Bombay High Court

6 August 2013

Manoj Oswal
v
State of Maharashtra and another
Case No : Criminal W.P. No. 314 of 2012
Bench : S. C. DHARMADHIKARI, S. B. Shukre
Citation : 2013 Indlaw MUM 973
Summary : Criminal - Indian Penal Code, 1860, s.500 - Information
Technology Act, 2000, s.66 - Disclosure of commission of offence Defamatory statements - Quashing of complaint - Complaint alleged that
when programme was going on, petitioner intending to obstruct same and
petitioner was speaking defamatory language to those present in
audience - First Information Report made out against petitioner - CR was
registered against petitioner with Cyber Crime Cell, Crime Branch alleging
offences punishable u/s.500 of IPC and s.66-A of the Act - Hence, instant
Petition.
Held, petitioner entered hall and with a view to disrupt the function, by
pushing some guests, started distributing pamphlets containing
defamatory statements. The title of that pamphlet has been reproduced in
the statement of General Manager. Website has also been referred and
therefore, allegations are that contents of this website defamed director
and Company. Even contents of website affirmed this position. Website on
which information is stored was accessed in this case by the aggrieved
Complainant. There is no material which would vitiate registration of First
Information Report in this case nor can it be said to be lacking in
particulars or vague, cannot be invoked by the petitioner. Petitioner
cannot request to interfere in our jurisdiction merely because in his
opinion FIR is delayed. It is plea which petitioner can raise at appropriate
stage and during the trial. FIR alleges commission of offence punishable
u/s.500 of the IPC as well. No request as made can be granted. Petition
dismissed.
Ratio - Complaint made against person shall not be quashed, for
allegations in complaint to be proved beyond reasonable doubt will
depend upon evidence led by parties.
The Judgment was delivered by : S. C. Dharmadhikari, J.

1. RULE.
2. The Respondents waive service. By consent of parties, heard
forthwith.
3. By this Writ Petition u/art. 226 of the Constitution of India r/w S.
482 of the Code of Criminal Procedure, 1973, the Petitioner is seeking
quashing of CR No.3212/2011 registered with the Cyber Crime Cell,
Crime Branch, Pune alleging offences punishable u/s. 500 of the
Indian Penal Code and Section 66-A of the Information Technology
Act, 2000.
4. The complaint alleges that one Prataprao Govindrao Pawar is
Chairman of M/s Sakal Papers Private Limited. This Company is
incorporated and registered under the Indian Companies Act, 1956. It
is engaged in the business of printing and publishing news papers in
the States of Maharashtra and Goa. The Company has also Website,
therefore, publications have wide circulation throughout India and
abroad. One Abhijeet Prataprao Pawar is Director on the Board of
Directors of the said Company. One Leelatai Parulekar is also a
Director and she is daughter of the founder of the said Company,
namely, late Dr.Nanasaheb Parulekar.
5. It is alleged that there was function organized on 20.09.2011 to
celebrate 114th Birth Anniversary of Dr.Nanasaheb Parulekar. That
programme was organized at Balgandharva Rangmandir, Pune at
06:00 PM in the evening. The function was attended by high
dignitaries and Mr.Prataprao Pawar was also personally present. When
that programme was going on, a person i.e. the Petitioner, intending
to obstruct the same and to create chaos and confusion, entered the
hall although he was not an invitee. He was distributing some
pamphlets. He had entered the hall after pushing several persons. The
pamphlets contain the defamatory material against the said Prataprao
Pawar. The Petitioner was also seen speaking in defamatory language
to those present in the audience. One such pamphlet was given to the
employee of the said Company, namely, Dhananjay Divakar. The said
Dhananjay Divakar also saw the Petitioner in the hall and at that time,
the Complainant Mr.Mahendra Pisal, General Manager of the Company,
was shown this pamphlet. On reading it, he found that it contains
defamatory statements and also refers to websites, namely,
www.savelila.com and www.jeevraksha.org. The Petitioner was calling
upon the people in the audience to view these websites.
6. On accessing those websites, the Complainant noticed that they
contained several defamatory statements and material against
Prataprao Pawar and whole purpose was to defame him. Thus, these
are the statements made by the Petitioner and some of his associates,
although these persons have no connection with the said Company or
the said Leelatai Parulekar or her social work. The statements were
made to malign and defame Prataprao Pawar. For all these reasons, it
was alleged that they have committed the offences punishable under

the aforementioned provisions.

