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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APL) NO. 823 OF 2016
AND
CRIMINAL APPLICATION (APL) NO. 209 OF 2017
...............
Criminal Application (APL) No. 823 of 2016
APPLICANT : Bharat Bhushan S/o Vipin Chouguley,
Aged 65 years, Occu. Professional ,
R/o Jaika Apartments, Civil Lines,
Nagpur - 440 001.
VERSUS
RESPONDENTS: 1] State of Maharashtra,
through its Secretary, Ministry of Home,
Mumbai - 400 032.
2] State of Maharashtra,
Through Sub-Inspector of Police Station,
Sadar, Nagpur.
3] Smt. Rachana Sanjay Singh,
Age 50 years, R/o 9, Mecosabagh,
Christian Colony, Kadbi Chowk,
Jaripatka, Nagpur.
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Shri Ranjeet B. Chougulay, Advocate for the applicant
Smt. S. S. Jachak , A. P. P. for non-applicant nos.1 and 2
Shri U. P. Dable, Advocate for non-applicant no.3
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With
Criminal Application (APL) No. 209 of 2017
APPLICANT : Prashant S/o Ashok Satralkar,
Aged 45 years, R/o All Saints
House compound, Opp VCA,
Nagpur - 440 001.
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VERSUS
RESPONDENTS: 1] State of Maharashtra,
through its Secretary, Ministry of Home,
Mantralaya, Mumbai - 32.
2] Deputy Commissioner of Police,
Sadar Zone, Nagpur.
3] Assistant Commissioner of Police,
Sadar Zone, Nagpur.
4] State of Maharashtra,
through Sub-Inspector of Police Station,
Sadar, Nagpur - 440 001.
5] Smt. Rachana Sanjay Singh,
Head Mistress, St. Ursula's Girls High School,
Civil Lines, Nagpur - 440 001.
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Shri Rohit R. Chouguley, Advocate for the applicant
Smt. S. S. Jachak , A. P. P. for non-applicant nos.1 to 4
Shri U. P. Dable, Advocate for non-applicant no.5
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CORAM : PRASANNA B. VARALE and
ARUN D. UPADHYE, JJ.
DATE : NOVEMBER 09, 2017. ORAL JUDGMENT (Per Prasanna B. Varale, J). 1] Heard Shri R.B. Chouguley and Shri R.R.Chouguley,
learned counsel for the applicants, Smt. S.S. Jachak, the learned Additional Public Prosecutor for non-applicant nos.1 and 2 and non- applicant nos.1 to 4, in respectiv applications and Shri U.B. Dable, ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:38 ::: 3 APL823.16+1.odt learned counsel for non-applicant/complainant-Smt. Rachana Singh.
2] ADMIT. 3] Both these applications seek quashment of the First
Information Report No. 270/2016, dated 26.09.2016, lodged at Police Station, Sadar, Nagpur for the offences punishable under Sections 354(a)(4), 295(a) of the Indian Penal Code and under Sections 66A and 67 of the Information Technology Act, 2000. 4] The report was lodged at the instance of informant Smt. Rachana Sanjay Singh i.e non-applicant no.3 in APL No.823/2016 and non-applicant no.5 in APL No.209/2017, stating therein that she is working as Principal in Saint Ursula's Girls High School and Junior College, Nagpur and the accused persons i.e. present applicants and other accused one Samsan Manwatkar (who is not before this Court) posted, exchanged and re-posted certain objectionable material by way of 'Whatsapp' messages, e-mails and postal letters. It is submitted that this material is circulated and the material is an obscene material, resulting in her defamation as well as the religious hates.
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4 APL823.16+1.odt 5] We first deal with APL No.823/2016 of applicant Bharat Bhushan Chouguley.
