The absence of corroborative evidence renders prosecution under Sections 201 I.P.C and 67A I.T Act unsustainable.

O R D E R

The accused in C.C No.89/2019 on the files of the Judicial First Class Magistrate Court -III, Thrissur has filed this petition under Section 482 Cr.P.C to quash the proceedings against him in the aforesaid case. The offences alleged against the petitioner are under Sections 201 I.P.C, Section 67A of the Information Technology Act , 2000, and Section 118 (d) of the Kerala Police Act .

2. The prosecution case is that the petitioner, who is a member of a whatsapp group, posted sexually explicit photos in that group on 09.02.2015, causing annoyance to the members of that Whatsapp group, who had the occasion to view the above post. It is alleged that the petitioner, using his Samsung mobile phone, sent through electronic media, the picture of a lady with naked breasts embracing a man, to the whatsapp group, and thus committed the aforesaid offence. It is further alleged that the petitioner had removed the memory card containing the aforesaid pictures from his mobile phone, and thereby caused disappearance of evidence. Thus, the petitioner is alleged to have committed the aforesaid offence.

3. In the present petition, the petitioner would contend that he is totally innocent and that he has been falsely implicated in this case. It is further stated that none of the offences alleged by the prosecution are attracted, in the facts and circumstances of the case.

4. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala.

5. As regards the offence under Section 118 (d) of the K.P Act, the prosecution launched against the petitioner is prima facie unsustainable since the aforesaid Section of the K.P Act has been struck down by the Hon’ble Supreme Court as per the judgment rendered inShreya Singhal v. Union of India [(2015) 5 SCC 1]

6. The following are the requirements to be fulfilled to bring home the offence under Section 67A of the Information Technology Act , 2000:

i) The offender should have published or transmitted or caused the publication or transmission of material containing sexually explicit act or conduct.

ii) Such publication or transmission should be in electronic form.

7. As far as the present case is concerned, the petitioner is alleged to have made publication and transmission of sexually explicit material in electronic form by posting an objectionable picture in a whatsapp group, in which he is a member, making use of his smart phone. The aforesaid smartphone, which belonged to the petitioner, was taken into custody by the Investigating Officer, and sent for analysis at the Forensic Science Laboratory. Annexure-B is the copy of the FSL report dated 29.04.2017, pertaining to the analysis of the mobile phone of the petitioner at the State Forensic Science Laboratory, Thiruvananthapuram. As per the aforesaid report, digital files which exposed the male and female in the standard documents could not be recovered from that mobile phone. Thus, the essential requirement of Section 67A regarding the publication or transmission of sexually explicit act or conduct in electronic form could not be brought out through the scientific evidence which the prosecution proposed to rely on. In such circumstances, it is not possible to say that the final report filed in this case is capable of prima facie showing the commission of offence under of the I.T Act.

8. The offence under Section 201 I.P.C is incorporated in the final report on the basis of the allegation that the petitioner had removed memory card from his mobile phone which contained the objectionable pictures, and thereby caused disappearance of evidence. Apart from a bald allegation in the above regard, there are absolutely no particulars stated in the final report to substantiate the aforesaid accusation. The mere fact that