Point of Law: Section 78 of Information Technology Act, 2000 which reads as power to investigate offences.

ORDER :

Heard Sri Harshawardhan M.Patil, learned counsel for the petitioner, Smt.Girija S.Hiremath, learned High Court Government Pleader for respondent No.1-State and Sri Santosh B.Rawoot, learned counsel for respondent No.2. Perused the records.

2. The present petition is filed under Section 482 of Cr.P.C. with the following prayer :-

"To quash the registration of the FIR and complaint in City CEN Cr. No.21/2019 Belagavi, for the offence punishable u/sec.66E of Information Technology Act, 2000 by the City CEN Police pending on the file of III JMFC Belagavi.”

3. The brief facts of the case are as under :

A complaint came to be lodged by Shayeesta Aga w/o Yusuf Aga with Belagavi CEN Police which was registered in Crime No.21/2019 on 02.10.2019 for the offence punishable U/sec.66E of the Information Technology Act, 2000.

3.1 Gist of the complaint averments reveal that the petitioner herein has opened a fake instagram account in the name of the complainant and posted obscene and obnoxious posts in the said instagram account. On noticing the same, she has lodged a complaint with the police to take action against the petitioner.

3.2 Police after registering the case are investigating the matter. The petitioner has challenged the very registration of the case on the ground that the offence is not cognizable and therefore the investigation agency was required to take recourse to Section 155(2) of Cr.P.C. and so also the Police Sub-Inspector was incompetent to register the case and sought for quashing further proceedings.

4. Per contra, learned High Court Government Pleader supports the filing of the complaint.

5. Sri Santosh B.Rawoot, learned counsel for the defacto complainant also supports the registration of the case.

6. In view of the rival contentions of the parties, this Court perused the material on record meticulously.

7. Section 66E of the Information Technology Act, 2000 reads as under:

"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:

(b) "capture", with respect to an image, means to video tape, photograph, film or record by any means;

(c) "private area" means the naked or undergarment clad genitals, pubic area, buttocks or female breast;

(d) "publishes" means reproduction in the printed or electronic form and making it available for public;

(e) "under circumstances violating privacy" means circumstances in which a person can have a reasonable expectation that-

(i) he or she could disrobe in privacy, without being concerned that an image of his private area was being captured; or

(ii) any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place."

8. The punishment contemplated for the said offence is three years imprisonment or fine or with both. The fact of publishing the fake and obscene and obnoxious content in the fake instagram account of the 2nd respondent defacto complainant is very much clear from the material available on record. Taking note of the fact that there was such post in the instagram account which was not opened by the 2nd respondent complainant, and there is a specific allegation that it is the petitioner who opened the fake instagram account in the name of the 2nd respondent and posted illegal and obnoxious contents in the said post, registration of the case and investigation is very much necessary to unearth the truth in the incident. Given the punishment prescribed for the offence U/sec.66E, it is cognizable in nature. Therefore, first ground on which the peti