Important points:
The alleged publication of the photograph of the 2nd respondent during the time of the inaugural function of the Jewellery is admittedly, by itself cannot be said to be in any manner sexually explicit, as even going by the case of the 2nd respondent it was her photograph and the photographs taken when she was standing in the stage along with the celebrities during the inaugural function of the Jewellery.

ORDER :

The prayer in the afore captioned Criminal Miscellaneous Case filed under Sec.482 of Cr.PC is as follows:-

“.....to quash all proceedings in C.C.No.239 of 2014 on the files of the Judicial First Class Magistrate Court, Muvattupuzha (in pursuance of Annexure A-3, Final Report, in Crime No.1091/2012 of Muvattupuzha Police Station) as against the petitioner/3rd accused, so as to secure the ends of justice.”

2. Heard Smt.V.A.Mini, learned counsel appearing for the petitioner (A3), Sri.K.J.Mohamed Anzar, learner Public Prosecutor appearing for R1 State of Kerala and Smt.T.Y.Laliza, learned counsel appearing for contesting respondent No.2 (lady de facto complainant).

3. The petitioner herein has been arrayed as accused No.3 in the impugned Calendar Case, C.C.No.239/2014 on the file of the Judicial First Class Magistrate Court, Muvattupuzha, which is arisen out of the impugned Anx.A-3 Final report/Charge Sheet filed by the police in Anx.A-2 FIR in Crime No.1091/2012 of Muvattupuzha Police Station for offences punishable under Secs.66(A) and 67(A) of the Information Technology Act, 2000 etc. The 2nd respondent herein is the lady de facto complainant in this case.

4. The gist of the prosecution case as disclosed in the complaint of the 2nd respondent given on 21.11.2012 is that, on 26.08.2009 the inaugural function of a Jewellery is conducted inviting television and cine celebrities and that such celebrities had also attended the function and for seeing the said celebrities in close range and to click their photos on mobile phones, people had gathered there and made rush. Thereafter, a video was uploaded in the YouTube in the months of January and March 2012 with the title “Mallu Aunti Harassed” and “Paravoor Peedanam”. Both videos had a lot of viewers and that the complaint of the 2nd respondent is that, somebody had taken her photographs on the day of the inauguration of her Jewellery, while she was moving with the celebrities in the crowded place and purposefully deleted the photographs of celebrities and they had uploaded her photographs in the YouTube with the said remarks etc.

5. The offences alleged against the petitioner are those punishable under Secs. 66(A) and 67(A) of the Information Technology Act. It is a common ground that, the offence as per Sec.66(A) of the Information Technology Act has already been struck down by the Apex Court in the celebrated judgment in the case in Shreya Singhal V. Union of India [2015 (2) KLT 1 (SC)]. Hence the impugned criminal proceedings to the extent it involves the offence as per Sec.66(A) of the IT Act, which is one among the two alleged offences, is liable for interdiction. The only other remaining offence alleged against the petitioner is the one as per Sec.67 A of the I.T Act, 2000 and it deals with punishment for publishing or transmitting of material containing sexually explicit act etc., in electronic form.

Section 67 A of the IT Act, reads as follows:

“Sec.67A. Punishment for publishing 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 published on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend for ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend for seven years and also with fine which may be extent for ten lakh rupees.”

6. One of the prime ingredients to satisfy the offence as per Sec.67 A of the IT Act, is that the accused person should have published or transmitted or cause to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct, etc. The expression “sexually explicit” ordinarily means a pictorial depiction of actual or simulated sexual acts including sexual intercourse,