employees Cw7 and Cw8, show that even in the log book
the number and details of each cabin which was used by
each customer including the accused on 3/7/09 is not
available in the log book as that column is left blank by
omission. Therefore, even if the revision petitioner visited
the Cafe on 3/7/09, the computer which is said to have been
used by the revision petitioner is not identifiable. In the
final report, it is also stated that since the video clippings
containing the visuals of the persons who visited the Cafe
on 3/7/09 are not available, the computer and its hard disc
have not been seized and taken into custody by the police as
Material Objects.IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
WEDNESDAY, THE 7TH DAY OF AUGUST 2013/16TH SRAVANA, 1935
Crl.Rev.Pet.No. 10 of 2013 ()
AGAINST THE JUDGMENT IN CC 140/2010 of J.M.F.C.-I
MUVATUPUZHA, DATED
RAJESH
S/O. BHASKARAN, PRATHUSHA VEEDU, KATTAPPUZHA VILLAGE
V
STATE OF KERALA
K. HARILAL, J.
= = = = = = = = = = = =
Crl.R.P.No. 10 of 2013.
= = = = = = = = = = = =
Dated this the 7th August, 2013.
Citation; 2014 CR L J 204
This Revision Petition is filed challenging the impugned
order passed in CMP.No.147/2012 in CC.No.140/2010 on
the files of the Judicial First Class Magistrate Court,
Muvattupuzha, dismissing the above petition filed by the
Revision Petitioner under Section 239 of the Code of
Criminal Procedure, seeking discharge from prosecution.
The Revision Petitioner is the sole accused in
CC.No.140/2010 on the files of the Judicial First Class
Magistrate Court, Muvattupuzha as well as Crime
No.14/2009 in CCPS/Kerala, Thiruvananthapuram of Cyber
Crime Police Station, Kerala, from which the above
Calender Case had been arisen.
2. Originally he was the accused in Crime
No.1499/2010 of Muvattupuzha Police Station registered for
Crl.RP.No.10/2013.
the offence punishable under Section 66 of the Information
Technology Act (for short 'IT Act') and the Crime
No.399/2009 of the Vanchiyoor Police Station registered for
the offence punishable under Section 66 of the IT Act and
Section 420, 379 r/w.Section 34 of the Indian Penal Code.
These two crimes were registered alleging the same act
alleged to have been committed by the accused. But, by the
order No.D5/76776/2009 issued by the Director General of
Police, the above two cases were transferred to Cyber
Police Station, SCRB, Thiruvananthapuram. Now, after
investigation, a final report has been filed by the Circle
Inspector of Police, Cyber Police Station,
Thiruvananthapuram before the Judicial First Class Magistrate
Court, Muvattupuzha against the Revision Petitioner/accused
alleging offence punishable under Section 469 of the IPC
alone, after deleting the offence punishable under Section
66 of the IT Act and also all other offences alleged against
the Revision Petitioner/accused for the offences punishable
Crl.RP.No.10/2013.
under the India Penal Code.
3. The prosecution case in brief is as follows:
On 3.7.2009, the Revision Petitioner/the accused who
is the Assistant Manager of the Zonal Office of the State
Bank of Travancore (SBT, Panampilly Nagar), Ernakulam
had used the E-mail address of the Muvattupuzha branch of
the State Bank of Travancore and sent a message to CW6,
who is the Assistant General Manager and also the Head of
the Vigilance Department of SBT, Head Office,
Thiruvananthapuram, stating as follows:
"Your bank is doing unduly favour to M/s.K C
Wood Industries Ltd - Wood manufactures of
Muvattupuzha. The project proposal submitted
by us is rejected citing various reasons by your
regional manager. At the same time the limit
enjoyed by K C Wood Industries has enhanced
from 25 Lacs to 50 Lacs. We are doing same
business and the K C Wood Industries has not
doing business for a limit of 50 Lacs. So it's
unduly personal favour done by your regional
manager. Please enquire about such proposals
sanctioned and rejected from Muvattupuzha."
