HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 34894 of 2025 Court No. - 77 HON'BLE SAURABH SRIVASTAVA, J. 1. Heard Sri Syed Ali Imam, learned counsel for applicants and learned AGA for the State-respondent. 2. The present application has been preferred challenging chargesheet dated 10.02.2025 and cognizance order dated 01.05.2025 along with entire proceedings of Case No.7761 of 2025, arising out of Case Crime No.497 of 2024, under Section 78(1), 3(5) of BNS and Section 66-E of I.T. Act, P.S. Surajpur, District Gautam Budh Nagar, pending before learned II-Additional Chief Judicial Magistrate, Gautam Budh Nagar. 3. At the very outset, learned counsel for applicants has submitted that although cognizance of offence has been taken up in pursuance of Section 66-E of I.T. Act along with Section 78(1), 3(5) of BNS, whereas neither as per narration of FIR nor any evidence collected during investigation which would go to show that any private area of wife of opposite party no.2, was captured by applicants with intention to violating privacy and as such, there is hardly any violation of privacy of any person. Learned counsel for applicants has further submitted that initially the FIR in the present case, was registered only under Section 67 of I.T. Act but without conducting fair investigation, the concerned Investigating Officer submitted chargesheet under Section 78(1), 3(5) of BNS and Section 66-E of I.T. Act whereupon cognizance of offence has been taken by learned court concerned without application of judicial mind. 4. Learned counsel for applicants has demonstrated the scope of implication of any person specifically in respect of Section 66-E of I.T. Act which is being reproduced hereinbelow:- Versus Counsel for Applicant(s) : Syed Ali Imam Counsel for Opposite Party(s) : G.A. Nikhat Amrohi Alias Nikhat Fatma Naqvi And 10 Others .....Applicant(s) State of U.P. and Another .....Opposite Party(s) "Section 66-E.- Punishment for violation of privacy Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both. Explanation.--For the purposes of this section-- (a) transmit means to electronically send a visual image with the intent that it be viewed by a person or persons; (b) capture, with respect to an image, means to videotape, photograph, film or record by any means; (c) private area means the naked or undergarment clad genitals, *[pubic area], buttocks or female breast: (d) publishes means reproduction in the printed or electronic form and making it available for public; (e) under circumstances violating privacy means circumstances in which a person can have a reasonable expectation that-- (i) he or she could disrobe in privacy, without being concerned that an image of his private area was being captured; or (ii) any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place." 5. Learned counsel for applicants has argued that there is hardly any allegation available in the narration of FIR for transmitting, capturing or publishing any private area, as mentioned under Section 66-E of the I.T. Act, pertains to wife of opposite party no.2 and as such, order dated 01.05.2025 passed by learned II-Additional Chief Judicial Magistrate, Gautam Budh Nagar, is highly illegal. 6. Per contra, learned AGA has vehemently opposed the prayer sought through the instant application and rebutted the stand taken up by learned counsel for applicants on the basis of facts mentioned in the narration of FIR along with scope of Section 66-E of I.T. Act wherein the applicants have been implicated. Learned AGA has also submitted that certain post has been obtained from the Instgram ID of wife of opposite party no.2 by applicants without her consent and the same has been published by them which attracted Section 66-E of I.T. Act and as such, order dated 01.05.2025 passed by learned court concerned, is justified. NA528 No. 34894 of 2025 2 7. After having the rival contentions raised by learned counsel for parties and perusal of records, the Court finds that attraction of Section 66-E of I.T. Act, has to be co-related with the narration of FIR wherein at no point of time, it has ever been disclosed by informant that applicants have transmitted, captured or published the private area of wife of opposite party no.2, whereas the specific allegation against the applicants pertains to some post which was uploaded by wife of opposite party no.2 herself over her Instagram ID and the same was obtained by applicants and thereafter posted the same over some social media platform which does not attract the offence mentioned in Section 66-E of I.T. Act. The scope available before learned court concerned for altering the charges as provided under Section 239 of BNSS since there is specific attraction of Section 67 of I.T. Act in pursuance of the narration of FIR and the evidence collected during investigation. 8. In view of the aforesaid discussions, order dated 01.05.2025 passed by learned II-Additional Chief Judicial Magistrate, Gautam Budh Nagar in Case No.7761 of 2025, arising out of Case Crime No.497 of 2024, under Section 78(1), 3(5) of BNS and Section 66-E of I.T. Act, P.S. Surajpur, District Gautam Budh Nagar, is hereby set aside with a direction to learned court concerned to pass afresh order of taking cognizance under the relevant sections attracted in pursuance of chargesheet submitted by concerned Investigating Officer, if so required, in light of the said observations. 9. Accordingly, the instant applicant stands allowed in part. September 11, 2025 Vivek Kr. NA528 No. 34894 of 2025 3 (Saurabh Srivastava,J.) Digitally signed by :- VIVEK KUMAR High Court of Judicature at Allahabad