Pankaj Anand Aswar and Anr. Vs the State of Maharashtra and Anr.

apl892a

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ssp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELATE JURISDICTION
CRIMINAL APPLICATION NO.892 OF 2015

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Pankaj Anand Aswar & Anr. ...Applicants
vs.
State of Maharashtra & Ors. ...Respondents

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...Respondents

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Mr.Sachin Chandan for the applicants
Ms M.H.Mhatre, APP for the respondent No.1
Mr.S.C.Mangle for respondent No.2

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CORAM : A.S.OKA, &
 P.D.NAIK, JJ.
 DATE : MAY 5, 2016

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P.C.:

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1Rule. The learned APP waives service for the
first respondent. The learned counsel for the second
respondent waives service. Forthwith taken up for
final disposal.

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2By this application under section 482 of the
Code of Criminal Procedure,1973 (for short `the said
Code') a prayer is made for quashing the FIR No.153
of 2014 registered with Dharavi Police Station for
the offences punishable under sections 65, 66 and 67
of the Information Technology Act and 354A and 509
of the Indian Penal Code. It is pointed out in the
application that the first applicant is working in
an Information Technology company and the second
applicant is a Doctor by profession.

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3The second respondent was having her consulting
business which has its head office at Nagpur and a
branch office at Andheri, Mumbai. After the
marriage of the second respondent, she was handling
the business from home through internet. She had
taken cell phones from corporate line. She was
carrying on business jointly with her uncle and her
cousins. On 26th January 2014, the second respondent
started receiving vulgar messages from the web site
of Makaan.com. She informed her cousin Shri
Mahendra Kakade to in turn inform the Office of the
said web site. After few days, the second
respondent started receiving calls on her cell phone
during the odd hours in the night from an Adult Web
Site.

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4The second applicant is the husband of the real
sister of the second respondent. After few days, he
received a message on his own cell phone in vulgar
language from Makaan.com which was issued in the
name of the second respondent. Even the father of
the second respondent started receiving vulgar
messages through his cell phone. Thereafter, the
said Mahendra Kakade contacted Shri Sachin, an
Officer of Makaan.com and instructed him not to send
such type of messages. According to the case of the
applicant, the said Sachin blocked the cell phones
of the second respondent, second applicant and the
father of the second respondent. Criminal Case
No.RCC No.1449/PW/2015 was registered on the basis
of the FIR No.153 of 2014 registered against the
unknown person.

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apl892a

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5It appears that in July 2015, the first
applicant who is a resident of Nagpur was arrested
and thereafter, the second applicant was arrested.

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6The application proceeds on the footing that
there was a compromise between the applicants and
the second respondent in presence of the members of
the family. The second respondent has filed an
affidavit supporting the application by contending
that on her own free will, she has entered into a
settlement with the applicants.

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7We have perused the documents forming part of
the charge sheet. There is statement dated 26th June
2014 recorded of the second respondent which is a
part of the charge sheet. In that statement, she
has stated that some one started sending vulgar
messages in her name on the cell phone of the second
applicant who is the husband of her elder sister.
She stated that some unknown person was sending
vulgar messages to the cell phone of the second
applicant. There is a statement of her father in
which he has not blamed anybody.

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8In the charge sheet, there is a statement of
the wife of the second applicant in which she has
stated that she has a dispute with the second
applicant and in fact, the second applicant has
forwarded vulgar messages to her brother.

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9 After perusal of the charge sheet, we find that

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there is no concrete material to show the
involvement of the applicants in the act of sending
vulgar messages to the second respondent or in the
act of sending vulgar messages in the name of the
second respondent.

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10Apart from the settlement, the first and second
applicants have donated a sum of Rs.75,000/- each to
NAAM Foundation which is a reputed charitable
organization working for giving relief to drought
affected farmers and their families.

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11The offences alleged are punishable under
sections 65, 66 and 67 of the Information Technology
Act and 354A and 509 of the Indian Penal Code. In a
given case, these can be very serious offences which
may affect the entire society. In the present case,
FIR was registered against the unknown persons. As
observed earlier, we do not find any material in the
charge sheet about any role played by the applicants
in sending vulgar messages on the cell phone of the
second respondent and her father. Therefore, in the
peculiar facts of the case, we are inclined to
exercise power under section 482 of the Cr.PC for
quashing the criminal proceedings.

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12 Accordingly, we pass the following order:

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(I)Rule is made absolute in terms of prayer
clause (a) which reads thus:

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“(a)That this Hon'ble Court be pleased to
invoke its power under section 482 of Cr.P.C
and quash and/or set aside the FIR bearing
No.153 of 2014 registered by the Dharavi Police
Station section 65, 66, 67 of I.T. Act and 354
(A) 509 of the Indian Penal Code Act,1860 and
proceedings being case RCC No.1449/PW/2015
pending before the file of the Metropolitan
Magistrate, Kurla Court, Mumbai.”

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(II)All parties concerned to act upon an
authenticated copy of the Judgment and order.

Pankaj Anand Aswar and Anr. v. the State of Maharashtra and Anr.

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Pankaj Anand Aswar and Anr. v. the State of Maharashtra and Anr.

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