IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 25 CRIMINAL APPLICATION NO.2891 OF 2021 Shaikh Zakir s/o Shaikh Sagir, Age 34 yrs., Occ RTI Activist, R/o Barkatpura, Ardhapur, Tq. Ardhapur, Dist. Nanded. … Applicant … Versus … 1 The State of Maharashtra Through Police Inspector, Police Station, Vazirabad, Nanded, Tq. & Dist. Nanded. 2 Ramprasad Shrikishanji Khandelwal, Age 60 yrs., Occ. Press Reporter, R/o First Floor, Khandelwal Plaza, Vazirabad, Nanded, Tq. & Dist. Nanded. … Respondents ... Mr. S.S. Kazi, Advocate for applicant Mr. G.A. Kulkarni, APP for respondent No.1 Mr. M.A. Granthi and Mr. V.D. Karande, Advocates for respondent No.2 ... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ. DATE : 03rd MARCH, 2025 2025:BHC-AUG:7379-DB 2 25_Cri.Appln_2891_2021 ORDER : ( PER : SMT. VIBHA KANKANWADI, J. ) 1 Present application has been filed under Section 482 of the Code of Criminal Procedure initially for quashing First Information Report vide Crime No.320/2021 dated 14.09.2021 registered with Police Station, Vazirabad, Nanded, later on by way of amendment for quashing Charge Sheet bearing No.54/2022 dated 04.04.2022, for the offence punishable under Section 501 of the Indian Penal Code, 1860 and under Section 67 of the Information Technology (Amendments) Act, 2008. 2 Heard learned Advocate Mr. S.S. Kazi for applicant, learned APP Mr. G.A. Kulkarni for respondent No.1 and learned Advocate Mr. M.A. Granthi for respondent No.2. 3 Learned Advocate for applicant submits that respondent No.2 – informant is a News Correspondent and has stated in First Information Report that present applicant is running a bogus institution under the name and style “Mahiti Adhikar Sanrakshan Samiti”. When the newspaper of respondent No.2 had started to give certain news since 15 days prior to First Information Report dated 14.09.2021, applicant got annoyed and he kept a picture on his WhatsApp status which was defamatory against respondent No.2. Initially respondent No.2 had not paid attention, but again on 3 25_Cri.Appln_2891_2021 13.09.2021 he used word ‘dq=k’ (dog) against respondent No.2 and published the said status. Even one Editor of ‘Nanded Chaufer’ forwarded him two status photographs at about 04.04 hours on 14.09.2021. Those were also published from the mobile number of applicant, wherein it was stated, “[kaM;k dks.kh iq<s ;sr ulsy rj rq ;s dh] fryk ikBoy tkobZ vkgs eh rq>k- vc esjs lljsdh ckjh gS jkeizlkn [kaM;k dh” and informant says that said status was obscene and, therefore, the offence came to be registered. Even if we take contents of First Information Report and statements supporting it as it is; yet, certainly, offence under Section 67 of the Information Technology Act cannot be said to be attracted. For Section 501 of the Indian Penal Code, there has to be a private complaint, as there is bar under Section 199 of the Code of Criminal Procedure. Therefore, in order to maintain a cognizable offence, prosecution will have to prove ingredients of Section 67 of the Information Technology Act. Further, this Court in Pramod Udeybhan Shendre vs. The State of Maharashtra and another in Criminal Application (APL) No.1077 of 2023 with companion matter decided on 24.07.2024, to which [SMT. VIBHA KANKANWADI, J.] was party, has held that the WhatsApp messages are end to end encrypted and, therefore, unless it is forwarded by someone, the third party will not come to know about it. Here, also when informant says that he received the said status from the Editor of Nanded Chaufer, the forwarding person also would then should be held responsible. Whatever the status was 4 25_Cri.Appln_2891_2021 published, cannot be said to be obscene at all and, therefore, it would be an abuse of process of law to ask the applicant to face the trial. 4 Per contra, learned APP and learned Advocate for respondent No.2 strongly opposed application and submitted that by keeping the status applicant had allowed every person who was in his contact list to see the status, which would then definitely amount to defamation. Further, as regards obscene is concerned, learned APP relies on the decision in Aveek Sarkar and another vs. State of West Bengal and others [(2014) 4 SCC 257], wherein the age old practice of determining ‘what is obscenity’ test based on R. vs. Hicklin [(1868) LR 3 QB 360] was disapproved. Note was taken of the decision by Constitution Bench in Ranjit D. Udeshi vs. State of Maharashtra [AIR 1965 SC 881] indicating that the consent of obscenity would change with the passage of time and what might have been ‘obscene’ at one point of time would not be considered as obscene at a later period. It was then held that - “Section 292 of the Penal Code uses word expression “lascivious and prurient interests” or its effect. Later, it has also been indicated in the said section of the applicability of the effect and the necessity of taking the items as a whole and on that foundation where such items would tend to deprave a corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter 5 25_Cri.Appln_2891_2021 contained or embodied in it. We have, therefore, to apply the “community standard test” rather than the R vs. Hicklin (supra) to determine what is “obscenity”. A bare reading of sub-section (1) of Section 292, makes clear that a picture or article shall be deemed to be obscene (i) if it is lascivious; (ii) it appeals to the prurient interest; and (iii) it tends to deprave and corrupt persons who are likely to read, see or hear the matter, alleged to be obscene. Once the matter is found to be obscene, the question may arise as to whether the impugned matter falls within any of the exceptions contained in section. A picture of a nude/semi-nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse feeling of or revealing an overt sexual desire. The picture should be suggestive of deprave mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted. Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.” Learned APP, therefore, submits that trial Court would decide whether the said status is obscene or not. 5 At the outset, we would say that in view of Section 199 of the Code of Criminal Procedure there could not have been a First Information Report for the offence under Section 501 of the Indian Penal Code. There should have been the private complaint only, but, here, the prosecution has 6 25_Cri.Appln_2891_2021 come with a case that First Information Report attracts Section 67 of the Information Technology Act and, therefore, we would like to reproduce the same for better discussion further. Here, in Section 67 of the Information Technology Act also the words “lascivious or appeals to the prurient interest or its effect is such as to tend to deprave and corrupt persons who are likely ……………………………..” which are similar to Section 292 of Penal Code are there. Now, the simple difference is Section 292 of the Penal Code would be applicable to other mode of publishing or transmitting and Section 67 of the Information Technology Act will come when the message or any material is published or transmitted etc. in electronic form. But the basic test is the same to arrive at a conclusion whether the material is obscene. It is not always to be left to the trial Court as to whether the ingredients of the offence attracted or not, but when the investigation is complete and charge sheet is filed, then this Court is duty bound to consider the material in the charge sheet. Therefore, unless it is shown that First Information Report as well as the material in charge sheet is disclosing prima facie offence under Section 67 of the Information Technology Act, First Information Report was not maintainable and consequently if it is held that First Information Report is not maintainable, then applicant cannot be asked to face the trial. 6 The first photograph of status would show that a person whose 7 25_Cri.Appln_2891_2021 face is hidden is holding three dogs with the rope in their neck and it is stated, “tks esjh cqjkbZ djrs fQj jgs gS] eSus muds tSls cgqr iky j[ks gS !” (I have kept many followers like those who have been defaming me.) This cannot be obscene per se. Then below it, it is also written “vkfjQ nyky vkSj jkeizlkn tSls dqRrs”. This might be defamatory, but, certainly, not obscene. The second status is, “[kaM;k dks.kh iq<s ;sr ulsy rj rq ;s dh] fryk ikBoy tkobZ vkgs eh rq>k- vc esjs lljsdh ckjh gS jkeizlkn [kaM;k dh”. Both these status or part of same status are also cannot be said to be obscene and will not come within the ratio of Aveek Sarkar (supra). Even if we apply the community standard test, it cannot be said that those posts on the status were obscene, but at the most those may be defamatory. Further, reliance has been placed by learned Advocate for applicant on the decision in Apoorva Arora and another etc. vs. State (Govt. of NCT of Delhi) and another [AIR 2024 SC 1775], wherein it is observed even after taking decision in Aveek Sarkar (supra) it was held that - “The posture and the background of the woman posing with her fiancée, whose photograph was taken by her father, does not have the tendency to deprave or corrupt those in whose hands the magazine would fall when considered in light of broader social message of the picture against apartheid, racism, and to promote love and marriage across race.” It has been observed that - 8 25_Cri.Appln_2891_2021 “At the outset, the enquiry under Section 292 of the IPC or under Section 67 of the IT Act does not hinge on whether the language or words are decent, or whether they are commonly used in the country. Rather, from the plain language of the provision, the inquiry is to determine whether the content is lascivious, appeals to prurient interests, or tends to deprave and corrupt the minds of those in whose hands it is likely to fall.” 7 If the abuses those were given or the defamatory words those are used are to be considered as ‘obscene’, then there will not be a distinction between various sections or offences, which are now appearing with fine definition like 294, 506, 292 of the Indian Penal Code (296, 351(2)/(3), 294 of Bharatiya Nyaya Sanhita) and Section 67 of the Information Technology Act. Here, it appears that the dispute was raised by certain persons when some wrong and defamatory news was said to have been published from the print media of respondent No.2. Applicant has produced many cognizable offences as well as non cognizable offences registered against informant and then it is stated that applicant is running a bogus institution and some defamatory articles were stated to have been written by informant. Thus, there was background for the post and at the most, it could have been defamatory, but for the aforesaid reason there was bar under Section 199 of the Code of Criminal Procedure. It appears that Section 67 of the Information Technology Act which is cognizable was invoked just to have the 9 25_Cri.Appln_2891_2021 registration of First Information Report. Since no cognizable offence is transpiring, it would be abuse of process of law to ask the applicant to face the trial. Hence, following order. ORDER i) Criminal Application stands allowed. ii) The Charge Sheet bearing No.54/2022 dated 04.04.2022 i.e. proceedings in Summary Criminal Case No.717/2022 pending before learned Judicial Magistrate First Class, Nanded, arising out of First Information Report vide Crime No.320/2021 dated 14.09.2021 registered with Police Station, Vazirabad, Nanded, for the offence punishable under Section 501 of the Indian Penal Code, 1860 and under Section 67 of the Information Technology (Amendments) Act, 2008, stands quashed and set aside as against applicant Shaikh Zakir s/o Shaikh Sagir. ( SANJAY A. DESHMUKH, J. ) ( SMT. VIBHA KANKANWADI, J. ) agd