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Pramod Anand Dhumal v. State Of Maharashtra
Factual and Procedural Background
The applicant, editor of a local weekly Marathi newspaper and social activist, sought pre-arrest bail apprehending arrest in connection with Crime No.580 of 2020, registered on 11th June 2020. The case involves allegations under Section 354-D of the Indian Penal Code (IPC) and Section 67A of the Information Technology Act, 2000 (IT Act). The complainant, a 37-year-old housewife, received offensive messages containing images with overt sexual desire on her Facebook account, sent from the applicant’s cell phone. Despite her clear indication of disinterest on 13th November 2018, the applicant continued sending messages including a link containing lascivious material. A complaint was lodged, leading to registration of the subject crime. The applicant was denied pre-arrest bail by the Sessions Judge prior to this application.
Legal Issues Presented
- Whether the material sent by the applicant attracts the penal provisions of Section 67-A of the IT Act, which requires transmission or publication of material containing sexually explicit acts.
- Whether the material instead falls under Section 67 of the IT Act, which criminalizes publishing or transmitting lascivious or obscene material in electronic form.
- The applicability and gravity of the offence under Section 354-D of the IPC relating to stalking, given the complainant’s clear disinterest and continued contact attempts by the applicant.
- Whether pre-arrest bail is justified considering the nature of the offences and the evidence on record.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court examined the statutory provisions of Sections 67 and 67-A of the IT Act, noting their distinct applicability. Section 67 targets the publication or transmission of lascivious or obscene material electronically, punishable with imprisonment up to three years for the first offence, whereas Section 67-A applies to material containing sexually explicit acts, punishable with imprisonment up to five years on first conviction.
Upon perusal of the investigation record and the material sent by the applicant, the court found the images and linked content to be lascivious, tending to excite lust, but not sexually explicit in the detailed and direct manner required under Section 67-A. Hence, prima facie, Section 67-A was not attracted.
Regarding Section 354-D IPC, the court noted the complainant’s clear indication of disinterest and the applicant’s continued attempts to contact her through obscene images, constituting prima facie evidence of stalking. Although punishable, this offence is bailable and triable by any Magistrate.
The court also considered that the applicant had voluntarily handed over his cell phone to the Investigating Officer, and that custodial interrogation was not necessary given reliance on electronic evidence. Considering the punishment prescribed for the first offence under Section 67 (up to three years imprisonment), the court found it appropriate to grant pre-arrest bail.
Holding and Implications
The application for pre-arrest bail is allowed and disposed of.
The applicant shall be released on executing a PR bond of Rs. 50,000 with one or more sureties of the like amount if arrested in Crime No.580 of 2020. The applicant is required to attend the police station on specified Mondays until charges are framed, furnish permanent residential address and contact details, and refrain from tampering with evidence or contacting the complainant or witnesses.
No new precedent was established; the observations made are expressly limited to the bail context and shall not influence the trial or other proceedings.
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 13th 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 Blacks 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 30th November, 2018, but even thereafter, applicant attempted to contact her by sending obscene images. Therefore, prima-facie, applicants 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, applicants 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 10/10
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