Court No. - 53
Case :- APPLICATION U/S 482 No. - 31014 of 2018 Applicant :- Firoz Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shashi Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This application has been filed seeking to quash the proceedings of Case No. 618 of 2015 (CNR No. UPET060046112016) State vs. Srikant Upadhyay and another (arising out of Case Crime No. 236/2014) under Sections 509, 419, 420 IPC and 67B of I.T. Act, P.S. Kotwali Nagar, District Etah, pending in the court of the Chief Judicial Magistrate, Etah.
This prosecution has commenced on a first information report lodged by Ms. Kalpana-II, Judicial Magistrate, Etah addressed to the S.H.O. P.S. Kotwali City, Etah to the effect that the informant is a Judicial Magistrate posted at Etah to whom Mob. No. 9412770014 has been officially allotted. It is mentioned in the FIR that from a certain mobile no. 9410816975 she had received on her official number on 29.03.2014 at about 11:15 a.m. in the night hours an obscene message which is a serious matter. It is said in the FIR that in this connection a first information report may be registered and prompt action should be taken. During investigation the police examined the photograph on the prescribed proforma for the issue of the SIM card related to mobile no. 9010816975 and found that it bore the photograph of a certain Smt. Shashi Mishra. Smt. Shashi Mishra along with her brother appeared before the police at the police station and examined the CAF Form from the department of telecom that had her photograph pasted on it. After examining the photograph carefully she said that photograph was not hers and said that it was all the product of a forgery. She also handed over her genuine photograph that was compared with that on the form. It appears that two did not tally, and, apparently some other woman impostering for Shashi Mishra with her photograph and her forged I.D. purchased the SIM Card from the applicant. The aforesaid SIM Card was later on used in sending the obscene message to the informant.
It is, thus, not disputed that the SIM Card that was used to send the obscene message to the lady Judicial Officer was, in fact, sold by the applicant. The fact that the SIM Card in question was issued to the applicant who is a retailer dealing in a sale of SIM cards to the public was verified by the Investigating Officer on examination of one Bhuvneshwar Dayal Gupta, who is franchise distributor of SIM cards for BSNL and one Ganga Singh, an employee in the establishment of Bhuvneshwar Dayal Gupta, the franchise distributor of BSNL. Both of them say that SIM Card in question was given to the retailer on 21.02.2014, that is to say, the applicant.
The Investigating Officer investigated the Junior Telecom Officer Sandeep Singh who said that verification of photograph is to be done by the retailer, and, thereafter, the BSNL department activates the SIM. This Court has perused the statement of the Junior Telecom Officer and finds that it is also a part of the duty of the Telecom Department/BSNL to verify the identity of a customer. During investigation and on the basis of call details records it has surfaced that one Shashi Kant Upadhyay was using the mobile number in question, who is said to be the main accused. The I.O. also recorded the statement of the applicant on 13.11.2018 who had said that there was a close resemblance of the woman whose photographs was affixed on the application form and the woman who came to purchase the SIM card. He has acknowledged the fact that he committed some carelessness in the matter. In this connection the statement of the applicant dated 13.11.2014 is relevant. It reads as under:
^^fQjkst vgen iq= dQhy vgen [kku dklxat czkap gkml th-Vh- jksM ,Vk fuoklh e0 ua0 146 ifV;kyh xsV Fkkuk dksrokyh uxj ,Vk Qksu ua0 9412503856 us iwWNus ij viuh xyrh dk vglkl djrs gq, crk;k fd eq>s oksVj vkbZ-Mh- ds QksVks o ml efgyk ds 9410816975 dk fle ysus okyh efgyk ds psgjs ,d tSls yx jgs FksA bl fy, fle ns fn;k FkkA eSus lkspk fd ;fn og efgyk QthZ gksxh rks Qsapkbth Hkqous'oj n;ky xqIrk o ch-,l-,u-,y- dk;kZy; ,Vk ds th-Vh-vks- Jh lanhi flag Lo;a QkeZ dks fujLr dj nsxs vkSj eksckby dks ,fDVosV ugha djsaxs ysfdu nksuks us gh bl ij /;ku ugha fn;k rc eSus mldks lgh eku fy;k ** (Emphasis of Court) Looking to the said statement of the applicant it cannot be said that he has no complicity in the matter and there are no materials in the charge sheet appearing against him. In fact, he has the most to explain. This Court finds that the matter in hand is very serious and requires searching investigation against officials of the BSNL also and they ought not to be spared because they claim to be officers of a Government Corporation. This is all the more so because the final decision to activate an I.D. rests in the hands of the BSNL officials and the police must investigate the role of the BSNL officials involved, ignoring their claims to official protection. So far as the applicant is concerned, certainly he cannot ask this Court to quash the charge sheet involving allegations and evidence of the kind in hand where the accused, whoever it is, who actually sent the obscene message is so much of an outlaw, that he made a Judicial Officer the target, unmindful of the consequences. It is further made clear that anything said in this order would not prejudice the case of the applicant on merits, or for that matter prejudicially affect anyone else, all of which is to be examined by the trial court at the appropriate stage ignoring anything said here that is to be taken as confined to the purpose of a decision of the present application.
This application accordingly stands dismissed.
Let a copy of this order be certified to the trial court forthwith through the Chief Judicial Magistrate, Etah. It is further directed that a copy of this order be forwarded to the S.S.P. /S.P. Etah by the Registrar General forthwith.
Order Date :- 6.9.2018 Imroz