Kerala High Court
Vijesh vs State Of Kerala on 19 January, 2021
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942
Crl.MC.No.7294 OF 2015(B)
CRIME NO.1091/2012 OF Muvattupuzha Police Station , Ernakulam
PETITIONER/3rd ACCUSED:
VIJESH
AGED 32 YEARS
S/O.RAMAKRISHNA PILLAI, PUTHIYAVEETTIL,
THEKKUM BHAGOM KARAYIL, KARIKKODE VILLAGE,
THODUPUZHA, IDUKKI DISTRICT.
BY ADV. SMT.MINI.V.A.
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM. 682 031.
2 JOVIAL BIJU THOTTATHIL
THOTTATHIL HOUSE, MARKET P.O. MUVATTUPUZHA,
ERNAKULAM DISTRICT. 686 673
R1-2 BY ADV. SMT.LALIZA.T.Y.
R1 BY ADV. SMT.K.A.MINI KUMARI
R1 BY ADV. SMT.SHOBA ANNAMMA EAPEN
SRI.K.J.MOHAMED ANSAR, SR.PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
19.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C No. 7294 of 2015
2
(C.R)
ALEXANDER THOMAS, J.
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Criminal M.C. No. 7294 of 2015
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Dated this the 19th day of January, 2021
ORDER
The prayer in the afore captioned Criminal Miscellaneous Case filed under Sec.482 of Cr.PC is as follows:-
".....to quash all proceedings in C.C.No.239 of 2014 on the files of the Judicial First Class Magistrate Court, Muvattupuzha (in pursuance of Annexure A-3, Final Report, in Crime No.1091/2012 of Muvattupuzha Police Station) as against the petitioner/3 rd accused, so as to secure the ends of justice."
2. Heard Smt.V.A.Mini, learned counsel appearing for the petitioner (A3), Sri.K.J.Mohamed Anzar, learner Public Prosecutor appearing for R1 State of Kerala and Smt.T.Y.Laliza, learned counsel appearing for contesting respondent No.2 (lady de facto complainant).
3. The petitioner herein has been arrayed as accused No.3 in the impugned Calendar Case, C.C.No.239/2014 on the file of the Judicial First Class Magistrate Court, Muvattupuzha, which is arisen out of the impugned Anx.A-3 Final report/Charge Sheet filed by the police in Anx.A-2 FIR in Crime No.1091/2012 of Muvattupuzha Crl.M.C No. 7294 of 2015 3 Police Station for offences punishable under Secs.66(A) and 67(A) of the Information Technology Act, 2000 etc. The 2nd respondent herein is the lady de facto complainant in this case.
4. The gist of the prosecution case as disclosed in the complaint of the 2nd respondent given on 21.11.2012 is that, on 26.08.2009 the inaugural function of a Jewellery is conducted inviting television and cine celebrities and that such celebrities had also attended the function and for seeing the said celebrities in close range and to click their photos on mobile phones, people had gathered there and made rush. Thereafter, a video was uploaded in the YouTube in the months of January and March 2012 with the title "Mallu Aunti Harassed" and "Paravoor Peedanam". Both videos had a lot of viewers and that the complaint of the 2nd respondent is that, somebody had taken her photographs on the day of the inauguration of her Jewellery, while she was moving with the celebrities in the crowded place and purposefully deleted the photographs of celebrities and they had uploaded her photographs in the YouTube with the said remarks etc.
5. The offences alleged against the petitioner are those Crl.M.C No. 7294 of 2015 4 punishable under Secs. 66(A) and 67(A) of the Information Technology Act. It is a common ground that, the offence as per Sec.66(A) of the Information Technology Act has already been struck down by the Apex Court in the celebrated judgment in the case in Shreya Singhal V. Union of India [2015 (2) KLT 1 (SC)]. Hence the impugned criminal proceedings to the extent it involves the offence as per Sec.66(A) of the IT Act, which is one among the two alleged offences, is liable for interdiction. The only other remaining offence alleged against the petitioner is the one as per Sec.67 A of the I.T Act, 2000 and it deals with punishment for publishing or transmitting of material containing sexually explicit act etc., in electronic form.
Section 67 A of the IT Act, reads as follows:
"Sec.67A. 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 sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees."
