Jharkhand High Court
Dr. Irfan Ansari vs The State Of Jharkhand ….. Opposite … on 6 September, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 1254 of 2022
Dr. Irfan Ansari, aged about 41 years, son of Furkan Ansari, resident of
Court road, Near Matriaashram, Jamtara, P.O. + P.S. + Dist. Jamtara
..... Petitioner
Versus
The State of Jharkhand ..... Opposite Party
---------
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR RAI
---------
For the Petitioner : Mr. Indrajit Sinha, Advocate
Mr. Kumar Rahul Kamlesh, Advocate
For the State : Mr. P.C. Sinha, AC to GA-III
---------
JUDGEMENT
CAV on:17.05.2024 Pronounced on: 06.09.2024
The instant criminal revision has been preferred by the petitioner
against the order dated 25.07.2022 passed by the learned Additional
Sessions Judge-III Dumka in Misc. Crl. Appeal No. 459 of 2022, Special
POCSO Case No. 47 of 2021 arising out of Jamtara P.S. Case No. 175 of
2018, whereby and whereunder the learned Court has dismissed the petition
of the petitioner filed under Section 227 of the Code of Criminal Procedure,
1973 and fixed the case for framing of the charge.
However, the learned trial court framed the charge vide its order
dated 21.11.2022 against the petitioner, during the pendency of the instant
criminal revision and accordingly the petitioner has filed interlocutory
application being I.A. No. 2315 of 2023 for the amendment and addition in
the existing prayer to the extent regarding the quashing of the order dated
21.11.2022, whereby charges were framed.
In pursuant to the order dated 17th May 2024 of this Court, the prayer
for addition/amendment in view of I.A. No. 2315 of 2023 has been
allowed. The additional prayer portion of the Cr. Revision No. 1254 of
1
2022 against which the petitioner is also seeking revision which reads as
follows:
“1. (A) For quashing the order dated 21.11.2022, passed
by the learned Additional Sessions Judge-III-cum-Spl. Judge,
Dumka, whereby the charges against the petitioner under
Sections 228 (A), 120 B of the IPC, Section 74 (1) (3) of
Juvenile Justice Act, 2012 and Section 23 of P.O.C.S.O. Act,
2012 has been framed.”
2. The brief facts of the present case is that FIR got instituted on the
written report of one ASI namely, Manjur Alam who allegedly stated
therein that in the course of verification of Jamtara P.S. Sanha No. 24/18
dated 28.10.2018 when he made an enquiry from Manali Rai, Hospital
Manager, then he came across the fact that one Karmatand P.S. Case No.
128 of 2018 dated 27.10.2018 under Section 376 of IPC and Section 4 of
POCSO Act has been lodged and victim of the said case brought to Sadar
Hospital, Jamtara on 27.10.2018 at 9.30 P.M. in the night and victim got
admitted by Dr. Subodh Kumar and she was being treated by Dr. Subodh
Kumar and Dr. Manjula Murmu. It is further alleged that on 28.10.2018 at
about 15.00 hrs. local M.L.A.- Dr. Irfan Ansari and his supporters visited
Hospital to show their sympathy to the victim and her family member and
after taking name, address and photograph of victim, it was sent to media
and other organization from mobile No. 9771400857. Informant got copy
of screen shot of above said message and photographs, as such, the above
said act has been found violative of Section 74 (1) (3) of Juvenile Justice
(Care and Protection of Children) Act, 2015, Section 23 of POCSO Act and
Section 228 A of IPC and therefore, present FIR being Jamtara P.S. Case
2
No. 175 of 2018 came into existence and petitioner has been shown as an
accused.
3. After lodging of aforesaid FIR, investigation was carried out during
which statement of numbers of witnesses were recorded by the
Investigating Officer and finally chargesheet has been submitted against
Tarkeshwar Rai, Secretary of the petitioner herein and on account of lack of
evidence, petitioner was not sent up for trial.
Case diary reveals that I.O has collected material during course of
investigation that mobile no. 9771400857 from which allegedly name,
address and photograph of the victim got circulated/viralled was being used
by Tarkeshwar Rai, Secretary of petitioner and on this score, investigating
officer did not sent petitioner for trial.
4. After filing of chargesheet against Tarkeshwar Rai, Secretary of
petitioner, learned Magistrate took cognizance of offence under Section 74
(1) (3) of Juvenile Justice Act, 2015, Section 23 of POCSO Act and Section
228- A of IPC and proceeded against above named Tarkeshwar Rai as well
as present petitioner vide order dated 12.03.2020.
