point of compensation. In view ofobservations made above, we direct respondent No.2 as well as respondentNo.3/4, to compensate applicant. Compensation amount is more in respectof respondent No.3 as he has caused illegal arrest. Hence, we pass followingorder. 13Cri.Appln_2908_2024ORDER1Criminal Application stands allowed. 2The First Information Report vide Crime No.427/2024 dated27.06.2024 registered with City Police Station, Hingoli, Tq. & Dist. Hingoli,for the offence punishable under Section 500 of the Indian Penal Code, 1860and Section 67-A of the Information Technology Act, 2000 (originally underSection 66-A and 66-B of the I.T. Act) stands quashed and set aside. 3Respondent No.2 to pay compensation of Rs.50,000/- (RupeesFifty Thousand only) to the applicant. Said amount be deposited in thisCourt on or before 14.11.2024. 4Respondent No.3 (who is also respondent No.4) to paycompensation of Rs.2,00,000/- (Rupees Two Lac only) to the applicant forcausing illegal arrest of the applicant. Said amount be deposited in thisCourt on or before 14.11.2024. 5Both the amounts, upon deposit, be given to the applicant. 6Copy of this order be sent to Superintendent of Police, Hingolifor further action, in view of decision in Arnesh Kumar (supra). (S.G. CHAPALGAONKAR, J.)( SMT. VIBHA KANKANWADI, J. )agd