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2007 (4) Crimes 405 (Bom.)
BOMBAY HIGH COURT
C.L. Pangarkar, J.
Rohit Vedpaul Kaushal —Applicant
versus
State of Maharashtra and Ors. —Respondents
Criminal Application No. 1879 of 2007
Decided on 11-9-2007
For the Applicant:Shri K.R. Trivedi, Advocate.
For the Respondent:Shri R.M. Daga & M.P. Khajanchi, Advocates.
IMPORTANT POINT
Sending an SMS vulgar and obscene in nature on mobile phone of another amounts to offence under Section 67 of Information and Technology Act.
Headnote:Information and Technology Act—Section 67—Indian Penal Code, 1860—Section 292—Offence registered by police against applicant accused—Complaint was made by non-applicant No. 3 whose daughter got married to applicant in college against wish and liking of non-applicant—SMS sent by applicant on mobile phone of complainant which were alleged to be obscene—Petition to quash FIR on plea that SMS were meant for wife of applicant and communication between husband and wife was of confidential nature—SMS received on mobile phone of complainant were read by him though it may not have been sent to him—Some of the SMS were vulgar and fell within scope of Section 67 of the Act —It was publication of information which was obscene in electronic form—Act of accused was of criminal nature—No ground to quash FIR. (Paras 5, 6, 8 and 9)
Result: Petition dismissed.
JUDGMENT (ORAL)
C.L. Pangarkar, J.—Rule. Returnable forthwith.
2. Heard finally with consent of parties.
3. This is an application under Section 482 of Criminal Procedure Code seeking to quash F.I.R. registered by the police at Chandrapur.
4. Few facts may be narrated as follows:
Applicant is a student of 1st year MBA at Sikkim Manipal University in Himachal Pradesh. The applicant and non-applicant’s daughter were studying at a school at Barmana together. They fell in love and used to meet each other frequently. They also continuously used to talk with each other on phone. The non-applicant No. 3’s daughter Bhumika later sought admission in Dental College and was studying and staying at Baddi in Himachal Pradesh. She however used to visit the house of the applicant and even used to stay over night regularly. It is alleged that on 5.11.2005 the applicant and the daughter of the non-applicant No. 3 got married. The non-applicant No. 3 came to know of the marriage. He took away his daughter and she is now living with non-applicant No. 3. Since the non-applicant No. 3 was totally against the marriage, he never left any opportunity to harass the applicant. Upon the report submitted by the non-applicant No. 3 police have registered an offence under Section 292 of Indian Penal Code and Section 67 of the Information and Technology Act. It is alleged by non-applicant No. 3 in his report that applicant used to send obscene SMS on his mobile phone. It is this F.I.R. which the applicant seeks to quash.
5. I have heard the learned counsel for the applicant and the non-applicants. It was contended on behalf of the applicant that the SMS were sent to the wife and were not published as such and therefore, there was no offence. It was also contended that it is an exchange of communication between the husband and wife and therefore of a confidential nature. It is not disputed that mobile phone on which messages were sent belongs to non-applicant No.3 i.e. the father of the girl. It may be that the mobile phone may have been used by the daughter of the non-applicant No. 3 at times. Although we may accept that the SMS were sent to a wife they were sent on the mobile phone of the complainant who is a third person. Section 67 of the Information Technology Act reads as follows:
Publishing of information which is obscene in electronic form— Whoever publishes or transmits or causes to be published 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 five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment or either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees.”
Section 67 prohibits publishing of information which is obscene in electronic form. The section even prohibits transmission of such information if it is likely to be read by others. Here the SMS were sent on mobile phone of complainant who was certain to read it although it may not have been sent to him. Let us see the contents of messages sent. They are as follows:
(i) Bhumika se meri bat karwa do I will suicide on front of whole world usne mujse shadi karne lie ...kyun kahu ab bat karunga.
(ii) Main koi pregnancy ki rumor nahin faila raha hune enjoy intercourse. She beded with me without condom. So mujse laga ki may be she is pregnant usne khud kaha tha. Time 7.32 p.m.
(iii) I can proof to do whole world that she beded with me. I have abnormal photograph in kasquli she know that in CD having sex in my bathroom her voi. Time 7.35 p.m.
(iv) Main chota hun she forced me sexual intercourse hua hai do medical of girl abnormal p
