Telangana High Court
CRLP/1161/2009 of Veeramallu Durga Prasad, Vs The State of Andhra Pradesh, on 31 December 2010
P.DURGA PRASAD Crl.P.No.1161 of 2009 O R D E R: This Criminal Petition is filed under Section 482 of Cr.P.C. for quashing the proceedings against the petitioners in Cr.No.4 of 2009 on the file of Koyyalagudem Police Station. The brief facts of the case as per the charge sheet are as follows:
HON’BLE SRI JUSTICE P.DURGA PRASAD
Crl.P.No.1161 of 2009
Citations and Judicial Treatment
Cited by
0
Decisions in the index citing it
Cites
0
Decisions referred to
In this index
0
Of the decisions it cites
Overruled / Questioned
0
No negative treatment found
Loading the citing and cited decisions…
This judgment in the centre: on the left the decisions it cites, on the right the decisions citing it. Colour is the treatment; choose a decision to open it.
O R D E R:
This Criminal Petition is filed under Section 482 of Cr.P.C. forquashing the proceedings against the petitioners in Cr.No.4 of 2009 on thefile of Koyyalagudem Police Station.
The brief facts of the case as per the charge sheet are as follows:
That on 09.01.2009 while the petitioners-accused were watchingblue film pictures and some obscene pictures at their respective shopsand down loading the same to the cell phones of customers, they werearrested and their computers along with accessories were seized and acase in Crime No.4 of 2009 was registered by the Koyyalagudem Policefor the offence punishable under Section 292(2) r/w 34 IPC and Section 67of The Information Technology Act. Subsequently, after completion ofinvestigation, police have filed the charge sheet before the concernedCourt.
The petitioners counsel has pleaded that the allegations made inthe charge sheet only attract the offence under Section 67 of InformationTechnology Act and as per Section 78 of Information Technology Act, aPolice Officer not below the rank of Deputy Superintendent of Police isonly entitled to investigate the said offence and as per Section 81 of theInformation Technology Act, it has overriding effect on any enactment. Assuch, the offence under Section 292 (2) r/w 34 IPC is not applicable to thepresent facts of the case. Hence, the proceedings are liable to bequashed.
As per the charge sheet filed against the petitioners, on 09.01.2000
at 9.00 A.M. the 1[st] petitioner was arrested at his shop named ‘AnnapurnaCell Shop’, Kannapuram village of Koyyalagudem Mandal while he waswatching and possessing blue film pictures and some obscene picturesand it is also alleged that he used to down load the same to the cellphones of the customers and police seized 1) Samsung Company 17”black coloured monitor, 2) Odessy company black coloured CPU, 3)Logitech mouse, 4) Logitech key board, 5) creative company speakers-2,6) Numeric company UPS under the cover of mediators report. On thesame day at 9.45 A.M., the 2[nd] petitioner was arrested at ‘SriVenkateswara Jewellary and cell shop’, Kannapuram village ofKoyyalagudem Mandal while he was in possession of blue film picturesand some obscene pictures and it is also alleged that he used to download the same to the cell phones of customers and police seized 1)Samsung company 17” black coloured monitor, 2) Frontech companyblack coloured CPU, 3) Logitech Mouse, 4) Logitech key board, 5) intexcompany Home theatre under the cover of mediators report. Therefore, asper the averments made in the charge sheet, the blue films and obscenepictures are only on the computer and they are not seized black and whitefrom the possession of the accused.
Section 67 of the Information Technology Act prescribes publishingof information, which is obscene in electronic form. In the present case,the obscene information is available only in the electronic form. Therefore,Section 67 squarely applies to the allegation made against the presentpetitioners.
Section 78 of the Information Technology Act deals with power toinvestigate the offences, according to which, notwithstanding anythingcontained in the Code of Criminal Procedure, 1973, a police officer notbelow the rank of Deputy Superintendent of Police shall investigate an offence under this Act. Therefore, the Police Officer not below the rank ofDeputy Superintendent of Police is only competent to investigate theoffences under Section 67 of Information Technology Act. But in thepresent case, the investigation was done by the Sub-Inspector of Policeand charge sheet was also filed by him under Section 292(2) of IPC. Since Section 81 of the Information Technology Act is having theoverriding effect and the person who investigated the case and filedcharge sheet is not competent to investigate the offence, the furtherproceedings in Crime No.4 of 2009 of Koyyalagudem Police Station areliable to the quashed.
Conclusion
Accordingly, the Criminal Petition is allowed and the furtherproceedings in Cr.No.4 of 2009 on the file of Koyyalagudem PoliceStation, are hereby quashed.
31[st] December, 2010
_____________________
JUSTICE P.DURGA PRASAD
PNV