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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 20TH DAY OF APRIL, 2021

BEFORE

THE HON'BLE MR. JUSTICE H.P. SANDESH

CRIMINAL PETITION No.5672 OF 2020

BETWEEN:

ASIF FARUK KADAWALA

S/O MR.FARUK KADAWALA
AGED ABOUT 43 YEARS
R/AT 6TH FLOOR, MEENA MAHAL
7TH ROAD, BANDRA WEST
MUMBAI-400050.
… PETITIONER

(BY SRI.JEETIN SEHGAL, ADVOCATE FOR SRI.HIREMANI HASAN

SHAIKALI, ADVOCATE)

AND:

1. THE STATE BY
PULIKESHI NAGAR POLICE STATION
BENGALURU
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-560001.

2. SMT.SARAH ASIF KADAWALA

W/O ASIF KADAWALA
AGED ABOUT 32 YEARS
R/AT 51, OLD THIPPASANDRA
80 FEET ROAD, 3RD CROSSLANE
INDIRA NAGAR
BENGALURU-560008.
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ALSO AT:
HOUSE No.7, 2ND FLOOR
ACHUTHARAYA MUDALIAR ROAD
FRAZER TOWN, BENGALURU
KARNATAKA-560005.
… RESPONDENTS

(BY SRI.H.R.SHOWRI, HCGP FOR R1;

SRI.BASAWA PRASAD KUNALE ADV.,FOR R2)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482

OF CR.P.C PRAYING TO A) QUASH AND SET ASIDE THE FIR
No.44/2020 DATED 21.02.2020 FOR THE OFFENCES
P/U/Ss.354(B),354(D),506,376,447,354 OF IPC AND SECTION
66(C) AND 66(E) OF INFORMATION TECHNOLOGY ACT, 2000,
REGISTERED WITH PULIKESHI NAGAR POLICE STATION,
BENGALURU AGAINST THE PETITIONER HEREIN.

THIS CRIMINAL PETITION HAVING BEEN HEARD AND

RESERVED FOR ORDERS ON 01.04.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

ORDER

This petition is filed under Section 482 of Cr.P.C, praying

this Court to quash and set aside an FIR in Crime No.44/2020

dated 21.02.2020 registered at Pulakeshinagar Police Station,

Bengaluru, for the offences punishable under Sections 354(B),

354(D), 506, 376, 447, 354 of IPC read with Section 66C and

66E of the Information Technology Act, 2000 (‘the IT Act, 2000’

for short) and direct the Investigating Officer not to take any

coercive action against the petitioner.

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2. The factual matrix of the case is that, respondent

No.2 had lodged a complaint at the first instance against accused

No.1 making the allegation against him that on 13.02.2020 in

the night at 9 p.m., he trespassed her house and snatched her

mobile and when she demanded to return the mobile, he

assaulted her. It is also an allegation that forcibly he made her

to remove her clothes and when she started screaming he closed

her mouth and forcibly committed rape on her and spilled the

sperm on her face. It is also alleged in the complaint that

thereafter he called the house owner and he did not help her.

Accused No.1, sent her personal photos and other information,

which were in her mobile to her relatives and friends. It is also

an allegation that by making use of the bank application

available in the mobile, he got transferred the amount of

Rs.61,000/- to his account and also destroyed her passport.

Hence, requested to take the action against accused No.1. In

pursuance of the complaint, the police have registered a case

against accused No.1 at the first instance. Thereafter, one more

complaint was given on 20.08.2020, in addition to the earlier

complaint. In the said complaint, an allegation is made against

the present petitioner that before shifting to Bengaluru on

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28.12.2019, she had filed a Domestic Violence complaint in the

