2024:BHC-AS:33515-DB IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 3480 OF 2011 WITH INTERIM APPLICATION NO. 2355 OF 2023 IN CRIMINAL WRIT PETITION NO. 3480 OF 2011 Joseph Paul de Sousa, Residing at: B:D/3, “Connaught Mansions”, S.B.S. Road, Opp. Colaba P.O., Upper Colaba, Mumbai – 400 005. …..Petitioner Vs.

1. The State at the instance of:

Crime Branch, CID – Mumbai, Cyber Cell (C.C.I.C.), Police Headquarters, Mumbai – 400 004.

2. Zinnia M. Khajotia, 403, Bakhtavar, S.B. Singh Road, South Colaba, Mumbai – 400 005.

3. The Regional Passport Office, Mumbai, Assistant Passport Officer (Policy), Manish Commercial Centre, 1^st Floor, Dr. A. B. Road, Worli, Mumbai – 400 030. …..Respondents Mr. Haresh Jagtiani, Senior Advocate a/w Mr. Suprabh Jain, Mr. Pushpvijay Kanoji & Mr. Siddhesh Jadhav i/b Haresh Jagtiani & Associates for the Petitioner.

Mr. Vinod Chate, A.P.P. for Respondent No. 1-State.

Mr. Kushal Mor a/w Mr. Tanmay Karmarkar & Mr. Roshan Chouhan for Respondent No. 2.

CORAM: A. S. GADKARI AND DR. NEELA GOKHALE, JJ.

RESERVED ON: 29th JULY 2024.

PRONOUNCED ON: 21st AUGUST 2024.

JUDGMENT ( P er Dr. Neela Gokhale, J. ) :

1) The Petitioner seeks quashing of First Information Report (F.I.R.) No. 30 of 2009 dated 29^th 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, 37^th 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 7^th 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@bom 3 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 9^th February 2009 which contained another sentence “fig leaf of anonymity will be plucked and get you nowhere…”.

3.4) On 22^nd 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 thre