Chattisgarh High Court
Kedarnath Kashyap vs State Of Chhattisgarh 39 Crr/1172/2016 ... on 13 December, 2018
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Revision No.532 of 2016
Order Reserved on : 28.9.2018
Order Passed on : 13.12.2018
1. Kedarnath Kashyap, S/o Tridevram, aged about 28 years, R/o
Chourabhatha, Police Station Nawagarh, District Janjgir-Champa,
Chhattisgarh
2. Nitesh Kumar Sahu, S/o Santosh Kumar Sahu, aged about 22 years,
R/o Amora, Police Station Nawagarh, District Janjgir-Champa,
Chhattisgarh
---- Applicants
versus
The State of Chhattisgarh through District Magistrate, Janjgir, District
Janjgir-Champa, Chhattisgarh
--- Respondent
------------------------------------------------------------------------------------------------------
For Applicants : Shri Ravindra Sharma, Advocate For Respondent : Shri U.K.S. Chandel, Panel Lawyer
------------------------------------------------------------------------------------------------------
Hon'ble Shri Justice Arvind Singh Chandel C.A.V. ORDER
1. The instant revision has been preferred against the judgment dated 10.6.2016 passed by the 2nd Additional Sessions Judge, Janjgir in Criminal Appeal No.83 of 2015, whereby the Additional Sessions Judge has dismissed the appeal and affirmed the judgment dated 7.5.2015 passed by the Judicial Magistrate First Class, Nawagarh in Criminal Case No.371 of 2013 convicting and sentencing each of the Applicants/accused as under:
Conviction Sentence Under Section 292(2)(a) Rigorous Imprisonment for of the Indian Penal Code 1 year and fine of Rs.250/-
with default stipulation 2 Under Section 509 of the Rigorous imprisonment for 6 Indian Penal Code months and fine of Rs.250/-
with default stipulation Under Section 67A of the Rigorous Imprisonment for Information Technology 1 year and fine of Act, 2000 Rs.1,000/- with default stipulation All the sentences are directed to run concurrently
2. The prosecution story, in brief, is that Jamunabai (PW5), who was a friend of Complainant Terasbai Sahu (PW1), went to the computer shop of Applicant No.2/accused Nitesh Kumar Sahu for downloading of film on her mobile phone. Allegedly, accused Nitesh, while downloading the film, also downloaded obscene photos of Complainant Terasbai and asked Jamunabai to see those photos. Jamunabai, after returning home, saw those photos, which were downloaded by accused Nitesh. She disclosed this fact to Complainant Terasbai. Thereafter, Terasbai went to accused Nitesh and asked about the same from him. Allegedly, Nitesh threatened her of life. Further story of the prosecution is that Applicant No.1/accused Kedarnath Kashyap had also kept the obscene photos of Complainant Terasbai in his mobile phone and he used to circulate/send the same to the persons contacting for it. A report was lodged by Terasbai on 12.3.2013. On completion of the investigation, a charge-sheet was filed against the Applicants/accused before the Judicial Magistrate First Class, Nawagarh.
3. In support of its case, the prosecution examined as many as 16 3 witnesses. The Applicants/accused were also examined under Section 313 of the Cr.P.C. in which they denied the guilt and pleaded innocence. No witness has been examined in their defence.
4. After trial, the Judicial Magistrate First Class convicted and sentenced the Applicants/accused as mentioned in the first paragraph of this order. The Appellate Court has also affirmed the judgment of conviction and sentence passed by the Trial Court. Hence, this revision.
5. Shri Ravindra Sharma, Learned Counsel appearing for the Applicants/accused submitted that there is nothing on record on the basis of which it could be established that any of the Applicants published or transmitted obscene photos of the Complainant through any electronic form. Though on being examined obscene photos of the Complainant were found in the mobile phones of Applicant No.1 Kedarnath and Jamunabai (PW5) and in the hard disc of the computer of Applicant No.2 Nitesh, there is no evidence on record to establish that the obscene photos were published or transmitted by any of the Applicants. Hence, no offence is proved against the Applicants, but the Courts below have wrongly convicted the Applicants.
6. Shri U.K.S. Chandel, Learned Panel Lawyer appearing for the Respondent/State supported the impugned judgment.
7. I have heard Learned Counsel appearing for the parties and perused the records of the Courts below with due care. 4
8. In Sharat Babu Digumarti v. Govt. of NCT of Delhi (AIR 2017 SC 150), it has been observed by the Supreme Court as under:
"32. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of the IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission is covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC. "
9. Section 67A of the Information Technology Act, 2000 reads thus:
"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."
10. "Publishes" or "transmits" is nowhere defined in Section 67A of the Information Technology Act, 2000. It is defined in Section 66E of the said Act as under:
5
"66E. Punishment for violation of privacy.--Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both.
