Prosecution Must Prove Publication Of Material To Establish Offence U/S 67 Information Technology Act: Jammu & Kashmir And Ladakh High Court
The High Court held that mere recovery of electronic devices is insufficient to establish an offence under Section 67 of the Information Technology Act, 2000, and that the prosecution must adduce evidence to prove publication or transmission of material which is lascivious, appeals to prurient interest, or tends to deprave and corrupt.
The Jammu & Kashmir and Ladakh High Court held that for proving an offence under Section 67 of the Information Technology Act, 2000, it is incumbent upon the prosecution to collect and lead evidence showing publication or transmission, in electronic form, of material which is lascivious, appeals to prurient interest, or has the tendency to deprave and corrupt persons likely to read, see, or hear it.
The Court was hearing an appeal filed by the Union Territory of Jammu & Kashmir challenging a judgment of acquittal passed by the Additional Sessions Judge whereby the accused persons had been acquitted of charges arising out of an FIR registered for multiple offences, including Section 67 of the Information Technology Act, 2000.
A Bench comprising Justice Sanjay Dhar observed that “for proving the offence under Section 67 of the IT Act, it was incumbent upon the prosecution to collect evidence during investigation of the case to show that there has been publication or transmission in electronic form material which is lascivious or appeals to the prurient interest or it has the tendency to deprave and corrupt persons who are likely to read, see or hear the matter contained in it.”
The Union Territory was represented by Ilyas Laway, Government Advocate, while the respondents were represented by Advocate Syed Sajad Geelani.
Background
The case arose from an FIR registered based on a complaint lodged by the prosecutrix alleging that two accused persons had trespassed into her house, administered intoxicating substances to her, committed sexual assault, and recorded and circulated videos of the alleged act through social media platforms. It was further alleged that threats were extended to deter her from approaching the police, and that other accused persons were also involved.
Following registration of the FIR, an investigation was carried out, and electronic devices, including a mobile phone and a memory card, were seized and sent for forensic examination. Upon completion of the investigation, a charge sheet was filed alleging offences under various provisions of the Indian Penal Code, 1860, as well as Section 67 of the Information Technology Act, 2000.
Charges were framed against the accused, and the prosecution examined several witnesses, including the prosecutrix. During the trial, the prosecutrix recanted her earlier statements and denied having been subjected to sexual assault, stating that the videos she had seen were fake. In view of the evidence on record, the trial court truncated the proceedings and acquitted the accused of all charges.
Aggrieved, the Union Territory of Jammu & Kashmir filed the present appeal challenging the judgment of acquittal, contending, inter alia, that the trial court erred in not permitting the prosecution to lead further evidence, particularly in relation to the charge under Section 67 of the Information Technology Act, 2000.
Court’s Observation
The High Court examined the evidence on record and noted that the foundation of the prosecution's case with respect to sexual offences rested on the testimony of the prosecutrix, who had turned hostile and categorically denied the occurrence of sexual assault. The Court observed that her testimony also indicated that the videos she had seen were fake and did not pertain to her.
Addressing the contention of the appellant regarding the offence under Section 67 of the Information Technology Act, 2000, the Court held that the prosecution was required to establish that the accused had published or transmitted, in electronic form, lascivious material, appealed to prurient interest, or tended to deprave and corrupt persons likely to access it.
The Court noted that the only material collected during the investigation to support the charge under Section 67 of the Information Technology Act, 2000, was the seizure of a mobile phone and a memory card. Although these devices were sent to the Forensic Science Laboratory, the expert report indicated that authentication tools for videos, audios, and photographs were not available. The forensic expert was also not cited as a witness in the charge sheet.
The Bench further observed that the investigation had failed to collect any material to demonstrate that the seized photographs or videos were actually published or transmitted through electronic means such as WhatsApp or Facebook, as alleged in the charge sheet. In the absence of such evidence, the Court held, the essential ingredients of the offence under Section 67 of the Information Technology Act, 2000, could not be established.
The Court also held that even if the remaining prosecution witnesses had been examined, the charge under Section 67 of the Information Technology Act, 2000, could not have been proved in the absence of evidence demonstrating publication or transmission of the alleged material in electronic form. It was therefore concluded that continuation of the trial would have been an empty formality.
Conclusion
The High Court held that the prosecution had failed to adduce evidence sufficient to establish the offence under Section 67 of the Information Technology Act, 2000, and that the trial court was justified in truncating the proceedings and acquitting the accused.
Finding no ground to interfere with the judgment of acquittal, the Court dismissed the appeal filed by the Union Territory of Jammu & Kashmir.
Cause Title: Union Territory Of Jammu & Kashmir v. Bilal Ahmad Wani And Others (Neutral Citation: 2025:JKLHC-SGR:391)