7. In this Writ Petition, the Petitioner has alleged that he is a spirited
individual working for the betterment of animals and is also the
founder of the Pune Unit of People for Animals. He is also an Animal
Welfare Officer (Hon) with the Animal Welfare Board of India (for
short "AWBI") under the Ministry of Environment and Forests. He has
also been appointed as an Animal Welfare Officer (Hon) by the
Bombay High Court Committee for monitoring of Animal Welfare Laws
in the State of Maharashtra. He also runs a helpline for animals that
rescues around 1200 animals a year.
8. It is alleged that the Information Technology Act, 2000 was
deliberately used purely to convert a non cognizable offence into a
cognizable one. The Petitioner believes that though there was no case
against him under the Information Technology Act, 2000, he was
framed under pressure/ influence of politically well connected person
to firstly get the Petitioner arrested and tortured in police custody and
to harass him further if needed. It is alleged that all this was with an
intention to force the Petitioner to withdraw the criminal cases against
the said Prataprao Pawar and his men.
It is stated that a plain reading of the First Information Report makes
it clear that no case is made out against the Petitioner. The First
Information Report does not say that the Petitioner was harassing
anyone. He did not send any menacing or threatening messages nor
that any content of the websites was obtained through illegitimate
means. The only complaint being repeated is that his "Saheb" was
defamed by the actions of the Petitioner.
9. It is stated that the Petitioner is an Animal Welfare Officer
appointed by the Animal Welfare Board of India as well as the Bombay
High Court Committee for Animal Welfare. The Petitioner is extremely
concerned and frustrated over the situation of animals in the shelter
by name "Jeevraksha". It is alleged that Claude Lila Parulekar, the
owner of the shelter that has over 200-300 animals, is now
completely helpless. She is physically disabled and cannot even lift
her head on her own and her two limbs are paralyzed and one limb is
fractured. She is mentally inconsistent due to severe dementia and
other ailments of the brain and nervous system. The said Lila
Parulekar has no relatives and therefore, a politically well connected
person is trying to grab her land. It is claimed that the Petitioner is
fighting against this illegality.
10. It is alleged that the Petitioner is, therefore, facing harassment by
Police and anti-social elements since last one and a half year to
withdraw from the issue. The false and frivolous complaints were filed
against the Petitioner with the Animal Welfare Board of India and the
Bombay High Court Animal Welfare Committee to get him
derecognized as an Animal Welfare Officer. It is stated that after
facing enquiry from Animal Welfare Board of India, the Petitioner was

found to have been framed and the so-called Complainants said that
their signatures/ letterheads have been forged. A second set of
complaints was filed in the name of Lila Parulekar with the AWBI in
the month of September and the AWBI after perusal of medical
records, found that Lila Parulekar was not in sound disposing mind.
11. It is alleged that the Complainant, in this case, at an earlier
occasion has used the similar modus operandi to force an opponent
named Chandrashekhar Hari Joshi to withdraw all cases filed by him
against Prataprao Pawar and his Company. In that particular case,
merely on the grounds that Mr.Chandrashekhar Hari Joshi had
reimbursed his credit card expenses from Lila Trust, he was in police
custody for 7 days and after which he withdrew all cases in the
Company Law Board, District Court, High Court and resigned from all
Trusts and flew out of India for an indefinite period. Subsequently, the
Police were unable to find any evidence and the case was closed.
12. It is alleged that the Petitioner has been fighting for the rights of
animals since last 14 years and also a friend of Claude Lila Parulekar,
who is currently under house arrest and under illegal custody of
Prataprao Pawar. The Petitioner tried to raise awareness on the plight
of animals and Lila Parulekar through a website www.jeevraksha.org
which was made together by a group of Lila's friends and animal
lovers called Jeevraksha Support Group. The Petitioner also spread
the message through leaflet and email so that Lila and her animals
can get justice. It is claimed that the Petitioner also peacefully went
to the said function held to celebrate the Birth Centenary of
Dr.Nanasaheb Parulekar, father of Lila Parulekar. The Petitioner
explained people about condition of Lila and how she is being
neglected and her property is being usurped. The Petitioner has
annexed the copies of websites at Annexure-B. The Petitioner has also
referred to the notice issued to him on behalf of Prataprao Pawar. A
copy of notice is at Annexure-C and reply thereto is at Annexure-D to
the Writ Petition.
13. In paragraphs 10 and 11 of this Writ Petition, this is what is
alleged:"10. Prataprao Govind Pawar found it humiliating that people are
being made aware of the pitiable condition of Lila Parulekar who is the
only daughter of Nanasaheb Parulekar under whose name he runs
several trusts and institutions. He also found it difficult to answer
before public as to why is this lady in neglect and not being allowed
to meet her own friends and well wishers. The accused therefore put
to task an entire machinery to avenge this humiliation and also to
remove him from his way for grabbing land owned by Lila Parulekar
and Jeevraksha.
11. It is also notable that the Complainant Pratap Govindrao Pawar
and Sakal Papers Limited appears to have extreme domination over
the Police Department. The Hon'ble High Court issued orders for

