Partly allowed

Sandeep Sivadas Nair v. The State of Telangana

Telangana HC19 Apr 2021CRLP/1677/2021

Case brief

AI extract

What is this about?

Single judge directed I.O. to strictly follow arrest guidelines under Section 41-A CrPC and Kamal Shivaji Pokarnekar principles. Quashed stalking charge for lack of ingredients but held remaining charges maintainable due to pending investigation.

What did the court decide?

Section 354-D IPC quashed; Section 67A IT Act and 509 IPC not quashed; I.O. directed to follow Section 41-A CrPC guidelines and Arnesh Kumar guidelines.

Sandeep Sivadas Nair Vs The State of Telangana — Writ and Judicial Review | Telangana HC (2021)

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IN THE HIGH COURT FOR.THE STATE OF TELANGANA

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AT HYDERABAD

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MONDAY, THE NINETEENTH DAY OF APRIL TWO THOUSAND AND TWENTY ONE

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PRESENT

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THE HONOURABLE SRI JUSTICE K.LAKSHMAN

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CRIMINAL PETITION NO: 1677 OF 2021

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Between:

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Sandeep Sivadas Nair, S/o. [vlr. Kandoth Sivadas Nair, Occ. Business, aged 47 years, Fyo. 421143, DLF Garden City, Semmencherry, Thalambur, Chennai- 600 019, Tamilnadu.

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...Petitioner/Accused

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AND

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The State of Telangana, through^{Police Station, Cyber Crime,Hyderabad} represented by Public^Prosecutor.

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...RespondenUComPlainant

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2.sriCol.NarayanaPillaiRarilal(rtd),S/oNarayanaPillai'aged63Lears'Occ' - E.pfov"e, nlo. v-sr,AwfrO Citonv' Ved Vihdr Diary Farm Road' Tirumulgherry' Hyderabad, Telangana.

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...Respondent^{No'2 /DefactoComplainant}

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PetitionunderSection482ofCr.PCprayingthatinthecircumstancesstated intheMemorandumofGroundsofCriminalPetition,theHighCourtmaybepleased to^{quash the FIR No. 179 ot 2021 agalnst the petitioner registered on the file of} Cyber Crime^{Police Station, Hyderabad including arrestof the petitionerpending} disposal^{of the Criminal Petition'}

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I.A. N O:1^OF2021

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Petition^{under Section4BZ of Cr'PlCpraying that in the circumstancesstated} in the Memorandum^{of Grounds of Criminal Petition'the High Courtmaybe pleased} to stay^{all further proceedingsin FIR No 179 of 2021 filedagainst petitionerbefore} Cyber^{Crime PoliceStation'Hyderabad,including arrestof the petitionerpending} disposal^{of the Criminal Petition'}

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LA. NO:^{2 OF 202'l}

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Between:

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Naravana^{Pillai Rarilal'S/o} .).i''?YAi:":l"XL,.,1[$il'ot8*,.$i'Y'l?li'c'3"'i; Fi;i*64' Colon^{ArmY officer'} HYderabad,50001^5'

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...Petitioner/Respondent'2/Respondent

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I il

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AND

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3:1,f"&::'i,1?;lttP3;}*!Xil$:$":ln11")'il;ii:f'l'"t3i'%?|""n'i'#uoo 6t 9' Tamilnaou

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"RespondenuPetitionerlPetitioner

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represented^{bYits Public Prosecutor' High Court of}

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2 The State of^Telangana' i"trngrnu'^HYderaoao'

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...RespondenURespondenURespondent

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Petition^{under Section 482 of Cr'P'C praying that in the circumstancesstated} intheMemorandumofGroundsofCriminalPetition,theHighCourtmaybepleasedto vacate^{the stay n'"nt"Oby this Courtin l'ANo'1of 2021in Crl'PNo'1677of} 2021 dated:^1O'03'2021'

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This^{Petition coming on for hearing' upon perusingthe Memorandum of} Grounds^{of Criminal Petition and upon hearingthe argumentsof Smt Anita Ahuja'} AdvocateforthePetitionerandthePublicProsecutoronbehalfoftheRespondent No.1 and^{of Smt S A V Ratanam' Advocate for the Respondent No'2}

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The Court^{made the following:ORDER}

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THE HONOURABLE SRI JUSTICE K. LAKSHMAN

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CRIMINAL PETITION No.1677 OF 2021

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ORDER:

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This Criminal Petition is filed under Section 482 of Cr.P.C., to quash the proceedings in Crime No.l79 of^2O2l pending on the file of Cyber Crime Police Station, Hyderabad. The petitioner herein is sole accused in the said^crime.The offences alleged against him^{are under Sections 67A of} Information Technolory Act and^{Sections 354-D and 509 of} IPC.

