Allowed

Vishva Deep Pandey v. State of U.P. and Others

Allahabad HC14 Mar 2022/1107/2022

Case brief

AI extract

What is this about?

This petition under Section 482 Cr.P.C. challenged an order treating a cyber crime complaint as a private case. The High Court set aside the impugned order, holding the Magistrate failed to appreciate the need for technical police investigation to verify fabricated social media identities. The matter was remanded with a direction to pass a fresh order within six weeks.

What did the court decide?

Impugned order dated 3.2.2022 set aside; direction to Magistrate to pass fresh order within six weeks after hearing petitioner.

Vishva Deep Pandey Vs State of U.P. and… — Civil Procedure and Limitation | Allahabad HC (2022)

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Court No. - 16

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Case :- APPLICATION U/S 482 No. - 1107 of 2022

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Applicant :- Vishva Deep Pandey Opposite Party :- State of U.P. and Others Counsel for Applicant :- Dwijendra Mishra Counsel for Opposite Party : - G.A.

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Hon'ble Manish Kumar,J.

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The present petition under Section 482 Cr.P.C. has been filed to set aside the impugned order dated 3.2.2022 passed in complaint case no. 4749 of 2022 (C.N.R. No. UPLK040092862022) and further prayed to issue a direction to learned Special Chief Judicial Magistrate (Custom), Lucknow for passing appropriate order for lodging the F.I.R.

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Considering the nature of the order under challenge it is stage of precognizance of the case and at this stage the proposed accused have no right. Keeping this matter pending would not serve any fruitful purpose and delay the proceedings of the case as well as the order proposed to be passed, the notice to the private respondents is dispensed with and with the consent of the learned counsel for the petitioner/applicant and learned A.G.A. the matter is finally disposed of at this stage.

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Learned counsel for the petitioner/applicant has submitted that opposite parties are running Honey Trap Gang for extortion of money by using false and fabricated facebook ID's such as Swadhinta Sinha, Parul, Swadhinta Parul, Bittu Pathak, Sanvi Srijan, Lakshyika Rai, Khushi Pandey, Aditi Rai, Lakshyika Chitransh by imposing herself as I.A.S., I.P.S. Army Officer etc. and also used the emblem of Government of India. The petitioner has also targeted by the opposite parties when failed to succeed in their plan they made a false facebook ID's using the name and photograph of the petitioner. When the petitioner came to know about such facebook ID's he made a complaint to the facebook on e-mail on 11.8.2021 to delete the false and fabricated ID's, which were made by using his name and photograph but the facebook had not taken any action. The petitioner also made attempts for lodging an F.I.R. against the private respondents but he did not succeed and filed a complaint under Section 156 (3) Cr.P.C. on 21.1.2022 in which the Trial Court has passed an order dated 3.2.2022 for treating the complaint as a complaint case in place of passing an order for investigation after lodging of an F.I.R., as the matter is of cyber crime which is technical in nature and the technical expertise is not available with the petitioner/applicant and only Government agency has an access to the same. So far collecting of those evidence from the facebook and

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whatsapp, it is necessary to lodge an F.I.R. and investigation by police.

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Learned counsel for the petitioner/applicant relied on the judgement of the Hon'ble Supreme Court in the case of Lalita Kumari Vs. Government of India and others reported in 2014 (2) SCC 1 , judgement of this Court passed in the case of Lalaram Vs.State U.P. and 13 others in Criminal Revision No. 1611 of 2020 decided on 18.12.2020 and judgment dated 7.1.2021 passed by this Court in Application U/S No. 13804 of 2020 (Anmol Singh Vs.State of U.P and 3 others) .

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On the other hand, learned A.G.A. has submitted that it is discretion and jurisdiction of the Magistrate under Section 156 (3) Cr.P.C. either to entertain the complaint as a complaint case or to direct the police to lodge an F.I.R. He further submitted that Magistrate has power to direct the police to investigate the matter under Section 202 (1) Cr.P.C. The Magistrate has a discretion to chose the option of registering the application as a compliant case and therefore, there is no illegality in the order passed by the Magistrate.

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After hearing learned counsel for the parties and perused the material available on record and going through the judgments relied by learned counsel for the petitioner/applicant and as per the law settled by the Hon'ble Supreme Court in the case of Ramdev Food Products Private Ltd. Vs. State of Gujarat (2015) 6 SCC 439 that the first question as framed therein was "whether the discretion of the Magistrate to call for a report under Section 202 Cr.P.C. instead of directing investigation under Section 156(3) Cr.P.C. is controlled by any defined parameters? The Hon'ble Supreme Court answered the first question by holding that the direction under Section 156(3) Cr.P.C. is to be issued only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone issuance of process and finds that a case is made out to proceed forthwith, direction under the provision is issued. In other words, where on account of credibility of information available or weighing the interest of justice it is considered appropriate to straightway direct investigation, such a direction is issued. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate is yet to determine existence of sufficient ground to proceed. The category of cases falling under para 120.6 in Lalita Kumari may fall under section 202 Cr.P.C. Subject to these broad guidelines available from the scheme of the Court, exercise of discretion by the Magistrate is guided by interest of justice from case to case. The relevant paragraphs are in the case of Ramdev Food Products Private Ltd (Supra) is quoted hereinbelow:-

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"22. Thus, we answer the first question by holding that:

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22.1. The direction under Section 156 (3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone the issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.

