The court ruled that the accused's message did not constitute obscenity under the I.T. Act, thus quashing the charge-sheet and dismissing the case as an abuse of process.

ORAL ORDER

This petition is filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023, seeking to set aside the order of cognizance dated 13.06.2022 and to quash the charge-sheet in C.C.No.12380/2022, arising out of Crime No.139/2021 of Chowk Police Station, Kalaburagi, for the offence punishable under Section 67 of the Information Technology Act, 2008 (for short, ‘the I.T.Act’), pending on the file of III-Addl. Civil Judge and JMFC, Kalaburagi.

2. The abridged facts of the case are that, respondent No.2, lodged a complaint before the 1^st respondent-Police on 13.11.2021 alleging that, the he is resident of Shaikh Roza Dargah, Kalaburagi and his brother-Mohd.Allauddin Junaidi @ Gouse Baba has constructed a N.J.Kalaburagi Kalyana Mantapa near Aland Check Post road, Kalaburagi. For inaugural ceremony of said Kalyana Mantapa, held on 15.11.2021, the brother of respondent No.2 invited Hindu and Muslim religious leaders along with the political leaders.

3. On 13.11.2021 at about 07.00 p.m. when the respondent No.2 and his brother were near the Kalyana Mantapa, he received a whatsapp message in his mobile No.9844787861 from the petitioner. In the said message the petitioner has made defamatory statement, stating that, respondent No.2 and his brother should not have invited Hindu priests for the inauguration, since those Hindu priests treated Muslims very badly and they are born for doing pooja only. It is also stated that, they does not give respect the community who believes in Allah. Hence, the complainant has lodged the complaint against the petitioner before the 1^st respondent-police on 13.11.2021, which was registered in Crime No.139/2021 for the offence punishable under Section 67 of I.T. Act. Thereafter, the 1^st respondent-Police have conducted the investigation and laid charge-sheet against the petitioner for the aforementioned offence. Hence, this petition to quash the proceedings.

4. Heard learned counsel for the petitioners and learned High Court Government Pleader for respondent No.1-State.

5. Learned counsel for the petitioner reiterating the grounds urged in the petition averments contended that, the entire allegation in the complaint was taken on its face value, the offence under Section 67 of I.T.Act does not attract against the petitioner. Hence, he prays to allow the petition.

6. Learned High Court Government Pleader opposed the prayer stating that, now the investigation has been completed and charge-sheet has been laid against the accused. Hence, the proceedings cannot be quashed.

Accordingly, prays to dismiss the petition.

7. I have given my anxious consideration on the submission made by the learned counsel for the respective parties and perused documents available on record.

8. As could be gathered from the complaint averments, it is stated that the complainant has received the whatsapp message on 13.11.2021 at about 07.00 p.m. from the mobile number of the petitioner as under:

“Baba Mujhe ittela mili ke aap uss kam zarf insaan gouse kan kalburgi kaliyaan mandap ki oppning mein jare jo alkal bahut zaleel o khar hogya so hai tamam Gulbarga ki awan uss per lanat bhejre aur thukre mujhe ye sab nahi kehna chaiye per aap mere sarke Taj hai isliye quzarish karrun baba wahan gaye tu appka wiqar kam hota ager kehne mein kuch ghalti hwui ho tu mazirat chahata houn usko ye bhi nai maloom ke sabebun se kasia baat kiya jata un non muslims mein rahe so hai pooja pat maloom usko srif mattu un non muslims k sath he bada how’a hai aur marega bhi un hi k sath pooja pat maloom usko srif allah waloon ka adab lihaz nahi janta un”.

9. On careful examination of the above what