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The allegations against the^{petitioner herein are as} follows:

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a) The marriage of^the Petitioner^{with the daughterof} respondent No.2^was lolemnized^{on 22'01'2017' Both} of them were divorcees^{before their marriage'}

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b) The daughter^{of respondentNo.2 has1O years old son} from her first marriage.

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c) Later, disputes^{arose between the petitioner and the} daughter of responderit^{No.2 and their relationship was} strained for the last^two Years.

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d) The petitioner^{harassed the daughterof respondent} No.2 both^{physicallyand mentally'Finally' the} petitioner moved out^{of the flat of the daughterof} resPondent^{No'2 in JuiY, 2020'}

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e) After moving^{out of the said flat, the petitionerhas} been constantly^{harassing the daughter of respondent} media, WhatsAPP^andSMS

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No.2 through^sociai messages.

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f) The daughter^{of respondent No'2 has filed a petition} vide FCOP.No.397^{of' 2O2O befote the Judge' Family}

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KL,J Crl.P.No.l677^of202l

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Court, City^{Civii Court atSecunderabad' seeking} dissolution^{of her marriage with the petitioner'}

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g) She has also^{filed an interlocutory application in the} said FCOP seeking^{a direction to the petitioner to} restrain him from^{spreadingmaliciousmessagesand} propaganding on social^media.

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h) The Court^{below took note of the said request and gave} a verbal warning^{and asked the counsel for the} petitioner to convey the^{same to the petitioner'In spite} of the oral warning,^{the petitionerhas been indulging} in spreading malicious^{messagesand audio and also} video clips on the social^rnedia.

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i) The petitioner has^{created a WhatsApp groupby name} 'Banjo' by adding the family^{members of respondent} No.2. He then^{posted audio and video clips to malign} the entire family of^{respondent No.2.}

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j) The petitioner forced the daughter of^{respondent No'2} to consume alcohol, and^{in an inebriated state,} mentally tortured her and^{made her to talk vulgarity'} He used to record those^{and used it to blackmail his} daughter.

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k) The petitioner has^{postedthe said audio and video} clips to the relatives and friends^{of respondent No'2 to} demean them. He has aiso^{threatenedthem with dire} consequences and further insuited.

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With the said allegations, respondent No.2 has^lodgeda complaint on 29.O1.2O2 1 with Police, Cyber Crime Police Station, who in turn, registered a case in Crime No. 179 of 2O2l for the aforesaid offences.

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Smt.Anita Ahuja, learned counsel for the petitioner, would submit that the contents of the complaint lack the

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KL'J 3 Crl.P.No.l677^of2021

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ingredients of the offences^{alteged against the petitioner'} Respondent No.2 ld.efacto^{contrpiainantis the father-in-lawof} the petitioner and^{there are mhtrimonialdisputesbetween the} petitioner and his daughter.^{There is a divorce petition} pending. Taking^{advantage of the same, since the petitioner} has not accepted^{for dissolutionof marriage with mutual} consent, respondent^{No.2 has implicated the petitioner in the} above case.^{She would further submit that the Police'} without considering^{the fact that there are matrimonial} disputes^{between the petitioner and daughterof respondent} No.2, registered^{the present complaintReferring to the} principle iaid^{down by the Hon'ble Apex Court in SK'Jinnar} Ali v. State of^{West Bengall and Preeti Gupta v' State of} Jharkhand2,^{learned counsel for the petitioner would submit} thatthecontentsofthecomplaintlacktheingredientsofthe offences^{allegedagainst the petitionerand that the Police'} withoutconsideringthesame,registeredthepresentcrime and implicated^{the petitioner in the above case' She hasalso} relied upon^{the principle laid down by the MaduraiBenchof} Madras^{High Court in Crl'O P'(MD) No'3775 of 2017 and} Cr1.M'P.(MD)^{No'2768 ol2Ol7 dated26'O9'2019and also} Madras^{High Court in Crl'O'P'N os'17269 & 21603 of 2015} and MP.Nos.1+1^{of 2015 & 3+3 of 2015 & 4+4 of 2015'dated} 27.O3.2OI5,^{and would submit that the contents of the} complaint^{and the WhatsAppmessages do not containany}

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'^cDJr0lTsc921

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'^{co.lzb to scogs}

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obscene messages and therefore, the offences alleged against the petitioner are liabie to be quashed. With the said submissions, learned counsel for the petitioner sought to quash the proceedings in Crime No.179 of 2021 .

