Sunday 12 August 2012

Sending of Vulgar SMS has nothing to do with Civil Dispute between the parties

Bombay High Court
Rohit Vedpaul Kaushal Versus State of Maharashtra through Inspector General of Police & Others
 CRIMINAL  APPLICATION   NO.  1879    OF  2007
Dated : 11-08-2007
Rule. Returnable forthwith.
2. Heard finally with consent of parties. 
3. This is an application under Section 482 of Criminal
Procedure Code seeking to quash F. I. R. registered by the police at
4. Few facts may be narrated as follows:
Applicant is a student of 1
year MBA at Sikkim Manipal

University in Himachal Pradesh. The applicant and non applicant's
daughter were studying at a school at Barmana together. They fell in
love and used to meet each other frequently. They also continuously
used to talk with each other on phone. The non applicant No.3's
daughter Bhumika later sought admission in Dental College and was
studying and staying at Baddi in Himachal Pradesh.  She however used
to visit the house of the applicant and even used to stay over night3
regularly. It is alleged that on 05.11.2005 the applicant and the
daughter of the non applicant No.3 got married. The non applicant
No.3 came to know of the marriage. He took away his daughter and
she is now living with non applicant No.3. Since the non applicant
No.3 was totally against the marriage, he never left any opportunity to
harass the applicant. Upon the report submitted by the non applicant
no.3 police have registered an offence under Section 292 of Indian
Penal Code and Section 67 of the Information and Technology Act. It
is alleged by non applicant No.3 in his report that applicant used to
send obscene SMS on his mobile phone. It is this F. I. R. which the
applicant seeks to quash. 
5. I have heard the learned counsel for the applicant and the
non applicants. It was contended on behalf of the applicant that the
SMS were sent to the wife and were not published as such and,
therefore, there was no offence. It was also contended that it is an
exchange of communication between the husband and wife and
therefore of a confidential nature. It is not disputed that mobile phone
on which messages were sent belongs to non applicant No.3 i. e. the4
father of the girl. It may be that the mobile phone may have been
used by the daughter of the non applicant No.3 at times. Although we
may accept that the SMS were sent to a wife they were sent on the
mobile phone of the complainant who is a third person. Section 67 of
the Information Technology Act reads as follows:
Publishing of information which is
obscene in electronic form- Whoever publishes or
transmits or causes to be published in the
electronic form, any material which is lascivious or
appeals to the prurient interest or if its effect is
such as to tend to deprave and corrupt persons
who are likely, having regard to all relevant
circumstances, to read, see or hear the matter
contained or embodied in it shall be punished on
first conviction with imprisonment of either
description for a term which may extend to five
years and with fine which may extend to one lack
rupees and in the event of a second or subsequent
conviction with imprisonment or either description
for a term which may extend to ten years and also
with fine which may extend to two lack rupees.”
Section 67 prohibits publishing of information which is obscene in
electronic form. The section even prohibits transmission of such
information if it is likely to be read by others. Here the SMS were sent
on mobile phone of complainant who was certain to read it although
it may not have been sent to him. Let us see the contents of messages5
sent.  They are as follows:
i. Bhumika se meri bat karwa do I will
suicide on front of whole world usne mujse shadi
karne lie ...kyun hahu ab bt karunga.
ii. Main koi pregnancy ki rumor nahiu faila
raha bhune enjoy intercourse. She beded with me
without condom. So mujse laga ki may be she is
pregnant usne khud kaha tha.  Time 7.32 p.m.
iii. I cn proof to do whole world that she
beded with me I have abnormal photograph in
kasquli she know that in cd having sex in my
bathroom her voi.   Time 7.35 pm
iv. Main chota hun she forced me sexual
intercource hua hai do medical of girl abnormal
photos in cd bhi hai bhumi khud rahi she likes d
prtn between my legs in ne.   Time 7.50 pm
v. Bhumi ke pads par laga hua khoon hw6
that cms to me her stored juice in cloth her panties
with me proof of each n everything her writn pages
dat I perfrm sex bete.   Time 7.54 pm
vi. Bhumi ke buks ke bris uske kapde uske