It is alleged that the Revision Petitioner had forged and sent
an electronic record in the name of an enterprenour by
name V.K.Ibrahim & Sons, which was not in existence on
3.7.2009, from the internet caffe owned by the Cw4 at
Panampilly Nagar, Ernakulam. Thus, the Revision
Petitioner/accused had thereby caused a loss of
reputation to the Bank and Cw1 by sending the above
message using the forged E-mail address and thereby
committed the offence punishable under Section 469 of
Cr.PC.
4. The Revision Petitioner has filed
CMP.No.147/2012, in the above case seeking discharge
from prosecution mainly on the ground that Cyber Police
Station, Thiruvananthapuram has no authority or power to
file a final report to charge sheet him for the offence
punishable under the IPC alone, when there is no police
charge under the Information Technology Act in the final
report. Similarly, the allegations in the charge even if
admitted at its entirety, do not disclose the offence alleged
against him. The learned Magistrate after hearing both
parties dismissed the petition by the impugned order. This
order is under challenge in this Revision Petition.
5. The learned Senior counsel for the Revision
Petitioner Sri.C.C.Thomas advanced arguments based on
the grounds raised in the Revision Petition. The learned
Senior counsel submitted that in investigation no offence
punishable under the IT Act was disclosed and the Revision
Petitioner is not charge sheeted thereunder. So, the Station
House Officer of the Cyber Police Station,
Thiruvananthapuram has no authority or power to file final
report against the Revision Petitioner for an offence
punishable under the IPC or any statute other than the IT
Act. Thus, the prosecution itself against the Revision
Petitioner on the basis of the final report filed by the Cyber
Police Station is not maintainable. Secondly, even if the
case is admitted at its entirety, the allegations against the
Revision Petitioner do not disclose any offence under
Section 469 of the IPC. The disputed message which is
alleged to have been sent, even if admitted, that does not
disclose any kind of harm or injury to the reputation of
either Cw1 or the Bank. Therefore, the court below ought
to have allowed the petition and thereby discharged the
Revision Petitioner from prosecution. Thirdly, the Senior
counsel contended that even if the allegations are taken at
its face value, the Investigating Officer failed to collect any
evidence or material objects so as to prove the case against
the Revision Petitioner beyond reasonable doubt. Being an
offence alleged to have been committed through an
electronic media, in the absence of material object by which
the alleged message is said to have been sent, no offence
alleging fabrication of electronic record can be proved. In
short, the prosecution is only an experimental exercise
intended to harass the Revision Petitioner by abusing the
process of the court. The complaint was filed vindictively
by another Officer of the same Bank to wreck-vengience
against the Revision Petitioner without any basis.
6. Per contra, the learned Public Prosecutor
advanced the argument to justify the impugned order. He
submits that originally a crime was registered under the IT
Act and was transferred to the Cyber Police Station for
investigation. In such cases even if the investigation does
not disclose the offence under IT Act, since the investigation
has already been completed, the Station House Officer of
the Cyber Police Station has power and authority to charge
sheet the accused for the offences punishable under IPC
even in the absence of any offence under the IT Act.
Similarly, he straneously contended that the act allegedly
done by the Revision Petitioner would constitute forgery
and the contents of the message allegedly sent by the
Revision Petitioner would harm the reputation of the Bank
as well as the Cw1 and thereby offence under Section 369 is
attracted. The learned Public Prosecutor cited
H.N.Rishbud v. State of Delhi (AIR 1955 SC 196),
Prakash Kumar v. State of Gujarat (2005(2) SCC 409),
Bhanuprasad v. State of Gujarat (AIR 1968 SC 1323) and
State of Tamil Nadu v. Nalini (AIR 1999 SC 2640).
7. I have bestowed my anxious consideration to the
rival contentions advanced by the learned Senior counsel
for the Revision Petitioner and the learned Public
Prosecutor, at the Bar.
8. In view of the rival contentions, the first and
formost question that arises for consideration is whether
the Cyber Police Station of Kerala having jurisdiction over
the entire State of Kerala, constituted to investigate any
offence committed under the Information Technology Act,
2000 have power or authority to file final report charging
offences under the India Penal Code or under any penal
statute other than the Information Technology Act, in the
absence of charge for any of the offences under the
Information Technology Act, 2000 in the final report.
9. Let us have look at the general law provided under
Cr.PC for investigation. Section 156 of the Cr.PC deals with
the Police Officer's power to investigate cognizable case.
