Shrawn Byohar vs Ashish Kumar and others

This petition under Section 482 of CrPC has been filed against the order dated 17/12/2015 passed by Sessions Judge, Ashoknagar in Criminal Revision No.42/2015 by which the order dated 28/08/2015 passed by CJM, Ashoknagar in Criminal Case No.666/2015 has been partially affirmed.

The necessary facts for the disposal for the present application in short are that a written complaint was made to the Town Inspector, Police Station Ashok Nagar alleging that the applicant has shared some obscene photographs and has made some filthy comments on his facebook account as a result of which all the followers of Hindu religion have got hurt. Some photographs uploaded by the applicant were also annexed with the application. Accordingly, a FIR in Crime No.593/2014 was registered against the applicant for offences punishable under Section 295(2) of IPC and under Section 66-A of Information Technology Act. The police, after completing the investigation, filed the charge-sheet for the aforementioned offences.

The Trial Magistrate framed charges under Section 295-A of IPC and under Section 67-A of Information Technology Act, 2000.

Being aggrieved by the order of the Magistrate, the applicant filed a criminal revision which was allowed and the matter was remanded back. The Trial Magistrate, by order dated 28/08/2015, framed charges against the applicant for offences under Section 295-A of IPC and under Section 67-A of Information Technology Act.

Being aggrieved by the order of the Trial Magistrate, the applicant filed a criminal revision. The said revision was partially allowed and the charge framed under Section 295-A of IPC was set aside on the ground that in view of Section 196 of CrPC, the Court cannot take cognizance of any offence punishable under Section 295-A of IPC except with the previous sanction of the Central Government or of the State Government. It was further observed that the prosecution shall be free to obtain and file the sanction as required under Section 196 of CrPC.

So far as the charge under Section 67-A of Information Technology Act is concerned, the same was maintained by the Revisional Court. It was contended by the applicant that as a certificate is required under Section 65-B of the Evidence Act, therefore, the printout of the facebook account of the applicant is not admissible. The Revisional Court rejected the contention of the applicant on the ground that it is a matter of evidence that whether the certificate under Section 65-B of Evidence Act is required or not and, therefore, can be considered and decided only after the evidence is recorded.

It is submitted by the counsel for the applicant that as the photographs, uploaded on the facebook account of the applicant, have been relied upon by the prosecution, therefore, the certificate as required under Section 65-B of the Evidence Act is mandatory.

Per contra, it is submitted by the counsel for the State that the certificate under Section 65-B of the Evidence Act would be required only when any information is regularly fed into the computer in the ordinary course of the said activities by the person who has taken out the printout but in the present case the certificate as required under Section 65-B of the Evidence Act would not be necessary as merely the printout of the photographs and text, uploaded by the applicant in his own facebook account, were taken. Heard the learned counsel for the parties.

So far as the desirability of the certificate under Section 65- B of the Evidence Act alongwith printout of the photographs and the text which were uploaded by the applicant in his facebook account is concerned, it is clear that the prosecution had relied upon the printout of the said obscene material which were not uploaded by the person who had taken out the printout. In fact, it is the applicant who is alleged to have uploaded the said obscene material on his facebook account and, therefore, under these circumstances, this Court is of the considered opinion that the Revisional Court did not commit any illegality while upholding the framing of charge. The Revisional Court rightly held that whether the certificate as required under Section 65-B of the Evidence Act would be required or not is a matter of evidence which can only be considered and decided by the Trial Court after recording the evidence.

Under these circumstances, this Court is of the considered opinion that the Revisional Court did not commit any mistake and, therefore, the order dated 17/04/2015 passed by the Sessions Judge, Ashoknagar in Criminal Case No.42/2015 is hereby affirmed.

This application under Section 482 of CrPC fails and is hereby dismissed.