proper care of animals at Lila Parulekar's shelter on 02.12.2011,

however, the guards of Sakal Papers still did not allow volunteers
inside the bungalow. The Division Bench of Hon'ble Chief Justice and
Justice R.S.Dalvi, perturbed by blatant misuse of muscle power,
directed the Commissioner of Police, Pune to provide protection to
activists. Despite the specific order to the Commissioner of Police,
Pune the Police are reluctant to act and even now animals are not
being allowed to be cared for as per orders of the High Court. This
amply illustrates what kind of respect the Complainant has kind of
clout it has over the Police Department."
14. After alleging as above and complaining that the Petitioner was
denied bail on unjustified grounds and put under arrest, what has
been then alleged is that it is the Petitioner who has been defamed
and publicly.
15. For the above reasons, what is then alleged is that a perusal of
the First Information Report would not disclose commission of any
cognizable offence. The Information Technology Act, 2000 has been
deliberately referred to purely to convert a non cognizable offence
into a cognizable one. Though there was no case under the
Information Technology Act, 2000, the Petitioner has been framed
under pressure or influence of politically well connected persons.
16. It is then stated that the website does not disclose any menacing
or offensive material. It is contended that the word "menace" means
threat, danger and nuisance, but nothing of that sort is emerging
from contents of the website. In these circumstances, the First
Information Report deserves to be quashed.
17. In support of this Writ Petition, Mr.Mor, learned counsel appearing
for the Petitioner, submits that the complaint does not disclose
commission of any offence. The allegations in the First Information
Report are vague. The essential ingredients of the offences have not
been referred to leave alone alleged. There is enormous delay in
registering the First Information Report. The entire action is vitiated
by malafides because the Petitioner is stated to have defamed a
highly influential person. The person concerned is Prataprao Pawar,
Chairman of M/s Sakal Papers Private Limited. He is a powerful person
and has thus managed to get the First Information Report registered
although a bare reading of sections which have been invoked, would
indicate that the Information Technology Act, 2000 could not have
been invoked. There are no particulars regarding which statement
attributable to the Petitioner and appearing on the website or leaflet,
is defamatory or has caused nuisance, annoyance, etc..
Further, the word "publication" is not appearing in Section 66-A of the
Information Technology Act, 2000. That word is specifically to be
found in S. 67 and therefore, whenever the Legislature desires to
make publication or act of publishing any offensive or obscene
material as an offence, it has specifically said so. In that behalf, our

attention is invited to Sections 66-E, 67, 67-A and 67-B of the

Information Technology Act, 2000. For these reasons, it is submitted
that the complaint does not disclose commission of any offence
punishable under the Information Technology Act, 2000 and
therefore, the First Information Report be quashed to this extent.
18. Lastly, it was urged that the statement not of the person allegedly
defamed is recorded, but that of an employee of M/s Sakal Papers
Private Limited. In these circumstances, this Writ Petition be allowed
and the First Information Report to the extent prayed be quashed.
19. On the other hand, the learned APP submits that the First
Information Report discloses commission of offences as alleged and
therefore, the Writ Petition be dismissed. Her arguments are
supported by the Complainant's Advocate as well.
20. For properly appreciating the rival contentions, a reference to the
allegations in the First Information Report would be necessary. The
gist of these allegations have been already referred by us. Suffice it to
state that the Petitioner is accused of entering the Auditorium where
the function was scheduled and on 20.09.2011. At that time, it is
alleged that the Petitioner entered the hall and with a view to disrupt
the function, by pushing some guests, started distributing pamphlets
containing defamatory statements. The title of that pamphlet has
been reproduced in the statement of the General Manager
Mr.Mahendra Pisal. The website has also been referred and therefore,
the allegations are that the contents of this website defamed the said
Prataprao Pawar and Sakal Papers Private Limited. It is alleged that
this is the sole motive of distributing the pamphlets and containing
defamatory statements. Even the contents of website affirmed this
position. The said contents and of website www.jeevraksha.org have
been set out at Annexure-B page 21 and what one finds is that they
indicate, prima facie, as to how there were disputes between
Parulekars and Pawars. It has also been set out as to how the Pawar
Group filed the complaint. It is in these circumstances that one finds
that the Petitioner would urge that this act, though, prima facie, may
come within the purview of Ss. 499 and 500 of the Indian Penal Code,
cannot be said to be falling within and covered by the relevant
provisions of the Information Technology Act, 2000.
21. We have been taken through the contents of other website which
is entitled www.savelila.com. We have also been taken through the
annexures of this Writ Petition.
22. The provisions which have been invoked, insofar as the
Information Technology Act, 2000 is concerned, are Sections 66-A and
67 which read as under:"66-A. Punishment for sending
communication service, etc.:-

offensive

messages

through

Any person who sends, by means of a computer resource or a

communication device-(a) any information that is grossly offensive or has menacing

