Allowed

Sivakumar v. The Sub-Inspector of Police

Madras HC18 Apr 2022CRL OP(MD)/1337/2022

Case brief

AI extract

What is this about?

This Criminal Original Petition sought to quash proceedings under Section 67 of the IT Act for allegedly sharing abusive messages about a college. The court quashed the proceedings, finding the messages lacked obscenity and protected speech under Article 19.

What did the court decide?

Impugned proceedings in C.C.No.581 of 2019 were quashed. Connected Miscellaneous Petition was closed.

Sivakumar Vs The Sub-Inspector of Police — Writ and Judicial Review | Madras HC (2022)

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Crl.O.P.(MD)No.1337 of 2022

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 18.04.2022

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CORAM

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THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

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Crl.O.P(MD)No.1337 of 2022 and Crl.M.P(MD)No.977 of 2022

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Sivakumar

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... Petitioner/Accused No.2 Vs.

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The State,

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Represented by The Sub-Inspector of Police, Kulasekaram Police Station, Kanyakumari District.

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(Crime No.207 of 2019) ... 1^st Respondent/Complainant

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Prasad ... 2^nd Respondent/ Defacto Complainant

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Prayer : Criminal Original Petition is filed under Section 482 Cr.P.C., to call for the records relating to the impugned chargesheet in C.C.No.581 of 2019 on the file of the learned Judicial Magistrate II, Padmanaphapuram, and quash the same.

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For Petitioner : Mr.R.Anandharaj For R-1 : Mr.B.Thanga Aravindh Government Advocate (Criminal Side)

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For R-2 : Mr.Ragatheesh Kumar for M/s.Isaac Chambers

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ORDER

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This Criminal Original Petition has been filed to call for the records relating to the impugned chargesheet in C.C.No.581 of 2019 on the file of the learned Judicial Magistrate II, Padmanaphapuram, and quash the same.

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The petitioner submits that the first respondent has registered a case against him in Crime No.207 of 2019 for the alleged offences under Section 67 of the Information Technology Act.

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The case of the prosecution is that the defacto complainant https://hcservices.ecourts.gov.in/hcservices/ is working as an administrative officer in the Sri Mookambigai

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Crl.O.P.(MD)No.1337 of 2022

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Medical College and Hospital, Kulasekaram. The petitioner and the A1 studied in the above said college and passed out in the year of 2018. On 18.07.2019 and 19.07.2019, the petitioner and A1 shared an abusive and dishonor message in facebook about the second respondent's college. Hence, he made this present complaint against the petitioner and A1 and the same was registered by the first respondent in Crime No.207 of 2019. Thereafter, the first respondent conducted the investigation and filed his final report in C.C.No.581 of 2019 before the learned Judicial Magistrate II, Padmanaphapuram.

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Even as per the complaint, the occurrence was happened on 18.07.2019 and 19.07.2019, whereas the complaint was lodged only on 04.09.2021. There is no explanation for the delay in lodgement of complaint. On receipt of the said complaint, the first respondent completed his investigation to file a final report for the charge under Section 67 of the Information Technology Act. Perusal of the entire record reveals that there are number of persons who have sent message to the second respondent College, however, the second respondent lodged complaint only as against the petitioner and another without any legal basis. The first accused has shared the meme in facebook and tagged the petitioner herein with or without his consent. Thereafter, it was deleted. The offence under Section 67 of the Information Technology Act prescribes punishment for the publishing or transmitting obscene material in electronic form. It is also relevant to extract Section 67, of the Information Technology Act which reads as under:

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" Sec 67, Publishing of information which is obscene in

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electronic form .-Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals 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".

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Thus, it is clear that prohibition against the obscenity as contemplated under Section 67 of the Information Technology Act in public interest is violated only when a person publishes or transmits any material which is lascivious or appeals to prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely to read, see or hear the matter contained in those materials. In this case, whereas message allegedly forwarded by the petitioner as follows: https://hcservices.ecourts.gov.in/hcservices/

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Crl.O.P.(MD)No.1337 of 2022

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"A very happy news indeed!!! And now you management guys r going to stand at the office entrance at 8AM and collect fine from students coming at 8:01 to compensate this***".

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The above averments did not indicate any publication of obscene material which is lascivious or appeals to prurient interest. That apart, the Constitution of India under Article 19 has guaranteed the freedom of speech and expression with reasonable restrictions. In view of the above, the impugned proceedings cannot be sustained as against the petitioner and it is liable to be quashed.

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This Criminal Original Petition stands allowed and impugned proceedings in C.C.No.581 of 2019 on the file of the learned Judicial Magistrate II, Padmanaphapuram is hereby quashed. No costs. Consequently, connected Miscellaneous Petition is closed.

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Sd/-

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Assistant Registrar (CS II)

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// True Copy //

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/ /2022 Sub Assistant Registrar(CS)

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btr/aav

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Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

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The Judicial Magistrate II, Padmanaphapuram.

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The Sub-Inspector of Police,

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Kulasekaram Police Station,Kanyakumari District.

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3.The Additional Public Prosecutor,

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Madurai Bench of Madras High Court,Madurai.

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+1 CC to M/s.ISAAC CHAMBERS, Advocate( SR-19425[F] dated 19/04/2022 )

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+1 CC to M/s.S. VISHNUVARDHAN, Advocate ( SR-19469[F] dated 19/04/2022 )

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Crl.O.P(MD)No.1337 of 2022 18.04.2022

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https://hcservices.ecourts.gov.in/hcservices/ MGJ(04.05.2022) 3P 6C

Sivakumar v. The Sub-Inspector of Police

Case brief

What is this about?

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Sivakumar v. The Sub-Inspector of Police

Case brief

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