5. Perusal of record further transpires that petitioner filed a petition for
discharge under Section 227 of Cr. P.C. on the premise that no iota of
material was/is found during course of investigation against the petitioner,
however plea of petitioner was declined by the learned trial court and
discharge petition was dismissed vide order dated 25.07.2022. Thereafter,
even charge has also been framed against the petitioner and after filing of
present revision petition, two witnesses in the present case also got
examined before the learned trial court.
6. Learned counsel for the petitioner has raised two limbs of argument
3
for discharge of petitioner in the present case. First one, it is agitated before
this Court that during course of investigation, there is ample material
collected by I.O. which clearly transpires that it is Tarkeshwar Rai,
Secretary of the petitioner who was using mobile phone No. 9771400857
of the petitioner and without the consent of petitioner such information was
forwarded, as such, there is no culpability of petitioner in the present
matter.
Secondly, it has been argued on behalf of petitioner that even taking
the allegation on its face value, even then, no offences made out on account
of fact that there is no material collected during course of investigation
which could show that petitioner printed or published the name or other
information which may disclose the identity of the victim.
7. Further, it has been pointed out that there is no iota of evidence
collected which could even remotely show that petitioner has either made
any report or presented any comment qua the victim, in any form of media
or studio or photographic facilities.
8. Learned counsel for the petitioner just to buttress his argument, read
line by line of Section 228 A of Indian Penal Code, Section 23 of POCSO
Act and Section 74 (1) (3) of Juvenile Justice (Care and Protection of
Children) Act, 2015 and thereafter concluded his argument by making
submission that by no stretch of imagination, material available in the case
diary could remotely show that even prima facie case is made out against
the petitioner.
9. Learned counsel for the State pointed out the statement of witnesses
recorded in the case diary and tried to convince this Court that at the stage
of framing of charge, law is settled that trial court has to see whether prima
4
facie case is made out or not and in the present case, it is admitted case of
petitioner that mobile no. 9771400857 belongs to him, but during course of
investigation onus of alleged act of sending the name, address and
photographs of the victim, has been taken by Tarkeshwar Rai co-accused
in the present case, who is Secretary of the petitioner.
Learned counsel for the State further pointed out that transmission of
above said information including photographs of the victim is also not in
dispute, as such, absolutely prima facie case is made out against the
petitioner and this Court should not interfere with the impugned order
passed by learned trial court.
10. Heard both the sides and perused the case record. Before adverting to
the facts of the case, it is appropriate for this Court to discuss the provisions
under which F.I.R. got registered and charge has been framed i.e. Sections
228-A of IPC, Section 74 (1) (3) of Juvenile Justice Act, 2015 and Section
23 of P.O.C.S.O. Act, 2012, which is quoted as herein under for the ready
reference:
Section 228 A of the IPC
“S. 228 A. Disclosure of identity of the victim of certain offences,
etc.-
(1)Whoever prints or publishes the name or any matter which
may make known the identity of any person against whom an
[offence under Section 376, [Section 376-A, Section 376-AB,
Section 376-B, Section 376-C, Section 376-D, Section 376-DA,
Section 376-DB] or Section 376-E] is alleged or found to have
been committed (hereafter in this section referred to as the
victim) shall be punished with imprisonment of either
description for a term which may extend to two years and shall
also be liable to fine.
(2) Nothing in sub-section (1) extends to any printing or
publication of the name or any matter which may make known
the identity of the victim if such printing or publication is–
(a) by or under the order in writing of the officer-in-charge of
the police station or the police-officer making the investigation
into such offence acting in good faith for the purposes of such
investigation; or5
(b) by, or with the authorisation in writing of, the victim; or
(c) where the victim is dead or minor or of unsound mind, by, or
with the authorisation in writing of, the next of kin of the victim:
Provided that no such authorisation shall be given by the next
of kin to anybody other than the chairman or the secretary, by
whatever name called, of any recognised welfare institution or
organisation.
Explanation. –For the purposes of this sub-section,
―recognised welfare institution or organisation‖ means a social
welfare institution or organisation recognised in this behalf by
the Central or State Government.
(3) Whoever prints or publishes any matter in relation to any
proceeding before a court with respect to an offence referred to in
sub-section (1) without the previous permission of such court shall
be punished with imprisonment of either description for a term
which may extend to two years and shall also be liable to fine.
