# Jagat Singh v. State of U.P. & Anr

- **Citation:** (2023) 2 ILRA 211
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-18
- **Case number:** Matters Under Article 227 No. 6225 of 2022
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagat-singh-v-state-of-u-p-anr-49199
- **Pages:** 3

## Headnote

Information Technology ACT-Section 66A,
67A-Application for discharge preferred on
behalf of the petitioner- rejected and the order
was
affirmed
by
the
appellate
court-
chargesheet
was
submitted
only
under
Sectiontion 66 A of the I.T. Act-cognizance was
taken for that offence only -evidence was
collected -accused sent obscene message -text
message not come within the meaning of
"sexually explicit act or conduct" as given under
Sectiontion 67A of the I.T. Act- trial court
definitely need not go into evidentiary value of
the material collected at this stage- need not
conduct any roving enquiry-impugned order set
aside. Petition disposed. (E-9)

Cases cited:

## Text

2 All. Jagat Singh Vs. State of U.P. & Anr.
211
shall decide the application for injunction
expeditiously on merits without granting
any unnecessary adjournment to either of
the parties and endeavour be made to
decide the said application, preferably
within a period of two weeks from the date
fixed i.e. 15.02.2024. It is further clarified
that the injunction order granted ex parte
has been discharged solely on the ground of
non-compliance of Order 39 Rule 3 CPC
and not on merits, hence the trial court shall
decide the application on its own merits.

28. With the aforesaid, the petition is
allowed. Costs are made easy.
----------
(2023) 2 ILRA 211
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2022
BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters Under Article 227 No. 6225 of 2022

Jagat Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Kamlesh Kumar Dwivedi, Sri Gaurav
Dwivedi

Counsel for the Respondents:
G.A.

Information Technology ACT-Section 66A,
67A-Application for discharge preferred on
behalf of the petitioner- rejected and the order
was
affirmed
by
the
appellate
court-
chargesheet
was
submitted
only
under
Sectiontion 66 A of the I.T. Act-cognizance was
taken for that offence only -evidence was
collected -accused sent obscene message -text
message not come within the meaning of
"sexually explicit act or conduct" as given under
Sectiontion 67A of the I.T. Act- trial court
definitely need not go into evidentiary value of
the material collected at this stage- need not
conduct any roving enquiry-impugned order set
aside. Petition disposed. (E-9)

Cases cited:

1. Shreya Singhal Vs U.O.I.& ors. reported in
AIR 2015 SC 1523

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

01. Heard Sri Kamlesh Kumar
Dwivedi, learned counsel for the petitioner
and Sri O. P. Mishra, learned A.G.A. for the
State-respondent.

02. This petition under Article 227 of
the Constitution of India has been moved
with a prayer to set aside the orders dated
13.05.2022 and 12.02.2019 passed by the
revisional
court
and
the
trial
court
respectively whereby the application for
discharge preferred on behalf of the
petitioner was rejected and the order was
affirmed by the appellate court in a case
arising out of case crime no.209 of 2016,
under Section 66 A of I.T.Act.

03. The facts relevant for the purpose
of this petition are as below:-

A F.I.R. was lodged against
unknown persons with the allegation that
some unknown person was transmitting
obscene messages from a particular mobile
number (as given in the F.I.R.) to the
mobile of "would be husband" of the sister
of the informant. On the basis of this F.I.R.
investigation
was
conducted
and
chargesheet under Section 66-A of the
I.T.Act was submitted against the petitioner
and cognizance was taken. An application
was moved on behalf of the accused that no
212 INDIAN LAW REPORTS ALLAHABAD SERIES
case under Section 66 A I.T. Act was made
out as that section has been held ultra vires
in view of the judgment of Hon'ble Apex
Court in the case of Shreya Singhal vs.
Union of India and others reported in
AIR 2015 SC 1523. Therefore, he may be
discharged. After hearing both the sides, the
trial court came to conclusion that no
charge under Section 66 A I.T.Act can be
framed. However, prima facie offences
under Sections 67, 67 A and 66C of the I.T.
Act were still made out. Against the
aforesaid order of the trial court, a criminal
revision was preferred but the same came
to be dismissed by the Additional District
& Sessions Judge, POCSO Act-III, Hapur.
Now the petitioner is before this Court
under Article 227 of the Constitution of
India.