character; or
(b) any information which he knows to be false, but for the purpose
of causing annoyance, inconvenience, danger, obstruction, insult,
injury, criminal intimidation, enmity, hatred or ill will, persistently by
making use of such computer resource or a communication device; or
(c) any electronic mail or electronic mail message for the purpose of
causing annoyance or inconvenience or to deceive or to mislead the
addressee or recipient about the origin of such messages, shall be
punishable with imprisonment for a term which may extend to three
years and with fine.
Explanation:- For the purpose of this section, terms "electronic mail"
and "electronic mail message" means a message or information
created or transmitted or received on a computer, computer system,
computer resource or communication device including attachments in
text, image, audio, video and any other electronic record, which may
be transmitted with the message."
"67. Punishment for publishing or transmitting obscene material in
electronic form.:Whoever publishes or transmits or causes to be published or
transmitted 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
three years and with fine which may extend to five lakh rupees and in
the event of second or subsequent conviction with imprisonment of
either description for a term which may extend to five years and also
with fine which may extend to ten lakh rupees."
23. The argument of the Petitioner's Advocate is that the First
Information Report does not disclose any offence. The Information
Technology Act, 2000 is added merely to register the First Information
Report because the allegations essentially are of defamation. The
Petitioner is reserving his rights to urge that no offence punishable
under Ss. 499 and 500 of the Indian Penal Code is committed. That
right will be exercised by him at appropriate stage before the Trial
Court. However, the Information Technology Act, 2000 itself and
provisions in question could not have been invoked particularly
because website is not covered within the subject provision.
24. In this behalf, a perusal of Section 66-A and which has been
invoked in this case, would make it clear that same provides for
punishment for sending offensive messages through communication
service etc.. Any person who sends by means of a computer resource

or a communication device and in this case, any information which he

knows to be false, but for the purpose of causing annoyance,
inconvenience, danger, obstruction, insult, injury, etc. persistently by
making use of such computer resource or a communication device,
shall be punished. The explanation to the same would make it clear
that what is punishable with imprisonment for a term which may
extend to three years and with fine, is an act of sending, by means of
a computer resource or a communication device, any information
which the person knows to be false and he sends such information
persistently by making use of such computer resource or
communication device for the purpose of causing annoyance,
inconvenience,
danger,
obstruction,
insult,
injury,
criminal
intimidation, enmity, hatred or ill-will.
The terms "electronic mail" and "electronic mail message" have been
defined to mean a message or information created or transmitted or
received on a computer, computer system, computer resource or
communication device including attachments in text, images, audio,
video and any other electronic record, which may be transmitted with
the message.
25. It is, therefore, common knowledge that these terms would not
have been defined in the explanation, had the intent of the legislature
been not to include within the purview of this provision the sending of
any information through website. In this behalf, the definition of the
term "information" in S. 2(1)(v) is to be read along with the terms
communication device, computer, computer network, computer
resource, computer system which definitions are to be found in the
very Section
2(1). It would be apparent that sending offensive messages through
communication service would include computer or website and that is
implicit therein. The word "data" as defined in S. 2(1)(o) and other
definitions referred to above, read thus:S. 2(1) :"(ha). "communication device" means cell phones, personal digital
assistance or combination of both or any other device used to
communicate, send or transmit any text, video, audio or image."
"(i) "computer" means any electronic, magnetic, optical or other highspeed data processing device or system which performs logical,
arithmetic and memory functions by manipulations of electronic,
magnetic or optical impulses, and includes all input, output,
processing, storage, computer software or communication facilities
which are connected or related to the computer in a computer system
or computer network."
"(j) "computer network" means the inter-connection of one or more
computers or computer systems or communication device through-(i) the use of satellite, microwave, terrestrial line, wire, wireless or

other communication media; and

(ii) terminals or a complex consisting of two or more inter-connected
computers or communication device whether or not the interconnection is continuously maintained."
"(k) "computer resource" means computer, computer
computer network, data, computer data base or software."

system,

"(l) "computer system" means a device or collection of devices,

including input and output support devices and excluding calculators
which are not programmable and capable of being used in conjunction
with external files which contain computer programmes, electronic
instructions, input data and output data that performs logic,
arithmetic, data storage and retrieval, communication control and
other functions."
"(o) "data" means a representation of information, knowledge, facts,
concepts or instructions which are being prepared or have been
prepared in a formalised manner, and is intended to be processed, is
being processed or has been processed in a computer system or
computer network, and may be in any form (including computer
printouts magnetic or optical storage media, punched cards, punched
tapes) or stored internally in the memory of the computer."
"(v) "information" includes data, message, text, images, sound,
voice, codes, computer programmes, software and data bases or
micro film or computer generated micro fiche."
26. A perusal of all these definitions would indicate that had the
Legislature intended to leave out or exclude "website", that would
have been by specific provision. If the intent is not to bring within the
net or purview of punishing or penal provision, an act of sending, by
means of a computer resource or a communication device, the grossly
offensive or menacing information or false information for the purpose
of causing annoyance, inconvenience, danger, obstruction, insult,
injury, etc., then, the Legislature would not have included cl. (c) in
Section 66-A.
27. However, the argument before us is that the explanation below
Section 66-A is applicable to cl. (c) and not the earlier clauses.
However, that argument is fallacious for the simple reason that
sending any information of the above nature, by means of a computer
resource or a communication device, is pertaining to data, text,
images, audio, video, etc. and therefore, relatable to S. 2(1)(v),
whereas, any person sending any electronic mail or electronic mail
message, by means of a computer resource of a communication
device, has also to be included and therefore, when such an act of a
person is also included within the penal provision, then, the definition
of the terms "email" and "email message" was required to be
incorporated and was thus, incorporated for completeness. That does
not mean that sending information by website alone is included. If