Explanation. –The printing or publication of the judgment of any
High Court or the Supreme Court does not amount to an offence
within the meaning of this section.]‖
Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015
“S. 74 – Prohibition on disclosure of identity of
children:
1) No report in any newspaper, magazine, news-sheet or audio-
visual media or other forms of communication regarding any
inquiry or investigation or judicial procedure, shall disclose the
name, address or school or any other particular, which may
lead to the identification of a child in conflict with law or a child
in need of care and protection or a child victim or witness of a
crime, involved in such matter, under any other law for the time
being in force, nor shall the picture of any such child be
published:
Provided that for reasons to be recorded in writing, the Board or
Committee, as the case may be, holding the inquiry may permit
such disclosure, if in its opinion such disclosure is in the best
interest of the child.
(2) The Police shall not disclose any record of the child for the
purpose of character certificate or otherwise [in the pending case
or in the case which] has been closed or disposed of.
(3) Any person contravening the provisions of sub-section (1) shall
be punishable with imprisonment for a term which may extend to
six months or fine which may extend to two lakh rupees or both.‖Section 23 of the Protection of Children from Sexual Offences Act, 2012.
“S. 23 Procedure for Media:
(1) No person shall make any report or present comments on
any child from any form of media or studio or photographic
facilities without having complete and authentic information,
which may have the effect of lowering his reputation or
infringing upon his privacy.
(2) No reports in any media shall disclose, the identity of a child
including his name, address, photograph, family details, school,6
neighbourhood or any other particulars which may lead to
disclosure of identity of the child:
Provided that for reasons to be recorded in writing, the Special
Court, competent to try the case under the Act, may permit such
disclosure, if in its opinion such disclosure is in the interest of
the child.
(3) The publisher or owner of the media or studio or
photographic facilities shall be jointly and severally liable for
the acts and omissions of his employee.
(4) Any person who contravenes the provisions of sub-section
(1) or sub-section (2) shall be liable to be punished with
imprisonment of either description for a period which shall not
be less than six months but which may extend to one year or
with fine or with both.‖
11. From bare perusal of Section 228-A of IPC, it is very much clear
that it prohibits the printing or publishing “the name or any matter which
may make known the identity of the person”. It is obvious that not only the
publication of the name of the victim is prohibited but also the disclosure of
any other matter which may make known the identity of such victim. The
phrase “matter which may make known the identity of the person” does not
solely mean that only the name of the victim should not be disclosed but it
also means that the identity of the victim should not be discernible from
any matter published in the media.
Section 228 A of IPC further reflects the intention of the law-makers
that the victim of such offences should not be identifiable, so that they do
not face any hostile discrimination or harassment in the future.
Section 23 of the POCSO Act specifically prohibits disclosure of
identity of a child in any manner. The intention of the legislature is that the
identity of a child should not be disclosed directly or indirectly and the
privacy and the reputation of the child should not be harmed. Any
particular which may lead to the identification of a child cannot be
disclosed in any form of media or studio or photographic facilities. Any
7
person committing breach of the said requirement of law shall be
prosecuted in terms of Section 23(4) of the said Act.
Whereas, Section 74 (1) of the Juvenile Justice (Care and Protection
of Children) Act, 2015 also prohibits the disclosure of the name, address or
school or any other particulars of a child victim in any newspaper,
magazine, news-sheet or audio-visual media or other forms of
communication, whose violation is punishable under section 74(3) of the
Act, limited to some exception which is provided under sub section (1) of
the Act.
12. Now coming to the facts of the present case, it transpires that victim
(just 4 years of age) was allegedly ravished, for which FIR being
Karmatand P.S. Case No.128/2018 has been got registered under Section
376 of the IPC and Section 4 of POCSO Act. Victim got admitted in the
Sadar Hospital, Jamtara at 9.30 P.M., on 27.10.2018 for her treatment and
on the next date, i.e. on 28.10.2018 at 3 P.M., the petitioner, an M.L.A. of
the area along with his supporters visited the Hospital to show sympathy
with the victim and her family and in between, allegedly photographs of
victim was taken by petitioner and a report stating the incident and effort
taken by the petitioner- being an M.L.A. for securing justice to the victim,
sent to the media as well as got viral in social media.
13. At this stage, few lines of the contents of the message required to be
noted below for proper appreciation of the matter.
