The Inspector of Police has jurisdiction to file a report under the Information Technology Act, and the determination of obscenity is reserved for the Trial Court.

ORDER :

(G. Girish, J.)

The accused in C.C.No.1789/2018 on the files of the Judicial First Class Magistrate Court-II, Cherthala, has filed this petition under Section 482 of the Code of Criminal Procedure, 1973(in short, ‘Cr.P.C.’), to quash the proceedings against him in the said case. The final report in that case was filed by the Inspector of Police, Kuthiyathod, alleging the commission of offence under Section 67 of the Information Technology Act, 2000, and Section 120(O) of the Kerala Police Act, 2010. It is stated that the petitioner posted an obscene Whatsapp message in a group consisting of 240 members with the intention to denigrate the defacto complainant, and thereby caused nuisance.

2. According to the petitioner, the offence under the aforesaid Sections are not attracted even if the final report filed in the case is accepted in totality. It is further contended that the Inspector of Police, Kuthiyathod, was legally incompetent to file a final report in connection with the offences under the Information Technology Act, 2000.

3. Heard the learned counsel for the petitioner, the learned counsel for the third respondent and the learned Public Prosecutor representing the State of Kerala.

4. The learned counsel for the petitioner, by relying on Rajesh v. State of Kerala [2013(4) KHC 169], argued that the investigation in connection with the offences under the Information Technology Act, 2000, has to be conducted by the Cyber Police, and that the final report in connection with such offences has to be filed by the SHO of the Cyber Police Station. The learned counsel for the petitioner would further contend that as per G.O.No.909/2004/Home dated 15.04.2004 Cyber Police Station, Kerala, has been declared as the Police Station having jurisdiction throughout the State of Kerala to investigate any offence committed under the Information Technology Act, 2000. According to the learned counsel for the petitioner, the above G.O. impliedly mean that the jurisdiction of other Police Stations are ousted in connection with the offences under the Information Technology Act, 2000.

5. The argument of the learned counsel for the petitioner in the above regard is prima facie unsustainable in view of the provisions contained under Section 78 of the Information Technology Act, 2000, which confer power on a Police Officer not below the rank of Inspector to investigate offences under the said Act. That apart, the dictum laid down by this Court in Rajesh v. State of Kerala (supra) does not rule that the offences under the Information Technology Act, 2000, could be investigated and chargesheeted only by the Cyber Police Stations constituted under the relevant Government Orders. On the other hand, the ratio in the said decision is that when none of the offences under the Information Technology Act, 2000, are disclosed in investigation, the Investigating Officer associated with the Cyber Police Station should send the case to the Police Station within whose jurisdiction the other offences under the Indian Penal Code, 1860, were found to have been committed. Thus, the argument advanced by the learned counsel for the petitioner against the jurisdictional competence of the Inspector of Police, Kuthiyathod, to file final report relating to the offence under Section 67 of the Information Technology Act, 2000, is totally unsustainable.

6. Another argument advanced by the learned counsel for the petitioner is that the contents of the Whatsapp message allegedly posted by the petitioner cannot be termed as an obscene material coming under the purview of Section 67 of the Information Technology Act, 2000, or nuisance under Section 120(O) of the Kerala Police Act, 2010. It is stated that the contents of the said Whatsapp message cannot be considered as lascivious or appealing to the prurient interests of the persons seeing it, and hence the aforesaid offences are not attracted in the facts and circumstances of this case. As regards the above argument, it has to be