Amboli Police Station, Andheri, Mumbai and also a Domestic

Violence case in Andheri Magistrate Court. It is alleged in the

complaint that accused No.1, illegally handed over the said

iphone 7 plus to her husband Asif Faruk Kadawala, Asif has

hijacked her phone with his Laptop (name-Asif hp Window 6)

and misused several personal data, details, photos and chats of

her and presented the same as an evidence in the ongoing case

of Domestic Violence which she had filed against the petitioner

herein and his family, which is pending before the Magistrate

Court, Andheri, Mumbai. It is also alleged in the complaint that

she had also attached an attested copy from the Magistrate

Court, Andheri, Mumbai of the data and (Personal pictures,

chats, emails, uber receipts) which came through post to the

Pulakeshinagar Police Station, Bengaluru, that accused No.2 had

illegally presented the same in the Court. It is also alleged in the

complaint that she had also submitted evidence of her icloud ID

logged in by accused No.2 by the name (windows 6-Asif HP)

taken screenshots from her new iphone as she could get data of

her previous phone’s location that had been robbed by accused

No.1 with details of places where the phone was found.

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3. It is alleged against this petitioner that the above

evidences prove that the main accused No.1 and her husband

i.e., accused No.2 (petitioner herein) have planned this heinous

act. They have always been hand in glove with each other. This

petitioner should be equally accused in the ongoing case and

should be thoroughly investigated. The above facts prove that

accused No.2 had sent accused No.1 to take her personal phone,

robbed her old passport which had address of her marital house,

also physically abused and raped her. Based on this complaint,

the police have requested the Court to arraign this petitioner as

accused No.2 vide letter dated 28.08.2020 and in view of

arraigning this petitioner as accused No.2, the present petition is

filed.

4. The main contention of the learned counsel

appearing for the petitioner before this Court is that there is no

any allegation against this petitioner in the first complaint and

also in the subsequent complaint; allegations do not disclose the

commission of any offence by the petitioner herein. The police in

a mechanical manner without taking into consideration that the

FIR does not disclose anything against this petitioner

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erroneously arraigned him as accused No.2. The petitioner has

been falsely implicated in the present FIR, based on the

supplementary complaint dated 20.08.2020. It is contended that

the petitioner has received the phone of respondent No.2

through accused No.1 and accused No.1 himself called the

petitioner and handed over the mobile to him and there was no

conspiracy between the petitioner and accused No.1. The

investigating agency failed to conduct any independent inquiry

and mechanically arraigned this petitioner at the behest of

respondent No.2. This petitioner on the date of the alleged

incident was at Mumbai. The Investigating agency turned a blind

eye to the fact that the petitioner had produced the mobile on

the phone in a court of law and had always been ready and

willing to deposit the same before the Family Court, Bandra.

Respondent No.2 herself had admitted her adulterous

relationship with accused No.1. Respondent No.2 had deserted

and abandoned the petitioner almost three years ago and the

present complaint is filed in the year 2020.

5. The learned counsel also vehemently contends that

the ingredients of section 66E of the IT Act, 2000 are not made
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out against the petitioner as the material in question was not

circulated in public domain, but in fact produced before a Court

of Law and in accordance with law. The petitioner is ready and

willing to join investigation in the present FIR. Respondent No.2

is constantly threatening the petitioner that she has close terms

with several high-ranking police officials. Hence, it requires an

interference of this Court.

6. The learned counsel for the petitioner in support of

his arguments, relied upon the order passed by this Court in

Criminal Revision Petition Nos.152/2014 and 1358/2010 in the

case of Sushma Rani v. H.N. Nagaraja Rao decided on

01.10.2020, and brought to the notice of this Court paragraph

No.14, wherein, it is observed that, the imputation should be

either made directly to the knowledge of third parties, or the

same should be published to the knowledge of the third parties.

No such things have taken place in the present case and the

same is produced before the Court and there was no publication.

7. The learned counsel for the petitioner also relied

upon the order of the Apex Court in the case of Ankur Gupta v.