Mr. R. B. Choguley, learned counsel appearing for this applicant submitted that the alleged material in the form of Whatsapp messages, e-mails and the letters are said to be received by the complainant in the year 2013. He firstly submitted that the applicant is a professional, working as a Chartered Accountant and is a member of Institute of Chartered Accountants of India. The applicant is having very good academic career at his credit. He submitted that the applicant himself is a follower of Christen religion and was an elected secretary of the body of christens namely 'Nagpur Diocese'. He submitted that the applicant has served the said body as a Secretary for a period of three years and he himself is a very conscious of the welfare of students taking education in the school and Saint Ursula's Girls High School, Nagpur is one of the schools being managed by the body namely 'Nagpur Diocese'. 6] The learned counsel then submitted that the alleged communications by way of 'Whatsapp' messages, e-mails and postal letters, are of the year 2013, whereas the report came to be lodged as belatedly as in year 2016 i.e. after three years and no explanation is ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:38 ::: 5 APL823.16+1.odt coming forward in the report for the said delay. The submission of the learned counsel is the report was lodged against the applicant only to malign his image. The learned counsel then submitted that the complainant Smt. Rachana is not the member of the 'Whatsapp' group and it is specifically stated in the report that one Prashant Satralkar (applicant in APL 209/2017) has formed a 'Whatsapp' group and the applicant, other accused Samson Manwatkar and other persons are the members of this group. It is further stated that there was exchange of some objectionable material. He submitted that in the report, the complainant has made false allegation against the applicant that the applicant was insisting upon the tribal girls to offer prayers in the Church and even if the girls were not ready to offer the prayer, they were asked to offer prayer forcibly. It is also alleged that there was mischief in the administration of the school such as theft committed of paddy, which was made available in the scheme known as 'Mid Day Meal'. The learned counsel then submitted that insofar as the material referred to in the report namely e-mails is concerned, it is the specific statement of the complainant that Prashant Satralkar had forwarded those e-mails and also stated that it was Shri Satralkar, who circulated the ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:38 ::: 6 APL823.16+1.odt objectionable material against the complainant as well as the religious hates.
7] The learned counsel, by inviting our attention to the 'Whatsapp' messages referred to in the report submitted that even if these messages are taken on its face value, they are neither objectionable nor they relate to any such act of causing embarassment to the complainant. He submitted that these messages only show that the applicant is having concern about the goodwill of the trust and welfare of the children taking education in the institute being run by the trust. He then submitted that one of the messages show that the intention of the applicant was clearly bona fide and he wanted that the institute should not be blamed for corruption in the institute. The learned counsel then submitted that registration of offence against the applicant either for commission of offence under Indian Penal Code or under the Information Technology Act, is unsustainable as there is absolutely no material on record to attract the offences punishable under the Indian Penal Code and insofar as offence under Section 66A of the I.T. Act registered against the applicant is concern, it is an act of sheer ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:38 ::: 7 APL823.16+1.odt negligence on the part of respondent authorities. The learned counsel for the applicant placed heavy reliance on the judgment of the Hon'ble Apex Court reported in AIR 2015 SC 1523 in the case of Shreya Singhal .vs. Union of India. He submitted that the Apex Court while dealing with the provisions of Sections 66A, 69 and 79 of the I.T. Act, 2000 along with constitutional rights, more particularly, Article 19(1)(a), in its detailed judgment held that Section 66A is wholly unconstitutional and void. 8] Insofar as offence punishable under Section 295(a) of the Indian Penal Code is concerned, the learned counsel for the applicant placed heavy reliance on the judgment of the Apex Court in the case of Mahendra Singh Dhoni .vs. Yerraguntla Shyamsundar and another in Transfer Petition (Criminal) No. 23/2016. It was the further submission of the learned counsel for the applicant that there were certain irregularities in the administration of the school and with a bona fide intention that there must be a check to mal- administration, the applicant made complaint to the school authorities and the report lodged by the complainant is a counter blast to the complaint made by the applicant. To submit that ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:38 ::: 8 APL823.16+1.odt lodgment of the report with mala fide intention and the proceedings on the basis of the report and vague material, is an abuse of process of law and as such, the report lodged against the applicant is required to be quashed, the learned counsel for the applicant further placed reliance on the judgment of the Apex Court in the case of Madhavrao Jiwajirao Scindia and others .vs. Sambhajirao Chandrojirao Angre and others, reported in AIR 1988 SC 709 ; and State of Haryana and others .vs. Ch.Bhajan Lal and others reported in AIR 1992 SC 604.