Explanation.--For the purposes of this section--
(a) "transmit" means to electronically send a visual image with the intent that it be viewed by a person or persons;
xxxxx xxxxx xxxxx
(d) "publishes" means reproduction in the
printed or electronic form and making it available for public;"
11. In the instant case, vide Ex.P5 one mobile phone (YBZ Phone) was seized from Jamunabai (PW5), vide Ex.P6 one mobile phone (Samsung) was seized from Applicant No.1 Kedarnath and vide Ex.P4 one LED Monitor of Sparkle Company, one CPU of Intex Company in which hard disc of Toshiba Company was installed, keyboard and mouse and other articles were seized from the shop of Applicant No.2 Nitesh. The seized mobile phones, their memory cards and the seized hard disc were examined by Cyber Expert Sub-Inspector Vikram Dhruw (PW14). As opined by him, in both the mobile phones and also in the hard disc, obscene photos of Complainant Terasbai were found.
12. As stated by Jamunabai (PW5), when she had gone to Applicant No.2, Nitesh for downloading of songs in her mobile phone, Nitesh, while, downloading the songs, also downloaded obscene photos of 6 her friend Complainant Terasbai and asked her to see those photos. She saw those photos and found them to be of her friend Complainant Terasbai. She has also stated that thereafter she went to Terasbai and showed her those obscene photos downloaded on her mobile phone.
13. Complainant Terasbai (PW1) has also stated that Jamunabai (PW5) had come to her and shown her obscene photos on her mobile phone. On being asked, Jamunabai had told her that those photos were downloaded on her mobile phone by Applicant No.2, Nitesh. Jamunabai had also told her that Applicant No.2 had asked Jamunabai to see those downloaded photos after returning home.
14. The above statements of Jamunabai (PW5) and Terasbai (PW1) have not been rebutted during their cross-examination. Thus, it is clear that Jamunabai had given her mobile phone to Applicant No.2 Nitesh for downloading songs on her mobile phone and at the time of downloading the songs he also downloaded obscene photos of Complainant Terasbai (PW1) and he also asked Jamunabai to see those downloaded photos after returning home. On being examined also, those obscene photos of the Complainant were found in the hard disc of the computer of Applicant No.2, Nitesh. Therefore, from the evidence, it is clear that obscene photos of the Complainant were downloaded by Applicant No.2, Nitesh in the mobile phone of Jamunabai (PW5) through the hard disc of his computer and he had also asked Jamunabai to see those downloaded obscene photos after returning home. Applicant No.2, Nitesh has not taken any defence to the effect that he downloaded 7 those obscene photos by mistake. Thus, it is clear that he had transmitted and published obscene photos of the Complainant as defined under Section 66E of the Information Technology Act, 2000.
15. From the statements of Jamunabai (PW5) and Complainant Terasbai (PW1), it is only established that Applicant No.2, Nitesh had downloaded obscene photos of Complainant Terasbai on the mobile phone of Jamunabai (PW5) through the hard disc of his computer. Those obscene photos of the Complainant were found in the hard disc of his computer. From where he obtained those obscene photos, nothing is available on record in this regard. Terasbai (PW1) has categorically stated in paragraph 7 of her cross-examination that when she asked from Applicant No.2, Nitesh that from where did he get those obscene photos, he did not tell her anything about this. Though on being examined the said obscene photos of the Complainant were found in the mobile phone of Applicant No.1, Kedarnath also, none of the witnesses has stated that Applicant No.1, Kedarnath had shown, transmitted or published those photos to anyone. Therefore, Applicant No.1, Kedarnath had published or transmitted those obscene photos of the Complainant through any print or electronic mode is not established. Therefore, it is clear that both the Courts below have convicted Applicant No.1, Kedarnath for the aforestated offence without proper appreciation of the evidence on record and, therefore, the conviction of Applicant No.1, Kedarnath is held to be illegal. Hence, Applicant No.1, Kedarnath is acquitted of all the charges framed against him.
8
16. Keeping in mind the observation made by the Supreme Court in paragraph 32 of Sharat Babu case (supra), I find that in the instant case, the offence committed by Applicant No.2, Nitesh falls within the purview of Section 67A of the Information Technology Act, 2000 and Section 509 of the Indian Penal Code. Therefore, Applicant No.2, Nitesh is acquitted of the charge framed under Section 292(2)(a) of the Indian Penal Code, but he is convicted under Section 67A of the Information Technology Act, 2000 and Section 509 of the Indian Penal Code.
17. As regards the sentence part, looking to the nature of offence, I find that the sentence awarded to Applicant No.2, Nitesh by the Courts below for the offence under Section 67A of the Information Technology Act, 2000 and Section 509 of the Indian Penal Code is just and proper and, therefore, the same is affirmed.
18. Consequently, the revision is allowed in part to the extent indicated above.
19. Records of the Courts below be sent back along with a copy of this order forthwith for information and necessary compliance.
Sd/-
(Arvind Singh Chandel) JUDGE Gopal