Allowed

Kamlesh Panjwani v. State of Chhattisgarh

Chhattisgarh HC8 Sept 2023CRR/127/2023

Case brief

AI extract

What is this about?

High Court allowed revision against trial court order framing charges under IT Act and POCSO. Court held sending uncorroborated picture without evidence of its creation or pornographic nature failed to establish prima facie case and discharging applicant.

What did the court decide?

Impugned order setting aside charges framing section 67B IT Act and section 14 POCSO Act; applicant discharged from charges.

Kamlesh Panjwani Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRR No. 127 of 2023

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Order reserved on : 15/06/2023 Order passed on : 08/09/2023

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Kamlesh Panjwani, S/o Dharam Das Panjwani, Aged About 28 Years, R/o Veer Shivaji Nagar, Balsamund Road Palari, P.S. Palari, District Balodabazar - Bhatapara (C.G.)

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---- Applicant

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Versus

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State of Chhattisgarh Through P.S. City Kotwali Balodabazar, District Balodabazar - Bhatapara (C.G.)

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---- Respondent

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For Applicant : Mr. Ravindra Sharma, Advocate For State/respondent : Mr. Ankur Kashyap, P.L.

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Hon'ble Smt. Justice Rajani Dubey CAV Order

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This revision is filed by the applicant against the order dated 23.01.2023 passed by learned Additional District and Sessions Judge F.T.S.C. (POCSO) Balodabazar, District- BalodabazarBhatapara (C.G.) in Special Criminal Case (POCSO) No. 02/2023 whereby the learned trial Court framed the charges against the applicant under Section 67(B) of Information Technology Act and Section 14 of POCSO Act.

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Brief facts of the case are that the FIR No. 622/2022 dated 01.08.2022 has been registered at Police Station City Kotwali District- Balodabazar- Bhatapara (C.G.) against the applicant based on the information/tip from the CCPWC scheme of Government of India NCRB Branch to the Heard quarter under tip line 84176406, that on 01.06.2021 via social media an

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obscene picture/video of child has been sent from Mobile No. 917879802680 to Mobile No. 917999959734 over social media. After completion of investigation, charge-sheet was filed against the applicant for the offence under Sections 67A & 67B of IT Act, 2000 and Section 14 of the POCSO Act, 2012.

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Learned trial Court by impugned order dated 23.01.2023 framed the charges under Section 67B of IT Act, 2000 and Section 14 of the POCSO Act, 2012. Hence, the present revision.

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Learned counsel for the applicant submits that the impugned order dated 23.01.2023 is illegal, improper and contrary to the law, therefore, liable to be set aside. He further submits that in order to bring home charges under Section 14 of POCSO Act, it has to be established that the person has directly participating in pornographic acts or used the child for any pornographic purposes whereas looking to the allegation and contents of the charge-sheet, it cannot be prima facie established that the applicant has in any manner, used any child for any pornographic purposes. The prosecution has failed to prove that the alleged picture/video has been created or recorded by the applicant as the same was already present over the internet. There is an inordinate delay in lodging the FIR of more than one year which has not been explained by the prosecution.

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Prima facie, the prosecution has failed to establish the connection of the applicant with the aforesaid crime. The recipient of the alleged picture/video has not made any complaint against the applicant. The ingredients of the aforesaid crime under Section 67B of IT Act, 2000 and Section 14 of the POCSO Act, 2012 are completely absent in the instant case. Therefore, the impugned order dated 23.01.2023 is liable to be set aside.

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Learned State counsel supported the impugned order and submitted that the in the present case, there is prima facie material available on record against the applicant to prosecute him for the aforesaid offence. Therefore, the instant criminal revision is liable to be dismissed.

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Heard learned counsel for the parties and perused the material placed on record.

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It is clear from the order-sheet dated 23.01.2023 that the learned trial Court after hearing both the parties framed the charges under Section 67B of IT Act, 2000 and Section 14 of the POCSO Act, 2012.

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Section 67B of the Information Technology Act, 2000 reads as

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under :-

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67B. Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form .-Whoever-

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(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or (b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or

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(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or

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(d) facilitates abusing children online, or

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(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees:

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Provided that provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting representation or figure in electronic form-

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(i) the publication of which is proved to be justified as

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being for the public good on the ground that such book, pamphlet, paper, writing drawing, painting representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or

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(ii) which is kept or used for bona fide heritage or religious purposes.

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Explanation. -For the purposes of this section "children" means a person who has not completed the age of 18 years.]

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10. Section 14 of the Protection of Children from Sexual Offences

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Act, 2012 reads as under:-

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(1) Whoever uses a child or children for pornographic purposes shall be punished with imprisonment for a term which shall not be less than five years and shall also be liable to fine, and in the event of second or subsequent conviction with imprisonment for a term which shall not be less than seven years and also be liable to fine.