fingerprint uske gatepass mere bits she has come to
my colony too photos in inbls of my mw do u want
to prove.   Time 7.56 pm
vii. So do u want that world shld say her a
prostute lein I think she is ditched n my parents to
know a nice experience.
Viii. Ab toh apke sachai batadi bhumi se aaj
bat karwa doge to thik hai, may kal us bitch se bat
karna chahunga ki nahimain kal par bharosa nahi
karta.   Time 8.05 pm
ix. Aap apni wife ke samne mastrubte karte
they dus apki wife kity parts mein plybyz ke sath
apke bate main kuch meri wifw bataya nahi. Time
8.10 pm. 7
x. Bhumi ko tho Samjhta tha uski baton
mein aakar shadi ki chalo yet soch looga ki 8 sale
se ek prostute se sath reh raha tha.
xi. Aane wale dus mints agar apne meri bat
nahi karwai toh kal offiuce mein mail ke
attachment dekh lena all over acc ok dad.
Time 8.27 pm.
SMS particularly 5 and 9 are such that they certainly fall
within the scope of Section 67. In fact the SMS No.9 was certainly
sent to the non applicant No.3 and not to the wife. If the contents of
SMS are read it is certain that they disclose an offence under Section
67 of the Information Technology Act. 
6. It was contended that the complainant i. e. non applicant
no.3 had subsequently written a letter to the Supreintendent of Police
withdrawing the complaint but he again wrote to the Superintendent
of Police to take action. It was submitted that this was only with a
view to take revenge and therefore the F. I. R. may be quashed.  This is
not an after thought. Complaint was already lodged and the contents8
of the SMS are certainly vulgar. 
7. Shri Trivedi contended that this complaint has been filed
against the accused as daughter of the complainant has married
against his will and that being the reason this F. I. R. should be struck
down. He relied on a decision of Allahabad High Court in Mohd.
Habibur Rahman Faizi and other Vs. State and others 1996
Criminal Law Journal 74.  It is observed as follows:
“The complainant made a false and
frivolous complaint to the magistrate knowing well
that what he was doing, was factually false and
untenable in law. But out of ulterior motive to
harass and humiliate the Manager, Principal,
teacher and member of the management committee
of the educational institution he lodged this
complaint. In such circumstances, the complaint is
liable to be quashed.”
8. In the present case the complaint is not factually false for
electronic record, of such SMS is available and accused does not in fact
dispute having sent such SMS. Shri Trivedi thus contended that there
is a dispute of civil nature only between the parties and therefore it
can be assumed that criminal proceedings are filed with a view to take
revenge. He relied on a decision of Supreme Court M/s Indian Oil9
Corporation Vs. M/s NEPC India Ltd. & Ors. AIR 2006 Supreme
Court 2780. 
“While on this issue, it is necessary to
take notice of a growing tendency in business
circles to convert purely civil disputes into criminal
cases. This is obviously on account of a prevalent
impression that civil law remedies are time
consuming and do not adequately protect the
interests of lenders/creditors. Such a tendency is
seen in several family disputes also, leading to
irretrievable break down of marriages/families.
There is also an impression that if a person could
somehow be entangled in a criminal prosecution,
there is likelihood of imminent settlement. Any
effort to settle civil disputes and claims, which do
not involve any criminal offence, by applying
pressure though criminal prosecution should be
deprecated and discouraged.”
“The High Court was, therefore, justified
in rejecting the contention of the respondents that
the criminal proceedings should be quashed in
view of the pendency of several civil proceedings.”
9. Sending of vulgar SMS has nothing to do with the civil
dispute between the parties. This is an independent act and offence
not connected with the civil dispute.  He is not being prosecuted for an
act which is both of civil and criminal nature. This is an act essentially
of a criminal nature. In the case at hand the contents of F. I. R.10
certainly go to make out a case under Section 67 of Information
Technology Act as well as Section 292 of the Indian Penal Code and
the case does not fall in any of the category as given out in State of
Haryana and others Vs. Bhajan Lal and others reported in 1992
Supreme Court 604.
Criminal Application is, therefore, liable to be rejected and it
is so rejected. 
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