Fahad Rahber v. State of NCT of Delhi

1. The instant petition has been filed under Article 226 and 277 of the Constitution of India read with Section 482 of Criminal Procedure Code, 1973 (‘Cr.P.C.’) praying for the issuance of a Writ of Certiorari/Mandamus and/or a Writ in the nature of Certiorari/ Mandamus and/or any other appropriate Writ, Order/s and/or Direction/s for quashing of the FIR No. 70/2022, registered under Sections 419/420 of Indian Penal Code, 1860 (‘IPC’) at PS Special Cell, New Delhi and for quashing/setting-aside of all the subsequent and consequent proceedings initiated and/or conducted with respect to the impugned FIR.

2. Briefly stated, the facts of the present case are that the abovementioned case was registered on the complaint of Sh. Prashant Bisht who had alleged that some unknown miscreant had sent an e-mail from p.altofr@gmail.com requesting for providing Amazon gift cards to the officers of Security Minting and Printing Co-operation of India (SPMCIL), impersonating as Mrs. Tripti Patra Ghosh, Chairman & MD of that Institute. It is also alleged that one employee Debjyoti Banerjee was cheated via WhatsApp number 9542124914, which was having the display picture of Mrs. Tripti Patra Ghosh, and had lost Rs.60,000/- by providing Amazon and electronic gift card. During investigation, details of Amazon gift card of Rs.60,000/- were obtained from Amazon and it was found that Rs.20,000/- were paid for purchasing a mobile phone, which was found to have been purchased in the name of Fahad Rahber i.e. the present petitioner, and the phone was delivered at Hotel Mulberry, Ballygunge, Kolkata. Hotel register entry copies and other details from hotel were also obtained by the investigating officer regarding Fahad Rahber.

3. Learned counsel for the petitioner argues that the impugned FIR is contrary to the law for the time being in force applicable to the acts as alleged in the said FIR. It is stated that the relevant law and/or the statute applicable to the set of alleged acts in the present case is the Information Technology Act, 2000 (‘IT Act’), and thus, the registration of the impugned FIR under the provisions of Indian Penal Code has vitiated the proceedings. Therefore, the FIR needs to be quashed at the threshold. It is stated that the IT Act, by virtue of its preamble as well as its Section 81, commands overriding effect over any other law for the time being in force and must be given precedence over the more general law of IPC. It is argued that the impugned FIR being void ab-initio, has been registered under the wrong and incorrect provisions of law. It is also argued that the procedure adopted by the learned Trial Court for reaching the conclusion that the petitioner was deliberately avoiding service of the notice under Section 41A of Cr.P.C., and issuing Non-Bailable Warrants is erroneous and beyond the realms of known law and procedure. It is stated that the orders dated 12.05.2023 and 08.06.2023 passed by the learned Trial Court should be quashed since the same are cryptic qua the basis of issuing NBWs as well as issuance of process under Section 82 Cr.P.C.

4. Learned APP for the State argues that the allegations against the present accused are serious in nature, and the present petition is not maintainable since the petitioner is seeking quashing of FIR on the ground that the relevant provisions of the IT Act have not been added in the FIR, whereas the investigating agency is still conducting the investigation. Therefore, it is submitted that present petition be dismissed.

5. This Court has heard arguments addressed by learned counsel for the petitioner and learned APP for the State, and has perused material on record.

6. At the outset, this Court observes that since the present accused/petitioner had not joined investigation, a raiding team was formed and the said team had conducted a raid at the house of the accused, where he was not found, after which Non-Bailable Warrants were issued against the accused. It is further noted that the investigating agency had again made efforts with the help of local police to arrest the present accused but the accused had fled from the spot. Proceedings under Section 82 of Cr.P.C were thereafter initiated against the present accused on 08.06.2023. Except making bald averments that the NBWs were obtained and proceedings were initiated under Section 82 of Cr.P.C. without any basis against the petitioner, no specific arguments were addressed to show any mala fide on the part of investigating agency against the petitioner or any errors of law in initiation of such proceedings.

7. As regards the main argument of the petitioner that the FIR in question deserves to be quashed since the provisions of IT Act have not been invoked in the FIR, this Court observes that the police as an investigating agency has the power to invoke relevant sections of law as it deems necessary and applicable to the facts of the case during the course of investigation and before the filing of the chargesheet. At the stage of registration of FIR, it cannot be expected that the investigating agency would decide conclusively as to which provisions of law will be applicable to the alleged offences in a case, and the same can only be done once the entire investigation in complete. At the stage of registering of FIR, the police or investigating agency has to register an FIR on the basis of the complaint and allegations therein. During the course of investigation, it may transpire that the accused has committed offence which attracts penalty/punishment under other provisions of law or Acts such as IT Act, 2000, and the same can be added by the investigating agency in the chargesheet.

8. As regards the prayer of quashing of FIR, it will be relevant to consider the principles as laid in case of Neeharika Infrastructure v. State of Maharashtra 2021 SCC OnLine 315, which are as under:

9. This Court notes that the investigation in the present case is at initial stage and the chargesheet is yet to be filed. The present petition has been filed by the petitioner at a stage when the investigation is underway and through the present petition, the petitioner is seeking quashing of FIR which cannot be allowed as per guiding principles of judicial precedents as laid down in the case of State of Haryana v. Bhajan Lal 1992 SCC (Cri) 426 and Neeharika Infrastructure (supra).

10. Thus, in view of the aforesaid discussion, this Court finds no ground to quash the FIR in the present case.