Whether person accused of posting of obscene messages through social networking site in account of woman can be discharged?

The gist of the allegations in the impugned first information report is to the
effect that the petitioner had posted obscene messages through a social
networking site in the account of the defacto complainant. It is further alleged
that father of the petitioner over his mobile phone requested the defacto
complainant not to take steps against the petitioner.
On the basis of the aforesaid allegations, FIR was registered and
investigation was initiated. It has been submitted on behalf of the petitioner that
he was discharging his official duties at the relevant time when the said
messages are alleged to have been posted on the social networking profile of the
defacto complainant. It has further submitted that the seizure of the mobile
phone from the possession of the petitioner does not tally with the mobile phone
alleged to have been used for the purpose of dispatch of such electronic message.
 Learned Magistrate however rejected the application for discharge of the
petitioner.
I have considered the materials on record. Prima facie, the allegations in
the FIR disclose the ingredients of the alleged offences. It is alleged that the
petitioner posted obscene messages in order to harass the defacto complainant,
who is a lady. Plea of alibi, as claimed by the petitioner, is a question of fact
which may be agitated in the course of trial. However, it cannot be said with
absolute certainty that since the petitioner was employed at the material point of
time he had no access any electronic device so as to dispatch the electronic
messages as alleged in the FIR rendering such accusation patently absurd and
inherently improbable. The issue of discrepancy in the matter of seizure of the
mobile phone is also a question of fact which does not go to the root of the
jurisdiction of the Court to try the alleged offences.
In view of the aforesaid facts, I am of the opinion that the charge against
the petitioner cannot be said to be groundless and the prayer for discharge was
rightly turned down by the trial court. The factual defences of the petitioner are,
however, kept open to be agitated in accordance with law during trail, if so
advised.
IN THE HIGH COURT AT CALCUTTA
Criminal Revision Jurisdiction
Appellate Side
BEFORE:
The Hon’ble Mr. Justice Joymalya Bagchi
C.R.R. 1711 of 2016
BINOY SARKAR @ BINAY SARKAR
V
THE STATE OF WEST BENGAL & ANR.

Judgement on : June 06, 2016
Citation: 2016 CRLJ4382 Cal

Order dated 31.03.2016 passed by the learned Chief Judicial Magistrate,
Malda in G.R. Case No. 3750 of 2014 pending before the learned Chief Judicial
Magistrate, Malda arising out of English Bazar P.S. Case No. 910 of 2014 dated
10.10.2014 under Section 354A IPC read with Section 67A of the Information
Technology Act rejecting the prayer for discharge of the petitioner from the
aforesaid case has been assailed.
The gist of the allegations in the impugned first information report is to the
effect that the petitioner had posted obscene messages through a social
networking site in the account of the defacto complainant. It is further alleged
that father of the petitioner over his mobile phone requested the defacto
complainant not to take steps against the petitioner.
On the basis of the aforesaid allegations, FIR was registered and
investigation was initiated. It has been submitted on behalf of the petitioner that
he was discharging his official duties at the relevant time when the said
messages are alleged to have been posted on the social networking profile of the
defacto complainant. It has further submitted that the seizure of the mobile
phone from the possession of the petitioner does not tally with the mobile phone
alleged to have been used for the purpose of dispatch of such electronic message.
 Learned Magistrate however rejected the application for discharge of the
petitioner.
I have considered the materials on record. Prima facie, the allegations in
the FIR disclose the ingredients of the alleged offences. It is alleged that the
petitioner posted obscene messages in order to harass the defacto complainant,
who is a lady. Plea of alibi, as claimed by the petitioner, is a question of fact
which may be agitated in the course of trial. However, it cannot be said with
absolute certainty that since the petitioner was employed at the material point of
time he had no access any electronic device so as to dispatch the electronic
messages as alleged in the FIR rendering such accusation patently absurd and
inherently improbable. The issue of discrepancy in the matter of seizure of the
mobile phone is also a question of fact which does not go to the root of the
jurisdiction of the Court to try the alleged offences.
In view of the aforesaid facts, I am of the opinion that the charge against
the petitioner cannot be said to be groundless and the prayer for discharge was
rightly turned down by the trial court. The factual defences of the petitioner are,
however, kept open to be agitated in accordance with law during trail, if so
advised.
As the petitioner is a public servant who is under suspension, I direct the
trial court to frame charges against the petitioner as early as possible preferably
within 30 days from the date of communication of this order and conclude the
trial within a year from the date of framing of charge without granting
unnecessary adjournments to either of the parties.
The observations made by me are for the purpose of disposal of the
application and shall not have any bearing at any subsequent stage of the trial
which shall needless to mention be decided on the basis of the evidence adduced
and in accordance with law.
With the aforesaid direction, the revision petition is disposed of.
(Joymalya Bagchi, J.)

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