According to this Section, any officer in charge of any Police
Station may, without order of a Magistrate, investigate any
cognizable case which a court having jurisdiction over a
local area within the limits of such Station would have
power to enquire into or try under the provisions of Chapter
XIII. According to Section 177 of the Cr.PC, every offence
ordinarily be enquired into and tried by a court within
whose local jurisdiction it was committed. According to
Section 4 of the Cr.PC, all offences under IPC shall be
investigated and enquired into, tried and otherwise dealt
with according to the provisions hereinafter contained in
Cr.PC. But, according to sub section 2 of Section 4, all
offences under any other law shall be investigated, inquired
into, tried and otherwise dealt with according to the same
provisions but, subject to any enactment for the time being
in force regulating the manner or place of investigating,
inquiry into, trying or otherwise dealing with such offences.
Thus, according to the general law, the investigation of an
offence under IPC is vested with the Police Station having
local jurisdiction over the area within which the offence has
been committed and special procedure or power or
jurisdiction can be prescribed for investigation of an offence
under any special enactment for the time being in force.
Section 5 saves special or local law for the time being in
force or special jurisdiction or power conferred or any
special form of procedure prescribed by any other law, for
the time being in force.
10. Going by the GO.No.909/2004/Home dated
15.4.2004, it could be seen that the Government of Kerala
under sub Section 2(s) of the Cr.PC and Section 78 of the
Information Technology Act, 2000, constituted and declared
Cyber Police Station known as 'Cyber Police Station Kerala'
having jurisdiction over the entire State of Kerala to
investigate any offence committed under the Information
Technology Act, 2000. An explanatory note is also
appended to this notification. Though, the explanatory note
does not form a part of the notification it says that the
explanatory note is intended to explain the purport of the
notification. The explanation clarifies that Cyber Police
Station is sanctioned in view of the upsurge in cyber crimes
including the criminal intimidation on internet, Hate mail,
Cyber stalking, website hacking, theft in internet hours,
credit card frauds, child pornography, internet sexual
harassment, internet bank frauds and all other crimes
where computers are instrumental to crime. The
explanatory note further clarifies that "Cyber Police Station
shall investigate any offence committed under the
Information Technology Act, 2000 and this notification is
intended to achieve the above object." To sum up, by the
notification, investigation of the offences falling under the
Information Technology Act, has been carved out from the
general law applicable for investigation as provided under
Cr.PC and given to Cyber Police Station, Kerala.
11. But, on an analysis of the said notification, I am of
the opinion that the scope and extent of the jurisdiction and
power of the 'Cyber Police Station, Kerala' constituted
under the above notification is confined to and regulated by
the Rule that emerges from the legal maxim "Expressio
unius est exclusio alterius" ie., the express mention of one
thing implies exclusion of another. The Law Lexicon
explains the maxim - whenever a statute limits a thing to be
done in a particular form, it necessarily includes in itself a
negative viz., that the thing shall not be done otherwise.
This Rule had been adopted in various judicial precedents
from Taylor v. Taylor (1875(1) Ch D 426) to GVK
Industries Ltd. and another v. Income Tax Officer and
another (2011(4) SCC 36). This Rule adopted in Taylor v.
Taylor is well recognised and is founded on sound principle.
The court took the view that if a statute has conferred a
power to do an act and has laid down the method in which
that power has to be exercised, it necessarily prohibits the
doing of the act in any other manner than which has been
prescribed. This view has been adopted in Nazir Ahmed v.
King Emperor (AIR 1936 PC 253(2)). In GVK Industries
Ltd. and another v. Income Tax Officer and another (2011
(4) SCC 36), the Supreme Court applied the said Rule as
shown below:
"In this case it is the territory of India
that is specified by the phrase "for the whole
or any part of the territory of India".
Expressio unius est exclusio alterius - the
express mention of one thing implies the
exclusion of another. In this case Parliament
has been granted powers to make laws "for"
a specific territory - and that is India or any
part thereof, by implication, one may not
read that Parliament has been granted
powers to make laws "for" territories beyond
India."
