Final Order 1

Order Details: Order Below EX 1
Pdf Text: C. C. No. 2160 PW 2022 State Vs Vibhor Anand
CNR-MHMM18-010140-2022
ORDER BELOW EXH.9
1. The present application is filed under Section 239 of Code of
Criminal Procedure, by accused Mr. Vibhor Anand, a lawyer by
profession, hereinafter referred as applicant, for discharge.
2. Perused record and say. Heard Ld. Advocate for the applicant and
Ld. A.P.P.
3. The prosecution case, can be summarized, as follows -
On 12.08.2020, Miss. Gursheenkaur Narendrapal Sahani, lodged
report with Cyber P.S., West Division, B.K.C., Mumbai, stating that she
is using a social media account Twitter (now X). While browsing she
found certain defamatory remarks and allegations made, as narrated in the
First Information Report, against the then Chief Minister and his son, a
cabinet minister, at relevant time. On it’s basis the crime at C.R.No.30 of
2020, for offences punishable under Sections 500, 504, 505(2) and 509 of
Indian Penal Code and Section 67 of Information Technology Act, was
registered against fifteen Twitter account holders. The investigation
started. During investigation it is transpired that the present applicant Mr.
Vibhor Anand, while using his Twitter account @vibhor_anand, posted
one of those fifteen messages. Applicant has been then arrested, his
mobile was also seized and contents extracted. Other evidence was
collected and after completion of investigation the charge sheet has been
filed in this court against him.
4. By way of this lengthy application, touching every aspect of the
matter, the said accused sought his discharge from the matter on several
grounds those can be summarized, as -
a. The allegations are false.
b. None of the offences made out as basic ingredients are missing.
c. The First Information Report, is lodged by a third person not connected
with the allegations in any way. As such she has no locus standi, to set
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criminal law into motion, she is neither aggrieved person nor anybody in
whose favor any cause of action accrued to set criminal law into motion.
d. There is no evidence in the charge sheet to connect the applicant or
accused with the allegations.
e. The disputed tweet/post, is one of the fifteen posts passed in response to
initial posts. It can not be considered independently.
f. Investigation is without jurisdiction.
g. There obtained no sanction required by Section 196 of Code of Criminal
Procedure.
5. Ld. A.P.P. objected to it stating that there is material on record to
constitute prima facie case against accused. All the ingredients are
satisfied. Therefore, accused can not be discharged.
6. The submissions of both the parties are in tune with respective
contentions. There is no need to repeat those submissions. In addition to it
the Ld. Advocate for the applicant, besides his submissions relied on
several judgments of Supreme Court and various high courts.
7. Before proceeding further, it is necessary to keep in mind the fact
that the principles of law in respect of discharge are now well settled.
Supreme Court in it’s various judgments repeatedly upheld the
importance of stage of framing of charge and the rules or law to be
followed while proceeding further with trial of any matter. Reiterating the
seriousness and importance of the stage of framing of charge, Supreme
Court in case of State of Tamil Nadu Vs S. Saundirarasu and ors. ((2023) 6 SCC
768), laid down that there must exist ground for presuming that offence
has been committed by accused. The stage of framing of charge is not
mere routine empty formality and the material must be scrutinized by the
judge before proceeding further with trial. It observed as, -
Para.61. Section 239 envisages a careful and objective consideration of the
question whether the charge against the accused is groundless or whether there
is ground for presume that he has committed an offence. What Section 239
prescribed is not, therefore, an empty or routine formality. It is a valuable
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provision to the advantage of the accused, and its breach is not permissible
under law. But if the Judge, upon considering the record, including the
examination, if any, and the hearing, is of the opinion that there is “ground for
presuming” that accused has committed the offence triable under the Chapter,
he is required by Section 240 to frame in writing a charge against the accused.
The order for the framing of charge is also not an empty or routine formality.
