Karnataka High Court
Sri. Shivanand Kalyani vs The State Of Karnataka on 6 January, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6THDAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRL.P NO 102124 OF 2018
BETWEEN
SRI. SHIVANAND KALYANI
AGE: 20 YEARS,OCC: NIL,
R/O: JAMAKHANDI,TALUK
DIST: BAGALKOTE.
...PETITIONER
(BY SRI.JAGADISH PATIL, ADV.,)
AND
THE STATE OF KARNATAKA
THROUGH ILKAL POLICE STATION,
BAGALKOTE DISTRICT,
NOW REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH AT DHARWAD.
...RESPONDENT
(BY SRI.PRAVEEN UPPAR, HCGP FOR R )
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING TO QUASH THE ENTIRE PROCEEDINGS
IN FIR CRIME NO.108/2017 DATED 04.10.2017
REGISTERED BY ILKAL P.S., BAGALKOT DIST., FOR
OFFENCES U/S 67 OF IT ACT AND U/S 504 AND 509 OF
IPC, SOFARAS PETITIONER HEREIN IS CONCERNED.
2
THIS PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Petitioner is before this Court calling in question the proceedings in Crime No.108/2017 registered against the petitioner for the offences punishable under Sections 67 of Information Technology Act, 2008 and Sections 504 and 509 of IPC.
2. Heard Sri.Jagadish Patil, learned counsel for petitioner and Sri.Praveen Uppar, learned HCGP for respondent.
3. Brief facts leading to filing of the present petition as borne out from the pleadings are as follows:
A Complaint is registered by one Sri.Timmanagouda, President of Youth Congress Committee against the petitioner for the offences punishable under Sections 67 of Information Technology Act, 2008 and under Sections 504 and 509 of IPC. The reason behind the registration of the 3 said complaint was, when the Youth Congress Committee had organized a cricket tournament at Hunagund taluka in Ilakal city, it is alleged that the Member of the Legislative Assembly of Ilakal delivered a speech, upon which, the petitioner made a comment that incumbent MLA as a "Rowdy MLA". This was not the comment made at the time of the speech. But, the said comment was posted on the face book account of the said MLA.
4. Posting of the said comment on the face book account of the MLA, a third party registers a complaint invoking Sections 67 of Information Technology Act, 2008 and Sections 504 and 509 of IPC against the petitioner. The complaint becomes an FIR of the aforesaid offences, it is at that point of time the petitioner knocks the doors of this Court.
5. Learned counsel appearing for the petitioner would contend that Section 67 of Information Technology Act, 2008 cannot be invoked for that act that is alleged 4 against the petitioner/posting of comment on the face book account of the MLA.
6. Though the 2nd respondent-complainant is served, remains unrepresented. Therefore, learned counsel appearing for the petitioner and learned HCGP for the State are heard in the matter.
7. Aforesaid facts are not in dispute, are therefore not reiterated. Complaint is registered for the offence punishable under Section 67 of Information Technology Act, 2008.
8. Section 67 of Information Technology Act, 2008 reads as follows:
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 effect is such as 5 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 first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
9. The allegation against the petitioner is that he had posted a comment reading "he is rowdy MLA" on the face book account of the said MLA which cannot mean that obscene material is posted and transmitted by the petitioner. The very provision of law, pressed into action to set criminal law in motion is erroneous. The other 6 allegations are for the offences punishable under Sections 504 and 509 of IPC. Section 504 of IPC reads as follows:
504. Intentional insult with intent to provoke breach of the peace.--Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
10. Section 509 of IPC reads as follows:
Section 509.Word, gesture or act intended to insult the modesty of a woman. Whoever, intending to insult the modesty of any woman, utters any words, makes any sound or gesture, or exhibits 7 any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, 1 [shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.]
11. Section 509 of IPC deals with offences concerning woman. It is nobody's case that comment has resulted any obscene act against any woman. Therefore, invoking of the said section is also unavailable.
12. The offence punishable against the person who intentionally insult and thereby gives provocation to any person which would result in breach of public peace.
In the present case at hand, there is no breach of public peace. Hence, Section 504 of IPC cannot be pressed into effect.
13. In the light of the preceding analysis, no offences under Sections 67 of Information Technology Act, 8 2008 or Sections 504 and 509 of IPC can be alleged, to the act committed by the petitioner. The proceedings, if permitted to be continued against the petitioner, would without doubt, result in miscarriage of justice and become an abuse of the process of the law. For the aforesaid reasons, the following:
ORDER
i) The criminal petition is allowed.
ii) The proceedings in Crime No.108/2017 stands quashed only insofar as it concerns the petitioner.
iii) It is made clear that observations made in the course of this order are only with regard to consideration of the case of the accused No.2 under 482 of Cr.P.C. The trial Court would not be bound by the observations made in the course of this order against any other accused.
Sd/-
JUDGE Vb/-