Bombay High Court
Pramod Anandrao Dhumal vs The State Of Maharashtra on 7 January, 2021
Bench: S. K. Shinde
Shambhavi
N. Shivgan 3-ABA-114-
2020.odt
Digitally signed by
Shambhavi N.
Shivgan IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Date: 2021.01.07
15:35:05 +0530 CRIMINAL APPELLATE JURISDICTION
ANT. BAIL APPLICATION NO.1114 OF 2020
Pramod Anand Dhumal ... Applicant
Vs
The State of Maharashtra ... Respondents
...
Mr. Aniket Nikam i/by Mr. Vivek Arote for the Applicant.
Mrs. Veera Shinde, APP for the Respondent-State.
API Ranjitsing Pardesi attached to Virar Police Station
present.
CORAM : SANDEEP K. SHINDE J.
DATE : 7th JANUARY, 2021.
JUDGMENT :
Apprehending the arrest in connection with Crime
No.580 of 2020 dated 11th June, 2020 for the ofence
punishable under Section 354-D of the Indian Penal Code,
1860 ("IPC" for short) and Section 67A of the Information
Technology Act, 2000 ("IT Act" for short), applicant is
seeking pre-arrest bail.
Shivgan 1/10
3-ABA-114-
2020.odt
2 Applicant is editor of local weekly Marathi
newspaper and social activist. Complainant, a house-wife, a
37 year old lady, had received messages in the form of
ofending images, revealing overt sexuual desire on her eace-
Book account, from the cell phone of the applicant. On 13 th
November, 2018, she had indicated her disinterest. Even
thereafter, applicant had sent message like "I love you" to
the complainant and link (Short for 'Hyperlink') on her face-
book. She tapped the link, whole document was containing
lascivious material. Soon thereafter, she lodged the
complaint whereupon the subject crime has been registered
against the applicant under Section 354-D of the IPC and
Section 67-A of the IT Act.
3 Applicant was denied pre-arrest protection by the
learned Sessions Judge.
Shivgan 2/10
3-ABA-114-
2020.odt
4 Section 67-A of the IT Act reads as under:
"67-A. Punishment for publishing or
transmitting of material containing sexually
explicit act, etc., in electronic form.- Whoever
publishes or transmits or causes to be published or
transmitted in the electronic form any material
which contains sexuually exuplicit act or conduct shall
be punished on frst conviction with imprisonment of
either description for a term which may exutend to
fve years and with fne which may exutend to ten
lakh rupees and in the event of second or
subsequent conviction with imprisonment of either
description for a term which may exutend to seven
years and also with fne which may exutend to ten
lakh rupees."
Whereas Section 67 of the IT Act reads as under:
"67. Punishment for publishing or transmitting
obscene material in electronic form.-- Whoever
publishes or transmits or causes to be published or
transmitted in the electronic form, any material
which is lascivious or appeals to the prurient interest
or if its efect 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 frst conviction with imprisonment of either
description for a term which may exutend to three
years and with fne which may exutend to fve lakh
rupees and in the event of second or subsequent
conviction with imprisonment of either description for
a term which may exutend to fve years and also with
fne which may exutend to ten lakh rupees."
Shivgan 3/10
3-ABA-114-
2020.odt
5 So far as Section 67 is concerned, before ofence
thereunder can be said to be complete, publication or
transmission of material in the electronic form is essential.
If such material; is lascivious or appeal to prurient interest
or its efect is such as to tend or deprave or corrupt
persons, who are likely, having regard to the all relevant
circumstances, to read, see or hear the matter contend or
embodied in it. Material in the electronic form could be
video fles, audio fles, texut messages, animation, etc.
Lascivious means lewd, lustful or feeling and or revealing
an overt or ofensive sexuual desire or which tend to exucite
lust. As against this, before the ofence can be said to be
complete under Section 67-A of the IT Act, prosecution must
demonstrate or show that accused has published or
transmitted material containing sexuually exuplicit act.
Exuplicit means "clear and detail", with no room for
confusion or doubt or when sexuual activity is graphically
described or represented electronically. When such act is
Shivgan 4/10
3-ABA-114-
2020.odt
electronically published or transmitted particularly amongst
adult, it is punishable under Section 67-A of the IT Act.
Exupression Exuplicit means "Stated clearly and precisely and
or prescribing or representing sexuual activity in direct and
detailed way". Exupression "Sexuual Activity" is defned in
Black's Law Dictionary as "Physical sexuual activity or both
persons engaged in sexuual relations".
