Madhya Pradesh High Court
Nupur Ghatge vs The State Of Madhya Pradesh on 8 March, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 THE HIGH COURT OF MADHYA PRADESH MCRC-52596-2020 Nupur Ghatge Vs. State of MP Gwalior, Dated : 08.03.2022 Ms. Sangeeta Pachauri, Counsel for the applicant. Shri C.P. Singh, Counsel for the State.
This application under Section 482 of CrPC has been filed seeking quashment of FIR in Crime No.173/2020 registered at Police Station Cyber or High-tech Crime, Cyber Cell, Zone Kampoo, Gwalior District Gwalior for offence under Section 67B of the Information Technology Act, 2000 (in short "Act, 2000").
The allegations against the applicant are that the applicant uploaded the child pornography video as well as photographs on his Instagram account from the mobile number which is registered in the name of his father.
It is submitted by the counsel for the applicant that the applicant is a meritorious student of B.Sc. and is only 19 years of age having got gold medal in his educational career. It is submitted that in fact, the porn videographs and photographs were transmitted to the Instagram account of the applicant and the applicant did not forward to any other account and he has no role to play either in transmitting the said pornography or creating the videograph or photographs. Looking to the contents of the Instagram account of the applicant, it is clear that the central nervous system of the applicant had failed because of adverse effect on the internal glands by looking at the porn videographs and photographs and thus, the applicant is 2 THE HIGH COURT OF MADHYA PRADESH MCRC-52596-2020 Nupur Ghatge Vs. State of MP exempted from the prosecution. It is further submitted that since the FIR has not been lodged by anybody and in absence of any complaint, the police could not have registered the offence, therefore, the FIR lodged against the applicant is also liable to be quashed. It is further submitted that since no victim has come forward complaining about the transmissions of her porn videographs, therefore, also the applicant cannot be prosecuted. In fact, the applicant is aged about 19 years only and the father of the applicant had provided several mobiles to the applicant giving full opportunity to indulge himself in such an act, therefore, also this Court should take a liberal view in favour of the applicant. To buttress her contention, counsel for the applicant has relied upon the judgment passed by the Supreme Court in the case of Mallikarjun Kodagali Vs. State of Karnataka and others reported in (2019) 2 SCC 752.
Per contra, the application is vehemently opposed by the counsel for the State. It is submitted that multiple porn videographs and photographs were found on the Instagram account of the applicant. The applicant himself has filed certain porn photographs. Counsel for the State has also referred to the whats-app chats of the applicant with the girls which clearly indicates about his involvement in child pornography.
Heard the learned counsel for the parties. 3
THE HIGH COURT OF MADHYA PRADESH MCRC-52596-2020 Nupur Ghatge Vs. State of MP So far as the submission made by the counsel for the applicant that as no victim has come forward to make a complaint against the applicant, therefore, the applicant cannot be prosecuted for child pornography is concerned, the said submission made by the counsel for the applicant is misconceived and is liable to be rejected. Section 67B of the Act, 2000, reads as under:-
"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 fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either discription for a term which may extend to seven years and also with fine which may extend to ten lakh rupees:
Provided that 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 4 THE HIGH COURT OF MADHYA PRADESH MCRC-52596-2020 Nupur Ghatge Vs. State of MP
(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 bona fide heritage or religious purposes.
Explanation. For the purposes of this section "children" means a person who has not completed the age of 18 years."
From the whats-app chats filed by the applicant, it appears that the applicant himself was involved in porn activities, therefore, the provision of Section 67B of the Act, 2000 would be applicable as Section 67-B of the Act, 2000 also includes records in any electronic form own abuse or that of others pertaining to sexually explicit act with children.
So far as the submission that there is no complainant in the present case is concerned, it is well established principle of law that the criminal law can be put in action even on the basis of an information regarding commission of cognizable offence. The offence under Section 67B of the Act, 2000 is a cognizable offence as the maximum sentence is 5 years. Therefore, the submission that in absence of any complainant, the applicant cannot be prosecuted, is misconceived.
So far as the mental condition of the applicant is concerned, in order to attract the provision of Section 84 of IPC, the applicant has to prove that he is legal lunatic. Merely because the porn videographs 5 THE HIGH COURT OF MADHYA PRADESH MCRC-52596-2020 Nupur Ghatge Vs. State of MP or photographs were satisfying the lust of the applicant thereby effecting the central nervous system would not make him legal lunatic. Even otherwise, by no stretch of imagination, such satisfaction of lust would make him medical lunatic also.
Be that whatever it may.
The burden is on the applicant to prove his defence which cannot be decided by this Court in exercise of powers under Section 482 of CrPC.
So far as the submission made by the counsel for the applicant that father of the applicant is also responsible as he had provided several mobiles to the applicant who is still a young boy aged 19 years is concerned, the said argument has no legal basis and is based on morality. Furthermore, if the applicant is of the view that his father is equally responsible for what he has done, then he can also move an application for impleading his father as an accused.
Considering the totality of the facts and circumstances of the case, this Court is of the considered opinion that no case is made out warranting quashment of the FIR.
Accordingly, the application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2022.03.09 18:30:00 +05'30'