The main legal point established in the judgment is the distinction between the penal provisions of Section 67 and Section 67-A of the IT Act, and the necessity of material containing sexually explicit acts to attract Section 67-A.

JUDGMENT :

1. Apprehending the arrest in connection with Crime No.580 of 2020 dated 11th June, 2020 for the offence punishable under Section 354-D of the Indian Penal Code, 1860 (“IPC” for short) and Section 67A of the Information Technology Act, 2000 (“IT Act” for short), applicant is seeking pre-arrest bail.

2. Applicant is editor of local weekly Marathi newspaper and social activist. Complainant, a house-wife, a 37 year old lady, had received messages in the form of offending images, revealing overt sexual desire on her Face-Book account, from the cell phone of the applicant. On 13th November, 2018, she had indicated her disinterest. Even thereafter, applicant had sent message like “I love you” to the complainant and link (Short for ‘Hyperlink’) on her facebook. She tapped the link, whole document was containing lascivious material. Soon thereafter, she lodged the complaint whereupon the subject crime has been registered against the applicant under Section 354-D of the IPC and Section 67-A of the IT Act.

3. Applicant was denied pre-arrest protection by the learned Sessions Judge.

4. Section 67-A of the IT Act reads as under:

“67-A. 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.”

Whereas Section 67 of the IT Act reads as under:

“67. Punishment for publishing or transmitting obscene material in electronic form.-- Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.”

5. So far as Section 67 is concerned, before offence thereunder can be said to be complete, publication or transmission of material in the electronic form is essential. If such material; is lascivious or appeal to prurient interest or its effect is such as to tend or deprave or corrupt persons, who are likely, having regard to the all relevant circumstances, to read, see or hear the matter contend or embodied in it. Material in the electronic form could be video files, audio files, text messages, animation, etc. Lascivious means lewd, lustful or feeling and or revealing an overt or offensive sexual desire or which tend to excite lust. As against this, before the offence can be said to be complete under Section 67-A of the IT Act, prosecution must demonstrate or show that accused has published or transmitted material containing sexually explicit act. Explicit means “clear and detail”, with no room for confusion or doubt or when sexual activity is graphically described or represented electronically. When such act is electronically published or transmitted particularly amongst adult, it is punishable under Section 67-A of the IT Act. Expression Explicit means “Stated clearly and precisely and or prescribing or representing sexual activity in direct and detailed way”. Expression “Sexual Activity” is defined in Black’s Law Dictionary as “Physical sexual