―Culprit should be immediately hanged- Irfan Ansari (petitioner
herein).
On the shameful incident in the State of Jharkhand, Hon’ble M.L.A.-
Dr. Irfan Ansari reached to Hospital and met with victim, aged 4 years.
8
Name of victim (divulged), daughter of (also divulged) …………..
Name of village and police station (divulged) where incident took
place and the name of accused has also been divulged in the above said
message.‖
14. Resultantly, FIR being Jamtara P.S. Case No. 175/18 dated
05.11.2018 against the petitioner under Sections 228 (A), 120 B of the IPC,
Section 74 (1) (3) of Juvenile Justice Act, 2015 and Section 23 of POCSO
Act, 2012 has been got registered.
15. Statement of number of witnesses got recorded during course of
investigation including both the doctors i.e. namely, Dr. Subodh Kumar and
Dr. Manjula Murmu. Witness Dr. Manjula Murmu who treated the victim
has corroborated the case of prosecution by saying that petitioner along
with his supporters came to Hospital in the evening of 28.10.2018 and this
witness was about to discharge the victim, in between, petitioner visited
along with his supporters to show sympathy to the victim and name,
address of the victim was taken and photograph got snapped and later on,
she came across the fact that name, address of victim and photographs were
sent to media and other organization.
Similar statement has been made by the ASI- Pravesh Singh and
female Hawaldar- Basanti Soren, who brought the victim to the Hospital
for the purpose of treatment. Even four Police Constables namely, Punam
Kumari, Mita Mukherjee, Babita Devi and Pratima Khalkho have also
stated similar statement before the I.O. Even father and mother of the
victim has also categorically stated in their respective statement that this
petitioner asked the name of the victim and took photographs of the victim
and her mother in the Hospital. Thereafter, they came across the fact that
9
above said photographs were sent to media and other places and photo got
viral.
16. From para 38 of the case diary, it transpires that I.O has come across
the fact that from mobile no. 9771400857 at 18.23 in the evening, 4
photographs and messages were posted but after sometime, photos got
deleted but contents of the messages remained there.
17. Case diary further reveals that I.O. has recorded the statement of
co-accused Tarkeshwar Rai, who admitted the case of prosecution but had
fasten the liability on his shoulder by stating that he had forwarded the
messages and photographs on account of lack of knowledge, and there is no
role of M.L.A.-Dr. Irfan Ansari (petitioner herein) and to this effect one
affidavit has also been produced before the I.O. The Present petitioner also
filed an affidavit wherein he has admitted that the said mobile number
belongs to him and apart from that he is having two other mobile numbers
but he does not use the above said mobile numbers and his secretary uses
the aforesaid mobile numbers and on account of lack of knowledge, the
said message went viral in social media and other media.
18. Further, I.O. has also recorded the statement of one witness, namely
Suman Bhattacharya at para 73 of the case diary who has stated that he has
started „whatsapp news group’ in the name of “Nala news” in the year
2016 in which number of representatives of the district, administrative and
police officials, intellectuals and reporters were added as a member and at
that time he was connected with Zee media and at present this witness is
active reporter of “News flash the face of India”.
This witness has categorically stated in his statement that on
28.10.2018 from mobile number 9771400857 which is saved in the name
10
of M.L.A.-Dr. Irfan Ansari, photographs of one teenage girl and connected
messages were posted and after going through the post, he came across the
fact that the said teenage girl was victim of rape and her name was also
written in the message. Thereafter, other members of the group and admins
started making comments, then M.L.A.-Dr. Irfan Ansari got the messages
deleted. He further stated that he and other admins used to forbid from
sending such type of messages in the group and he also warned the
petitioner that in future, if such acts would be done, then petitioner‟s
number would be removed from the group.
19. It is apposite for this Court to have a glance into the literal meaning
of the term „Media‟ and „Social media‟. As per Black‟s Law Dictionary the
above-stated meaning thus read as follows:
Media- Collectively, the means of mass communication; specif.,
television, radio, newspapers, magazines, and the Internet
regarded together. – Also termed mass media.
―Mass media signifies the means by which
communications – either factual or fictional- are
transmitted to a mass audience through a variety of
printing or audio-visual technologies. The purposes of
communication have always remained the same: artists
wish to entertain and stimulate; entrepreneurs aim to
make money; governments and interest groups hope to
inform or persuade; advertisers help to sell goods and
ideas.‖
Social media. Collectively, all the technological means, esp.
websites and apps, that enable people to participate in Internet
content creation and online social networking.