9] Mrs. Jachak, the learned Additional Public Prosecutor appearing for the respondent authorities and Mr. Dable, the learned counsel appearing for the non-applicant/complainant vehemently opposed the application.
10] The learned Additional Public Prosecutor submitted that there are serious allegations against the applicant and the material is in the form of 'Whatsapp' messages. She further submitted that the said material is lowering down the reputation of the non-applicant complainant and the communications hurt the religious feelings and ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:39 ::: 9 APL823.16+1.odt therefore, the report was lodged against the accused persons, including the applicant. It is stated in the report that the messages are circulated in a 'Whatsapp' group and in the group, there are certain lady members. The learned APP then submitted that certain letters were handed over to one Dolly Agrawal and some other acquaintances with the complainant and in these letters, derogatory and objectionable material was written against the complainant. The learned APP and the learned counsel appearing for the complainant submitted that as the investigation is at the initial stage, it would be necessary to collect the other material to unearth the truth. The learned APP submitted that the applicant is not cooperating the investigating agency and as such, the investigating agency is unable to proceed further in the investigation. Thus, the learned APP as well as the learned for the complainant submitted that the application be dismissed.
11] On the backdrop of rival submissions of the learned counsel for the parties referred to above, we have gone through the material placed on record so also the material presented for our perusal by the learned APP.
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10 APL823.16+1.odt 12] It reveals from a perusal of the report that a 'Whatsapp'
group is formed by another applicant Prashant Satralkar and applicant Bharat Chouguley is one of the members of the group. On the backdrop of the allegations in the report and in view of the submissions of the learned counsel for the applicant, when we put a specific query to the learned APP about the material against the applicant, she submitted that the material is in the form of 'Whatsapp' messages.
13] The undisputed material against the applicant is in the form of 'Whatsapp' messages. We have gone through all these messages. The first message deals with an appreciation of former Judge i.e. Justice Pardiwala. The second message reads that - "let's remove corruption in Nagpur Diocese by recovering Rs.15,00,000.00 from St. Ursula's School, due from July, 2015".
14] Now, the first message clearly shows that it is only an appreciation of a former Judge i.e. Justice Pardiwala and had no concern with the complainant or the trust - Nagpur Diocese. The second message shows that the applicant is asking for removal of corruption and if the intention is of clean image and trust, then this ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:39 ::: 11 APL823.16+1.odt message would not call for any action for the alleged offences. Insofar as third message is concerned, it was the submission of the learned APP and the learned counsel for the non-applicant/ complainant that this message refers to an advertisement of a product namely 'Stay-on' capsules and oil. It was the submission of the learned APP and the learned counsel for the complainant that reference to the said product and contents of the message are derogatory in nature and they lowered down the image of the complainant. Perusal of the message reveals that this message is a response to the message received wherein there was a reference to the advertisement of the product. It is not the message generated by the applicant. Then by reading the other messages, we find that there is a reference to certain mischief played while distributing food-grains to the students under the government scheme. The learned counsel for the applicant submitted that the applicant had made certain complaints to the school authorities in respect of the misdeeds in the school. The applicant being a vigilant citizen if raises grievance against some misdeeds in the administration of the school, it cannot be said that the applicant had mala fide intention to lower down the image of the complainant.
