Electronic communications containing obscene content fall under IPC Section 509 and IT Act Section 67, establishing intent and privacy intrusion in cases of defamation and threats.

JUDGMENT :

Neela Gokhale, J.

1. The Petitioner seeks quashing of First Information Report (F.I.R.) No. 30 of 2009 dated 29th December 2009 registered with Cyber Cell, Mumbai for the offense punishable under Sections 354 , 509 & 506(2) of the INDIAN PENAL CODE , 1860 (I.P.C.) and Section 67 of the Information Technology Act, 2000 (I.T. Act). He also seeks to quash and set aside the criminal proceedings arising out of the aforesaid F.I.R. bearing C.C. No. 255/PW/2010 pending before the Court of Metropolitan Magistrate, 37th Court at Esplanade, Mumbai.

2. Mr. Harish Jagtiani learned senior counsel appeared for the Petitioner. Mr. Kushal Mor, learned counsel represented the Respondent No. 2 and Mr. Vinod Chate, learned A.P.P. appeared for the State.

3. The facts of case are as under :

3.1. The Petitioner and the Respondent No. 2-Ms. Zinnia are residents of the building called “Connaught Mansions” situated on the Shahid Bhagat Singh Road, Colaba, Mumbai. They are acquainted with each other since 1980. According to Ms. Zinnia, her mother was the Chairperson of the Co-operative Housing Society since 1942. Since her mother was old and unable to look after the affairs of society, the Petitioner without being elected as such, usurped the office of Chairman and started interfering in the society work despite strong objection from the other residents of the building.

3.2. Ms. Zinnia, the Respondent No. 2 contends that, on 7th February 2009 at 11.00 p.m. she logged in to her e-mail ID zinniamk@gmail.com to find an e-mail from jpdesousa123@rediffmail.com in her inbox. The subject of the e-mail was titled as “Burden of Proof & the Legacy of Guilt”. The recipient e-mail ID was that of the Petitioner herein. The e-mail contained a sentence “frankly, even if you streaked across Mumbai or squatted in the nude on Nandgaon’s Beach, you will never ever get people to pay attention to your opinions and views.” The said e-mail was Carbon Copied (cc’ed) to sharanh14@gmail.com, sehira.ebrahim@amarchand.com, deltascf@bom3 vsnl.net.in. These email- IDs are of other residents in the society. It is the case of Ms. Zinnia that, this e-mail has defamed her in the society.

3.3. She then received another e-mail on 9th February 2009 which contained another sentence “fig leaf of anonymity will be plucked and get you nowhere…”.

3.4. On 22nd March 2009 she received another e-mail from the Petitioner’s e-mail ID which also included a sentence “I am going to win this one and how!!!. Will not be a limited over match – I like to take trouble dressing a corpse – a perfect undertaker they called me”.

3.5. It is the case of Respondent No. 2 that, the language in the entire contents of three e-mails, including the three sentences, is of such obscene, vulgar and of overtly sexual nature that outrages her modesty. By way of the e-mails, he has also threatened to kill her. Ms. Zinnia therefore made a written Complaint dated 7th August 2009 to the Cyber Crime Investigation Cell (C.C.I.C.), Crime Branch, Mumbai. Pursuant to a preliminary enquiry, the present F.I.R. is registered.

4. By Order dated 2nd February 2012, the proceedings before the trial Court were directed to be stayed.

5. At the outset, Mr. Jagtiani, learned senior counsel took us through the ingredients of the offenses as alleged against the Petitioner. He submitted that, the contents of the alleged offensive e-mails may perhaps be in bad taste but do not by any stretch of imagination fall within the scope and ambit of the alleged offenses. On this ground alone, the criminal proceedings deserve to be quashed and set aside. He then advanced his objections to