Badar Durrez Ahmed, J.
1. The learned Counsel for the petitioners submitted that the order on charge as well as the charges framed on 03.04.2003 and 09.04.2003 respectively require to be set aside. He submitted that the case for the prosecution is that the petitioners were involved in illegal utilisation of leased data circuits by bypassing the VSNL gateway. He submitted that the charges have been framed against the petitioners under Sections 20, 20-A and 25 read with Section 4 of the Indian Indian Telegraph Act, 1885 (hereinafter referred to as 'the said Act').
2. The learned Counsel for the petitioners made three submissions. His first submission was that Section 20-A does not apply at all inasmuch as the petitioners are not license holders. The second submission is that Section 25 of the said Act would also not apply even on the basis of allegations contained in the FIR. His third and final submission was that Section 20 of the said Act refers to an offence which is bailable and non-cognizable. He submitted that if Sections 20-A and 25 of the said Act are not made out then the charge under Section 20 by itself cannot survive inasmuch as the offence under Section 20A is non-congnizable and no permission under Section 155(2) of the Code of Criminal Procedure, 1973 of the Magistrate has been taken. thereforee, the entire investigation with regard to the offence under Section 20 of the said Act is illegal and no charge can be framed on the basis of an illegal investigation.
3. Mr Malik, who appears on behalf of the State, submitted that Section 25 of the Act is clearly made out inasmuch as Section 25(c) deals with commission of mischief. He submitted that mischief has been defined in Section 425 of the IPC and the acts alleged to have been committed by the petitioners would fall within the scope of mischief and, thereforee, Section 25 of the Indian Telegraph Act, 1885 is clearly attracted on the basis of allegation contained in the FIR and the charge sheet. thereforee, according to him, the charge has been rightly framed under Section 25 of the said Act. Insofar as the submission with regard to the offence under Section 20 is concerned, he submitted that because the charge under Section 25 has been rightly framed, the fact that Section 20 was a non-cognizable offence and that no permission under Section 155(2) of the Cr.P.C. had been taken, would not come in the way of the Investigating Agency in view of the clear provisions of Section 155(4) of the Code which stipulates that where a case relates to more than one offence and at least one is cognizable, the case shall be deemed to be a cognizable notwithstanding that the other offences are non-cognizable. thereforee, it is his submission that the offence under Section 25 being cognizable, the entire case would be deemed to be cognizable notwithstanding the fact that the offence under Section 20 is non-cognizable. He also submitted that the charge under Section 20A was also rightly framed as there was a contravention of the provisions of Section 4 of the Indian Telegraph Act, 1885.
4. Taking up the first submission of Mr Luthra that Section 20A is not made out even on the allegations contained in the charge sheet and the FIR, I am in agreement with his submission. This is so because Section 20A is an offence which pertains to breach of condition of a license. The petitioners admittedly were not license holders and, thereforee, there is no question of there being any breach of any condition of a license which does not exist. thereforee, the charge under Section 20A is clearly not made out.
5. With regard to the submissions on Section 25, I am in agreement with the submissions made by Mr Malik, who appears on behalf of the State. His submission was that the case could be covered under Section 25(c) of the person intending to commit mischief and thereby damaging, removing, tampering with or touching any battery, machinery, telegraph lines, post or other things whatever being part of or used in or about any telegraph or in the working thereof. A reference to the FIR indicates that there are allegations that the telegraph lines of MTNL were also illegally utilised. In my view, insofar as the allegations are concerned, they make out a case for framing a charge under Section 25(c) read with the definition of 'telegraph' in Section 2(1AA) and the description of 'mischief' under Section 425 of the IPC. Of course, Mr Luthra submitted that instead of MTNL lines it was actually the broadband service of Bharti Telecom which was allegedly utilised by the petitioners by bypassing the VSNL gateway as per the prosecution case. This, in my view, is a matter of evidence and cannot be disposed of at this stage. The allegations contained in the FIR and the charge sheet indicate the usage of MTNL lines and, thereforee, would come within the definition of utilisation of any telegram facility. In my view, prima facie, the charge under Section 25 of the Indian Telegram Act, 1885 can be framed and has been rightly framed.
6. Coming to the third and last submission of the learned Counsel for the petitioners, it appears that this submission no longer survives in view of the fact that I have already held that the charge under Section 25, which is cognizable offence, has been rightly framed. This being the case, as submitted by Mr Malik on behalf of the State, the provisions of Section 155(4) of the Code of Criminal Procedure would come into play and, thereforee, the entire case would have to be dealt with as a cognizable case.
7. In view of this discussion, the impugned order and charge are modified to the extent that the charge under Section 20A stands deleted. The rest of the order and charge stand confirmed.
The revision petition stands disposed of.