Umesh Nandan Sinha vs The State Of Bihar

Criminal Miscellaneous No.28656 of 2017 Arising Out of PS.Case No. -262 Year- 2016 Thana -KISHANGANJ District- KISANGANJ =========================================================== Umesh Nandan Sinha, son of late Raj Nandan Prasad Sinha, resident of Subhashpalli, P.S.- Kishanganj, District- Kishanganj.

.... .... Petitioner Versus The State of Bihar.

.... .... Opposite Party =========================================================== Appearance : For the Petitioner : Mr. Prabhat Sinha, Advocate For State : Mr. Jharkhandi Upadhyay, APP =========================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT

Date: 26-03-2018

This application under Section 482 of the Code of

Criminal Procedure, 1973 (for short 'Cr.P.C.') has been filed by the

petitioner for quashing the order dated 17.08.2016 passed by the

learned Chief Judicial Magistrate, Kishanganj in Kishanganj P. S.

Case No. 262 of 2016 whereby the cognizance of the offences

punishable under Sections 295-A, 153-A, 500, 501, 504, 505(2) and

506 of the Indian Penal Code for the (short 'IPC') and Section 66A

of the Information Technology Act, 2000 (for short 'IT Act') has

been taken and the petitioner has been summoned to face trial.

2. The first information report of Kishanganj P. S. Case

No. 262 of 2016 was lodged on 27.06.2016 on the basis of written Patna High Court Cr.M isc. No.28656 of 2017 dt.26-03-2018

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complaint of one Sukh Sagar Nath alleging therein that he is the

Chairman of the Press Club, Kishanganj and being so, he has formed

a WhatsApp group for exchange of news items, in the name of Press

Club, Kishanganj. On 27.06.2016, at about 7.39 pm, the petitioner

being a member of the group posted one message which was

indecent towards a particular community and provocative of

communal tension.

3. The informant immediately removed the petitioner from

the group, obtained the screen shot of the message and handed over

the same for appropriate action to the officer-in-charge of the

Kishanganj Police Station.

4. After institution of the first information report, the

police investigated the same and on completion of investigation, a

report under Section 173(2) of the Cr.P.C. was submitted in the court

of learned Chief Judicial Magistrate, Kishanganj wherein culpability

of the petitioner was found true. He was sent up for trial for the

offences under Sections 295-A, 500, 501, 504-B, 153, 505(2) and

506 of the IPC and Section 66A of the IT Act.

5. After perusal of the police report and the documents

submitted therewith, the learned Chief Judicial Magistrate, vide

impugned order dated 17.08.2016, found a prima facie case under

the aforesaid provisions of the IPC and IT Act to be made out and Patna High Court Cr.M isc. No.28656 of 2017 dt.26-03-2018

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summoned the petitioner to face trial.

6. Assailing the aforesaid order dated 17.08.2016, learned

counsel for the petitioner submitted that the investigation was

perfunctory and the fact that the mobile phone of the petitioner had

already been lost prior to transmission of the offending message was

not considered by the investigating agency during investigation. He

submitted that the impugned order has mechanically been passed by

the learned Chief Judicial Magistrate without application of judicial

mind. Section 66A of the IT Act has already been held

unconstitutional by the Supreme Court in Shreya Singhal vs. Union

of India [AIR 2015 SC 1523] and the court below completely failed

to appreciate the ratio laid down by the Supreme Court while passing

the impugned order.

7. On the other hand, learned counsel appearing for the

State submitted that the impugned order passed by the learned

Magistrate does not suffer from any illegality. He submitted that

offending message is the part of the first information report and a

perusal of the same would clearly show that the same was sufficient

to provoke a particular community and could have resulted in

communal tension leading to communal riot.

8. I have heard learned counsel for the parties and perused

the record.

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9. It is true that the court below has failed to take into

account the fact that Section 66A of the IT Act has already been

struck down in its entirety being violative of Article 19(1)(a) and not

saved under Article 19(2) of the Constitution of India by the

Supreme Court in Shreya Singhal vs. Union of India's case (supra),

but the same would not make the impugned order dated 17.08.2016

completely unsustainable in law. So far as the offences under the IPC

are concerned, from the reading of the contents of the offending

message, I am of the opinion that prima facie the ingredients of those

offences are attracted. Merely on the submission of the learned

counsel for the petitioner that investigation was perfunctory, the

order of cognizance under the provisions of the IPC cannot held to

be bad. The defence taken by the petitioner that the mobile in

question through which an offending message was transmitted had

gone missing before transmission of the message has not been

established in course of investigation and it would not be appropriate

for this Court at this stage to appreciate the defence for the purposes

of quashing the order of cognizance. The defence of the petitioner

can only be looked into at the appropriate stage in course of trial.

10. In view of discussions made above, the part of the

impugned order dated 17.08.2016 passed by the learned Chief

Judicial Magistrate, Kishanganj in Kishanganj P. S. Case No. 262 of Patna High Court Cr.M isc. No.28656 of 2017 dt.26-03-2018

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2016 whereby he has taken cognizance of the offence punishable

under Section 66A of IT Act is set aside. As far as the offences of the

IPC are concerned, the impugned order does not suffer from any

illegality. Hence, the court below shall proceed with the case in

respect of offences under the IPC in accordance with law.

11. With the aforesaid observation and direction, the

application stands disposed of.

(Ashwani Kumar Singh, J.)

Kanchan/-

AFR/NAFR NAFR CAV DATE NA Uploading Date 27.03.2018 Transmission 27.03.2018 Date