It is of a far-reaching nature, and it amounts to a decision that the accused is
not entitled to discharge under Section 239, that there is, on the other hand,
ground for presuming that he has committed an offence triable under Chapter
XIX and that he should be called upon to plead guilty to it and be convicted
and sentenced on that plea, or face the trial. (See : V. C. Shukla Vs State, 1980
Supp SCC 92).
Para.62. Section 239 of Cr.P.C. lays down that if the Magistrate considers the
charge against the accused to be groundless, he shall discharge the accused.
The word “groundless”, in our opinion, means that there must be no ground
for presuming that the accused has committed the offence. The word
“groundless” used in Section 239 of Cr.P.C. means that the material placed
before the court do not make out or are not sufficient to make out a prima facie
case against the accused.
8. It also carved out the principles of discharge of the accused from
the matter in it’s several judgments. In case of Vikarmjit Kakati Vs State of
Asam (2022 SCC OnLine 967), Supreme Court summarized all those
principles as -
10. Before we proceed to examine the matter on merits any further, it
will be apposite to take note of the legal principles applicable seeking
discharge, for which we may refer to a judgment of this Court in P.
Vijayan v. State of Kerala & Another, which has been further reiterated
by this Court in the recent judgment in M.E. Shivalingamurthy v.
Central Bureau of Investigation, Bengaluru and discerned the following
principles:
“17.1. If two views are possible and one of them gives rise to suspicion
only as distinguished from grave suspicion, the trial Judge would be
empowered to discharge the accused.
17.2. The trial Judge is not a mere post office to frame the charge at the
instance of the prosecution.
17.3. The Judge has merely to sift the evidence in order to find out
whether or not there is sufficient ground for proceeding. Evidence
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would consist of the statements recorded by the police or the documents
produced before the Court.
17.4. If the evidence, which the Prosecutor proposes to adduce to prove
the guilt of the accused, even if fully accepted before it is challenged in
cross-examination or rebutted by the defence evidence, if any, “cannot
show that the accused committed offence, then, there will be no
sufficient ground for proceeding with the trial”.
17.5. It is open to the accused to explain away the materials giving rise
to the grave suspicion.
17.6. The court has to consider the broad probabilities, the total effect of
the evidence and the documents produced before the court, any basic
infirmities appearing in the case and so on. This, however, would not
entitle the court to make a roving inquiry into the pros and cons.
17.7. At the time of framing of the charges, the probative value of the
material on record cannot be gone into, and the material brought on
record by the prosecution, has to be accepted as true.
17.8. There must exist some materials for entertaining the strong
suspicion which can form the basis for drawing up a charge and
refusing to discharge the accused.”
9. Keep in mind, the law and as it is explained by Supreme Court as
above the whole material produced with the charge sheet, in support of
the First Information Report, needs to be scrutinized and it’s needs to be
seen whether said material is enough to proceed further with the trial, in
view of grounds assigned for discharge.
Peculiarity of the matter
10. After going through this charge sheet, certain peculiar facts
noticed. First, that the First Information Report, has been lodged and the
law has been set into motion at the instance of third person, who is not
directly connected with the allegations. There is no material on record on
the basis of which she can be said to be a victim or an aggrieved person
against whom any allegations are made or a person who has suffered any
direct or indirect injury, to her mind, reputation or property. Second,
during investigation inspite of having ample time and opportunity, the
Investigating Officer had not recorded statements of any other witnesses.
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The statements of none of the victims i.e. persons against whom the
defamatory remarks are made, are not recorded by the Investigating
Officer and are not on record. Third, in the name of charge sheet after
First Information Report, there is nothing on record except seizure
panchanama and print outs of the Google Website pages. The charge
sheet is very short and except these documents and arrest memo etc. i.e.
documents, not forming part of evidence, there is nothing on record.
11. On the basis of this material, the present charge sheet/final report
has been filed for offences punishable under Sections 500, 504, 505(2)
and 509 of Indian Penal Code and Section 67 of Information Technology
Act. Therefore, considering the above grounds for discharge pleaded by
the applicant, the legal position discussed above and the nature of the
evidence produced with the charge sheet as mentioned in preceding
paragraph, the application needs to be considered.
