Allahabad High Court
Shuaib Akhtar vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 22 May, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:30675 Court No. - 12 Case :- CRIMINAL REVISION No. - 589 of 2025 Revisionist :- Shuaib Akhtar Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home Lko. And Another Counsel for Revisionist :- Desh Ratan Mishra,Km. Priya Bhatt Counsel for Opposite Party :- G.A. Hon'ble Alok Mathur,J.
1. Heard Shri Desh Ratan Mishra on behalf of the revisionist as well as learned AGA for the State and perused the record.
2. By means of present revision under Sections 397/401 Cr.P.C. (now 438/442 BNSS), the revisionist has challenged the order dated 16.4.2025 passed by the Additional Civil Judge (Jr. Div.) Court No.2/ Additional Chief Judicial Magistrate, Sitapur, whereby he has rejected the application for discharge preferred by the revisionist who is accused in case Crime No. 24 of 2003 under section 67-B of the Information Technology Act, Police Station Biswan, District Sitapur.
3. It has been submitted by learned counsel for the revisionist that a First Information Report was lodged under Section 67-B of Information Technology Act, at Police Station Biswan, District Sitapur being FIR No. 24/2023, it is stated that certain notification was received from the office of Superintendent of Police, District Sitapur which was received on Cyber Police portal operated by Ministry of Home Affairs, Government of India, where 20 old persons by means of face book was found to be chatting with a 14 years child in a sexually related video. The matter was investigated by the Inspector in-Charge Cyber Crime Police Station Gautam Budh Nagar, and found that the I.P. address was used by the revisionist.
4. It is aforesaid circumstances that the investigation was carried out and the statement of the complainant was recorded under Section 161 Cr.P.C., who supported the case of the prosecution. The charge sheet was filed in Court and on 30.8.2023 summoning order was issued against the revisionist. The revisionist on appearance before the trial court has filed an application for discharge as well as his bail which was duly considered and rejected by means of the impugned order dated 16.4.2025. The main ground raised by the revisionist for discharge of the fact that there was no possibility of the age of the child with whom the revisionist was chatting being determined under Section 67-B of the Information Technology Act. The identity of the child cannot be established and therefore the age cannot be proved and hence there is no ground for proceeding against the revisionist under Section 67-B of the Information Technology Act. In the application preferred by the revisionist it has been stated that the revisionist is a student and living in Delhi for the preparation of U.P.S.C. examination. He has also joined a coaching Centre in Delhi. The trial court while considering the said discharge application in the said order it has been mentioned that it is on the basis of interception of the video call that the I.P. address and I.D. was exchanged on Mobile No. 8112793747 which is of the revisionist. With regard to the said offence it seems that there is chat record maintained by the police which has also been sent to Forensic Laboratory for verification. To consider the ground raised on behalf of the revisionist is necessary to consider the provision of Section 67-B of the Information Technology Act. Sub Section (B) of Section 67 Information Technology Act is quoted below:-
"Section 67B: Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form:
Whoever,-
(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct or
(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner or
(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource or
(d) facilitates abusing children online or
(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with a 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:
Provided that the provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form-
(i) The publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or
(ii) which is kept or used for bonafide heritage or religious purposes Explanation: For the purposes of this section, ?children? means a person who has not completed the age of 18 years."
5. Sub Section (B) of Section 67 of the Information Act clearly provides that who so ever advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner would be punished on first conviction with imprisonment of either description for a term which may extend to five years and with a 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. In the explanation it is provided that for the purposes of this Section, "children" means a person who has not completed the age of 18 years.
6. From the aforesaid offence under Section 67-B of the Act would be completed moment it is found that any person collects, seeks browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner.
7. The present case as per the First Information Report there is evidence in this regard with regard to the involvement of the children through the video chat of the face book. The I.P. address also links the said video chat which mobile number is being used by the revisionist. A question as to whether the person with whom the material was exchanged a child has not completed the age of 18 years will not assist the revisionist in stalling the prosecution at the stage of summoning itself. It is to be demonstrated that the person with whom an accused was exchanging electronic data which is deemed to be sufficient under Section 67-B of the Information Technology Act should a child who has not completed 18 years. The age of the person with whom material was exchanged would be an aspect which should be considered during the trial at the appropriate stage where prosecution would lead evidence in this regard. Merely because a person with whom electronic data being exchanged was not 18 years has not been determined prior to taking cognizance cannot be a sole ground for allowing the application for discharge. While allowing the application for discharge it has been duly recorded that from the material available on record, no offence is made out. In the present case from the material available in the First Information Report as well as the statement of the complainant under Section 161 Cr.P.C. which was recorded during the investigation, there is sufficient evidence to indicate that the revisionist prima facie is involved in exchange of digital images which is prohibited under Section 67-B of the Information Technology Act. Whether the age is an issue which is proved within the trial or not and the age can be determined is an issue which does not require to be dealt at this particular stage.
8. The Kerala High Court while dealing a similar matter in the case of Partha Sarathi M. V. State of Kerala 2024 Livelaw (Ker) 240 has held that strict proof for determining age is not required in every case of child pornography. The relevant paragraph is as under:-
"46. Conclusions (1) The provisions dealing with the offence of child pornography punishable under Section 15 of the POCSO Act and the offence of publishing or transmitting material in electronic form depicting children engaged in sexually explicit acts or conduct punishable under Section 67-B of the Information Technology Act are to be constructed emphasizing the view point of the audience, the society at large.
(2) There need not be any strict proof as regards the age of the model in every case of child pornography. What is relevant is whether the model appears to be a child."
9. Accordingly, I do not find that there would be any necessity to prove the age of child below 18 years in case it is prima facie evident that the material was exchanged by the child it is disputed from the scene images only to those cases it will be necessary to demonstrate that any child was below 18 years. These are factual issues which can be considered at the appropriate stage before the trial court.
10. I do not find any illegality in the order for discharge, accordingly the revision is dismissed. .
(Alok Mathur, J.) Order Date :- 22.5.2025 Muk