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On the other hand, Smt.S.A.V.Ratnam, learned counsel appearing for respondent No.2, would submit that the contents of the complaint and the WhatsApp messages pnma /acie^constitute the offences alleged against the petitioner herein. The matter is at crime stage and the investigation is pending. The petitioner has scant respect for the Courts and he has made comments against the Judge, Family Court. Though the Judge, Family Court, gave a warning, there is no change in the attitude of the petitioner. The present complaint is nothing to do with matrimonial disputes between the petitioner and daughter of respondent No.2. The petitioner has created a WhatsApp group in the name ,Banjo,, added the numbers of close relatives of respondent No.2 and posted the .^{material containing sexua-lexplicit} with an intention to insult the modesty of daughter of respondent No.2. However, the matter is at crime stage and investigation 1S pending. Even then, the petitioner filed the present Criminal petition seeking to quash the above proceedings at crime stage. With the said submissions, learned counsel for respondent No.2 sought to dismiss the present Criminal Petition.

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KL,J 5 Crl.P,No.^{t 677 of202l}

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Learned^{Public Prosecutor'on written instructions'} would submit^{that the cohtents of the complaint and} WhatsApp^{messages,prima facie' constitutethe cognizable} offence^{against the petitioneqand therefore' the Police have} registered^{the above said crirne' Theyhave also recorded the} StatementofrespondentNo.2,hisdaughter_victimandalso collected^{material' The daugtrterof respondent No'2 has also} given a certificate^{under Section63-8 of the lndian Evidence} Act. There^{are several aspectsto be investigatedinto by the} the said^{submissions'Iearned}

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Investigating^{Officer' With} dismiss^the Present^Criminal

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Public^{Prosecutorsoughtto} Petitron.

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The above^{said submissions would reveal that the} marriage^{of petitioner and daughter of respondentNo'2 viz''} . Ldr.^{Aswathi Rarilal' was solemnizedon 22'Ol'2O17'lt}

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sqn is a second^{marriage to both of them' The daughterof} respondent .^{No'2 has} ", "o'^{from her firstmarriage'} Thereafter,^{maffimonial disputes arosebetween them'} According^{to respondentNo.2, the petitionerharassed his} daughter^{physically and mentally' Finally' the petitioner has} moved^{from the house of daughterof respondent No'2 in July'} 2O2O.^{Therea-fter'he has,created a WhatsApp group in the}

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name^{'Banjo' and addedthe phone numbers of respondent} No.2^{and his cioserelatives i'e' ' his nephews' grand niece'} wife and^{others' Then'the petitioner started postingaudio}

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KL,J Crl.P.No.1677 of 2021

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and video clips to malign the entire family of respondent No.2. Even, the petitioner has posted a message saying that he does not care for the law and he witl take the law. According to respondent No.2, the petitioner has resorted to malign his and his daughter's reputation through SMS, WhatsApp and social media postings. The said posts are shameless, ruthless and without an iota of civility. The petitioner has not stopped anything to demean respondent No.2, his daughter and his family and abused them verbally. In proof of the same, respondent No.2 has submitted print outs of posts that were forwarded by the petitioner in the said WhatsApp group, social media and SMS along with the complaint.

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The Sub-Inspector ol potice, Cyber Crimes, Hyderabad, along with his written instructions dated 16.03.202 1, filed the statements of respondent No.2, his daughter _ victim under Section 161 of Cr.p.C., and also copy of certificate issued by daughter of respondent No.2 under section 65-B of the Indian Evidence Act. He has also filed WhatsApp messages, postings, both audio and video and arso photos collected by him during the course of investigation. Some of them are extracted beiow.

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"Anytime you see a girl shaking her buttocks while walking, just know she is going to her guy,s place. How did I know?

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Because it's written on syrup bottles

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'shake well before use,,. Wisdom will kill me one day.,

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The difference between biing hungry and being horny where you put the cucumben.

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KL'J Crl.P.No,1677^{of 2021}

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Adultery should^{continueto be offencein armed forces'} ' Centre tells SC.