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12 APL823.16+1.odt 15] The learned counsel for the applicant was justified in
placing heavy reliance on the judgment of the Hon'ble Apex Court in the case of Shreya Singhal .vs. Union of India (supra). It would be useful to refer to the relevant observations of the Apex Court, which read thus -
"95. It has been held by us that Section 66A purports to authorize the imposition of restrictions on the fundamental right contained in Article 19(1)(a) in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action. We have held following K.A. Abbas' case (Supra) that the possibility of Section 66A being applied for purposes not sanctioned by the Constitution cannot be ruled out. It must, therefore, be held to be wholly unconstitutional and void. Romesh Thappar's Case was distinguished in R.M.D. Chamarbaugwalla v. The Union of India, [MANU/SC/ 0020/ 1957 : [1957] S.C.R. 930 in the context of a right under Article 19(1)(g) as follows:
"20. In Romesh Thappar v. State of Madras [MANU/SC /0006/1950 : (1950) SCR 594] , the question was as to the validity of Section 9(1-A) of the Madras Maintenance of Public Order Act, 23 of 1949. That section authorised the Provincial Government to prohibit the entry and circulation within the State of a newspaper "for the purpose of securing the public safety or the maintenance of public order." Subsequent to the enactment of this statute, the Constitution came into force, and the validity of the impugned provision depended on whether it was protected by Article 19(2), which saved "existing law insofar as it relates to any matter which undermines the security of or tends to ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:39 ::: 13 APL823.16+1.odt overthrow the State." It was held by this Court that as the purposes mentioned in Section 9(1-A) of the Madras Act were wider in amplitude than those specified in Article 19(2), and as it was not possible to split up Section 9(1-A) into what was within and what was without the protection of Article 19(2), the provision must fail in its entirety. That is really a decision that the impugned provision was on its own contents inseverable. It is not an authority for the position that even when a provision is severable, it must be struck down on the ground that the principle of severability is inadmissible when the invalidity of a statute arises by reason of its contravening constitutional prohibitions. It should be mentioned that the decision in Romesh Thappar v. State of Madras [MANU/SC /0006/1950 : (1950) SCR 594] was referred to in State of Bombay v. F.N. Balsara [MANU/SC/0009/1951 : (1951) SCR 682] and State of Bombay v. United Motors (India) Ltd. [ MANU/SC/ 0095/1953 : (1953) SCR 1069 at 1098-99] and distinguished."
98. We have already held that Section 66A creates an offence which is vague and overbroad, and, therefore, unconstitutional under Article 19(1)(a) and not saved by Article 19(2). We have also held that the wider range of circulation over the internet cannot restrict the content of the right under Article 19(1)(a) nor can it justify its denial. However, when we come to discrimination under Article 14, we are unable to agree with counsel for the petitioners that there is no intelligible differentia between the medium of print, broadcast and real live speech as opposed to speech on the internet. The intelligible differentia is clear - the internet gives any individual a platform which requires very little or no payment through ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:39 ::: 14 APL823.16+1.odt which to air his views. The learned Additional Solicitor General has correctly said that something posted on a site or website travels like lightning and can reach millions of persons all over the world. If the petitioners were right, this Article 14 argument would apply equally to all other offences created by the Information Technology Act which are not the subject matter of challenge in these petitions. We make it clear that there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can certainly be created by legislation. We find, therefore, that the challenge on the ground of Article 14 must fail.
Procedural Unreasonableness
99. One other argument must now be considered. According to the petitioners, Section 66A also suffers from the vice of procedural unreasonableness. In that, if, for example, criminal defamation is alleged, the safeguards available under Section 199 Cr.P.C. would not be available for a like offence committed under Section 66A. Such safeguards are that no court shall take cognizance of such an offence except upon a complaint made by some person aggrieved by the offence and that such complaint will have to be made within six months from the date on which the offence is alleged to have been committed. Further, safeguards that are to be found in Sections 95 and 96 of the Cr.P.C. are also absent when it comes to Section 66A. For example, where any newspaper book or document wherever printed appears to contain matter which is obscene, hurts the religious feelings of some community, is seditious in nature, causes enmity or hatred to a certain section of the public, or is against national integration, such book, newspaper or document may be seized but under Section 96 any person having any interest in such ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:39 ::: 15 APL823.16+1.odt newspaper, book or document may within two months from the date of a publication seizing such documents, books or newspapers apply to the High Court to set aside such declaration. Such matter is to be heard by a Bench consisting of at least three Judges or in High Courts which consist of less than three Judges, such special Bench as may be composed of all the Judges of that High Court.
