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IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD25 CRIMINAL APPLICATION NO.2891 OF 2021Shaikh Zakir s/o Shaikh Sagir,Age 34 yrs., Occ RTI Activist,R/o Barkatpura, Ardhapur,Tq. Ardhapur, Dist. Nanded. … Applicant… Versus …1The State of MaharashtraThrough Police Inspector,Police Station, Vazirabad,Nanded, Tq. & Dist. Nanded. 2Ramprasad Shrikishanji Khandelwal,Age 60 yrs., Occ. Press Reporter,R/o First Floor, Khandelwal Plaza,Vazirabad, Nanded, Tq. & Dist. Nanded. … Respondents...Mr. S.S. Kazi, Advocate for applicantMr. G.A. Kulkarni, APP for respondent No.1Mr. M.A. Granthi and Mr. V.D. Karande, Advocates for respondent No.2...CORAM :SMT. VIBHA KANKANWADI &SANJAY A. DESHMUKH, JJ.DATE :03rd MARCH, 2025 225_Cri.Appln_2891_2021ORDER :( PER : SMT. VIBHA KANKANWADI, J. )1Present application has been filed under Section 482 of the Codeof Criminal Procedure initially for quashing First Information Report videCrime No.320/2021 dated 14.09.2021 registered with Police Station,Vazirabad, Nanded, later on by way of amendment for quashing Charge Sheetbearing No.54/2022 dated 04.04.2022, for the offence punishable underSection 501 of the Indian Penal Code, 1860 and under Section 67 of theInformation Technology (Amendments) Act, 2008. 2Heard learned Advocate Mr. S.S. Kazi for applicant, learned APPMr. G.A. Kulkarni for respondent No.1 and learned Advocate Mr. M.A.Granthi for respondent No.2. 3Learned Advocate for applicant submits that respondent No.2 –informant is a News Correspondent and has stated in First InformationReport that present applicant is running a bogus institution under the nameand style “Mahiti Adhikar Sanrakshan Samiti”. When the newspaper ofrespondent No.2 had started to give certain news since 15 days prior to FirstInformation Report dated 14.09.2021, applicant got annoyed and he kept apicture on his WhatsApp status which was defamatory against respondentNo.2. Initially respondent No.2 had not paid attention, but again on 325_Cri.Appln_2891_202113.09.2021 he used word ‘dq=k’ (dog) against respondent No.2 and publishedthe said status. Even one Editor of ‘Nanded Chaufer’ forwarded him twostatus photographs at about 04.04 hours on 14.09.2021. Those were alsopublished from the mobile number of applicant, wherein it was stated, “[kaM;kdks.kh iq<s ;sr ulsy rj rq ;s dh] fryk ikBoy tkobZ vkgs eh rq>k- vc esjs lljsdh ckjh gSjkeizlkn [kaM;k dh” and informant says that said status was obscene and,therefore, the offence came to be registered. Even if we take contents of FirstInformation Report and statements supporting it as it is; yet, certainly,offence under Section 67 of the Information Technology Act cannot be said tobe attracted. For Section 501 of the Indian Penal Code, there has to be aprivate complaint, as there is bar under Section 199 of the Code of CriminalProcedure. Therefore, in order to maintain a cognizable offence, prosecutionwill have to prove ingredients of Section 67 of the Information TechnologyAct. Further, this Court in Pramod Udeybhan Shendre vs. The State ofMaharashtra and another in Criminal Application (APL) No.1077 of 2023with companion matter decided on 24.07.2024, to which [SMT. VIBHAKANKANWADI, J.] was party, has held that the WhatsApp messages are endto end encrypted and, therefore, unless it is forwarded by someone, the thirdparty will not come to know about it. Here, also when informant says that hereceived the said status from the Editor of Nanded Chaufer, the forwardingperson also would then should be held responsible. Whatever the status was 425_Cri.Appln_2891_2021published, cannot be said to be obscene at all and, therefore, it would be anabuse of process of law to ask the applicant to face the trial. 4Per contra, learned APP and learned Advocate for respondentNo.2 strongly opposed application and submitted that by keeping the statusapplicant had allowed every person who was in his contact list to see thestatus, which would then definitely amount to defamation. Further, asregards obscene is concerned, learned APP relies on the decision in AveekSarkar and another vs. State of West Bengal and others [(2014) 4 SCC 257],wherein the age old practice of determining ‘what is obscenity’ test based onR. vs. Hicklin [(1868) LR 3 QB 360] was disapproved. Note was taken of thedecision by Constitution Bench in Ranjit D. Udeshi vs. State of Maharashtra[AIR 1965 SC 881] indicating that the consent of obscenity would changewith the passage of time and what might have been ‘obscene’ at one point oftime would not be considered as obscene at a later period. It was then heldthat - “Section 292 of the Penal Code uses word expression “lascivious andprurient interests” or its effect. Later, it has also been indicated in thesaid section of the applicability of the effect and the necessity oftaking the items as a whole and on that foundation where such itemswould tend to deprave a corrupt persons who are likely, having regardto all the relevant circumstances, to read, see or hear the matter 525_Cri.Appln_2891_2021contained or embodied in it. We have, therefore, to apply the“community standard test” rather than the R vs. Hicklin (supra) todetermine what is “obscenity”. A bare reading of sub-section (1) ofSection 292, makes clear that a picture or article shall be deemed tobe obscene (i) if it is lascivious; (ii) it appeals to the prurient interest;and (iii) it tends to deprave and corrupt persons who are likely toread, see or hear the matter, alleged to be obscene.Once the matter is found to be obscene, the question may ariseas to whether the impugned matter falls within any of the exceptionscontained in section. A picture of a nude/semi-nude woman, as such,cannot per se be called obscene unless it has the tendency to arousefeeling of or revealing an overt sexual desire. The picture should besuggestive of deprave mind and designed to excite sexual passion inpersons who are likely to see it, which will depend on the particularposture and