Bombay High Court
Prashant S/O. Ashok Satralkar vs State Of Maharashtra Thr. ... on 9 November, 2017
Bench: Prasanna B. Varale
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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.
----------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------
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.
::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 00:45:41 :::
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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.
----------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------
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,
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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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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
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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
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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
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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
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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
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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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
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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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
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
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
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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
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 :-
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
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
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
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.
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
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,
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
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'
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
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.
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