Basic requirements of offences charged with
12. One of the important ground on the basis of which
applicant/accused prayed for discharge is that the basis ingredients and
other requirements to invoke the charges are missing in the material
produced. This aspect initially needs to be considered.
i. Section 500 of I.P.C.
13. To prove the charge of the said offence it must be proved that there
must be imputation, such imputation must be in respect of particular
living or dead person and it must be made with a knowledge that it will
harm the reputation of such person and defame him. Further, it should not
be covered by any of the exceptions provided to Section 499 of Indian
Penal Code.
14. In the present matter, the First Information Report is lodged by
third person Miss. Gursheenkaur Narendrapal Sahani, not in any way
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connected with the persons against whom disputed imputations are made.
It is simply mentioned that she is using same social media account and
came across those disputed imputations. Therefore, lodged report.
15. Further, during investigation in support of contents of First
Information Report, some technical evidence has been collected. The
Investigating Officer neither recorded statements of any of the persons
against whom the imputations were made nor recorded statements of any
other persons directly connected with them, so that it can be inferred that
there caused defamation to the persons against whom such imputations
are made. The said offence is of non-cognizable nature and confers
restricted or personal right on particular person or person directly effected
by imputation and cause of action accrues on it’s basis in favour of such
particular person. No doubt other offences are of cognizable nature, but
considering peculiarity of the status of the informant, it can be inferred in
this matter that such cause of action is not general cause of action
conferring right on third person to set criminal law into motion.
Therefore, it can not be said that on the basis of the contents of First
Information Report and the technical evidence produced with the charge
sheet, in absence of statements of aggrieved persons i.e. material to
constitute offence, anybody can be prosecuted for the offence of
defamation punishable under Section 500 of Indian Penal Code. As such
said offence not made out.
ii. Sections 504 and 505(2) of I.P.C.
16. The same analogy discussed above, is applicable to these punishing
provisions as well. The general imputations/statements found to be made
in the disputed post allegedly by the applicant. The material to gather
very connection of the said post with intention to insult the particular
person, which may result in provocation to cause break of public peace, is
missing, as such an offence punishable under Section 504 of Indian Penal
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Code, not made out. So also the intention to create or promote enmity,
etc. between classes or any other groups, as narrated in Section 505(2) of
Indian Penal Code, and their material particulars are also missing.
Therefore, both these offences not made out.
17. In addition to it there is a clear bar of Section 196(1)(a) of Code of
Criminal Procedure, for invoking Section 505(2) of Indian Penal Code, in
the charge sheet, wherein it is provided that the cognizance of said
offence can not be taken except previous sanction of Government. Such
sanction is not on record. Therefore, in addition to the above facts the
matter can not be proceeded further for this technical defect in respect of
offence punishable under Section 505(2) of Indian Penal Code.
iii. Section 509 of I.P.C.
18. In respect of an offence punishable under Section 509 of Indian
Penal Code, and to prove the said charge there must be words, etc. used
or any other act done by the accused intending to insult modesty of any
particular woman. In absence of this requirement the said offence can not
be invoked. The very intention to insult the modesty of a woman is basic
ingredient of this offence.
19. As stated above in the present matter, the First Information Report
is lodged by third person Miss. Gursheenkaur Narendrapal Sahani, not in
any way connected with the persons against whom disputed imputations
are made or the deceased woman mentioned therein. The post shows that
it is in the form of general statement made in response to previous posts,
to raise the voice against perceived injustice of the person making post,
meted out by the deceased woman mentioned therein. If we go to the
disputed post allegedly made by the accused in respect of a deceased
woman, there found no material to gather any intention of the accused to
insult modesty of deceased woman or any other woman. Drawing
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inference of intention to violate modesty of woman from such post is
against the spirit of the Section 509 of Indian Penal Code. It can be easily
said that the very intention to outrage modesty of woman is missing from
the said post. As the basic ingredient is missing the offence punishable
under Section 509, also not made out.
iv. Section 67 of I. T. Act
20. If we go to the said provision, i.e. Sec.67 of Information
Technology Act, it provides for an offence of publishing or transmitting
obscene material in electronic form and lays down that any person who
publishes or transmits or causes to be published or transmitted in the
electric form, any material which is lascivious or appeals to the prurient
interest or tend to deprave and corrupt persons, who read, see or hear such
material, having regard to all relevant circumstances, it can be said that
such person has committed an offence punishable under Section 67 of
Information Technology Act.
