ORDER

This is an application filed under Section 482 of the Code of Criminal Procedure seeking to quash Annexure 3 final report in Crime No. 1050/2020 of Kunnathunadu police station. Now the charge sheet has been laid against the petitioner before the Judicial First Class Magistrate Court, Kolenchery alleging offence under Section 67 of the Information Technology Act, hereinafter referred to as the I.T. Act, where the case is pending as C.C. No. 111/2021.

2. I heard the learned counsel for the petitioner.

According to the petitioner, he is the sole accused in the said case. The allegation against him is that on 27.09.2020, at about 7.45 P.M., he had posted a porn video of a naked woman from his Mobile Number 9744408544 to the WhatsApp group, SKB Mazhuvanoor, which was formed by an organisation namely Save Kerala Brigade, knowing the fact that transmitting such lascivious, vulgar photos through electronic media would arose lust in the minds of the people. The crime was registered on the basis of Annexure 1 e-mail complaint sent by the second respondent; after seizing the mobile phone under Annexure 2 seizure mahazar, Annexure 3 final report has been laid. According to him, it is clearly an abuse of the process of law. Even though CWs 1 to 7 including the defacto complainant group admins or group members were examined, they have not stated in tune with Section 67 of the I.T. Act. Their statements only indicate that he had posted a video for the purpose of degrading the goodwill and fame of the group; there is no whisper about lust or lascivious feelings which might have arosed to those who might have seen the video. According to him, in order to attract Section 67 of the I.T. Act, the subject matter should have been lascivious or appeal to the prurient interest or should tend to deprave and corrupt persons who are likely to read, see or hear the matter. Witnesses did not give such a statement. According to the counsel, the petitioner had not done anything intentionally. He had received the said video from the mobile of one Unnikrishnan; on seeing it he tried to delete the obscene video in hurry, as he thought that his wife or children may see the same. But unfortunately, it happened to be sent to the group by mistake. Immediately, thereafter his mobile was switched off due to lack of charge and he became aware of the mistake only on the next day. According to him, even if he is put to trial, in the light of the statement of witnesses, it would be a futile exercise and therefore, the final report is only to be quashed.

3. I heard the learned Senior Public Prosecutor for the first respondent and the learned counsel for the second respondent. Both of them opposed the petition.

4. Admittedly, the petitioner was a member of WhatsApp group, SKB Mazhuvanoor. The said group had about 79 members and had 7 admins including the petitioner. Members of the group consisted of women and children. From the showing of the petitioner itself, it is evident that he had posted a vulgar video of a lady engaging in sexual act, in the group. According to the petitioner, he received it from another group and happened to send it to this group by mistake, he could not delete it immediately as his mobile set had no charge and he had switched off the mobile and knew about the mistake only on the following day. Relying on the statement of witnesses recorded under Section 161 of the Cr.P.C., the learned counsel wanted to convince the Court that these statements do not make out an offence under Section 67 of the I.T. Act and therefore, it will be an idle exercise to try him for the offence. According to the learned counsel, there is nothing lascivious in the statement of the witnesses, that he has no criminal antecedents, that the crime was registered after the second respondent had demanded huge amount from him for settling the matter to which he did not relent.

5. On the other hand, the learned Senior Public Prosecutor has strongly opposed the prayer. According