IT Act offence for obscene electronic material requires publication: J&K High Court

The Jammu & Kashmir and Ladakh High Court recently observed that merely having electronic devices with obscene photographs - without proof of publication, transmission or technical authentication of such photos - cannot lead to the conviction under Section 67 of the Information Technology (IT) Act [UT of J&K v. Bilal Ahmed Wani]..Justice Sanjay Dhar added that for proving an offence under Section 67, the prosecution must establish that lascivious or obscene material was actually published or transmitted in electronic form."...for proving the offence under Section 67 of the IT Act, it was incumbent upon the prosecution to collect evidence during investigation of the case to show that there has been publication or transmission in electronic form material which is lascivious or appeals to the prurient interest or it has the tendency to deprave and corrupt persons who are likely to read, see or hear the matter contained in it," the Court observed..The Court was dealing with the State's appeal challenging the acquittal of an accused in a rape case. The accused had faced charges under Sections 376-D (gang rape), 509 (word, gesture or act intended to insult the modesty of a woman), 506 (punishment for criminal intimidation), 120-B (punishment of criminal conspiracy) and 201 (causing disappearance of evidence of offence, or giving false information to screen offender) of the Indian Penal Code and Section 67 (punishment for publishing or transmitting obscene material in electronic form) of the IT Act.It was the prosecution's case that the accused raped the victim, video-graphed the act and then circulated it on social media. However, the victim turned hostile during trial. This led to the acquittal of accused under Section 376 (rape) of IPC. The trial court later also ruled that the accused would be deemed to have been acquitted of other charges as well.The prosecutrix herself claimed that she has not been sexually assaulted by any of the accused. She said that she lodged the report only because she was under the impression that a video being circulated was of her..In appeal, the State argued that the trial court erred in truncating the proceedings. It said that even if the rape charge could not be proved, the prosecution ought to have been allowed to lead further evidence to establish the offence under Section 67 of the IT Act..The High Court found that the prosecution had collected only a cell phone and a memory card during the investigation. It added that though the items were sent for forensic examination, the expert stated that video/audio/photo authentication tools were not available in the laboratory."Without authentication of videos/audios/ photos, which were sent to the FSL expert for his opinion, the report rendered by the said expert cannot form basis for conviction of the accused for an offence under the IT Act," the Court said.It also found that the investigating agency had not collected any evidence to show that the photos or videos were published or transmitted."Apart from this, a perusal of the record of the challan would reveal that the investigating agency has not collected evidence to show that the photographs and videos which were seized during the investigation of the case were published or transmitted, nor the investigating agency has collected the material to show that these photographs and videos were transmitted or published through electronic form by way of WhatsApp or Facebook, as has been claimed by the prosecution in the charge sheet. Without any such evidence, the charge for offence under Section 67 IT Act could not have been proved by the prosecution even if the remaining witnesses were allowed to be examined by the trial court," the judge said..Thus, the Court concluded that any conviction under Section 67 of the IT Act in the case would have been legally impossible."Therefore, the learned trial court was right in truncating the proceedings and acquitting the accused," the Court opined, while dismissing State's appeal..Government Advocate Ilyas Laway appeared for the State.Advocate Syed Sajad Geelani appeared for the respondents..[Read Judgment].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.