67. Publishing of information which is obscene in electronic form. –
Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeal to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees.
It was, therefore, alleged that by sending the said mail, serious offences have been committed which should be inquired into. Investigation was carried out and ultimately investigating agency was of the opinion that petitioner had send the said mail. Charge-sheet was filed, therefore, for offences punishable under Section 507 of Indian Penal Code andSection 67 of The Information Technology Act, 2000. Petitioner filed an application Exh.8 dated 19th August 2007 in said Criminal Case No.2908/2003 contending inter-alia that no case is made out against the petitioner. Both charges should, therefore, be dropped. This application Exh.8 came to be turned down by the learned 8th Additional Senior Civil Judge & JMFC, Ahmedabad (Rural) observing inter-alia that looking to the nature
of the complaint I have already briefly noted. As per the investigating agency, the petitioner had sent the above referred e-mail containing certain offending materials. Question is, even accepting the allegations of the investigating agency as true, whether offence under Section 67 ofInformation Technology Act can be stated to have been made out. Section 67 ofInformation Technology Act reads as follows:
International Dictionary (Unabridged), word ‘lascivious’ is explained as inclined to lechery or tending to arouse sexual desire. 7. It can thus be seen that under Section 67 of theInformation Technology Act, what is sought to be punished as publication or transmission of materials that is obscene in nature so as to be lascivious or which tends to deprave and corrupt persons who are likely to have access to the same. 8. Nothing in the said e-mail can be stated to be obscene or such material as can be categorized as lascivious or such which would deprave or corrupt person’s mind who may have access to such mail. Ex-facie offence under section 67 is, therefore, not made out.
Gujrat High Court.
Mohammed vs State
Decided on 22 February, 2010