any mail or message in electronic form has not been sent through a
computer resource or a communication device, then, that is out of the
purview of the penal provision.
On the other hand, the provision refers to both computer resource, so
also, communication device inasmuch as it is not that merely a
computer resource and sending something of the above nature by
that means alone is punishable. Any communication device utilized for
sending information of the above nature is brought in and hence,
there is no merit in the submissions of the learned counsel appearing
for the Petitioner. There is definition of the term "computer" and which
has communication facilities and which are connected or related to a
computer or computer system or computer network and equally
information is transmitted and mails or messages are given not only
through computers, but communication devices as well. Everything
that is offensive or menacing or causing annoyance, inconvenience,
danger, insult, injury, etc. is thus, prohibited and such act is made
punishable.
28. This aspect becomes very clear if one peruses S. 66 which has
been substituted by the Information Technology (Amendment) Act,
2008 (10 of 2009) w.e.f. 27.10.2009. That S. 66 reads as under:"66. Computer related offences:If any person, dishonestly or fraudulently, does any act referred to in
section 43, he shall be punishable with imprisonment for a term which
may extend to three years or with fine which may extend to five lakh
rupees or with both.
Explanation:- For the purposes of this section-(a) the word "dishonestly" shall have the meaning assigned to it in s.
24 of the Indian Penal Code (45 of 1860);
(b) the word "fraudulently" shall have the meaning assigned to it in s.
25 of the Indian Penal Code (45 of 1860)."
29. Therefore, Chapter XI terms the acts covered in each of the
provisions therein as offences and which are punishable. These
sections have to be read harmoniously with other provisions so as to
make a consistent enactment of the whole. The object and purpose of
the Act as enunciated in the Preamble is thus to safeguard and
protect those making positive use of the Information Technology.
Those intending to misuse it or abuse it have to be penalised and
bearing in mind its tremendous potential. The users are of different
categories and come from all strata in the society. Thus, the honest
use is to be encouraged and dishonest one has to be discouraged.
Therefore, this argument must also fail.
30. The other argument is equally untenable and that is, there is no
question of sending any information by merely storing it in the
website. It is submitted that incorporating some matter about any
person in website does not mean sending it. It remains in the

website. This is not publication or circulation and therefore, this act is

not covered by the subject provision at all. A person is not sending
anything by merely creating a website. The ordinary and plain
meaning of this term belies this contention. It is defined to mean
computing a location connected to the Internet that maintains one or
more web pages.
31. This contention is fallacious because the definition of the terms
computer system, computer network and computer resource would
make it clear that the Legislature had in mind all such acts as are
presently attributed to the Petitioner. It is abundantly clear that we
are dealing with are computer related offences. The computer
network or website can be accessed by anybody. The website on
which the information is stored was accessed in this case by the
aggrieved Complainant. That such website was created incorporating
information is, prima facie, undisputed. That by creating itself would
not mean sending it, is the argument.
32. That argument is wholly misconceived. The ordinary meaning of
"send" is "deposit in mail or deliver for transmission". It is also
defined to mean
(a) "cause to go or be taken or delivered to a particular destination"
and
(b) "arrange for someone to attend". In these circumstances we do
not see how this act of the Petitioner will not come within the purview
of the subject provisions of the Information Technology Act, 2000. The
argument is that whenever the Legislature intended that publication
or transmission of obscene material in electronic form is an offence, it
has incorporated specific provision to that effect in the enactment.
The language of S. 67 is, therefore, pressed into service. In the
present case, sending cannot be termed as publishing or transmitting.
33. Once again this argument fails to take note of the fact that the
area and field covered by two provisions, namely, Sections 66-A and
67, is not the same. The act of sending offensive messages through
communication services, etc. is a punishable offence under Section
66-A. Equally, the act of publishing or transmitting obscene material
in electronic form is an offence by virtue of S. 67. That is dealing with
the obscene material and the act of publishing and transmitting it, has
been referred and included. Section 66-A provides for punishment for
sending offensive messages. The message, which is in the form of
information, is of offensive and menacing character or false or causing
annoyance, inconvenience, danger, obstruction, etc. is covered by first
two clauses of Section 66-A and by clause (c), electronic mail or
electronic mail message has been brought within the purview and for
obvious reasons.
It is not just an offensive, menacing or false information intended to
cause annoyance, inconvenience, obstruction, etc. which is dealt with,
but the resource or device utilized are also specifically referred. In