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No on my^{wife says it is a norm in the armed foces even} the AOC^{sleePsaround'}

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Apparently^{filing a divorcepetition is enoughfor one to} get engaged legally^{again in the forces" 'the parentsdo} Lacha^{theeno kush raho mamako} ?r-r. "..'.ri""ral"Mera v"fri- i.rlirt"*ir.*r'1iv "fr.yi^{.itrui. i,, Now tr't official iesidence apparentlv the happilyengaged couple withare} in the^{iorces kno'"fingof it'} """.voi"

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Which mother^{takes a nine year old to a fuck party in} cove 'book^{ttoo* using her dad's money} F;;;il married^{man who had come for a one} i;;i;;-oo'1v month training^{to Tamblram'who thought he was being} taken^{for dinner, t" ;;;;i} into a^{overnight stay/fuck} and with^{her son i" to}'-ihattadultery in the forcefor It is a^{social issue and has to stop'} ,h;;;;i,t"."d' married" 'has Kurkure^{has slept with his sister} -who ^is cheated^{on his wife ;;'h;knew for-i0 years'Chases} every^{women utatantty 'ini""o f't is hooked'to my wife'} Had an^{affair with J'p"ii""twho was admitted in} rt'"^{patient'sfajr} Tambaram^during 'h;^i;id";""t- #iil'i;;i";t''.Ilvil;"-#""ji.i:J"r:',""TI"'':Y: this^{relationship'} more^proneto 'tt1.,"rL't#'il""ta allowed^{him to thetr house' attu^L"-'I'"'u"} ^^{move on him} Worried^{for my son cause'he could make a} too.

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Whiletheirofflcialengagementwas.inNovember,2020, she claims^{,o hru" "fr5in.1"g.g.a ,. .1lr} ^L?r;fl?; i'd"rol iiii"^l',Y'l X'::' ;i;,S! T,k[ii"'-;nd^just -i.".ru"r.__.i her place gone to^{Ksrala torvrtN..} lr, ieturned...I^{was however} l,'-^';^';;; while^{she was} "l"It"l^"ry"gt" T3. :1i,::Tt:1"i:'^ o[l;;;;;" "n" busv^{with Kurkure'} hooks^uP PeoPle' Mv^{wife preYs.marked} [';:';]: i;::'["#'"'Tiii whatsApp^{and sex} t$,i',=.li',rflir.+T.+i":-rffi^'Ltt love^decagon?? January' shockers"^{but to" hav'n3'rt} .r';ttta "i Edo^Rari i^r?-,':l; ilfl""|ixf i:['J:'Jff:"*;':"i"1 srand^{dad 'sadY(} lour^daughter' Of Your^{daughter fucking} Mohin Give^{ashvikto vlkas}

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Please spare your daughter in law. The abuses your daughter gave you on the day I came To Secunderabad is so fucking real You are shit. Chooooooth Asswhoie Show this to him Chooth. Now you asked for it Your daughter's home videos are stili with me rari And I am voicing Fundamental rights No one can stop me All in all FUCK yOU. plad y9u are talking this path I would have been bored Otherwise Will send it to all The video is with the cops now lvla]<e^{Vour daughter oild famous} .,o rn secunderabad I have a lot planned You.are going to be busy While your daughter fucks around. I will fuck you What mohin earns in three years I would have spent more in her surveillance in the last f._ #Ifr"." So don't worrv Know the lawI am playing by it Rari Hiiiiiii Have added vou In banjo.^. The judge can say whatever l am not worried When I am done you will know Il:l:l: free to say wharever rhey want r am not scared or worried l wlll take the law. Let thejudge say whatever now #xrit#f:i*^{j,:J',*;:?'r::ri:} Judge said that youuuuuu. ..gosh...what can I do next....fuck

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My wife is whoring around...she^{is fuckingin her house} with mohin sakre... he^{is awayfor 12 days now."}

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g . Referring to the WhatsApp^{messages,learned counsel} for the petitioner^{would submit that there are disputes} between the^{petitioner and daughter of respondentNo'2 and} they are matrimonia-l^{disputes and therefore,respondent No'2} has implicated^{the petitioner in the presentcriminaicase'}

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The above^{said facts and also the WhatsAppmessages} posted by the^{petitioner to the daughter of respondent No'2} would reveal^{that there are strained relationsbetweenthe} petitioner and respondent^{No'2' Whether the petitioner has} created a^{WhatsAppgroup by name 'Banjo" and whetherhe} has added^{respondentNo'2, his close relatives and his} daughter in^{the said group are factual aspects tobe} investigated^{into by the Investigating Officer'The allegation} that daughter^{of respondent No 2 is having illicit relation with} others and^{she is leading adulterouslife is again a factual} aspect to^{be investigated into by the Investigating Officer'}

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1 i. Admittedly,^{investigationis pending'The Investigating} Officer has^{recorded the statementsof respondent No'2 and} his daughter.^{He has to record the statements of some other} witnesses^{and to collect the evidence 'The daughter of} respondent^{No.2 has submitted a certificateunderSection} 65:B-of^{the lndianEvidenceAct and the InvestigatingOfficer} has also^{collectedthe evidence wherein the mobile number'}

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etc., are specifically mentioned. Thus, there are several factua-l aspects to be investigated into by the Investigating Officer.