21. As discussed above, while discussing Section 509, of Indian Penal
Code, it is necessary to mention again at the cost of repetition that if we
go to the disputed post allegedly made by the accused, the post is in the
form of general statement made in response to previous posts, from which
it can not be said that the post is of such a nature which can be said to be
obscene i.e. obscene material in electronic form, which is lascivious or
appealing to the prurient interest or tend to deprave and corrupt persons,
who read, see or hear such material, having regard to all relevant
circumstances. The whole material if considered in context with each
other it shows that the post made is about the woman mentioned therein
and is made in response to previous posts to raise voice against perceived
injustice of the person who made such post which is, as per his notions or
understanding meted by the said woman. Therefore, no offence
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punishable under Section 67 of Information Technology Act, made out as
the very element of obscene material is missing.
Other important basic defect in the charge sheet
v. The very link to connect the accused with allegations is missing
22. If we go to First Information Report, it shows that there are total 15
posts found by informant on her social media account. The first post was
followed by remaining 14 posts, one after another, made by different
persons, therefore, offence was lodged against all those 15 unknown
persons. The record shows that as per prosecution the present
accused/applicant made 5th post in response to previous four posts.
Therefore, he was arrested and charge sheet filed against him on the basis
of evidence collected.
23. In such a situation, the above facts leads to inference that there
must be evidence to connect the accused/applicant with the previous four
posts. One can not picked up a single post out of 14 posts, made in
response to 1st post and prosecute any of these 14 persons in absence of
any evidence to connect them with previous posts. However, in the
present matter there is no evidence in respect of previous four posts, in
response to which accused allegedly made the disputed 5th post. As such
the very evidence to connect the accused with the allegations is missing.
24. Further, the whole charge sheet is based on electronic evidence i.e.
evidence of technical nature. As discussed above the only oral evidence
on record is evidence of informant in the form of First Information
Report. In support of the contents of the First Information Report, to
collect such electronic or technical evidence Investigating Officer seized
mobile phone of the accused and attempted to obtain details of Twitter
Handle, allegedly used by accused/applicant, to connect him with the
allegations. However, record reflects that the material technical evidence
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25. No doubt there is some material from which it can be inferred that
there is some connection of the person, who is using twitter handle named
as Vibhor Anand. But the material constituting sufficient grounds to
connect this particular accused/applicant to connect with the allegation is
missing. The material produced is deficient to draw the reasonable
suspicion or reasonable doubt against him. On it’s basis the reasonable
inference that accused is the person using that account, can not be
formed, which can be said to be enough to frame the charge. Therefore,
the whole charge sheet even if accepted by the accused as it is no
conviction is warranted.
Conclusion
26. From the above discussion it is clear that the informant is a third
person, having no locus to prosecute the accused. The contents of the
First Information Report, lodged by her and the material in the form of
evidence collected by the Investigating Officer, is not enough to
constitute any of the offences accused is charged with as the basic
ingredients are missing and for want of certain technical compliance. In
view of these aspects and if we considered the law laid down by Supreme
Court as discussed above, for the above discussed reasons it is clear that
if the whole charge sheet/final report is accepted by accused/applicant, as
it is no conviction is warranted. As such accused is bound to be
discharged. Accordingly, following order -
ORDER
Application, Exh.9, is allowed. Further order passed below Exh.1.
MUMBAI (KOMALSING RAJPUT)
DATE – 24.04.2025 J.M.F.C., 12TH COURT, BANDRA, MUMBAI
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