12. When we apply the Rule of "Expressio unius est
exclusio alterius" in the instant case, it can be held that
when a special notification expressly confers power and
jurisdiction to investigate offences falling under a Special
Statute only to a special investigating agency or to a
particular Police Station, the Rule making authority is
deemed to have intentionally excluded Power and
Jurisdiction to investigate all other offences, falling under
any Statute other than that Special Statute. To sum up: An
implied exclusion of the investigation of all other offences
from the purview or authority of the Cyber Police Station
Kerala is inherent in the notification itself.
13. When an act is prescribed to be done in a specific
way or when a power or authority is conferred to another
with a direction to exercise power or authority for the
performance of a specific thing or purpose, such act shall
be done or performed in such a way only and such power or
authority shall be exercised for the purpose for which the
power has been conferred only and nothing more or nothing
less than that. Going by the notification, in the light of
explanatory note, I am of the opinion that obviously, the
Cyber Police Station Kerala having sphere of authority over
the entire State of Kerala is constituted for investigating
offences coming under the Information Technology Act,
2000 only and nothing more than that. On a combined
reading of notification and explanation thereunder, it is very
clear that Cyber Police Station has the power to investigate
offences coming under the Information Technology Act only
and no other offences can be investigated by them.
Necessarily, it follows that Cyber Police Station has no
power or authority to file final report in the absence of any
offence under the Information Technology Act in the final
report. When none of the offences under Information
Technology Act had been disclosed in investigation, the
Station House Officer, Cyber Police Station should have
sent back the case to the Police Station under which the
offences under the Indian Penal Code had allegedly been
committed. Therefore, I find that the final report has been
filed without power or authority conferred by the
notification and no prosecution can be launched on the
basis of that final Report.
14. But here, indisputably no offence has been
disclosed in investigation under the Information Technology
Act. Consequently, the Revision Petitioner has not been
charge sheeted for any of the offences under the
Information Technology Act in the final report. The present
final report is filed charging offence under the Indian Penal
Code alone for which the Cyber Police Station has no power
or authority. Whether the Cyber Police Station has power
to investigate offences coming under the penal code or any
other penal statute other than the Information Technology
Act along with offences coming under the Information
Technology Act and to file final report charging such
offences under other statutes also along with the offences
under the Information Technology Act? Considering the
facts of the instant case, this question does not arise for
consideration and both parties did not address on that issue
as it is not necessary. So, I leave it open there.
15. The decision in Prakashkumar v. State of
Gujarat [(2005) 2 SCC 409] is not applicable to the instant
case. Thereby interpretation of Sec.12(1) and (2) of the
TADA, the Apex Court held that once the other offences
under other Statutes are connected with the offence under
the TADA, if the accused is charged with all the offences,
the designated court is empowered to convict the accused
for the offence under any law notwithstanding the fact that
no offence under the TADA is made out. Here the question
is entirely different. There, the Section 12(1) of the TADA
empowers the designated court to try the offences under
different Statutes other than the TADA along with the
TADA. But here the notification does not permit so. The
Cyber Police Station cannot file charge sheet under the
Indian Penal Code. I have considered the decisions
reported in Bhanuprasad v. State of Gujarat (AIR 1968
Supreme Court 1323); State v. Nalini [(1999) 5 SCC 253]
and State of Tamil Nadu v. Nalini (AIR 1999 SC 2640).
But these decisions do not render any assistance to justify
the lack of power involved in this case. The learned Public
Prosecutor further points out that the decision in H.N.
Rishbud v. State of Delhi (AIR 1955 SC 196) a defect or
illegality in investigation, however, serious, has no direct
bearing on the competence or the procedure relating to
cognizance or trial. I am of the opinion that the said
proposition cannot be imported to the case where the Police
Officer who has no power or authority, has filed a final
report, which is incurable in all respects.
