Held that the rejection of discharge application under Section 239 Cr.P.C. by Chief Judicial Magistrate was justified as prima facie case was made out against applicant for accessing complainant's email ID under Section 66 of IT Act, dismissing the Section 482 application.
Side bar or interim order, if any, stands discharged.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Neutral Citation No. - 2023:AHC:134457
Reserved
Court No. - 79
Case :- APPLICATION U/S 482 No. - 41273 of 2022
Applicant :- Harish Sharma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sujan Singh,Durgesh Pratap Singh Counsel for Opposite Party :- G.A.,Daya Shanker Pandey
Hon'ble Vipin Chandra Dixit,J.
List has been revised. No one is present on behalf of opposite party no.2.
Heard Sri Sujan Singh, learned counsel for the applicant and learned AGA for the State.
This application under Section 482 Cr.P.C. has been filed against the judgment and order dated 28.8.2022/29.8.2022 passed by Chief Judicial Magistrate, Gautam Buddh Nagar in Case No. 16770 of 2021(State vs. Harish Sharma) arising out of Case Crime No. 0786 of 2020, Police Station Sector-39 Noida, District Gautam Buddh Nagar, under Section 66 of IT Act by which discharge application filed by the accused-applicant under Section 239 Cr.P.C. was rejected.
Brief facts of the case are that opposite party No.2 had lodged FIR against the accused applicant on 12.12.2020 and case was registered as Case Crime No. 0786 of 2020 under Section 420 IPC and 66 of IT Act at Police Station Sector-39, NOIDA, District Gautam Buddh Nagar. The statement of opposite party no.2 and other witnesses were recorded under Section 161 Cr.P.C.in which they have supported the prosecution case. The Investigating Officer, after due investigation has submitted charge-sheet against the applicant on 16.4.2021 under Section 66 of IT Act whereas the applicant was exonerated from the offence under Section 420 IPC. The Trial Court had taken cognizance. During pendency of trial, the applicant had moved discharge application on 18.8.2022 under Section 239 Cr.P.C. on the ground that the applicant had not committed any offence as alleged in the FIR and the Investigating Officer without conducting proper investigation and without considering the statement of witnesses recorded under Section 161 Cr.P.C. had submitted charge-sheet against the applicant.
It is further submitted that the applicant has expertise in hardware and has no knowledge about software and has not accessed the login I.D. of the complainant. Lastly, it is submitted that the applicant holds only 4.5% share of the company and the present FIR has been lodged by opposite party no.2 with malafide intention to usurp the share of the company.
The learned Chief Judicial Magistrate after considering the grounds taken by the applicant in his discharge application and after considering various judgments of the Hon'ble Apex Court, has recorded finding that prima facie case is made out against the applicant and rejected the discharge application by passing detailed order dated 29.8.2022 which is impugned in the present application.
Section 239 Cr.P.C. is quoted hereunder:-
"When accused shall be discharged. If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."
Bare perusal of Section 239 Cr.P.C. shows that if the Court, after considering the documents with the police report, is satisfied that the charges levelled are baseless, the Court can discharge the accused. The ambit of Section 239 Cr.P.C. and the approach to be adopted by the Court while exercising the powers vested in it under the said provision is considered by the Hon'ble Apex Court in the case of Onkar Nath Mishra and others vs. State (NCT of Delhi) and another, 2008 2 SCC 561 . The relevant paragraph No.11 is quoted herein below:-
"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
The Hon'ble apex Court in the case of State of Tamil Nadu Vs. N. Suresh Rajan and others reported in 2014 (11) SCC 709, has
held that at the time of deciding the application for discharge, the Court is not expected to go deep into the matter and consider the entire evidence and material which are available on record. Paragraph 29 of the judgment of Suresh Rajan(supra) is quoted below:-
"29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post-office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."
The Hon'ble Apex Court in the State of M.P. vs. Mohanlal Soni reported in (2000) 6 SCC 338 has held that at the time of framing of charges the Court has to prima facie consider whether there is sufficient ground against the accused or not and the Court is not required to consider the evidence in detail and appreciate evidence to conclude that there are sufficient materials for conviction of the accused. Only prima facie satisfaction of learned Magistrate is required at the time of framing of charges. Relevant paragraph 7 is quoted herein below:-
"7. The crystallized judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused."
It is well settled law by Hon'ble Supreme Court in series of cases that at the time of framing of charges the Court has to prima facie consider whether there is sufficient report in proceeding against the accused. The Court is not required to appreciate the evidence and reach at the conclusion for convicting the accused. If the
Court is satisfied that a prima facie case is made out for proceeding further, then the charge is to be framed.
From the record, it is apparent that the FIR was lodged by opposite party no.2 with the allegation that accused-applicant by hacking e- mail I.D. of the complainant and other members of the company, has incurred heavy financial loss and irreparable damage to the company. The Investigating Officer, after due investigation and recording statement of witnesses had found that the disputed e- mail I.D. was accessed through mobile of accused-applicant and found that offence under Section 66 IT Act is made out against the accused-applicant and had submitted charge-sheet. The learned Magistrate after considering the evidence and material which are available on record, had taken cognizance and summoned the accused-applicant in the present case. The discharge application filed by the accused-applicant was rejected by the Chief Judicial Magistrate, Gautam Buddh Nagar by a detailed order after relying several judgments of the Hon'ble Apex Court and after prima facie satisfaction that there are sufficient evidence and material against the accused-applicant and has rightly rejected the discharge application filed by the applicant.
No ground for interference is made out. The application under Section 482 Cr.P.C. is accordingly dismissed . Interim order, if any, stands discharged.
Order Date :- 7.7.2023 P.P.
Digitally signed by :- POONAM PATEL High Court of Judicature at Allahabad
3 issues framed by the court
Whether the learned Chief Judicial Magistrate committed an error in rejecting the accused's application for discharge under Section 239 Cr.P.C. on the ground that a prima facie case was made out.
Whether there is sufficient scope for interference with the impugned order under Section 482 Cr.P.C. given the established principles for discharge applications.
Whether the rejection of the discharge application was grounded in sufficient evidence and material enough to presume the commission of the alleged offence under Section 66 of the IT Act.
Colour shows how this judgement treated each authority
Onkar Nath Mishra and others vs. State (NCT of Delhi) and anotherReferred¶16
Onkar Nath Mishra and others vs. State (NCT of Delhi) and another, 2008 2 SCC 561 · Who else cites this
State of Tamil Nadu Vs. N. Suresh Rajan and othersReferred¶18
State of Tamil Nadu Vs. N. Suresh Rajan and others, 2014 (11) SCC 709 · Who else cites this
State of M.P. vs. Mohanlal SoniReferred¶21
State of M.P. vs. Mohanlal Soni, (2000) 6 SCC 338 · Who else cites this
6 provisions across 3 enactments
Harish Sharma
State of U.P.
Another
Vipin Chandra Dixit
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