State of U.P. and another reported in 2017 SCC OnLine SC

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2023, and brought to the notice of this Court paragraph Nos.6

and 7, wherein, the Apex Court discussed with regard to

exercising of powers under Section 482 of Cr.P.C., the power

should be used sparingly and with abundant caution. Such power

will be exercised either to prevent abuse of the process of Court

or otherwise to secure the ends of justice, though it may not be

possible to laid down any precise, clearly defined and sufficiently

channelized and inflexible guidelines or rigid formulae and to

give an exhaustive list of myriad kinds of cases wherein such

power should be exercised.

8. The learned counsel for the petitioner also relied

upon the order of the Apex Court in the case of Khatri and

Others v. State of Bihar and Others decided on 10.03.1981 in

Writ Petition Nos.5670 and 6216/1980, and brought to the

notice of this Court paragraph No.8, wherein, the Apex Court

discussed with regard to the accused in an inquiry or trial is not

entitled to call for the case diary or to look at it, save for a

limited purpose, it is difficult to believe that the Legislature could

have ever intended that the complainant or a third party should

be entitled to call for or look at the case diary in some other

proceeding, for that would jeopardize the secrecy of the

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investigation and defeat the object and purpose of Section 172

and therefore, applying the principle of that section, we should

hold that the case diary is totally protected from disclosure and

even the complainant or a third party cannot call for it or look at

it in a civil proceeding.

9. The learned counsel for the petitioner also relied

upon the judgment of the Apex Court in the case of Naresh

Kumar Yadav v. Ravindra Kumar and Others decided on

23.10.2007 in Criminal Appeal No.1462/2007, and brought to

the notice of this Court paragraph Nos.23 and 24, with regard to,

the Court has to give a definite finding about the prejudice or

otherwise. Even the supervision notes cannot be utilized by the

prosecution as a piece of material or evidence against the

accused.

10. The learned counsel for the petitioner also relied

upon the judgment of the Allahabad High Court in the case of

Amit Kumar and Others v. State of U.P. and another

decided on 29.05.2009 in Criminal Misc. Application

No.5299/2009, and brought to the notice of this Court paragraph

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Nos.6 and 8, an allegation with regard to the marriage and

demand of dowry.

11. The learned counsel for the petitioner also relied

upon the judgment of the Apex Court in the case of Ahmad Ali

Quraishi and another v. State of Uttar Pradesh and

another reported in (2020) 13 SCC 435, and brought to the

notice of this Court paragraph Nos.23 and 24, wherein, the Apex

Court held that, where criminal proceedings have been initiated

by the complainant with an ulterior motive due to private and

personal grudge. The principles laid down in the judgment of

State of Haryana v. Bhajan Lal reported in 1992 Supp (1)

SCC 335, come to the rescue of the accused and the criminal

proceeding which has been maliciously instituted with ulterior

motives, permitting such criminal proceeding to go on is nothing

but the abuse of the process.

12. The learned counsel for the petitioner referring to

these judgments would vehemently contend that it is a fit case

to exercise the powers under Section 482 of Cr.P.C. and to

quash the proceedings initiated against this petitioner.

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13. Per contra, learned counsel appearing for respondent

No.2 would vehemently contend that the petitioner is not

disputing the fact that he has received the mobile belongs to the

complainant and use the said phone as evidence before the

Court.

14. The learned counsel in support of his arguments,

relied upon the order passed by the Kerala High Court in

Crl.M.C.No.534/2016 in the case of Dr. Joy Anto v. C.R. Jaison

and another decided on 10.03.2021, and brought to the notice

of this Court paragraph No.18, wherein, it is observed that, if the

pleadings filed in the court contain defamatory statements, it

amounts to publication. Once a statement is filed in a Court of

law, it can be considered as published. Hence, he cannot

contend that the same is not published.

15. The learned counsel for respondent No.2 also relied

upon the order passed by the High Court of Andhra Pradesh at

Hyderabad in C.R.P.No.6456/2006 in the case of Rayala M.

