Allahabad, Oct 5 (ILNS) The Allahabad High Court on October 01, refused to grant relief to Richa Dubey, wife of Vikas Dubey, the main accused in the Bikru incident for committing fraud using another person’s SIM card.
A Single Bench of Justice Shamim Ahmed refused to interfere in the proceedings of the case and directed the magistrate to take cognizance of the charge sheet filed for fraud using another person’s SIM card.
The court passed this order while hearing an application filed by Richa Dubey seeking to quash the entire proceedings including the charge sheet and cognizance /summoning order dated February 18, 2021,
The application sought to quash the entire proceedings including the charge sheet and cognizance /summoning order dated February 18, 2021, arising out of Case under Section 419, 420 IPC, Police Station Chaubeypur District Kanpur Nagar, pending in the court of Special Judge (D.A.A.), Ramabai Nagar (Kanpur Dehat).
Counsel for the applicant submitted that as per the allegation in the FIR, the applicant and 8 other co-accused were using Sim in mobile phones which were registered on some other person’s identity.
The applicant was using a mobile in which the Sim card of Mahesh, son of Bharat Prasad, resident of Nigoha, Mau, was inserted. He further submitted that the applicant has been falsely implicated in the case.
The mobile used by the applicant is of her servant and there is no allegation against the applicant that any misuse of the number or any crime was committed by use of the customer I.d. number of Mahesh son of Bharat Prasad.
Counsel for the applicant also submitted that the applicant had no mobile phone of her own, so she used the mobile phone Sim card of her servant Mahesh whenever she needed and Mahesh had no problem with this.
Counsel for the applicant said that on July 3, 2020, in Bikru village, Police Station Chaubeypur, District Kanpur Nagar, an incident of shoot-out (Bikru incident) had taken place in which the husband of the applicant namely Vikas Dubey was made accused and after the shoot-out, Mahesh was afraid so he left applicant’s house and went to Sitapur and left his mobile phone Sim card bearing at the applicant house as she had no mobile phone and Sim card of her own.
Counsel further said that Mahesh stayed in his village for almost about 3 months and during this period with the permission of Mahesh, the applicant transferred a mobile Sim card on her own identity.
The applicant never misused the mobile Sim card and presently the same is registered on her own identity and Mahesh has no problem with this even though he is staying in her house which is located in Lucknow. Mahesh has given a notarial affidavit before the concerned authority in this regard.
The applicant has never misused mobile Sim cards for any illegal purpose or any criminal activity. In the perusal of the entire case diary, there is not a single whisper about the misuse of mobile phone Sim card for any criminal purpose as well as the owner of sim card Mahesh has not made any complaint to any police officer or telecommunication officer for misuse of his mobile and sim card by the applicant. In absence of the complaint the whole proceeding so initiated by the concerned police as well as the Investigating Officer is an abuse of process of law, the Court said.
Additional Government Advocate filed a short counter affidavit and submitted that the mobile SIM card was in the name of Mahesh having mobile Sim card. This person Mahesh was the servant of Vikas Dubey, husband of the applicant.
It is clear from the statement of Mahesh under Section 161 CrPC that his mobile Sim card was used by the applicant since 2017 and for this, he had not given any ‘no objection’ to the applicant.
It was further stated in the short-counter affidavit that the FIR which was lodged on November 19, 2020, under Section 419, 420 IPC is based upon the detailed report of S.I.T. who has come to the conclusion that there has been gross violation of the guidelines of Telecom Regulatory Authority by the accused applicant and other co-accused persons, which is incriminating in nature, therefore, the ingredients of the offence under Section 419, 420 IPC is being made out.
In this regard, the instructions and guidelines dated August 9, 2012, of the Government of India, Ministry of Communication, Information Technology, Department of Tele-communication, New Delhi was placed which is for the purpose of verification of mobile subscribers and Clause-7 of the guidelines are directly applicable in the case of the applicant.
Manish Goyal, Additional Advocate General argued that the charge sheet and cognizance order was rightly submitted against the applicants in accordance with the law, therefore, prima facie offence is made out against the applicant.
In reply thereto counsel for the applicant has filed a rejoinder affidavit and reiterated the same version made in the application under Section 482 CrPC.
He further submitted that though it is an admitted fact that there was an unfortunate incident in which several police officials were killed, the applicant has been roped falsely in the case only for the reason that she is the wife of the main accused.
The Court held that, After considering the arguments as advanced by the counsel for the parties and from the perusal of the charge sheet as well as cognizance order and the F.I.R., the Court is of the view that the SIM card was on the name of Mahesh having mobile Sim card, who was the servant of Vikas Dubey (Bikru incident) and his wife i.e. applicant.
Apart from the above, the acts and omissions of the applicant have otherwise tainted the reputation of the servant, which is part of his right to life under Article 21 of the Constitution of India and it was owing to the fear psychosis that the servant could not muster the courage to lodge an FIR against the master, who was a known gangster for using his Sim card against his own will.
It is only after the incident of Bikru in Police Station Chaubeypur that the servant could muster the courage to make the statement under Section 161 CrPC. So far as mobile Sim card is concerned, as per the record, it reveals that during investigation it was found that the short canvas under which the offences being made out is only on impersonation and deceiving, her servant and inducing him to deliver property (SIM Card) without his consent.
Therefore, the ingredients for the offence under Section 419, 420 IPC are completely made out against the applicant. In doing so there is a clear men’s rea of the applicant which is prima facie apparent on the face of the record and also as per Clause-7 and 10 of the guidelines issued by the Government of India, Ministry of Communications and IT Department of Telecommunications, dated August 9, 2012, the offence is prima facie made out against the applicant.
“The High Court would not embark upon an inquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of the criminal proceedings in the case in hand cannot be said to be exceptional as it discloses the prima facie commission of an offence. The prayer for quashing the impugned charge sheet, cognizance order and the entire proceedings of the case is refused. There is no merit in this application filed by the applicant under Section 482 Cr. P.C”, the Court said.
“In view of the submissions made by counsel for the parties, the Court finds that prima facie no case is made out for interference by the Court exercising power under Section 482 CrPC”, the Court observed while dismissing the application under Section 482 Cr.P.C./ILNS/AP/SNG/