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22.2. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed". Category of cases falling under para 120.6 in Lalita Kumar may fall under Section 202 Cr.P.C.

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22.3. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case."

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It would also be appropriate to refer to the judgment of this Court in the case of Gulab Chand Upadhyay Vs State of U.P. and others 2002 SCC OnLine All 1221 in which this Hon'ble Court has held as under:

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"20. In these circumstances, the question arises that when a Magistrate is approached by a complainant with an application praying for a direction to the police under Section 156 (3) to register and investigate an alleged cognizable offence, why should he

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(A) grant the relief of registration of a case and its investigation by the police under Section 156 (3) Cr.P.C. and when should he

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(B) treat the application as a complaint and follow the procedure of Chapter XV of Cr.P.C.

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21. The scheme of Cr.P.C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some investigation is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police under whom statute has conferred the powers essential for investigation, for example (emphasis laid)

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(1) where the full details of the accused are not known to the complainant and the same can be determined only as a result of investigation, or

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(2) where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or

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(3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved. To illustrate by example cases may be visualised where for production before Court at the trial (a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or (b) recovery of case property is to be made and kept sealed; or (c) recovery under Section 27 of the Evidence Act; or (d) preparation of inquest report; or (e) witnesses are not known and have to be found out or discovered through the process of investigation.

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22. But where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no "investigation" would normally be required and the procedure of complaint case should be adopted. The facts of the present case given below serve as an example. It must be kept in mind that adding unnecessary cases to the diary of the police would impair their efficiency in respect of cases genuinely requiring investigation. Besides even after taking cognizance and proceeding under Chapter XV the Magistrate can still under Section 202 (1) Cr.P.C. order investigation, even thought of a limited nature (see para 7 of JT (2001) 2 (SC) 81: ((2001) 2 SCC 628: AIR 2001 SC 571). "

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Recently, in the case of ' Lalaram Vs. State of U.P. and 13 others' passed in Criminal Revision No.1611 of 2020, decided on 18.12.2020, this Court has summarized the well settled proposition of law on the scope of Section 156(3) Cr.P.C., the power and jurisdiction of the Magistrate while deciding such an application. It would be appropriate to reproduce paragraph no.40 of the case of Lalaram (Supra) , as under:-

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"40. From the aforesaid judgments, some of the following proposition of law, well settled, may be summarized as under:-

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(40.01). Under Section 154 of the Code, if the information discloses commission of a cognizable offence it is the mandatory duty of the police officer in charge to register the FIR. He cannot avoid his duty of registering offence, if cognizable offence is made out.

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(40.02). If FIR is not registered, the person aggrieved by a refusal to record the information has remedy to approach the Superintendent of Police by submitting an application in writing and by post to enable him to satisfy if such information discloses the commission of a cognizable offence and in case of such satisfaction, either to investigate himself or direct an investigation to be made by any police officer subordinate to him.

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(40.03). If the person still feels aggrieved from inaction of the police authorities he has the remedy to approach the Magistrate by way of application under Section 156(3) Cr.P.C.,

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(40.04). On such an application having been made, if, the Magistrate finds that a cognizable offence is made out, the Magistrate may direct the police to register the FIR and investigate the matter, without taking cognizance.

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(40.05). The other option open to the Magistrate is to take cognizance on the complaint, register it as a complaint case and proceed as per the procedure prescribed under Chapter XV Cr.P.C. The Magistrate would record the statement of the complainant and the witnesses if any present, under Section 200 Cr.P.C. He may, if he thinks fit and shall in cases where accused resides out side the area of exercise of jurisdiction of the Magistrate concerned, either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, under Section 202(1) Cr.P.C. Thereafter, he shall pass order, either under Section 203 dismissing the complaint, for brief reasons to be recorded, or he shall issue process under Section 204 Cr.P.C.

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(40.06). In either case, i.e. issuing direction for investigation by the police officer under Section 156(3) Cr.P.C. or taking cognizance and registering it as a complaint case, the Magistrate has to apply judicial mind. There cannot be mechanical exercise of jurisdiction or exercise in a routine manner. Mere statement in the order that he has gone through the complaint, documents and heard the complainant will not be sufficient. What weighed with the Magistrate to order investigation or to take cognizance should be reflected in the order, although a detailed expression of his view is neither required nor warranted.

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(40.07). The exercise of discretion by the Magistrate is basically guided by interest of justice, from case to case.