other words, without identifying the resource or device used for

sending information and message, it will not be proper to make it
punishable. In other words, the Legislature intended that the
information emanating from computer resource meaning thereby
computer system, computer network, computer database or software,
must be included and that is how it used the term "computer
resource". When the act of sending offensive message is emanating
from communication device, then, for the sake of clarity and
completeness, the Legislature referred to the communication device
and thus, referred to S. 2(1)(ha) of the Information Technology Act,
2000. The Information Technology Act, 2000 has brought in a
legislation so as to provide legal recognition for transactions carried
out by means of electronic data interchange and other means of
electronic communication, commonly referred to as "electronic
commerce", which involve the use of alternatives to paper- based
methods of communication and storage of information, to facilitate
electronic filing of documents with the Government agencies and
further to amend the Indian Penal Code, the Indian Evidence Act,
1872, the Banker's Books Evidence Act, 1891 and the Reserve Bank
of India Act, 1934 and for matters connected therewith or incidental
thereto.
34. The statement of objects and reasons of the Amendment Act 10
of 2009 clarifies that the Information Technology Act, 2000 was
enacted with a view to give a fillip to the growth of electronic based
transactions, to provide legal recognition for e-commerce and etransactions, to facilitate e-governance, to prevent computer based
crimes and ensure security practices and procedures in the context of
widest possible use of information technology worldwide. The
statement of objects and reasons of the Amendment Act 10 of 2009
reads as under:"Amendment Act 10 of 2009. Statement of objects and reasons:1. The Information Technology Act was enacted in the year 2000 with
a view to give a fillip to the growth of electronic based transactions,
to provide legal recognition for e-commerce and e-transactions, to
facilitate e-governance, to prevent computer based crimes and ensure
security practices and procedures in the context of widest possible
use of information technology worldwide.
2. With proliferation of information technology enabled services such
as e-governance, e-commerce and e- transactions, protection of
personal data and information and implementation of security
practices and procedures relating to these applications of electronic
communications have assumed greater importance and they require
harmonisation with the provisions of the Information Technology Act.
Further, protection of Critical Information Infrastructure is pivotal to
national security, economy, public health and safety, so it has
become necessary to declare such infrastructure as a protected

system so as to restrict its access.

3. A rapid increase in the use of computer and internet has given rise
to new forms of crimes like publishing sexually explicit materials in
electronic form, video voyeurism and breach of confidentiality and
leakage of data by intermediary, e-commerce frauds like personation
commonly known as Phishing, identity theft and offensive messages
through communication services. So, penal provisions are required to
be included in the Information Technology Act, the Indian Penal Code,
the Indian Evidence Act and the Code of Criminal Procedure to
prevent such crimes.
4. The United Nations Commission on International Trade Law
(UNCITRAL) in the year 2001 adopted the Model Law on Electronic
Signatures. The General Assembly of the United Nations by its
resolution No.56/80, dated 12th December, 2001, recommended that
all States accord favourable consideration to the said Model Law on
Electronic Signatures. Since the digital signatures are linked to a
specific technology under the existing provisions of the Information
Technology Act, it has become necessary to provide for alternate
technology of electronic signatures for bringing harmonisation with
the said Model Law.
5. The service providers may be authorised by the Central
Government or the State Government to set up, maintain and
upgrade the computerised facilities and also collect, retain and
appropriate service charges for providing such services at such scale
as may be specified by the Central Government or the State
Government.
6. The Bill seeks to achieve the above objects."
35. Therefore, to urge that creation of website by facilitating its
access to others does not mean sending any information, would be
incorrect and not in tune with the legislative mandate. In
"Encyclopaedia of Information Technology Law, E-mail, the Internet
and the Law, Essential Knowledge for Safer Surfing, Tim Kevan and
Paul McGrath, Universal Law Publishing Company, Second Indian
Reprint 2010", with reference to decided cases by the Courts in United
States of America and United Kingdom, the authors point out the
mischief that is imminent and by ingenious defences. The Authors
observed thus:"From the above it is readily appreciable that e- mail and the internet
will complicate matters in this area. The most notorious case at
present in this area is Godfrey v Demon Internet Ltd. [1999] 4 ALL
E.R. 342. There, the defendant was an internet service provider (ISP)
who offered a Usenet facility enabling persons to publish material to
readers across the globe. Persons would submit their work (postings)
to the local service provider who would then disseminate them via the
internet. The defendant's Usegroup facility kept the articles for two
weeks. On 13th January 1997 an article was posted which was

purportedly written by the claimant. It was a forgery and defamatory

of the claimant. On 17th January the claimant informed the defendant
of the forgery and asked that the matter be removed. The defendant
did not remove the entry until the expiry of the two weeks period (i.e.
27th January). The claimant brought proceedings alleging defamation
for the period between 17th January and 27th January. The
defendants argued, inter alia, that they were not the common law
publishers.
Morland J. held that the Defendants were indeed common law
publishers:
"In my judgment the defendant, whenever it transmits and whenever
there is transmitted from the storage of its news server a defamatory
posting, publish that posting to any subscriber to its ISP who
accesses the newsgroup containing that posting. Thus every time one
of the defendant's customers accesses "soc.culture.thai" and sees
that posting defamatory of the plaintiff there is a publication to that
customer".
The defendant had submitted that they were merely the owner of an
electronic device through which postings were transmitted. However,
Morland J. rejected such a submission pointing to the fact that the
defendant stored postings within its computers and could be accessed
on that newsgroup. Further, the defendant had sufficient control to
obliterate the postings when it felt so necessary. The decision is of
fundamental importance to ISPs. It also shows the wide construction
being applied to publication in the internet field. ....
The American authorities were reviewed in some depth but then
swiftly dealt with by stating that the American law and English law
were different in approach and therefore the cases were of limited
persuasiveness. This case acknowledges that the internet, and
information on it, is not merely provided by mechanical processes.
The ISPs are to be seen as living operations with control, and
ultimately responsibility, over the material that they provide."
This apprehension has also been expressed by some Indian writers
who have contributed their articles on this point. A comparison
between Sections 66-A and 67 is, therefore, out of place.
36. Equally, other argument that the term "inconvenience" appearing
in Section 66-A(b) will enable parties like the Complainant in this
case, to involve the Petitioner and others like him in false criminal
case, cannot be accepted. It is stated that any information which is
inconvenient, does not mean it is offensive or menacing in character.
That may be informing public or anybody about a person or making
any remark or recording any opinion about his conduct and character.
It is bound to cause him inconvenience and by that act alone the
offence is not committed. Some information which may be
inconvenient, but that does not invite the penalty.