6 Thus, provisions of Section 67 and 67-A of the IT
Act do attract and operate in distinct situation and
circumstances. Section 67 refers to publishing or
transmitting "Obscene Material" in electronic form; whereas
Section 67-A refers to transmitting or publishing material
containing sexuual exuplicit act. Therefore, the ofence under
Section 67 of the IT Act is grave and punishment prescribed
for the frst conviction is imprisonment, which may exutend
to fve years and fne, which may exutend to 10 Lakhs and in
the event of second or subsequent conviction with
imprisonment for a term, which may exutend to seven years
Shivgan 5/10
3-ABA-114-
2020.odt
and also with fne, which may exutend to 10 Lakhs. In so far
as the Section 67 is concerned, it is attracted only when
lascivious material is published or transmitted but it does
not encompass, transmission or "material containing
sexuually exuplicit act". Thus, ofence under Section 67 of the
IT Act is punishable with imprisonment for a term, which
may exutend to three years and with fne, which may exutend
to fve lakhs and on second conviction with imprisonment
for a term, which may exutend to fve years and also fne,
which may exutend to ten lakhs.
7 In the case in hand, the ofence under Section
67-A of the IT Act is registered against the applicant. I have
perused the investigation record and the images/material
allegedly sent on the face-book account of the complainant
by the applicant. No doubt, images sent and the link on
tapping was revealing material tends to exucite lust but it
was not the material containing "sexuually exuplicit act". To
attract Section 67-A of the IT Act, material must be of the
Shivgan 6/10
3-ABA-114-
2020.odt
nature describing or representing sexuual activity in a direct
or detailed way. Herein, material of this nature was not sent
by the applicant to the complainant on her face-book
account. Thus, prima-facie, the penal provisions of Section
67-A of the IT Act are not attracted to the facts of the case
at hand.
8 The punishment prescribed for ofence under
Section 67 of the IT Act three years, for the frst conviction
and fve years in the event of subsequent or second
conviction. It is in these circumstances, prima-facie, facts of
the case may attract Section 67 and not 67-A of the IT Act.
9 Now so far as the ofence under Section 354-D is
concerned, it is cognizable bailable and triable by any
Magistrate. Herein, the applicant attempted to establish
contact the complainant to foster personal interaction
despite clear indication of disinterest shown by her. Material
on record suggests, complainant has shown her disinterest
Shivgan 7/10
3-ABA-114-
2020.odt
in clear terms by sending him a message on 30 th November,
2018, but even thereafter, applicant attempted to contact
her by sending obscene images. Therefore, prima-facie,
applicant's complicity in the common ofence of stalking is
evident, which is punishable under Section 354-D of the
IPC. However, it is, bailable being, the frst ofence.
10 Though the material on record suggests
complicity of the applicant in commission of ofence under
Section 67 of the IT Act, it may be stated that applicant has
handed over his cell phone to Investigating Ofcer from
which device, he had sent messages/images to the
complainant. Even otherwise prosecution relies on
electronic evidence and for the same, applicant's custodial
interrogation is not required. Thus, in consideration of the
fact of the case and punishment prescribed for the frst
ofence under Section 67 of the IT Act, which may exutend to
three years, I am inclined to grant pre-arrest bail to the
applicant. Hence, following order:
Shivgan 8/10
3-ABA-114-
2020.odt
ORDER
(i) In the event of arrest of the applicant in Crime
No.580 of 2020 registered with Virar Police Station, Palghar
he shall be released on exuecuting PR bond for the sum of
Rs.50,000/- with one or more sureties in like sum.
(ii) The applicant shall attend the concerned police
station on 2nd and 4th Monday commencing from January,
2021 between 11 a.m. to 1 noon till the charge is framed.
(iii) The applicant shall furnish his permanent
residential address and contact number to the Investigating
Ofcer forthwith.
(iv) The applicant shall not tamper with the evidence
or attempt to infuence or contact the complainant,
witnesses or any person concerned with the case
11 The application is accordingly allowed and
disposed of.
Shivgan 9/10
3-ABA-114-
2020.odt
12 It is made clear that observations made here-in-
above be construed as exupression of opinion for the
purpose of bail only and the same shall not in any way
infuence the trial in other proceedings.
(SANDEEP K. SHINDE, J.)
Shivgan
