Bombay HC Grants Pre-Arrest Bail To Editor Of A Marathi Weekly Accused Of Sending Obscene Messages To A Woman & Stalking

Justice Sandeep K Shinde was hearing the application filed by the accused who was booked for offences under Section 354 D of IPC and Section 67 A of the IT Act.

According to the complainant housewife, who is 37 years old, she received messages from the accused's phone revealing overt sexuual desire on her Facebook account. On November 13, 2018, she expressed her disapproval of the same. Thereafter, the applicant sent a message saying "I love you" to the complainant and a hyperlink on her facebook. She tapped the link and the whole document was containing lascivious material, the complainant alleges.

Thus, the complaint was lodged against the applicant under Section 354-D of the IPC and Section 67-A of the IT Act. Applicant was denied pre-arrest protection by the Sessions Judge.

Advocate Aniket Nikam appeared on behalf of the applicant and Additional Public Prosecutor Veera Shinde for the State.

Court noted that provisions of Section 67 and 67-A of the IT Act do attract and operate in distinct situations and circumstances. While Section 67 refers to publishing or transmitting "Obscene Material" in electronic form; Section 67-A refers to transmitting or publishing material containing sexual explicit acts.

In other words, the offence under Section 67 of the IT Act is grave and punishment prescribed for the first conviction is imprisonment, which may extend to five years and fine, which may extend to 10 Lakhs and in the event of second or subsequent conviction with imprisonment for a term, which may extend to seven years and also with fine, which may extend to 10 Lakhs.

Whereas, Section 67 is attracted only when lascivious material is published or transmitted but it does not encompass, transmission or "material containing sexually explicit act".

Thus, Justice Shinde observed-

" I have perused the investigation record and the images allegedly sent on the facebook account of the complainant by the applicant. No doubt, images sent and the link on tapping was revealing material tends to excite lust but it was not the material containing "sexually explicit act". To attract Section 67-A of the IT Act, material must be of the nature describing or representing sexual activity in a direct or detailed way. Herein, material of this nature was not sent by the applicant to the complainant on her facebook account. Thus, prima-facie, the penal provisions of Section 67-A of the IT Act are not attracted to the facts of the case at hand.

The punishment prescribed for offence under Section 67 of the IT Act is three years, for the first conviction and five years in the event of subsequent or second conviction. It is in these circumstances, prima-facie, facts of the case may attract Section 67 and not 67-A of the IT Act."

Moreover, the Court noted that prima-facie, applicant's complicity in the common offence of stalking is evident, which is punishable under Section 354-D of the IPC. However, it is, bailable being, the first offence.

Finally, Justice Shinde concluded that even though the material on record suggests complicity of the applicant in commission of offence under Section 67 of the IT Act, the applicant handed over his cell phone to the Investigating Officer from which device, he had sent messages/images to the complainant.

"Even otherwise prosecution relies on electronic evidence and for the same, the applicant's custodial interrogation is not required. Thus, in consideration of the fact of the case and punishment prescribed for the first offence under Section 67 of the IT Act, which may extend to three years, I am inclined to grant pre-arrest bail to the applicant" Justice Shinde said.

Thus, application was allowed.