Invocation Of S.67 IT Act Requires Proof Of Electronic Circulation Of Obscene Content, Not Mere Possession: J&K&L High Court

Justice Sanjay Dhar delivered this ruling while dismissing a criminal appeal filed by the Union Territory of J&K challenging the acquittal of the accused in a sensitive case involving allegations of gang rape and the circulation of obscene material.

Upholding the acquittal, Justice Dhar remarked,

“… perusal of the record of the challan would reveal that the investigating agency has not collected evidence to show that the photographs and videos which were seized during the investigation of the case were published or transmitted.. Without any such evidence, the charge for offence under Section 67 IT Act could not have been proved by the prosecution”

Background:

The appeal arose out of a judgment passed by the Additional Sessions Judge, Anantnag, whereby the accused were acquitted in a case registered under Sections 376-D, 509, 506, 120-B, 201 IPC and Section 67 of the IT Act.

The prosecution case was that the prosecutrix had alleged that two of the accused trespassed into her home, administered intoxicants, sexually assaulted her, videographed the act, and circulated the video on social media platforms such as WhatsApp and Facebook, followed by threats to her life. During investigation, mobile phones and a memory card were seized and sent for forensic examination.

The trial court, however, truncated the proceedings after the prosecutrix turned hostile during trial and denied the occurrence of sexual assault in unequivocal terms. She stated before the court that the videos she had seen were fake, that no rape had been committed upon her, and that her earlier statements, including the one recorded under Section 164 CrPC, were made when she was under depression.

She further asserted that she had lodged the FIR only under the impression that the videos were real and clarified that she did not know who had made them viral.

Courts Observations:

Examining the appeal against acquittal, Justice Dhar noted that the entire foundation of the prosecution case relating to sexual offences rested on the testimony of the prosecutrix, who had categorically denied the allegations during trial. The Court observed that once the prosecutrix herself disowned the occurrence and alleged fabrication, there remained no material on record to even remotely connect the accused with the offence of rape.

Addressing the prosecution's argument that the trial should have continued at least for the offence under Section 67 of the IT Act, the Court undertook a detailed examination of the evidentiary requirements for proving such an offence. It was observed that for an offence under Section 67 IT Act, the prosecution is duty-bound to prove that material which is lascivious or appeals to prurient interest was actually published or transmitted in electronic form.

The Court found that the only material collected during investigation to support the IT Act charge was the seized mobile phone and memory card, which were sent to the Forensic Science Laboratory. However, the FSL expert was not cited as a witness, and more importantly, the expert report itself disclosed that video, audio and photo authentication tools were not available in the laboratory.

In a crucial observation, the Court held,

“Without authentication of videos, audios or photos, which were sent to the FSL expert for his opinion, the report rendered by the said expert cannot form the basis for conviction of the accused for an offence under the IT Act.”

The High Court further noted that the investigating agency had failed to collect any evidence to establish that the seized photographs or videos were ever published or transmitted, or that they were circulated through WhatsApp or Facebook as alleged in the charge sheet. The Court categorically held that in the absence of proof of electronic publication or transmission, the offence under Section 67 IT Act could not have been established even if all remaining prosecution witnesses had been examined.

Justice Dhar also observed that the evidence on record suggested either fabrication of allegations or, at best, a consensual relationship between the prosecutrix and one of the accused, a fact that emerged during cross-examination of prosecution witnesses themselves. In either eventuality, the Court held that the prosecution case was bound to fail.

Emphasising the futility of prolonging the trial, the Court observed,

“Protracting the trial in the face of the facts and circumstances of the present case would have been an empty formality as it was impossible to record conviction of the accused even after examination of the remaining witnesses.”

On this reasoning, the High Court upheld the trial court's decision to truncate the proceedings and acquit the accused, holding that no illegality or perversity could be attributed to the approach adopted by the trial court. Consequently, the criminal appeal filed by the Union Territory was dismissed for lack of merit.

Case Title: UT Of J&K Vs Bilal Ahmad Wani

Citation: 2026 LiveLaw (JKL) 8

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