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As per Section 67A of the Information Technologr Act, whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine, etc. Thus, there should be publish or transmit in the eiectronic form any material which contains sexuaily explicit attracts the offence under Section 674. of the Information Technolory Act.

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1 3. As discussed supra, pima facie, there are messages which are said to have been posted by the petitioner contain sexually explicit act. The above said relevant WhatsApp messages sajd to have been posted by the petitioner are extracted above. Therefore, according to this Court, there is, pima facie,. material against the petitioner herein. Admittedly, the investigation is pending. The said aspects have to be investigated into by the Investigating Officer during the course of investigation. If the Investigating Officer comes to a conclusion that there is lack of evidence and allegations are false, he files a Iinal report with the said reason.

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Section 354-D of^{IPC deals with stalking,and as per} which, any man who^{follows a woman and contacts' or} attempts to contact^{such woman to fosterpersonal interaction} repeatedly despite^{a clear indicationof disinterest by such} woman; or monitors^{the use by a woman of the internet'} e-mail or any^{other form of eiectronic communication'} commitstheoffenceofstalking.Inthepresentcase,the petitioner and^{daughter of respondentNo'2 are wife and} husband.^{The application flled by daughter of respondent} No.2 seeking^{dissolutionof her marriagewith the petitioner is} pending.^{A perusalof the contents of the complaintand} WhatsApp^{messages Iack the ingredients of Section 354-D of} IPC and^{they do not attract stalking' Therefore' this Court is} inciined^{to quash the offence under Section 354-D of IPC'}

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15.^{As per Secdon 509 of IPC' whoever'intendingto insuit} the modesty^{of any woman'utters any words' makes any} sound^{or gesture' or exhibits any object'intendingthat such} word or^{sound shailbe heard' or that such gesture or object} shall^{be seen, by such woman'or intrudesupon the privacy} of such^{woma-n' shatl be punishedwith simple imprisonment} for a^{term which may extend to three years' and also with} fine.

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16.^{The Apex Court in a recent judgmentin KamalShivaji} pokarnekar^{Vs' The Staterof Maharashtraaheld that it is}

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I (2019) l4 scc 350

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not necessary^{that, a meticulous analysis of case shouldbe} done before^{trial to find out whether case would end in} conviction^{or acquittal'} "^{The defencesthat might be} available, or^{facts/aspects which whenestablished during} trial, might^{lead to acquittal,were not grounds for quashing} complaint at threshold.^{At that stage, only question relevant} was whether avernents^{in compiaint spel1 out ingredientsof a} criminal offence or not.^{... Correctnessor otherwise of said} allegations had to be decided^{only in tria1. ... If ingredientsof} offence alleged against Accused^{were pima} /acie^{made out in} complaint, criminal proceeding sha1l^{not be interdicted.}

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17 . In view of the authoritative principle of 1aw laid down by the Hon'ble Apex Court, as discussed above, the matter is at crime stage and investigation is pending. There are several factual aspects to be investigated into by the Investigating Officer. Considering the said facts, this Court is not inclined to quash the proceedings for the offences under Sections 67A of the Information Technologz Act and Section 509 of IpC in Crime No.l79 of 2021.

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Considering the fact that punishment prescribed for the offences under Section 67 A of the Information Technologr Act and Section 509 of IPC is three years, that there are matrimonial disputes between the petitioner and daughter of respondent No.2, that there are strained relations between them and that there is an application for dissolution of their

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marriage is^{pending, the present Criminal Petitionis disposed} of directing^{the Investigatingbfficer in Crime No'179of 2O2l} pending on the^{file ofCyber Crimes Police Station'} Hyderabad,^{to strictly follow'theprocedurelaid down under} Section^{41-Aof Cr'P'C', and also the guidelines issued by the} Honble^{ApexCourtin Arnesh Kumar v' State of Bihar and} anothera.^{The petitioner shall cooperatewiththe} Investigating^{Officer by furnishingthe informationand aiso} the documents^{assought by the investigatingOfficer tn} The interim^{order granted bY} concluding^{the investigation'} Miscellaneous^Petitions this^{Court eaJlier 1s} vacated.