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(40.08). However, where some investigation is required which is of a nature that is not possible for the private complainant and which can only be done by the police officer upon whom statute has conferred the powers essential for investigation, the option to direct the registration of the FIR and its investigation by the police officer should be exercised, for example:-

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(i) where the full details of the accused are not known to the complainant and the same can be determined only as a result of investigation, or

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(ii) where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or

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(iii) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved, and to illustrate this, by few example cases may be visualised where for production before Court at the trial

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(a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or

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(b) recovery of case property is to be made and kept sealed; or

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(c) recovery under Section 27 of the Evidence Act; or

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(d) preparation of inquest report; or

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(e) witnesses are not known and have to be found out or discovered through the process of investigation.

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(40.09). Where the complainant is in possession of the complete details of all the accused and the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no "investigation" would normally be required and the procedure of complaint case should be adopted.

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(40.10). Category of cases falling under para 120.6 in Lalita Kumari (Supra) i.e.

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(a) Matrimonial disputes/family disputes

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(b) Commercial offences

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(c) Medical negligence cases,

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(d) Corruption cases

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(e) Cases where there is abnormal delay in filling criminal complaint etc. may fall under Section 202 Cr.P.C .

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(40.11). The Magistrate should also keep in view that primarily, it is the duty of the State/police to investigate the cases involving cognizable offence. Generally, the burden of proof to bring the guilt of the accused is on the State and this burden is a heavy burden to prove the guilt beyond all reasonable doubts. This burden should not unreasonably be shifted on an individual/complainant from the State by treating the application under Section 156(3) Cr.P.C. as a complaint case.

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(40.12). The investigation which the police officer or such other person makes in pursuance of the direction of the Magistrate under Section 202(1) Cr.P.C. is the same kind of investigation as is required to be conducted by police officer, under Chapter XII Cr.P.C. which ends with

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submission of the report as per Section 173(2) Cr.P.C.

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(40.13). The distinction between the investigation by the police officer under Section 156(3) and under Section 202(1) Cr.P.C. is that the former is at the pre-cognizance stage and the latter is at post cognizance stage, when the Magistrate is seisin of the case. The investigation under Section 202(1) Cr.P.C. is for the purpose of ascertaining the truth or false hood of the complaint for helping the Magistrate to decide, whether or not there is sufficient ground, for him to proceed further against the accused by issuing process, whereas, the inquiry report under Section 173(2) Cr.P.C. of the investigation made by the police of its own or under the directions of the Magistrate under Section 156(3) Cr.P.C. is for the purpose of enabling the Magistrate to take cognizance of an offence under Section 190(1)(a) Cr.P.C.

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(40.14). Once cognizance is taken on the application under Section 156(3) Cr.P.C. by the Magistrate and he embarks upon the procedure embodied in Chapter XV, he would not be competent to revert to the pre-cognizance stage under Section 156(3) Cr.P.C.

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(40.15). If the Magistrate did not order for police investigation under Section 156(3) Cr.P.C. and took cognizance of the case, that would not be bar to the exercise of the power of the Magistrate for directing the police investigation under Section 202(1) Cr.P.C."

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After discussion made herein above, the Magistrate is empowered either to treat the complaint as a complaint case or to direct investigation by police after lodging the F.I.R. but the Magistrate before passing any order must judicially apply his mind wile exercising the power under Section 156 (3) Cr.P.C. and it is expected that the Magistrate would not act in a mechanical or casual manner. The order must be supported by reasons and in the present case the reason mentioned in the order is that the petitioner/complainant has fully apprised of the facts of the case and the same could be proved by producing prosecution witnesses. It is also observed that the petitioner/complainant knew the address of the respondents but the Magistrate completely failed to appreciate that the complaint made by the petitioner/complainant regarding technical/cyber crime alleged to be committed by the respondents by making false and fabricated facebook ID's in the name and photograph of the petitioner for sending false love proposals and thereafter they blackmailed the petitioner/applicant and in support of his submission the petitioner has enclosed screenshots of several facebook ID's, which were used by opposite party nos. 2 to 6 and for its verification that who has created these false and fabricated facebook ID's and which mobile or instrument has been used to create these fabricated facebook ID's and IMEI and KAF of the mobile used for and what is the IP address of

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the internet and these verification/investigation can only be done by expert police team dealing with cyber crimes but this important aspect of the matter has been totally ignored by the learned Magistrate that it necessitated investigation by police. It is only the police which exercising its powers of investigation could have access to the appropriate sources disclosing such necessary facts as discussed above. Therefore, the reason assigned in the impugned order dated 3.2.2022 does not reflect that the order has been passed after considering all these aspect of the matter and law laid down in the case of Ramdev Food Products Private Ltd (Supra) and Gulab Chand Upadhyay (Supra).

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The order under challenged i.e. order dated 3.2.2022 is hereby set aside with a direction to the learned Magistrate to pass a fresh order on the complaint made by the petitioner after affording opportunity of hearing to the petitioner in accordance with law within six weeks from the date of production of a certified copy of this order.

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The petition is allowed .

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Order Date :- 14.3.2022 Anuj Singh

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Digitally signed by ANUJ PRATAP SINGH Date: 2022.03.16 13:30:15 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Vishva Deep Pandey v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

Vishva Deep Pandey v. State of U.P. and Others

Case brief

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