Krishna Bihari Mishra … v. …… Opposite Parties
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2380 of 2019 Krishna Bihari Mishra …… Petitioner 1.The State of Jharkhand 2. Ajit Kumar Sahu Versus …… Opposite Parties
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --------- For the Petitioner : Mrs. Kanchan Kumari, Advocate Mrs. Pooja Mishra, Advocate For the State For the O.P. No.2 : Mr. Gautam Kumar, Advocate Mr. Birat Kumar, Advocate Ms. Savita Kumari, Advocate : Mr. Prabhu Dayal Agrawal, Spl. P.P. ………… 04/Dated: 08/05/2024 Heard Mrs. Kanchan Kumari, learned counsel for the petitioner, Mr. Prabhu Dayal Agrawal, learned counsel for the State and Mr. Gautam Kumar, learned counsel for the O.P. No.2. 2. This petition has been filed for quashing the entire criminal proceeding including order taking cognizance dated 07.06.2019 passed in connection with Dhurva P.S. Case No. 122 of 2017, corresponding to G.R. No. 2529 of 2017, pending in the Court of learned Judicial Magistrate, Ist Class, Ranchi. 3. The F.I.R. was lodged alleging therein that the petitioner fraudulently used the name of Ajit Sahu and Umesh Yadav on his Facebook Account in a photo depicting the Chief Minister of Jharkhand as Bhagwan ‘Ram’ which hurts the religious sentiments of Hindu people and will also the image of Chief Minister of Jharkhand. It is further alleged that the photo which was posted on Facebook Account of petitioner, depicts Sri Raghubar Das, the Chief Minister of Jharkhand as Bhagwan “Ram” and upon same photo name of Ajit Sahu and his 1 friend Umesh Yadav as addressee has been given which is absolutely false. The informant said that he has not created of communication. He and his friend is deeply upset by such thing. 4. Mrs. Kanchan Kumari, learned counsel for the petitioners submits initially F.I.R. was lodged under section 66(1) of the Information Technology Act, 2000 and later on the Investigating Officer sought permission from the learned court to add section 68 and 65 of Information Technology Act, 2000 which was allowed by order dated 08.06.2017. She further submits that after investigation chargesheet has been submitted under section 66 (d) of the Information Technology Act, 2000 against the petitioner on 05.04.2019 and the learned court has taken cognizance vide order dated 07.06.2019. She further submits that the petitioner is a responsible Journalist of Jharkhand who wrote several articles/column on Web Portal named as Vidrohee 24.Com. She further submits that photo depicting the Chief Minister of Jharkhand as Bhagwan “Ram” was already in circulation by way of viral on whatsapp which was received by this petitioner and this petitioner only shared screen shot of that post on his Facebook Account. According to her the petitioner has not created said photo nor the petitioner was initiator of said message on the whatsapp. In this background she draws the attention of the Court to section 66 (D) of the Information Technology Act, 2000 and submits that the said section can only be attracted when any person by way of any communication device or computer resources cheats by personation. She further submits that in view of that no allegation is made out against the petitioner as the petitioner has not utilized any computer of any person with intention to cheat or personate any body. She further submits that the petitioner has only posted the said created photograph on his Facebook which was received by him from another person 2 which was already in circulation on whatsapp and the initiator of that photograph has not been chargesheeted in the present case. On these grounds, she submits that the entire criminal proceeding may be quashed. 5. Mr. Prabhu Dayal Agrawal, learned counsel for the State submits that investigation was done and thereafter chargesheet has been submitted in view of that case is made out. 6. Mr. Gautam Kumar, learned counsel for the O.P. No.2 submits that O.P. No.2 is aggrieved person and the said post was posted on the facebook stating that O.P. No.2 is coordinator of the post which he denied. He further submits that case is registered under section 66 (1) of Information Technology Act, 2000 however chargesheet has been submitted under section 66 (D) of the Information Technology Act, 2000 and the learned court has taken cognizance. 7. It is an admitted position that the petitioner is not initiator of the post which was already moving on one to another whatsapp. The contents of F.I.R. clearly suggest that investigation was made in terms of section 66 (1) Information Technology Act, 2000 whereas at the time of submitting the final form section 66 (D) of Information Technology Act, 2000 was added which clearly suggests that investigation in the light of section 66 (D) of Information Technology Act, 2000 was not made. It appears from the Act that Section 66 (1) of Information Technology Act, 2000 is not there however, Section 66 (D) of Information Technology Act, 2000 is there which relates to computer related offences. The chargesheet is made under section 66 (D) of the Information Technology Act and it has not come how this petitioner has by way of any communication device or computer resources cheated any person by way of personation. 3 8. Further there is no allegation of use of electronic signature password or any unique identification of any person by the petitioner thus, the ingredient of Section 66 (C) of Information Technology Act, 2000 is not made out against the petitioner. 9. Further there is no allegation of cheating by personating any person by this petitioner. Thus also ingredient of section 66 (D) of Information Technology Act, 2000 is not made against the petitioner. 10. The order taking cognizance dated 07.06.2019 is not in accordance with law. The word ‘cognizance’ has been filled up in blank space which suggests non application of judicial mind. 11. In the above background even if the contents of F.I.R. is taken to be correct in their entirety, no case is made out against the petitioner. 12. When the allegation made in the First Information Report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing. Further more because in a case of this nature where no offence is made out for taking cognizance under section 66 (D) of Information Technology Act, 2000 it was obligatory on the part of learned court to apply his mind to the contents of chargesheet and such application of mind on his part should have been reflected from the order. Reference may be made to the case of “ State of Karnataka V. Pastor P. Raju” reported in (2006) 6 SCC 728. 13. In view of above facts, reasons and analysis, entire criminal proceeding including order taking cognizance dated 07.06.2019 passed in connection with Dhurva P.S. Case No. 122 of 2017, corresponding to G.R. No. 2529 of 2017, pending in the Court of learned Judicial Magistrate, Ist Class, 4 Ranchi, are quashed. 14.
Decision
This petition stands allowed and disposed of. Pending I.A, if any, stands disposed of. Interim order is vacated. Satyarthi/A.F.R. ( Sanjay Kumar Dwivedi, J.) 5