S.78 Information Technology Act Mandates Probe, Not Registration Of FIR By Officer Not Below Rank Of Police Inspector: Karnataka High Court

The Karnataka High Court has made it clear that as per Section 78 of the Information Technology Act, 2000 an officer below the rank of Police Inspector can register FIR for offence punishable under Section 66E of the Act, but the investigation is to be conducted by a person who is not below the rank of an Inspector of Police.

A single judge bench of Justice V Srishananda sitting at Dharwad bench dismissed a petition filed by one Neha Rafiq Chachad questioning the registration of FIR against her for allegedly opening a fake Instagram account in the name of the complainant and posting obscene and obnoxious posts.

The petitioner opposed that the very registration of the case on the ground that the offence is not cognizable and contended that the investigation agency was required to take recourse to Section 155(2) of Cr.P.C. It was submitted that the Police Sub-Inspector was incompetent to register the case and thus quashing of further proceedings was sought.

Referring to Section 66E (Punishment for violation of privacy) the bench said “Taking note of the fact that there was such post in the instagram account which was not opened by the 2nd respondent complainant, and there is a specific allegation that it is the petitioner who opened the fake instagram account in the name of the 2nd respondent and posted illegal and obnoxious con tents in the said post, registration of the case and investigation is very much necessary to unearth the truth in the incident.”

Noting that the punishment contemplated for the said offence is three years imprisonment or fine or with both, the bench held, “Given the punishment prescribed for the offence U/sec.66E , it is cognizable in nature.”

Then referring to Section 78 of the Act the bench said “On careful consideration of the language and wordings employed in the said section by the Legislature, it is crystal clear that there is no bar to register a case by a police official lesser in the rank that of a Inspector of Police. However, what the Section 78 of the Information Technology Act, 2000 would contemplate is that the investigation should be conducted by a person who is of the rank of an Inspector o f Police and not below the rank of an Inspector of Police.”

Taking into account that by virtue of the interim order of stay granted in the present petition, no investigation has taken place at all, the bench held, “Therefore, rights of the petitioner is not put in any jeopardy so as to seek for intervention of this Court by exercising the power under Section 482 Cr.P.C.”

Dismissing the petition the bench directed that the pending investigation be carried out by the Inspector of the Police Station concerned.

Case Title: Neha Rafiq Chahchadi And State of Karnataka & ANR

Case No: CRIMINAL PETITION NO. 102165 OF 2019

Citation: 2023 LiveLaw (Kar) 268

Date of Order: 03-07-2023

Appearance: Advocate Harshawardhan M Patil for Petitioner.

HCGP Girija S Hiremath for R1.

Advocate Santosh B Rawoot for R2.

Click Here To Read/Download Order