It is transparent from the aforesaid reference that the meaning of
media includes the means of mass communication and mass media along
with the Internet, as social media includes all the technological means
especially websites and apps.
20. This Court under the revisional jurisdictions has to examine the
correctness, legality or propriety of the order tabled before it, since, the
11
charge against the petitioner has been framed by the learned trial court, this
Court while examining the propriety of the order, has to consider whether
prima facie case has been made out or not and the court concerned, while
framing of charges has looked into availability of the ingredients of offence
or not.
21. The Hon‟ble Apex Court in the case of State of Maharashtra v. Som
Nath Thapa reported in (1996) 4 SCC 659 has held that while framing of
charge, the court has to prima facie look into the material brought on record
which would reasonably connect the accused with the crime and a charge
can be framed against the accused for committing an offence, if prima facie
the Court is of the opinion that the accused has committed the said offence
and the case against him exists. The relevant paragraph is quoted herein
under:
―29. What was stated in this regard in Stree Atyachar Virodhi
Parishad case [Stree Atyachar Virodhi Parishad v. Dilip Nathumal
Chordia, (1989) 1 SCC 715 : 1989 SCC (Cri) 285] which was quoted
with approval in paragraph 78 of State of W.B. v. Mohd.
Khalid [(1995) 1 SCC 684 : 1995 SCC (Cri) 226] is that what the
court has to see, while considering the question of framing the charge,
is whether the material brought on record would reasonably connect
the accused with the crime. No more is required to be inquired into.
30. In Antulay case [(1986) 2 SCC 716 : 1986 SCC (Cri) 256]
Bhagwati, C.J., opined, after noting the difference in the language of
the three pairs of sections, that despite the difference there is no scope
for doubt that at the stage at which the court is required to consider
the question of framing of charge, the test of ―prima facie‖ case has to
be applied. According to Shri Jethmalani, a prima facie case can be
said to have been made out when the evidence, unless rebutted, would
make the accused liable to conviction. In our view, a better and
clearer statement of law would be that if there is ground for presuming
that the accused has committed the offence, a court can justifiably say
that a prima facie case against him exists, and so, frame a charge
against him for committing that offence.‖
22. Also, in the case of Amit Kapoor v. Ramesh Chander reported in
(2012) 9 SCC 460, it has been categorically laid down by the Hon‟ble
Apex Court that if it appears to the Court that there is a ground for
12
presuming that the accused has committed an offence and the facts and
ingredients of the Section exists for an offence, then it would proceed
against the accused and frame the charge accordingly. It is also evident that
at the initial stage during framing of charge, if there exits strong suspicion
by the Court that the accused has committed an offence, then it is not open
to the Court to neglect the facts and material available on record and say
that there is no sufficient ground for proceeding against the accused.
It was also held that it is not obligatory for the Court at this stage to
consider any detail and weigh in a sensitive balance whether the facts, if
approved, would be incompatible with the innocence of the accused or not.
Relevant paragraph of the judgement is quoted herein under:
“17. Framing of a charge is an exercise of jurisdiction by the trial
court in terms of Section 228 of the Code, unless the accused is
discharged under Section 227 of the Code. Under both these
provisions, the court is required to consider the ―record of the case‖
and documents submitted therewith and, after hearing the parties, may
either discharge the accused or where it appears to the court and in its
opinion, there is ground for presuming that the accused has committed
an offence, it shall frame the charge. Once the facts and ingredients of
the section exists, then the court would be right in presuming that
there is ground to proceed against the accused and frame the charge
accordingly. This presumption is not a presumption of law as such.
The satisfaction of the court in relation to the existence of constituents
of an offence and the facts leading to that offence is a sine qua non for
exercise of such jurisdiction. It may even be weaker than a prima facie
case. There is a fine distinction between the language of Sections 227
and 228 of the Code. Section 227 is the expression of a definite
opinion and judgment of the Court while Section 228 is tentative.
Thus, to say that at the stage of framing of charge, the Court should
form an opinion that the accused is certainly guilty of committing an
offence, is an approach which is impermissible in terms of Section 228
of the Code.