119. In conclusion, we may summarise what has been held by us above:
(a) Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2).
(b) Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid.
(c) Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material. Similarly, the Information Technology "Intermediary Guidelines" Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment.
(d) Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved by Article 19(2)."
16] The learned counsel for the applicant was also justified in submitting that the material falls too short to call for any action as ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:39 ::: 16 APL823.16+1.odt alleged in the report for the offences punishable under Sections 354(a)(4) and 295(a) of the Indian Penal Code. It will be useful to refer to the observations of the Hon'ble Apex Court in the case of Mahendra Singh Dhoni .vs. Yerraguntla Shyamsundar and another, in paragraphs 5, 6 and 7, which read thus -
5. The seminal issue that arises for consideration is whether the allegations made in the complaint constitute an offence under Section 295A of the IPC and whether this Court, in the obtaining factual matrix, relegate the trial at some other place or grant him liberty to file an application under Section 482 CrPC for quashing. At this juncture, we may refer to Section 295A of the IPC which reads as follows:-
295A. Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious belief :-
Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of 273 [citizens of India], 274 [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 4[three years], or with fine, or with both."
6. Be it noted, the constitutional validity of Section 295A was assailed before this Court in Ramji Lal Modi v. State of U.P.,[AIR 1957 SC 620] which was eventually decided by a Constitution Bench. The Constitution Bench, adverting to the multiple aspects and various facets of Section 295A IPC held as follows :-::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:39 :::
17 APL823.16+1.odt "8. It is pointed out that s. 295A has been included in chapter XV of the Indian Penal Code which deals with offences against the public tranquility and from this circumstance it is faintly sought to be urged, therefore, that offences relating to religion have no bearing on the maintenance of public order, or tranquillity and, consequently, a law creating an offence relating to religion and imposing restrictions on the right to freedom of speech and expression cannot claim the protection of el. (2) of Art. 19. A reference to Arts. 25 and 26 of the Constitution, which guarantee the right to freedom of religion, will show that the argument is utterly untenable. The right to freedom of religion assured by those Articles is expressly made subject to public order, morality and health. Therefore, it cannot be predicated that freedom of religion can have no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public order. These two Articles in terms contemplate that restrictions may be imposed on the rights guaranteed by them in the interests of public order.
9. Learned counsel then shifted his ground and formulated his objection in a slightly different way. Insults to the religion or the religious beliefs of a class of citizens of India may, says learned counsel, lead to public disorders in some cases, but in many cases they may not do so and,, therefore, a law which imposes restrictions on the citizens' freedom of speech and expression by simply making insult to religion an offence will cover both varieties of insults, i.e., those which may lead to public disorders as well as those ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:39 ::: 18 APL823.16+1.odt which may not. The law in so far as it covers the first variety may be said to have been enacted in the interests of public order within the meaning of el. (2) of Art. 19, but in so far as it covers the remaining variety will not fall within that clause. The argument then concludes that so long as the possibility of the law being applied for purposes not sanctioned by the Constitution cannot be ruled out, the entire law should be held to be unconstitutional and void. We are unable, in view of the language used in the impugned section, to accede to this argument. In the first place el. (2) of Art. 19 protects a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression "in the interests of" public order, which is much wider than "for maintenance of" public order. If, therefore, certain activities have a tendency to cause public disorder, a law penalising such activities as an offence cannot but be held to be a law imposing reasonable restriction "in the interests of public order" although in some cases those activities may not actually lead to a breach of public order. In the next place s. 295A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section. It only Punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:39 ::: 19 APL823.16+1.odt intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the section, which penalises such activities, is well within the protection of cl. (2) of Art. 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Art. 19(1)(a). Having regard to the ingredients of the offence created by the impugned section, there cannot, in our opinion, be any possibility of this law being applied for purposes not sanctioned by the Constitution. In other words, the language employed in the section is not wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the fundamental right guaranteed by Art. 19(1)(s) and consequently, the question of severability does not arise and the decisions relied upon by learned counsel for the petitioner have no application to this case."