16. The next point for consideration is whether
there is any material documents to prove that the offence
had been committed by the revision petitioner. What is
revealed in the investigation is that the message had been
sent from the Internet Cafe of Cw4 on 3/7/2009, using the
IP address allotted to Cw4. Admittedly on 3/7/2009, 11
persons had visited the Internet Cafe and used the facilities
on hire. Since 45 days have already been elapsed, video
clippings had been deleted automatically. Besides, Cw4
himself had effected formating and also wiped off several
times through wiping tools. The video clippings of those
who visited the Cafe as customers on 3/7/2009 are not
available according to Cw4 and it cannot be decoded again
as already wiped off by automatic deletion. The statement
of Cw4 is supported by the statement of his employees Cw7
and Cw8 also. Thus, the crucial material object is not
available in the hands of prosecution. Instead of video
clippings of the customers on 3/7/09, the prosecution has
seized C.Ds. containing visuals of those who visited the
Cafe on 9/10/09 and 16/10/09 merely on the reason that the
Revision Petitioner had visited the Cafe on those days ie.,
after three months. Indisputably, these C.Ds. will not serve
the purpose of proving the prosecution case. I am of the
opinion that the material evidence to show the person who
sent the message is not available with the prosecution.
17. Similarly, the statements of Cw4 and two
employees Cw7 and Cw8, show that even in the log book
the number and details of each cabin which was used by
each customer including the accused on 3/7/09 is not
available in the log book as that column is left blank by
omission. Therefore, even if the revision petitioner visited
the Cafe on 3/7/09, the computer which is said to have been
used by the revision petitioner is not identifiable. In the
final report, it is also stated that since the video clippings
containing the visuals of the persons who visited the Cafe
on 3/7/09 are not available, the computer and its hard disc
have not been seized and taken into custody by the police as
Material Objects.
18. The last point raised by the learned Senior
counsel is that the contents of the message do not cause
any harm to the reputation of either Cw1 or the Bank. It is
pertinent to note that the allegation is that the project
proposal of one V.K. Ibrahim was rejected on various
reasons. But at the same time, the credit limit enjoyed by
K.C. Wood Industries has been increased from Rs.25 lakhs
to Rs.50 lakhs. It is also alleged that the same is an undue
personal favour done by the Regional Manager. It is to be
noted that no kind of undue pecuniary benefit, ill-will,
ulterior motive or mala fides had been attributed against
the said Regional Manager. In short, the allegation is that
the attitude shown by the Regional Manager was
discriminatory or, at the most, he has violated the norms
or showed some undue favour. The allegation is thus
confined to an act done in discharge of the official duty and
nothing more than that. More pertinently, the message was
intended to make an enquiry on his complaint as obviously
the same is the concluding request. I am of the opinion
that the message can be depicted as a complaint and if the
allegation is not true, it is only a false complaint. It is to be
noted that Cw6 Job Abraham, the Asst.Manager, Vigilance
Wing as well as the recipient of the message had given a
statement that no independent vigilance enquiry had been
conducted so far by the Vigilance Department of the State
Bank of Travancore, as he believed the statement of Branch
Manager and Zonal Manager, despite the receipt of this
message indicating discrimination in granting loan. I am of
the opinion that the message does not disclose an intend to
harm the reputation of the Bank or Cw1, the essential
ingredient constituting the offence under Sec.369 Indian
Penal Code; but intended for embarking an enquiry.
19. More interestingly, the Deputy Manager,
State Bank of Travancore, Muvattupuzha Branch, has given
a statement that K.C. Wood Industries had submitted an
application for enhancing their credit limit from Rs.25 lakhs
to Rs.50 lakhs and that application is being kept in the
office and he is ready to produce it. No independent
investigation has been made by the police to find out
whether the allegations in the message are true? No such
materials are available in the final charge except the
statements of complainants.
20. Thus, the crucial Material Objects on which
the prosecution case rests are not available, even according
to the prosecution. Thus, there is no material to connect the
revision petitioner with the alleged offence. So, I am of
the opinion that not only the charge in the final report but
also the materials produced along with the final report do
not disclose the offence said to have been committed by the
accused even if the uncontroverted prosecution case is
admitted. Thus, there are no sufficient grounds to
prosecute the revision petitioner even if the uncontroverted
prosecution case is admitted. If the prosecution is allowed
to continue with trial, certainly it will be a futile
experimental exercise as well as abuse of the process of the
Court.
21. Consequently, the impugned order under
challenge passed by the court below is set aside and
C.M.P.No.147/12 in C.C.No.140/10 on the files of the
Judicial First Class Magistrate's Court, Muvattupuzha, will
stand allowed. In the result, the revision petitioner is
discharged from the prosecution for the offences alleged
against him in the above Calendar Case.
Sd/-
K. HARILAL,
(JUDGE)
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