Download ias chenedun kumar pathan and more Summaries Mathematical finance in PDF only on Docsity!
2020.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY 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 : 7 th^ JANUARY, 2021. JUDGMENT : Apprehending the arrest in connection with Crime No.580 of 2020 dated 11 th^ 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.
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.
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
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
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
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:
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 10 / 10
