Punjab-Haryana High Court
Kavita C. Das vs Arvind Thakur And Another on 3 October, 2013
Coram: Hon'ble Mr. Justice Inderjit Singh .....
Citation;2014(3) crimes 75 (P & H)
Kavita C. Dass-petitioner has filed this petition under Section 482 Cr.P.C. against Arvind Thakur and Union Territory, Chandigarh respondents for quashing of criminal complaint No.584/10 dated 11.1.2010 titled as Arvind Thakur versus S.S.P., UT, Chandigarh filed under Section 156(3) Cr.P.C. (Annexure-P.1) pending in the Court of learned Additional Chief Judicial Magistrate, Chandigarh as well as summoning order dated 15.7.2010 (Annexure-P.6) passed by the learned Additional Chief Judicial Magistrate, Chandigarh vide which the Parmar Harpal Singh
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petitioner has been summoned to face trial under Sections 65 and 66 of the Information and Technology Act, 2000 (hereinafter referred to as `the IT Act') along with all subsequent proceedings arising therefrom. The brief facts as stated in the petition are that the filing of complaint by respondent No.1 is per se illegal as the same is not maintainable under the provisions of IT Act. Respondent No.1 has got the process issued against the petitioner by abusing the process of law. In order to prove the allegations made in the complaint, the complainant appeared in the witness box as CW-1. The complainant also produced R.S. Sangwan as CW-2, Tej Kumar Goel as CW-3 and Chanchal Singh, District Education Officer, U.T., Chandigarh as CW-4. On the strength of the same, the learned trial Court, prima facie, found that an offence punishable under Sections 65 and 66 of the IT Act is made out against the petitioner and summoned her to face trial. It is stated that the averments made in the complaint do not constitute any offence. The complainant has no connection whatsoever with the school of the petitioner. He is neither a parent nor a teacher or employee of the school. All the allegations levelled by him in the complaint are based upon the version given to him by two persons, namely, R.S. Sangwan and T.K. Goel, who themselves did not prefer to file complaint on their own behalf. In the reply, the averments of the petitioner are mainly denied by the respondents.
I have gone through the record and have heard learned counsel for the parties.
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I find that Arvind Thakur, Chairman, Global Human Rights Council, Chandigarh complainant has filed the complaint against Ms. Kavita C. Das, Principal, St. John High School, Sector 26, Chandigarh under Section 156(3) Cr.P.C. As per the complainant, R.S. Sangwan and T.K. Goel approached the complainant with the grievance that respondent No.3 in the complaint (hereinafter referred to as `the petitioner') under her supervision, the students of St. John High School have been given immoral education and about illegal functioning of the school under the garb of modern education. R.S. Sangwan is the former employee of St. John High School, who had been thrown out of the school for the reason that he raised voice regarding misdeeds and illegal acts of the petitioner. R.S. Sangwan is an Information Technology Expert and had been appointed as Maintenance Faculty with St. John High School in August 2005. It is stated that in the month of November 2009, there were lots of proven allegations against the petitioner that under her supervision, some sort of vulgar training under the garb of modern education had been given to the students and one guardian, namely, T.K. Goel had raised objections on such kind of illegal training because under the command of the petitioner, an education to become a perfect server hacker was becoming a routine feature of education in the school. When T.K. Goel had raised this matter, then R.S. Sangwan had decided to raise this matter vigorously being a responsible citizen and made a complaint by way of affidavit before the Secretary, Department of Education, U.T., Chandigarh, where he had explained each and every thing. The complainant is having all the Parmar Harpal Singh
2013.10.09 10:31
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documentary evidence that the official ID mail of St. John High School had been used for watching of pornography sites and a complaint to Senior Superintendent of Police, Chandigarh (respondent No.1 in the complaint) had also been made on 3.12.2009 by R.S. Sangwan. That complaint is lying there without any result. A complaint was filed to SSP, Chandigarh and SHO, Police Station, Sector 26, Chandigarh (respondents No.1 and 2 in the complaint) regarding the above-said incidences on 2.10.2010, however, no action was taken on the above-said complaint. It is also stated in the complaint that the officials of Cyber Crime Cell, Chandigarh are also sheltering the petitioner by giving the explanation on behalf of her that St. John High School is giving the perfection to its students to counter the cyber crime.
A perusal of the complaint (Annexure-P.1) itself shows that no offence is made out against the petitioner (respondent No.3) from the averments of the complaint. There is general allegations that Ms. Kavita C. Das is the Principal of St. John High School and immoral education is being given in the school and also that they were trained as a perfect hackers. There is no other allegation in the complaint. There is nothing in the complaint whether this education is given by Ms. Kavita C. Dass herself or by some other teacher.
At the time of arguments, learned counsel for the respondents argued in detail regarding the complaint made by R.S. Sangwan and T.K. Goel to various authorities etc. and the inquiries conducted by various persons. This Court is not concerned with those inquiries, what are the
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findings of those inquiries and what is the effect of those inquiries. While passing the summoning order, the Court is to see whether from the averments of the complaint any offence is made out. As there is no direct allegation against petitioner Ms. Kavita C. Das that she directly gave the training to see pornography sites or gave the training regarding the hacking etc. which is immoral, the Principal of the school cannot be held vicariously liable under the criminal law. Only that she being the head of the school i.e. being Principal cannot be held as accused for the offences even if these are committed.