6. One of the prime ingredients to satisfy the offence as per Sec.67 A of the IT Act, is that the accused person should have Crl.M.C No. 7294 of 2015 5 published or transmitted or cause to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct, etc. The expression "sexually explicit" ordinarily means a pictorial depiction of actual or simulated sexual acts including sexual intercourse, etc and sexually explicit materials do not include materials of a news or information type etc. Moreover the statute book has explicitly insisted that the Act should be one involving publication or transmission or causing of publication or transmission in an electronic form of any material which contains sexually explicit act or conduct. The alleged publication of the photograph of the 2nd respondent during the time of the inaugural function of the Jewellery is admittedly, by itself cannot be said to be in any manner sexually explicit, as even going by the case of the 2 nd respondent it was her photograph and the photographs taken when she was standing in the stage along with the celebrities during the inaugural function of the Jewellery.
7. The case of the prosecution is that, uploading of the photographs of the 2nd respondent with the remarks "Mallu Aunti Harassed" and "Paravoor Peedanam" etc, would fulfil the Crl.M.C No. 7294 of 2015 6 ingredients of Sec.67A of the I.T Act. Even if it is assumed that the said expressions "Mallu Aunti Harassed" and "Paravoor Peedanam" are made with double meaning and are not to be construed literally, even then the allegations are only to the effect that such words have been used in the remarks along with the uploaded photo. If it is assumed that the said words used therein are made with double meaning, at best, the prosecution may have a case that the said words used are one of sexually coloured remarks. Alleged making of sexually coloured remarks is not the same as publication or transmission in the electronic form of any material which contains sexually explicit act or sexually explicit conduct. Mere alleged use of sexually coloured remarks by the accused persons in the uploaded photographs will not amount to publication or transmission or causing of publication or transmission in an electronic form of any material which contains sexually explicit act or conduct. The expression "sexually explicit" has a specific meaning, which means pictorial depiction of actual or simulated sexual acts including sexual intercourse, etc. Sexually explicit material does not include material of a news or information type. Therefore, even if it Crl.M.C No. 7294 of 2015 7 is assumed that as a matter of fact the publication or transmission in a YouTube of the abovesaid photographs of the 2 nd respondent with the abovesaid remarks has been made by the petitioner, the same cannot fulfil the vital ingredients of the offence as per Sec.67A of the I.T Act. As noted hereinabove, the other alleged offence, which is the one as per Sec.66A of the I.T Act, has already been struck down by the Apex Court in Shreya Singhal's case (supra) [2015 (2) KLT 1 (SC)].
8. Hence the initiation and continuance of the impugned criminal proceedings as against the petitioner is an abuse of the process of court, which would warrant interdiction at the hands of this Court in exercise of the inherent extra ordinary powers of this Court saved and preserved in terms of Sec.482 of Cr.PC. In that view of the matter, it is ordered that, the impugned Anx.A-3 Final report/Charge sheet filed in the impugned Anx.A-2 FIR in crime No.1091/2012 of Muvattupuzha Police Station, which has led to the pendency of Calendar Case, C.C No.239/2014 on the file of the Judicial First Class Magistrate Court, Muvattupuzha as against the petitioner/accused and all further proceedings emanating therefrom Crl.M.C No. 7294 of 2015 8 as against the petitioner/accused will stand quashed and set aside.
9. The petitioner will produce certified copies of this order before the Investigating Officer concerned as well as before the Judicial First Class Magistrate Court, Muvattupuzha who is dealing with C.C No.239/2014 for necessary information.
With these observations and directions, the above Criminal Miscellaneous Case will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE KAS Crl.M.C No. 7294 of 2015 9 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 ANNEXURE-A1: TRUE COPY OF THE COMPLAINT DATED 21.11.2012 FILED BY THE 2ND RESPONDENT BEFORE THE SUB INSPECTOR OF POLICE, MUVATTUPUZHA ANNEXURE A2 ANNEXURE-A2: CERTIFIED COPY OF THE FIR IN CRIME NO.1091/2012 OF MUVATTUPUZHA POLICE STATION.
ANNEXURE A3 ANNEXURE-A3: CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.1091/2012 OF MUVATTUPUZHA POLICE STATION.
ANNEXURE A4 ANNEXURE-A4: TRUE COPY OF THE ORDER DATED 2.1.2014 IN BAIL APPLICATION NO.7529/2013 OF THIS HON'BLE COURT.
RESPONDENT'S/S EXHIBITS: NIL