18. It may also be noticed that the revisional jurisdiction exercised
by the High Court is in a way final and no inter court remedy is
available in such cases. Of course, it may be subject to jurisdiction of
this Court under Article 136 of the Constitution of India. Normally, a
revisional jurisdiction should be exercised on a question of law.
However, when factual appreciation is involved, then it must find
place in the class of cases resulting in a perverse finding. Basically,
the power is required to be exercised so that justice is done and there
is no abuse of power by the court. Merely an apprehension or
suspicion of the same would not be a sufficient ground for interference
in such cases.
19. At the initial stage of framing of a charge, the court is
concerned not with proof but with a strong suspicion that the accused13
has committed an offence, which, if put to trial, could prove him guilty.
All that the court has to see is that the material on record and the facts
would be compatible with the innocence of the accused or not. The
final test of guilt is not to be applied at that stage. We may refer to the
well-settled law laid down by this Court in State of Bihar v. Ramesh
Singh [(1977) 4 SCC 39 : 1977 SCC (Cri) 533] : (SCC pp. 41-42,
para 4)
―4. Under Section 226 of the Code while opening the case for the
prosecution the Prosecutor has got to describe the charge against the
accused and state by what evidence he proposes to prove the guilt of
the accused. Thereafter comes at the initial stage the duty of the court
to consider the record of the case and the documents submitted
therewith and to hear the submissions of the accused and the
prosecution in that behalf. The Judge has to pass thereafter an order
either under Section 227 or Section 228 of the Code. If ‗the Judge
considers that there is no sufficient ground for proceeding against the
accused, he shall discharge the accused and record his reasons for so
doing’, as enjoined by Section 227. If, on the other hand, ‗the Judge is
of opinion that there is ground for presuming that the accused has
committed an offence which– … (b) is exclusively triable by the
court, he shall frame in writing a charge against the accused’, as
provided in Section 228. Reading the two provisions together in
juxtaposition, as they have got to be, it would be clear that at the
beginning and the initial stage of the trial the truth, veracity and effect
of the evidence which the Prosecutor proposes to adduce are not to be
meticulously judged. Nor is any weight to be attached to the probable
defence of the accused. It is not obligatory for the Judge at that stage
of the trial to consider in any detail and weigh in a sensitive balance
whether the facts, if proved, would be incompatible with the innocence
of the accused or not. The standard of test and judgment which is to be
finally applied before recording a finding regarding the guilt or
otherwise of the accused is not exactly to be applied at the stage of
deciding the matter under Section 227 or Section 228 of the Code. At
that stage the court is not to see whether there is sufficient ground for
conviction of the accused or whether the trial is sure to end in his
conviction. Strong suspicion against the accused, if the matter remains
in the region of suspicion, cannot take the place of proof of his guilt at
the conclusion of the trial. But at the initial stage if there is a strong
suspicion which leads the court to think that there is ground for
presuming that the accused has committed an offence then it is not
open to the court to say that there is no sufficient ground for
proceeding against the accused. The presumption of the guilt of the
accused which is to be drawn at the initial stage is not in the sense of
the law governing the trial of criminal cases in France where the
accused is presumed to be guilty unless the contrary is proved. But it
is only for the purpose of deciding prima facie whether the court
should proceed with the trial or not. If the evidence which the
Prosecutor proposes to adduce to prove the guilt of the accused even if
fully accepted before it is challenged in cross-examination or rebutted
by the defence evidence, if any, cannot show that the accused
committed the offence, then there will be no sufficient ground for
proceeding with the trial. An exhaustive list of the circumstances to
indicate as to what will lead to one conclusion or the other is neither
possible nor advisable. We may just illustrate the difference of the law
by one more example. If the scales of pan as to the guilt or innocence
of the accused are something like even at the conclusion of the trial,
then, on the theory of benefit of doubt the case is to end in his
acquittal. But if, on the other hand, it is so at the initial stage of
making an order under Section 227 or Section 228, then in such a14
situation ordinarily and generally the order which will have to be
made will be one under Section 228 and not under Section 227.‖
20. The jurisdiction of the court under Section 397 can be
exercised so as to examine the correctness, legality or propriety of an
order passed by the trial court or the inferior court, as the case may
be. Though the section does not specifically use the expression
―prevent abuse of process of any court or otherwise to secure the ends
of justice‖, the jurisdiction under Section 397 is a very limited one.