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(2) Whoever using a child or children for pornographic purposes under sub-section (1), commits an offence referred to in section 3 or section 5 or section 7 or section 9 by directly participating in such pornographic act, shall be punished for the said offences also under section 4, section 6, section 8 and section 10, respectively, in addition to the punishment provided in sub-section (1)”.

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(3) If the person using the child for pornographic purposes commits an offence referred to in section 5, by directly participating in pornographic acts, he shall be punished with rigorous imprisonment for life and shall also be liable to fine.

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(4) If the person using the child for pornographic purposes commits an offence referred to in section 7, by directly participating in pornographic acts, he shall be punished with imprisonment of either description for a term which shall not be less than six year but which may extend to eight years, and shall be liable to fine.

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(5) If the person using the child for pornographic purposes commits an offence referred to in section 9, by directly

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participating in pornographic acts, he shall be punished with imprisonment of either description for a term which shall not be less than eight years but which may extend to ten years, and shall also be liable to fine.

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Section 2(da) of the Protection of Children from Sexual Offences Act, 2012 defines child pornography as under:-

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2.(da) “child pornography” means any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer generated image indistinguishable from an actual child, and image created, adapted, or modified, but appear to depict a child;

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Applicant has filed a copy of charge-sheet and according to which, there is a picture of one child wearing only shirt who has watched the mobile. Nowhere any act of pornographic explicit can be seen in the said picture.

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Following are the charges framed against the applicant:

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1- rqeus mDr ?kVuk fnukad] LFkku o le; ij vius eksckbZy 91787902680 ds /kkjd ;wtj use Aanshu 1223, ESP User ID 43643303921 IP Address 103.71.21.234 (Login) fnukad 01-07-2021 05-07-08 UTC gksrs gq;s ,oa eksckbZy uacj 9179999599734 Screen user name hablabnikomal Esp user ID 44274216376 ls bysDVªkfud lk/ku ds ek/;e ls ckydksa dks fpf=r djus okyk v’yhy ,oa ySafxd izn’kZu] dkeokluk HkM+dkus okyh fofM;ksa dks izdkf’kr ,oa ijsf"kr fd;k tks lwpuk izkS|ksfxdh vf/kfu;e] 2000 dh /kkjk 67¼ch½ ds rgr naMuh; gSA

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2- mDr ?kVuk fnukad ,oa LFkku ij vkids }kjk vius eksckbZy 91787902680 ds vk/kkj ;wtu use Aanshu 1223, ESP User ID 43643303921 IP Address 103.71.21.234 (Login) fnukad 01-07-2021 0507-08 UTC gksrs gq;s ,oa eksckbZy uacj 9179999599734 Screen user name hablabnikomal Esp user ID 44274216376 ,oa baVjusV ds ek/;e ls ckydksa dk v’kksHkuh; ,oa v’yhyrkiw.kZ izn’kZu bysDVªkfud izk:i esa izlkfjr] ijsf"kr dj fd;k tks fd ySafxd vijk/kksa ls ckydksa dk laj{k.k

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vf/kfu;e&2012 dh /kkjk 14 ds rgr naMuh; gSA

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It is clear from the alleged picture that prima facie, no offence is made out against the applicant on the ground that he sent this picture through his mobile to his contacts. It is not the allegation that accused/applicant has clicked this picture or used this picture for any sexually explicit manner or used the same for pornographic purpose. This picture is not sufficient to frame the charges against the applicant for both the aforesaid offence.

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Learned State counsel submits that at the time of framing of the charges only prima facie, case has to be seen by the learned trial Court.

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True, it is that at the time of framing of charges the learned trial Court has to see the prima facie case on the basis of material collected by the prosecution and need not appreciate the same. However, in the present case, there is no such material available in the charge-sheet filed by the prosecution which could prima facie establish the charges framed against the applicant.

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Section 227 of Code of Criminal Procedure reads as

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under:-

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227. Discharge- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

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It is clear from all the documents annexed with the petition that this picture prima facie does not make any good ground for trial of the applicant for aforesaid offence.

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Being so, the impugned order of the trial Court framing charges under Section 67B of IT Act, 2000 and Section 14 of the POCSO Act, 2012 against the applicant in not in accordance with law and the same is liable to be set aside.

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On the basis of aforesaid discussions, the criminal revision

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stands allowed, the impugned order dated 23.01.2023 is hereby set aside. Consequently, the applicant is discharged from the charges under Section 67B of IT Act, 2000 and Section 14 of the POCSO Act, 2012.

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Sd/-

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(Rajani Dubey) Judge

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Ruchi

Kamlesh Panjwani v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Kamlesh Panjwani v. State of Chhattisgarh

Case brief

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What did the court decide?

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