Bhuvaneswari v. Nagaphanender Rayala decided on

20.12.2007, wherein, the Court has discussed; Husband was

recording conversation of his wife with third parties. It also

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shows that person who is party to conversation, when

conversation is between spouses, can tape conversation. But a

person cannot tape conversation of a spouse while he or she is

talking to other people. Therefore act of tapping itself by

husband of conversation of his wife with others was illegal and it

infringed right of privacy of wife.

16. learned High Court Government Pleader would

vehemently contend that the voluntary statement of the accused

is very clear that he had handed over the mobile belongs to the

complainant to this petitioner and when such materials are

available and when the petitioner has made use of the mobile

belongs to accused No.2 with regard to the defamatory contents

of the photographs, it requires the investigation.

17. The learned counsel for the petitioner would

vehemently contend that no publication with regard to the

offences to be invoked under Section 66C and 66E of the IT Act,

2000 and when there is no publication the invoking of the

offences under the IT Rules, 2000 also will not attract.

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18. Learned High Court Government Pleader would

vehemently contend that the offences which have been invoked

against the petitioner under the IT Act, 2000 attract the

ingredients of the offences of the IT offences attract against the

petitioner. It is not in dispute that the pictures were taken and

the phone was handed over to the husband by accused No.1 and

this petitioner received the same and used the same as

evidence. Hence, it requires investigation or otherwise it

amounts to interfering at the pre-mature stage.

19. The learned counsel for respondent No.2, also relied

upon the judgment passed by the High Court of Delhi in CM (M)

40/2019 and CM Appl. No.1226/2019 in the case of Deepti

Kapur v. Kunal Julka decided on 30.06.2020, wherein, the

Delhi High Court also discussed with regard to test of

admissibility of evidence and an elaborate discussion was made

with regard to scope of Section 65B of the Evidence Act and also

the scope of Sections 14 and 20 of the Family Courts Act, held

that, the approach of the Family Court is required to be realistic

and rational to the facts in hand rather than technical and

narrow. With regard to receiving the pictures of phone belongs

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to respondent in paragraph No.35, it is held that, ‘All

proceedings must be conducted strictly within the bounds of

decency and propriety; and no opportunity should be given to

any party to create a spectacle in the guise of producing

evidence. In egregious cases, the Family Court may initiate or

direct initiation of legal action against a litigating party or other

person, who may appear guilty of procuring evidence by illegal

means. Any party aggrieved by the production of such evidence

would also be at liberty to initiate appropriate proceedings,

whether in civil or criminal law, against concerned parties for

procuring evidence illegally, although the initiation or pendency

of such proceeding shall not make the evidence so produced

inadmissible before the Family Court.

20. Having heard the arguments of the respective

counsel, this Court has to examine the material on record. It is

not in dispute that the marriage was taken place in the year

2007 between the petitioner and respondent No.2 and also it is

admitted by the petitioner herein that in the said wedlock they

were having four children and those four children were also

residing along with the petitioner herein. It is the contention of

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the petitioner that the respondent No.2 left the Mumbai in the

year 2017 and also an allegation is made that she is having

adulterous life. It is also emerged on perusal of the complaint at

the first instance of respondent No.2, it is clear that there is an

adulterous relationship between respondent No.2 and accused

No.1. An incident was taken place at Bengaluru between

respondent No.2 and accused No.1. It is also not in dispute that

the mobile, which belongs to respondent No.2 has been snatched

by accused No.1 and also the petitioner not disputing the fact

that accused No.1 called him and handed over the same to him.

It is also not in dispute that he has received the same and taken

out the pictures and produced the same before the Court since

there were cases between them filed by respondent No.2 and

also this petitioner has filed divorce petition before the Family

Court at Mumbai.

21. The learned counsel for the petitioner is also not

disputing the fact that he has handed over the same to the

Court. The learned counsel for the petitioner has produced some

photographs before this Court and email correspondence in a

sealed cover and those photographs and email addresses

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disclose with regard to taking of nude pictures of respondent

No.2.