37. This argument is required to be stated only to be rejected. In this

case, what the Legislature has termed as an offence and which invites
punishment is sending any information by means of a computer
resource as in this case which a person knows to be false, but it
calculated to cause annoyance, inconvenience, danger, obstruction,
insult, injury, etc. persistently by making use of a computer resource
or a communication device. Therefore, the act is an offence only
because false information is being sent and for the purpose of causing
annoyance, inconvenience, etc.. Persistently sending such false
information is an offence. The word "inconvenience", therefore, must
not be read in isolation or out of context. The word takes its colour
from other words in cl. (b) of Section 66-A. The dictionary meaning of
the term "inconvenience" is "a discomfort; something that gives
trouble". In Advanced Law Lexicon by P.Ramanatha Aiyar, 3rd Edition
Reprint 2007, this is the meaning ascribed to the term
"inconvenience". In ordinary and common parlance, the word
"inconvenience" as defined in New Concise Oxford English Dictionary,
Indian Edition, means "the state or fact of being slightly troublesome
or difficult". It also means "causing trouble, difficulties or discomfort".
38. If the information which the person sending knows to be false is
sent persistently for causing annoyance, then, it is bound to be
inconvenient in the sense it causes discomfiture. It is to create trouble
and make things difficult for him. It is in this backdrop that the word
is used and salutary principles of interpretation of statute that no
word or no phrase be read in isolation, but must be read in the
context and consistent with the intendment of the legislature, will
govern the interpretation here. Therefore, merely because the
legislature had to incorporate some word or term that it did not add it
in this case. The word "inconvenience" was used so that everything
which is false and sent persistently will be abusing the information
technology. Such abuse of information technology has to be prevented
at all costs. It is in that backdrop that the legislature has made a
comprehensive provision and we do not find that there is anything
which interferes with the right of a person to communicate through
the means of this technology. It is intended to further the right and
particularly the fundamental freedom of speech and expression.
The freedom of speech and expression is not absolute, but subject to
some restrictions. That freedom is subject to reasonable restrictions
and anything that is indecent or contemptuous or defamatory cannot
be said to be covered in this right or freedom, is too well settled to
require any reference to either the Indian Constitution or any case
law. It is settled principle that just as every citizen is guaranteed
freedom of speech and expression, every citizen also has a right to
protect his reputation, which is regarded as a property. Hence,
nobody can so use his freedom of speech and expression as to injure
another's reputation. In the context of right to seek information or
right to publish or circulate the views in periodicals, magazines,

journals or through electronic media, what has been held is that this
freedom must, however, be exercised with circumspection and care
must be taken not to trench on the rights of other citizens or to
jeopardise public interest. (See Life Insurance Corporation of India v/s
Manubhai D. Shah (1992)3 SCC 637 1992 Indlaw SC 1106). In this
context, what has been held by the Honourable Supreme Court in the
case of Secretary, Ministry of Information and Broadcasting,
Government of India v/s Cricket Association of Bengal, reported in
AIR 1995 SC 1236 1995 Indlaw SC 2353 and after a survey of all
decisions in the field, is extremely relevant and that reads thus:"Art. 19(1)(a) declares that all citizens shall have the right of freedom
of speech and expression. Cl. (2) of Article 19, at the same time,
provides that nothing in sub-cl. (1) of cl. (1) shall affect the operation
of any existing law or prevent the State from making any law, insofar
as such law imposes reasonable restrictions on the exercise of the
right conferred by the said sub-clause in the interests of the
sovereignty and integrity of India, the security of the State, friendly
relations with the foreign States, public order, decency or morality or
in relation to contempt of court, defamation or incitement of an
offence. The grounds upon which reasonable restrictions can be
placed upon the freedom of speech and expression are designed
firstly to ensure that the said right is not exercised in such a manner
as to threaten the sovereignty and integrity of India, security of the
State, friendly relations with the foreign States, public order, decency
or morality. Similarly, the said right cannot be so exercised as to
amount to contempt of court, defamation or incitement of an offence.
Existing laws providing such restrictions are saved and the State is
free to make laws in future imposing such restrictions.
The grounds aforesaid are conceived in the interest of ensuring and
maintaining conditions in which the said right can meaningfully and
peacefully be exercised by the citizens of this country.
The freedom of speech and expression is a right given to every citizen
of this country and not merely to a few. No one can exercise his right
of speech in such a manner as to violate another man's right of
speech. One man's right to speak ends where the other man's right to
speak begins. Indeed, it may be the duty of the State to ensure that
this right is available to all in equal measure and that it is not
hijacked by a few to the detriment of the rest. This obligation flows
from the preamble to our Constitution, which seeks to secure to all its
citizens liberty of thought, expression, belief and worship. State being
a product of the Constitution is as much committed to this goal as
any citizen of this country. Indeed, this obligation also flows from the
injunction in Art. 14 that "the State shall not deny to any person
equality before the law" and the direction in Art. 38(2) to the effect:
"the State, shall, in particular- endeavour to eliminate inequalities in
status, facilities and opportunities, not only amongst individuals but

