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The present FIR was registered on the statement of complainant Sh. Sachin for commission of the offence punishable U/S 292 IPC and Section 67 of Information Technology Act . It is alleged by the complainant Sachin that he was having the mobile phone make NOKIA 6681 with number 9818023999. He alleged that few days back he has seen the blue film at his mobile phone which has been up loaded by Dev @ Hassan who has taken his phone. He alleged that in this picture one person namely Dhan Raj, who is his neighbour and one girl is seen whom he identified. He alleged that he had seen the movie and felt bad, hence deleted the picture. The complainant further alleged that again on 11.05.06 he received the same picture on his mobile phone at about 9.40 pm. He stated that the said picture was prepared by Dhan Raj alongwith his girl friend and transmitted the same to him. He alleged that the said obscene picture has been sent to his mobile phone through mobile phone and they have also sent the same on other mobile phone, therefore, appropriate action may kindly be taken.

2. The police registered the FIR on the complaint of the complainant Sh. Sachin and investigated the matter. The investigation was conducted by Sh. Rajinder Singh­ ACP Ashok Vihar . It is reported in the final report that on the identification of complainant Sachin the accused Dhan Raj and accused Ishan @ Dev were arrested on 12.05.06 and the car bearing No. DL­1CF­0282 used in the commission of the offence was seized. It is also reported that the mobile phone make ' Sony Ericsson' was seized. It is further stated that the accused Dhan Raj has made disclosure statement and got recovered two CDs of the same picture from his residence. It is reported that the accused persons have disclosed that they have sent the MMS of that picture to their friend Deepak @ Deepu. The said person Deepak @ Deepu was joined in the investigation who has told that he has sold the said phone to one Sh. Ashok Kumar Jain. Thereafter the said mobile phone was seized from the possession of Sh. Ashok Kumar Jain and sent to FSL for examination. It is further reported that the accused Neha D/O Sh. Ashok Sharma was also searched and on collection of the sufficient material she was formally arrested in the present case and released on bail. It is alleged that the accused persons have committed the offence punishable U/S 292/34 IPC & section 67 of Information Technology Act.

11. In the present case the accused persons are charged for commission of the offence punishable U/S 292 IPC & Section 67 of Information Technology Act. The perusal of both the sections reveals that both the sections are giving the definition for publication or transmission of any obscene /lascivious material etc. The Information Technology Act­2000 is a special Act and the same offence as defined U/S 292 IPC are also defined U/S 67 of the Information Technology Act. There are allegations of the prosecution that the obscene/ lascivious material was published or transmitted in the "electronic form". As per the definition of term "electronic form" given in Section 2 (r) of Information Technology Act, the material placed on record by the prosecution i.e. mobile phone and CD are covered within the definition of "electronic form" as defined U/S 2(r) of the Act. Since the alleged material was published or transmitted in the "electronic form",therefore, the provision of Information Technology Act­2000 shall be applicable instead of provision of Section 292 IPC. Hence, none of the accused can be charged for commission of offence punishable U/S 292 IPC.