7. On a perusal of the aforesaid passages, it is clear as crystal that Section 295A does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of class of citizens. It penalise only those acts of insults to or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the Section. The Constitution Bench has further clarified that the said provision only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:39 ::: 20 APL823.16+1.odt and malicious intention of outraging the religious feelings of that class. Emphasis has been laid on the calculated tendency of the said aggravated form of insult and also to disrupt the public order to invite the penalty.
17] The learned counsel for the applicant was also justified in placing reliance on the judgment of the Hon'ble Apex Court in the case of Madhavrao Jiwajirao Scindia .vs. Sambhajirao Chandrojirao Angre (supra). It would be useful to refer to the relevant observations of the Apex Court at paragraph 7, which read thus -
7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:39 :::
21 APL823.16+1.odt 18] The learned counsel for the applicant was also justified
in placing reliance on the judgment of Gujrat High Court in case of Mohd. Rizwan Fazluddin Kadri .vs. State of Gujrat in Spl. Criminal Application No. 1832/2009 in support of his submission that the report against the applicant for commission of offence under Section 67 of the I.T. Act falls too short to make out any case against the applicant. It would be useful to refer to the observations of the Gujrat High Court at paragraphs 4 and 5, which read thus -
"4. Contents of the complaint I have already briefly noted. As per the investigating agency, the petitioner had sent the above referred e-mail containing certain offending materials. Question is, even accepting the allegations of the investigating agency as true, whether offence under Section 67 of Information Technology Act can be stated to have been made out. Section 67 of Information Technology Act reads as follows:
Publishing of information which is obscene in electronic form.- Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:39 ::: 22 APL823.16+1.odt imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees.
5. It can thus be seen that Section 67 seeks to punish publication of information through electronic form which is obscene in nature. Though term obscene has been used in the title of the section, in the main body of the section it is provided that any publication or transmission in the electronic form any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied shall be punished with specified penalty."
19] The learned counsel for the applicant was also justified in submitting that none of the material which is in the form of 'Whatsapp' messages is satisfying the test namely it being a lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons so as to call for an action under Section 67 of the I.T. Act.