The legality, propriety or correctness of an order passed by a court is
the very foundation of exercise of jurisdiction under Section 397 but
ultimately it also requires justice to be done. The jurisdiction could be
exercised where there is palpable error, non-compliance with the
provisions of law, the decision is completely erroneous or where the
judicial discretion is exercised arbitrarily.‖
23. Further, the Hon‟ble Apex Court in the case of Nipun Saxena v.
Union of India, reported in (2019) 2 SCC 703 has set out the guidelines
with regard to non-disclosure of name, identity and particulars of the
victims of rape or sexual offences. The Hon‟ble Court has further held that
disclosure of name of the victim or even in a remote manner disclose any
facts which can lead to the victim being identified and which should make
her identity known to the public at large, in any form i.e. print or publish in
print, electronic, social media, etc., is an offence. Relevant paragraph of the
judgement is quoted herein under:
“50.1. No person can print or publish in print, electronic,
social media, etc. the name of the victim or even in a remote
manner disclose any facts which can lead to the victim being
identified and which should make her identity known to the
public at large.
(emphasis supplied)”
24. In the light of the above legal positions, perusal of the above stated
Sections and the meaning of media, discussed herein above, this Court is of
considered view that revisional court has to examine the correctness,
legality or propriety of an order tabled before it and the court concerned
while the framing of charges has prima facie to look into the ingredients of
offence and facts along with the material brought on record. It is also
settled from the above legal proposition that disclosure of name of the
15
victim or even in a remote manner disclose any facts which can lead to the
victim being identified and which should make her identity known to the
public at large, in any form i.e. print or publish in print, electronic, social
media, etc., is strictly prohibited and is an offence.
25. On the basis of above discussion and looking into the ingredients of
Sections, this Court is of considered view that a prima facie case is made
out under Section 228 A of IPC on account of fact that it is admitted case of
petitioner, also that report/messages and photographs of the victim got
forwarded to social media platform and this fact further got corroborated
from the mouth of witness, Suman Bhattacharya who has categorically
stated that he has started „whatsapp’ news group in the name of “Nala
news” in the year 2016 in which number of representative of the district,
administrative and police officials, intellectual and reporters were added as
a member and at that time he was connected with Zee media and at present
this witness is active reporter of “News flash the face of India”. It is also
evident from the statement made by Suman Bhattacharya to the I.O. that
the photographs of one teenage girl and connected message was posted in
the above-said news whatsapp group from the petitioner‟s number, through
which he came across the fact that the teenage girl was victim of rape and
her name was disclosed by that message. Thus, prima facie it shows
somehow the involvement of the petitioner in disclosing the identity
including the photographs of the victim over the social media via
whatsapp.
26. Also, the mother and father of the victim has stated that it is the
petitioner who asked the name of the victim and had taken photographs
which is admittedly forwarded from the mobile number of the petitioner to
16
the members where numbers of persons read the contents and see the
photographs of the victim and it is trite law that criminal liability is not
transferable in nature, however it may be joint. During course of
investigation by accepting the fact by the co-accused namely, Tarkeshwar
Rai that he has sent the messages and photographs himself from the mobile
number of petitioner, criminal liability cannot and should not be transferred
at this stage and even for examining this aspect, for proper appreciation of
fact, trial is required.
27. As far as Section 23 of POCSO Act, 2012 and Section 74 (1) (3) of
Juvenile Justice Act, 2015 are concerned, the ingredients of both the
sections with the above stated facts and discussion, clearly shows that
prima facie Whats App news group in the name of “Nala News” in which
message regarding identity of victim and her photograph were sent, would
come within the domain of “any form of media” & “audio-visual media”.
28. Under the aforesaid facts and circumstance of the case, this Court is
of the considered view that no interference is required in the order dated
25.07.2022, passed by learned Additional Sessions Judge-III, Dumka and
the charges framed vide order dated 21.11.2022 by the learned Additional
Sessions Judge-III,-cum-Spl. Judge, Dumka, in Special POCSO Case No.
47 of 2021, arising out of Jamtara P.S. Case No. 175 of 2018.
29. Before parting with the order is made clear that the findings so
recorded by this Court are stated only for the purpose of the instant case
and as such the trial will not be prejudiced by any of the findings and
observations made by this Court, during the trial.
30. Accordingly, the instant Cr. Revision No. 1254 of 2022 stands
dismissed.
17
31. Let a copy of this order be communicated through „FAX‟ to the
Court concerned.
(Arun Kumar Rai, J.)
Pramanik/ A.F.R
18