Manoj Oswal Case- 66A- Bom HC

7/30/2019 Manoj Oswal Case- 66A- Bom HC

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t*1* wp.314.12.sxwkps IN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTIONCRIMINAL WRIT PETITION NO.314 of 2012

Manoj Oswal,

Age : 34 years,Address : 149, Bhawani Peth,Pune-411042. ..PETITIONER

-Versus-

1 The State of Maharashtra.Through Sr.P.I.,Cyber Crime Cell,Crime Branch, Pune.

2 Sakal Papers Pvt.Ltd.,

Budhwar Peth,Pune-411002. ..RESPONDENTS

.............Mr.Kushal Mor i/by Mr.Ravindra Lokhande, for the Petitioner.

Ms.Neha Prashant i/by ALMT Legal, for the Respondent No.2.

Mrs.P.H.Kantharia, APP, for the Respondent/State.

............

CORAM : S.C.DHARMADHIKARIANDS.B.SHUKRE, JJ.

Reserved on : 04th July, 2013.Pronounced on : 06th August, 2013.

Judgment (Per Dharmadhikari, J):

1 RULE.

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t*2* wp.314.12.sxw2 The Respondents waive service. By consent of parties, heardforthwith.3 By this Writ Petition under Article 226 of the Constitution of

India r/w Section 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 under

Section 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

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t*3* wp.314.12.sxwafter pushing several persons. The pamphlets contain the defamatorymaterial against the said Prataprao Pawar. The Petitioner was also seenspeaking 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

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t*4* wp.314.12.sxwMaharashtra. He also runs a helpline for animals that rescues around1200 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

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t*5* wp.314.12.sxwnervous system. The said Lila Parulekar has no relatives and therefore, apolitically well connected person is trying to grab her land. It is claimedthat 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.

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t*6* wp.314.12.sxw12 It is alleged that the Petitioner has been fighting for the rightsof 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 appearsto have extreme domination over the Police

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t*7* wp.314.12.sxwDepartment. The Hon'ble High Court issued orders forproper care of animals at Lila Parulekar's shelter on02.12.2011, however, the guards of Sakal Papers stilldid 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 PoliceDepartment.

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

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t*8* wp.314.12.sxwInformation 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 Section 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

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t*9* wp.314.12.sxwallegedly defamed is recorded, but that of an employee of M/s SakalPapers Private Limited. In these circumstances, this Writ Petition beallowed 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

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t*10* wp.314.12.sxwfinds that the Petitioner would urge that this act, though, prima facie,may come within the purview of Sections 499 and 500 of the Indian PenalCode, 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 entitledwww.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 offensive messages through

communication service, etc.:-

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 todeceive 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 ortransmitted or received on a computer, computer

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t*11* wp.314.12.sxwsystem, computer resource or communication deviceincluding attachments in text, image, audio, videoand any other electronic record, which may betransmitted 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 thematter 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

Sections 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

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t*12* wp.314.12.sxwinvoked in this case, would make it clear that same provides forpunishment for sending offensive messages through communicationservice 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 Section 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

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t*13* wp.314.12.sxw2(1). It would be apparent that sending offensive messages throughcommunication service would include computer or website and that isimplicit therein. The word data as defined in Section 2(1)(o) and other

definitions referred to above, read thus:-

Section 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, opticalor other high-speed 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 inter-connection is

continuously maintained.

(k) computer resource means computer, computer

system, computer network, data, computer data base

or software.

(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 containcomputer programmes, electronic instructions, input

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t*14* wp.314.12.sxwdata and output data that performs logic, arithmetic,data storage and retrieval, communication controland 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 havebeen 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 clause (c) in Section 66-A.

27 However, the argument before us is that the explanation

below Section 66-A is applicable to clause (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 Section 2(1)(v), whereas, any person

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t*15* wp.314.12.sxwsending any electronic mail or electronic mail message, by means of acomputer resource of a communication device, has also to be includedand 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 Section 66

which has been substituted by the Information Technology (Amendment)

Act, 2008 (10 of 2009) w.e.f. 27.10.2009. That Section 66 reads as

under:-

66. Computer related offences:-If any person, dishonestly or fraudulently, does any

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t*16* wp.314.12.sxwact referred to in section 43, he shall be punishablewith imprisonment for a term which may extend tothree years or with fine which may extend to fivelakh rupees or with both.

Explanation:- For the purposes of this section--

(a) the word dishonestly shall have the meaning

assigned to it in section 24 of the Indian Penal Code

(45 of 1860);

(b) the word fraudulently shall have the

meaning assigned to it in section 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

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t*17* wp.314.12.sxwInternet 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 Section 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

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t*18* wp.314.12.sxw67, is not the same. The act of sending offensive messages throughcommunication 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 Section 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 Section 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-

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t*19* wp.314.12.sxwbased methods of communication and storage of information, to facilitateelectronic filing of documents with the Government agencies and furtherto 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 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. 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 enabledservices 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 healthand safety, so it has become necessary to declare such

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t*20* wp.314.12.sxwinfrastructure as a protected system so as to restrictits access.3. A rapid increase in the use of computer and internethas 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 InformationTechnology 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

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t*21* wp.314.12.sxwPublishing Company, Second Indian Reprint 2010, with reference todecided cases by the Courts in United States of America and UnitedKingdom, 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 ER 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. Personswould 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 untilthe 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

(at 348e-f).

The defendant had submitted that they were

merely the owner of an electronic device throughwhich postings were transmitted. However, Morland J.

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t*22* wp.314.12.sxwrejected such a submission pointing to the fact that thedefendant stored postings within its computers andcould be accessed on that newsgroup. Further, thedefendant 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 limitedpersuasiveness. 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.

(see page 64 and 65)

This apprehension has also been expressed by some Indianwriters 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.

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t*23* wp.314.12.sxw37 This argument is required to be stated only to be rejected. Inthis 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 clause (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, 3 rd 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

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t*24* wp.314.12.sxwor term that it did not add it in this case. The word inconvenience wasused so that everything which is false and sent persistently will be abusingthe 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). 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 and after a survey

of all decisions in the field, is extremely relevant and that reads thus:-

52. Article 19(1)(a) declares that all citizens shall havethe right of freedom of speech and expression. Clause

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t*25* wp.314.12.sxw(2) of Article 19, at the same time, provides thatnothing in sub-clause (1) of clause (1) shall affect theoperation of any existing law or prevent the Statefrom 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 thesaid 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.

53. 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'sright 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 obligationalso flows from the injunction in Article 14 that "the

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t*26* wp.314.12.sxwState shall not deny to any person equality before thelaw" and the direction in Article 38(2) to the effect:"the State, shall, in particular- endeavour toeliminate 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

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t*27* wp.314.12.sxwparticulars or vague, then, our discretionary and equitable jurisdictionunder Article 226 of the Constitution of India r/w Section 482 of the Codeof 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. The Supreme Court observed

as under:-

7. ... 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. ....

8. .... 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 ofthose 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. ...10. .... Welfare of the people is the ultimate goal of all

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t*28* wp.314.12.sxwlaws, and State action and above all the Constitution.They have one common object, that is to promote wellbeing and larger interest of the society as a whole andnot 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 wererestricted to interpretation of Section 66-A of the Information Technology

Act, 2000. The First Information Report alleges commission of offence

punishable under Section 500 of the Indian Penal Code as well. In these

circumstances the request as made cannot be granted. This request is

refused.

(S.B.Shukre, J.) (S.C. Dharmadhikari, J.)

Documents

Manoj Oswal Case- 66A- Bom HC