Further more, the complainant himself, in no way, is an aggrieved party. He is filing the complaint on the basis of information given to him by one R.S. Sangwan and T.K. Goel. This complaint is like a Public Interest Litigation, which is not permissible under the criminal law. The complainant in preliminary evidence examined himself as CW-1 but he has no personal knowledge of the matter. He has deposed as per the version given in the complaint. CW-2 R.S. Sangwan, who was employed in the school, stated that he came to know about showing of pornography sites and education regarding contests regarding hacking in the year 2007 and after that in the year 2009. He had joined the school on 1.8.2005 and worked till 31.5.2009. His duty was to look after the things like maintaining of all the Hardware and Software, Networking and Internets, Multimedia etc. From the perusal of this statement of CW-2, it looks that he was the In-charge regarding this network and internets etc. and he had to take proper steps to avoid all these things and to give proper advice to
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the School Management, Principal etc. As per his statement, one teacher Mr. Michael Anglo under the guidance of Ms. Kavita C. Das was giving training of hacking to the students. Even if it is taken so, then the main accused is Mr. Michael Anglo, but he is not made a respondent/accused in the complaint for the reason best known to the complainant. Rather, it shows the mala fide of the complainant to implicate the Principal and to leave the other person against whom the main allegations are there. If as per the version of the complainant, Mr. Michael Anglo is the main accused, then why he has not been made accused and why the allegations are not levelled against him in the complaint. Even his name does not appear in the complaint. The complainant wants the punishment to the Principal, who is not directly involved in the matter but having only supervisory functions.
At the time of arguments, photostat copy of one empty form signed by the Principal was shown to me in which the so-called training of hacking is stated to have been given. That empty form is stated to be signed by the Principal, which in no way, reaches to any conclusion. CW- 4 Chanchal Singh, District Education Officer mainly deposed regarding inquiry conducted by him in the complaint. This statement also does not prove that the petitioner (respondent No.3) Principal has committed any offence. CW-3 T.K. Goel has stated that his children are studying in the school. It is stated that a complaint was made against Art Teacher Mr. Michael Anglo but Ms. Kavita C. Das instead of taking action against the teacher, she had tried to protect the teacher by misquoting other children
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of same class. It is also stated that un-parliamentary language used cannot be illustrated here but he was submitting herewith copy of the complaint of the parents which could be perused by this Court, which is marked as CW-3/A. At the time of arguments, learned counsel for the respondents argued that one obscene song was given to the children to sing by Mr. Michael Anglo. Again the question arises that all the allegations regarding these obscene activities are against Mr. Michael Anglo, but he is not accused in the complaint. At the time of arguments, learned counsel for the parties has perused the inquiry reports conducted by Education Department, Police, by Hon'ble Mr. Justice S.S. Sodhi (Retd.) and of the Minority Commission etc. These are all inconsequential in the complaint because while passing summoning order, the Court is to see what are the averments in the complaint and what is the preliminary evidence produced by the complainant on the record. A perusal of the complaint and the preliminary evidence shows that no sufficient ground is made out to proceed against the petitioner in the complaint. Otherwise also, Sections 65 and 66 of the IT Act provide as under:- "65. Tampering with computer source documents.- Whoever knowingly or intentionally conceals, destroys or alters or intentionally or knowingly causes another to conceal, destroy or alter any computer source code used for a computer, computer programme, computer system or computer network, when the computer source code is required to be kept or maintained by law for the time being in
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force, shall be punishable with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both.
Explanation.-- For the purposes of this section, "computer source code" means the listing of programmes, computer commands, design and layout and programme analysis of computer resource in any form.
66. Computer related offences.- If any person, dishonestly or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both.
Explanation.- For the purpose of this section,- (a) the word "dishonestly" shall have the meaning assigned to it in section 24 of the Indian Penal Code (45 of 1860); (b) the word "fraudulently" shall have the meaning assigned to it in section 25 of the Indian Penal Code (45 of 1860)." A perusal of these provisions itself shows that no offence is made out. Section 43 of the IT Act provides as under:- "43. Penalty and compensation for damage to computer, computer system, etc. - If any person without permission of the owner or any other person who is in-charge of a computer, computer system or computer network, --
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(a) accesses or secures access to such computer, computer system or computer network (or computer resource); (b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium; etc. xx xx xx xx xx" In the present case, the computer network belongs to the school of the petitioner. Computer network is owned by the school and the Principal is owner/in-charge of the computer system and if any person commits any of the acts provided in Section 43 of the IT Act, he can be held liable nor the owner. Therefore, the offence under Sections 65 and 66 of the IT Act are also not made out from the complaint or from the preliminary evidence.
At the time of arguments, learned counsel for the petitioner also argued whether a complaint lies under Sections 65 and 66 of the IT Act? In my view, this need not to be decided in this case being not necessary for the disposal of the petition as I have already held that no sufficient ground exists in view of the averments made in the complaint as well as preliminary evidence to summon the petitioner under Sections 65 and 66 of the IT Act.
Finding merit in the petition, the same is allowed. The criminal complaint No.584/10 dated 11.1.2010 titled as Arvind Thakur versus S.S.P., UT, Chandigarh filed under Section 156(3) Cr.P.C.
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(Annexure-P.1) as well as summoning order dated 15.7.2010 (Annexure- P.6) and all subsequent and consequential proceedings arising therefrom are set aside.
October 3, 2013. (Inderjit Singh) Judge
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