04. The forceful contention of the
petitioner is that chargesheet was submitted
only under Section 66 A of the I.T. Act;
cognizance was taken for that offence only.
Hence in the light of the judgement of
Hon'ble Apex Court in the case of Shreya
Singhal vs. Union of India and others
reported in AIR 2015 SC 1523 the
petitioner should have been discharged and
that there was no question of framing any
other charge. It may be noted at the very
outset that by the impugned order learned
trial court, on the basis of the dictum of the
Apex Court, held that no charges can be
framed under Section 66 A of the I.T. Act;
at the same time it found material to show
that prima facie offence under Sections 67,
67A and 66C were made out.

05. I went through papers on record
and submissions of the petitioner. It appears
that evidence was collected showing that it
was the accused-petitioner, who sent
obscene message from a mobile to the
mobile of would be husband of the sister of
the informant. It may be noted that Section
67 of the Information Technology Act
prohibits publishing and transmitting or
cause to be published or transmitted in the
electronic from, any material which is
lascivious or appeals to the prurient interest
to the persons who are likely to see or hear
the matter contained or embodied in it.
Offence of such nature is punishable with a
term extending upto three years and fine
upto five lac rupees on first conviction. If
the evidence collected is accepted as it is in
the Act, in my view, case comes within the
scope of definition of Section 67 of the
I.T.Act. It may be noted that no argument
has come-forth from the side of the
petitioner as to how and why prima facie
offence under Section 67 will not be made
out.

06. As far as Section 67A is
concerned, I doubt that a text message may
come within the meaning of "sexually
explicit act or conduct" as given under
Section 67A of the I.T. Act. And as far as
charge under Section 66C is concerned,
there is nothing to suggest that any
electronic signature, password and any
other unique identification feature of any
other person has been used fraudulently
and dishonestly so as to bring the incident
within the definition of Section 66C which
punishes incidents of identity theft.

07. It is settled position that an
investigating officer and a court function in
different spheres. If at one hand, the
Magistrate or a court cannot compel the
I.O. to submit a chargesheet in a particular
section, on the other hand, the court is not
bound to toe the line taken by the I.O. or to
concur
with
his
opinion.
The
court/Magistrate is expected to apply his
judicial mind while filtering through the
prosecution papers and the evidence
2 All. Pawan Kumar @ Pawan Yadav Vs. State of U.P. & Anr.
213
collected by the I.O. for the purpose of
framing of charge. It may be noted that
such discretionary power is inherent by
virtue of his holding of a criminal court. It
will be unmeaning that a Magistrate, while
exercising powers of a criminal court is
restrained from applying his judicial mind.
In my view, if at the time of framing of
charge, the court comes to conclusion that
some other offence for which the accused
was not chargesheeted is prima facie made
out from the available material on record,
he shall be perfectly within his powers to
frame the charge, irrespective of the fact
whether cognizance of that particular
offence-if I may use the word, is not taken.
This is why it is rightly said that
cognizance of a case is taken and not of
offence. If such a narrow interpretation of
judicial powers is made it will lead to
unforeseen
complications.
Moreover,
cognizance is a word having different
connotations at different stages of a
criminal case. The court is even invested
with the power to add or alter charge at any
stage of the trial u/s 216 of Cr.P.C. In my
view, no fetters can be put on so as to sap
out the life from statutory provisions.

08. Having observed as aforesaid, I
point out that the court has not referred to
material on record which prima facie made
out the offences under Section 66C and
67A of the I.T. Act. The point, thus
involved may require filtering through all
the material as available in the case diary as
well as hearing both the sides. There is also
a probability, as suggested by learned
A.G.A. that besides offence under I.T Act,
offences under Indian Penal Code may be
made out. As this may require considering
the entire facts and evidence as collected by
the I.O. hence matter, in my view, should
be left open for the court concerned to
adjudicate. At the same time the trial court
definitely need not go into evidentiary
value of the material collected at this stage
and need not conduct any roving enquiry,
but shall briefly point out the facts which in
its view constitute the ingredients of the
offence as defined by the statute.

09. In the above circumstances, orders
dated 13.05.2022 and 12.02.2019 passed by
the revisional court as well as the trial court
respectively are set aside to the extent that
offence under Section 67A and 66C of the
I.T. Act are made out.

10. The petition is therefore disposed
of with a direction to the court below to
pass an order afresh after affording an
opportunity of hearing to both the sides.The
court while passing an order shall not be
influenced by the observations made in
para-6 of this order.
----------
(2024) 2 ILRA 213
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.02.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482 No. 730 of 2024

Pawan Kumar @ Pawan Yadav ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Rakesh Kumar Agarwal, Saksham Agarwal

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 438 & 482 - Indian Penal
Code, 1860 - Sections 376 & 504 -
Scheduled Castes and Scheduled Tribes