the background in which the nude/semi-nude woman isdepicted. Only those sex-related materials which have a tendency of“exciting lustful thoughts” can be held to be obscene, but theobscenity has to be judged from the point of view of an averageperson, by applying contemporary community standards.”Learned APP, therefore, submits that trial Court would decidewhether the said status is obscene or not. 5At the outset, we would say that in view of Section 199 of theCode of Criminal Procedure there could not have been a First InformationReport for the offence under Section 501 of the Indian Penal Code. Thereshould have been the private complaint only, but, here, the prosecution has 625_Cri.Appln_2891_2021come with a case that First Information Report attracts Section 67 of theInformation Technology Act and, therefore, we would like to reproduce thesame for better discussion further. Here, in Section 67 of the InformationTechnology Act also the words “lascivious or appeals to the prurient interestor its effect is such as to tend to deprave and corrupt persons who are likely……………………………..” which are similar to Section 292 of Penal Codeare there. Now, the simple difference is Section 292 of the Penal Code wouldbe applicable to other mode of publishing or transmitting and Section 67 ofthe Information Technology Act will come when the message or any materialis published or transmitted etc. in electronic form. But the basic test is thesame to arrive at a conclusion whether the material is obscene. It is notalways to be left to the trial Court as to whether the ingredients of theoffence attracted or not, but when the investigation is complete and chargesheet is filed, then this Court is duty bound to consider the material in thecharge sheet. Therefore, unless it is shown that First Information Report aswell as the material in charge sheet is disclosing prima facie offence underSection 67 of the Information Technology Act, First Information Report wasnot maintainable and consequently if it is held that First Information Reportis not maintainable, then applicant cannot be asked to face the trial. 6The first photograph of status would show that a person whose 725_Cri.Appln_2891_2021face is hidden is holding three dogs with the rope in their neck and it isstated, “tks esjh cqjkbZ djrs fQj jgs gS] eSus muds tSls cgqr iky j[ks gS !” (I have keptmany followers like those who have been defaming me.) This cannot beobscene per se. Then below it, it is also written “vkfjQ nyky vkSj jkeizlkn tSlsdqRrs”. This might be defamatory, but, certainly, not obscene. The secondstatus is, “[kaM;k dks.kh iq<s ;sr ulsy rj rq ;s dh] fryk ikBoy tkobZ vkgs eh rq>k- vcesjs lljsdh ckjh gS jkeizlkn [kaM;k dh”. Both these status or part of same statusare also cannot be said to be obscene and will not come within the ratio ofAveek Sarkar (supra). Even if we apply the community standard test, itcannot be said that those posts on the status were obscene, but at the mostthose may be defamatory. Further, reliance has been placed by learnedAdvocate for applicant on the decision in Apoorva Arora and another etc. vs.State (Govt. of NCT of Delhi) and another [AIR 2024 SC 1775], wherein it isobserved even after taking decision in Aveek Sarkar (supra) it was held that -“The posture and the background of the woman posing with herfiancée, whose photograph was taken by her father, does not have thetendency to deprave or corrupt those in whose hands the magazinewould fall when considered in light of broader social message of thepicture against apartheid, racism, and to promote love and marriageacross race.”It has been observed that - 825_Cri.Appln_2891_2021“At the outset, the enquiry under Section 292 of the IPC or underSection 67 of the IT Act does not hinge on whether the language orwords are decent, or whether they are commonly used in the country.Rather, from the plain language of the provision, the inquiry is todetermine whether the content is lascivious, appeals to prurientinterests, or tends to deprave and corrupt the minds of those in whosehands it is likely to fall.”7If the abuses those were given or the defamatory words those areused are to be considered as ‘obscene’, then there will not be a distinctionbetween various sections or offences, which are now appearing with finedefinition like 294, 506, 292 of the Indian Penal Code (296, 351(2)/(3), 294of Bharatiya Nyaya Sanhita) and Section 67 of the Information TechnologyAct. Here, it appears that the dispute was raised by certain persons whensome wrong and defamatory news was said to have been published from theprint media of respondent No.2. Applicant has produced many cognizableoffences as well as non cognizable offences registered against informant andthen it is stated that applicant is running a bogus institution and somedefamatory articles were stated to have been written by informant. Thus,there was background for the post and at the most, it could have beendefamatory, but for the aforesaid reason there was bar under Section 199 ofthe Code of Criminal Procedure. It appears that Section 67 of theInformation Technology Act which is cognizable was invoked just to have the 925_Cri.Appln_2891_2021registration of First Information Report. Since no cognizable offence istranspiring, it would be abuse of process of law to ask the applicant to facethe trial. Hence, following order. ORDERi)Criminal Application stands allowed. ii)The Charge Sheet bearing No.54/2022 dated 04.04.2022 i.e.proceedings in Summary Criminal Case No.717/2022 pending before learnedJudicial Magistrate First Class, Nanded, arising out of First InformationReport vide Crime No.320/2021 dated 14.09.2021 registered with PoliceStation, Vazirabad, Nanded, for the offence punishable under Section 501 ofthe Indian Penal Code, 1860 and under Section 67 of the InformationTechnology (Amendments) Act, 2008, stands quashed and set aside asagainst applicant Shaikh Zakir s/o Shaikh Sagir. ( SANJAY A. DESHMUKH, J. )( SMT. VIBHA KANKANWADI, J. )agd