also amongst groups of people........". Under our Constitutional

scheme, the State is not merely under an obligation to respect the
fundamental rights guaranteed by Part-III but under an equal
obligation to ensure conditions in which those rights can be
meaningfully and effectively enjoyed by one and all."
39. In the above circumstances, we do not find that the present act of
the Petitioner as termed by him is merely causing inconvenience and
therefore, he is sought to be proceeded against. It is only a false
information which causes inconvenience and if it is sent persistently
and not otherwise. That is the offence. Such construction of the
provision in question would avoid any person sending the messages
being hauled up and punished unnecessarily as apprehended by the
Petitioner. Ultimately, whether any offence within the meaning of this
section has been committed or not will depend upon the facts and
circumstances in each case. Whether the allegations in the complaint
are proved beyond reasonable doubt will depend upon the evidence
led by parties. It is open for the Trial Court to arrive at an
independent conclusion in each case as to whether the charge is
proved by satisfying itself that the essential ingredients of the section
are established or not.
40. As a result of the above discussion and when we find that there is
no material which would vitiate the registration of the First
Information Report in this case nor can it be said to be lacking in
particulars or vague, then, our discretionary and equitable jurisdiction
u/art. 226 of the Constitution of India r/w S. 482 of the Code of
Criminal Procedure, 1973 cannot be invoked by the Petitioner. The
Petitioner cannot request us to interfere in our such jurisdiction
merely because in his opinion the First Information Report is delayed.
That is a plea which the Petitioner can raise at appropriate stage and
during the trial. Therefore, such general and vague plea need not
detain us.
41. In this behalf we would fail in our duty if we do not invite the
attention of all concerned to the judgment of the Honourable Supreme
Court in the case of State of Karnataka and another v/s Dr.Praveen
Bhai Thogadia, reported in AIR 2004 SC 2081 2004 Indlaw SC 244.
The Supreme Court observed as under:". ...... No person, however, big he may assume or claim to be,
should be allowed irrespective of the position he may assume or claim
to hold in public life to either act in a manner or make speeches with
would destroy secularism recognised by the Constitution of India,
1950. .......
. ....... The valuable and cherished right of freedom of expression and
speech may at times have to be subjected to reasonable
subordination of social interests, needs and necessities to preserve
the very chore of democratic life - preservation of public order and
rule of law. At some such grave situation at least the decision as to

the need and necessity to take prohibitory actions must be left to the
discretion of those entrusted with the duty of maintaining law and
order, and interposition of Courts - unless a concrete case of abuse or
exercise of such sweeping powers for extraneous considerations by
the authority concerned or that such authority was shown to act at
the behest of those in power, and interference as a matter of course
and as though adjudicating an appeal, will defeat the very purpose of
legislation and legislative intent. ......
. ....... Welfare of the people is the ultimate goal of all laws, and State
action and above all the Constitution. They have one common object,
that is to promote well being and larger interest of the society as a
whole and not of any individual or particular groups carrying any
brand names. It is inconceivable that there can be social well being
without communal harmony, love for each other and hatred for none.
The chore of religion based upon spiritual values, which the Vedas,
Upanishad and Puranas were said to reveal to mankind seem to be "Love others, serve others, help ever, hurt never" and "Sarvae Jana
Sukhino Bhavantoo". Oneupship in the name of religion, whichever it
be or at whomsoever's instance it be, would render constitutional
designs countermanded and chaos, claiming its heavy toll on society
and humanity as a whole, may be the inevitable evil consequences,
whereof. ......."
42. In view of the above discussion, the Writ Petition fails. Rule is
discharged.
43. At this stage, a request is made to continue the ad-interim order
dated 13.03.2012 for a period of eight weeks to enable the Petitioner
to challenge this judgment in a higher court. This request is opposed
by the Complainant's Advocate. Having heard the counsel on this
point, what we find is that the petition is dismissed by us after holding
that the First Information Report discloses prima facie commission of
a cognizable offence. Further, what we find is that the arguments
were restricted to interpretation of Section 66-A of the Information
Technology Act, 2000. The First Information Report alleges
commission of offence punishable u/s. 500 of the Indian Penal Code
as well. In these circumstances the request as made cannot be
granted. This request is refused.
Petition dismissed
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