22. Having perused Section 66E of the IT Act, 2000, it is

clear that, whoever, intentionally or knowingly captures,

publishes or transmits the image of a private area of any person

without his or her consent, under circumstances violating the

privacy of that person, shall be punished with imprisonment,

which includes transmitting, capturing, private area and

publishes, means reproduction in the printed or electronic form

and making it available for public. No doubt, in the case on

hand, it is not made as available for public but the fact that the

same has been produced before the Court is not in dispute.

Section 66C is with regard to whoever, fraudulently or

dishonestly make use of the electronic signature, password or

any other unique identification feature of any other person, shall

be punished. In the case on hand, on perusal of the complaint,

a specific allegation is made against this petitioner also making

use of the password and taking out the print from the mobile

belongs to the accused No.2. It is also alleged in the complaint

that both accused Nos.1 and 2 are hand in glove with each other
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and colluding each other, they have committed the offences. It

is settled law that if the complaint prima facie discloses

committing of cognizable offence and when the allegations are

made in the complaint prima facie discloses committing of the

offence. The Court has to allow the Investigating Officer to probe

and unearth the crime as held by the Apex Court in the case of

DINESHBHAI CHANDUBHAI PATEL v. THE STATE OF

GUJARAT reported in 2018 (3) SCC 104, summarized the

principles as to how to deal with regard to the context of

challenge to FIR. In this judgment the Apex Court has held that

in order to examine as to whether factual contents of FIR

disclose any prima facie cognizable offence or not, High Court

cannot act like an investigating agency and nor can exercise

powers like an Appellate Court. The question is required to be

examined, keeping in view, contents of FIR and prima facie

material, if any, requiring no proof. At such stage, High Court

cannot appreciate evidence nor can it draw its own inferences

from contents of FIR and material relied on. It is more so, when

the material relied on is disputed. In such a situation, it

becomes the job of investigating authority, at such stage, to

probe and then of the Court to examine questions once the

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charge-sheet is filed along with such material as to how far and

to what extent reliance can be placed on such material. Once

the Court finds that FIR does disclose prima facie commission of

any cognizable offence, it should stay its hand and allow the

investigating machinery to step in to initiate the probe to

unearth the crime in accordance with the procedure prescribed in

the Cr.P.C.

23. Having perused the contention of the learned counsel

for the petitioner, the offences which have been invoked do not

constitute an offence against this petitioner, Sections 66C and

66E of the IT Act, 2000, prima facie attract against the petitioner

herein. I have already pointed out that the petitioner also not

disputes the taking and using of the mobile belongs to

respondent No.2 as evidence before the Court of law and the

Kerala High Court also in the judgment referred supra held that

if the pleadings filed in the Court contain defamatory statements,

it amounts to publication. Further, it is observed that once a

statement is filed in a Court of law, it can be considered as

published. In the case on hand, the very photographs which

have been taken with regard to the private area i.e., naked or
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undergarment clad genitals, pubic area, buttocks or female

breast comes within the purview of offence under Section 66E(c)

of the IT Act, 2000. When such being the case and when the

same has been made use of evidence before the Court of law, I

am of the opinion that the matter requires to be probed and

investigated by the Investigating Officer.

24. The very contention of the learned counsel for the

petitioner is that the complainant herself is leading the

adulterous life with several men cannot be a ground to quash the

FIR registered against the petitioner herein and it requires

investigation and the matter has to be probed in accordance with

law as established under the Code of Civil Procedure. Hence, I

do not find any merit in the petition to invoke Section 482 of

Cr.P.C.

25. In view of the discussions made above, I pass the

following:

ORDER

(i) The petition is dismissed.

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(ii) However, the petitioner is given liberty to approach

the Court after filing of the charge sheet, if need
arises.

In view of the dismissal of the main petition, I.As., if any

do not survive for consideration and hence, the same stand

disposed of.

Sd/-
JUDGE

cp*