20] The the learned Additional Public Prosecutor vehemently submitted that in the 'Whatsapp' messages, the applicant re-posted the advertisement of a product 'Stay-on' capsules and oil and the act of the applicant was with an ill intention, as observed by us above, ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:39 ::: 23 APL823.16+1.odt that message was in response to a message received by the applicant forwarded by somebody else. It is not even the case of the prosecution that said message was created by the applicant. Thus, we find no merit in the submission of the learned Additional Public Prosecutor in her opposition to the application. 21] The learned APP also made an attempt to submit that the applicant is not cooperating with the investigating agency. On a perusal of the material the learned counsel for the applicant submitted that by order dated 19.12.2016, this Court had permitted the investigating agency to continue with the investigation, but directed the agency not to take coercive steps against the applicants. The learned counsel submitted that whenever notice was issued to the applicant to remain present before the Investigating Officer, the applicant remained present before the agency and extended all the cooperation to the investigating agency. The learned counsel for the applicant submitted that the investigating agency was insisting upon the applicant to handover his mobile phone. The learned counsel further submitted that insistence of the agency was in the form of coercive step and as such, the applicant in view of the order of this Court dated 19.12.2016, refused to handover the mobile phone to ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:39 ::: 24 APL823.16+1.odt the agency and this act of the applicant cannot be termed as non- cooperation by the applicant to the investigating agency. We find considerable merit in the submission of the learned counsel. 22] Considering all the above referred aspects, in our opinion, the learned counsel for the applicant - Bharat Bhushan Vipin Chouguley has made out a case for allowing the application. 23] Insofar as APL No.209/2017 of applicant Prashant Satralkar is concerned, Mr. Rohit R. Choubule, the learned counsel for the applicant made an attempt to submit before us that the applicant is similarly situated with the other applicant Bharat Chougule, whose application this Court is inclined to allow and as such the application of applicant Prashant may also be allowed. We are unable to accept the submission of the learned counsel for the reason that in the report, it is specifically stated that applicant Prashant is the person, who has formed a 'Whatsapp' group, so also there is a reference to certain e-mails forwarded by the applicant. 24] Insofar as applicant Bharat Chouguley is concerned, the only material against the applicant is in the form of 'Whatsapp' ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:39 ::: 25 APL823.16+1.odt messages and he is only a member of the 'Whatsapp' group, whereas present applicant Prashant Satralkar is the person, who has formed the group. Insofar as applicant Prashant is concerned, apart from 'Whatsapp' messages, there is a reference to e-mails forwarded by this applicant. These mails are presented before us by the learned APP for our perusal. These e-mails are in detail and they are referring to the religious sentiments. On a perusal of these e-mails, we find that there is a specific reference of the complainant. It may not be necessary for us to refer to those e-mails in detail, but to show the material in the form of e-mails referring personally the complainant and levelling allegations against her, we may refer to part of one e- mail and the same reads as under -
"Hamare samaj me ek chawal choir principal hai....she sale ration of little school children and enjoys her personal life... like... Nayee-nayee gadi kharidna....Air travel karana...every week...And... Sarkari logon ko khushi karna....She do all stuff except teaching...etc."
A bare perusal of the part of e-mail referred to above shows that the statement made therein is derogatory in nature and levelling personal allegations against the complainant. The material submitted for our perusal show that these mails are forwarded by the ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:39 ::: 26 APL823.16+1.odt applicant to the complainant. The period of exchange of these e-mails ranges from 06.2.2013 to 17.7.2014. Then, there is a reference to certain letters, under title "Paramjyoti ki Raslila". These letters are clearly derogatory in nature and maligning the image of the complainant and also bringing to disrepute the institute. Considering these factual aspects, we are of the opinion that the case of applicant Prashant differs from the case of applicant Bharat. Insofar as applicant Prashant is concerned, we find that the material against this applicant is prima facie sufficient enough to call for an action of registration of offence and the investigating agency is required to conduct thorough investigation in the matter. 25] As we have observed above while dealing with the application of applicant Bharat that the Apex Court by its judgment is pleased to truck down Section 66A of the I.T. Act, the offence under Section 66A against the applicant would not stand, but for the other offencess, the investigating agency is required to conduct investigation against the applicant on the backdrop of the specific material on record. In the result, APL No. 209/2017 deserves to be partly allowed.
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27 APL823.16+1.odt 26] In the result, APL No.823/2016 of Bharat Bhushan
Chouguley is allowed in terms of prayer clause (ii).
APL No.209/2017 is partly allowed. The first information report registered against applicant Prashant at Police Station, Sadar, Nagpur vide Crime No. 270/2016 is quashed only in respect of offence under Section 66A of the Information Technology Act, 2000. The respondent authorities to take necessary steps and continue with the criminal proceedings insofar as other offences against applicant Prashant Satralkar is concerned, namely offences punishable under Sections 354(a)(4), 295(a) of the Indian Penal Code and under Section 67 of the Information Technology Act, 2000.
The criminal applications are disposed of accordingly.
JUDGE JUDGE
Diwale
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