Cyber Stalking 354D Fastest Decided Case in India

India's fastest decided Cyber Stalking Case under IPC 354D for Sending Obscene messages on WhatsApp and Talking Obscene on Phone. 

The Story:

Mr. Atul Ganesh Patil use to work as a Security Guard in  company called "Motherson" which manufactures Bumpers of car and is located in Chakan MIDC near Pune in Maharashtra. The Victim girl had come for job interview and at the entry had written down her personal mobile Number in the entry Register. The young guard who is resident of Yavatmal District and worked in Chakan, copied down the number from register, saved it in his mobile and started sending obscene WhatsApp messages from his mobile phone and even called her to talk obscene things thereby committing crime of stalking on her. Technically i feel had committed two more crimes i.e Data Theft and Breach of Privacy. I have seen such crimes happening across India, where the cell number is obtained and girls are chased, i see after digital payments have increased and for digital wallet purpose cell phones are shared, privacy compromise via mobile number sharing has increased in India. 

In this case, Victim blocked this convicted guard on her phone and social media. The desperate guard then started chasing her by sending obscene messages from his friends and known person mobile phones.

Police traced all these phones.

These all people whose Cyber stalking case law cyber law cyber crime obscenity case law WhatsApp case law state v Patil phones were used to send messages were made witness and later the accused Guard also accepted his crime. Judge pronounced his Order in open court .

Case Details: 

"State Vs Atul Ganesh Patil"

The FIR No. 17/17 was registered in Chakan Police Station on 10/01/2017 

near Pune.

Case decided and conviction ordered in 48 Hours. 

The investigation was done in 24 Hours and  recording of 5 Witness also was completed today on 11/01/2017. 

Today itself, punishment for 2 years rigorous imprisonment and Rs.500/- fine was pronounced in Khed (Rajguru Nagar) JMFC Court near Pune in the state of Maharashtra in India which Presided by Judge Mr. Y J Tamboli. 

What is Section 354 D of The Indian Penal Code

(1) Any man who—

i.         follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or

ii.         monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking;

Provided that such conduct shall not amount to stalking if the man who pursued it proves that—

i.         it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or

ii.         it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

iii.         in the particular circumstances such conduct was reasonable and justified.

(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.

Classification under schedule 1 of CrPC

1. Upto 3 years + Fine for first conviction and is Bailable

2. Upto 5 years + Fine for second or subsequent conviction and is Non-Bailable

Composition under Section 320 of CrPC

Offence in Non Compoundable

Case Laws other than above for 354 D

1. Dara Singh And Another vs State Of U.P. on 17 June, 2016

Bench: Amar Singh Chauhan, Allahabad HC
2. Aarti Katiyar   Vs.  State of Raj.  S. B. Cr.  MISC. PETITION  NO. 3463/2013, Rajasthan HC

What do we mean by a “right of privacy”?

Justice Cooley in 1888 defined it simply as a right to be left alone. Alternatively, it may be defined as a right to be anonymous. The two definitions are quite different but both are important, and the right to be anonymous is a form of privacy that has particularly significant implications in cyberspace. In legal terms, our right of privacy amounts to a right to be free from government intrusion into certain areas of our lives and a right to be free from intrusion by other individuals into our “private” lives. In India, the former is protected largely through Constitutional interpretation and a number of statutes; the latter is protected largely through the law under tort principles.

Advocate Prashant Mali

International Cyber Crime Lawyer

#cybercrime #cybersecurity #cyberstalking #cyberlaw #law # caselaw

IT Act, 2000 is a Special Act : Case Law

Cyber Law : Case Law for

1.IT Act, 2000 is a Special Act.

2. Section 292 of IPC is not applicable in Internet based Obscinity only Section 67 of The IT Act is Applicable.

Offence relating to sale of obscene material – Having a nexus or connection with electronic form of transmission covered by IT Act which is a special law – Special law shall prevail over general and prior laws – When the Act in various provisions deals with obscenity in electronic form, it covers the offence u/S.292 IPC – Hence, accused discharged u/S.67 of IT Act cannot be proceeded u/S.292.... 

2017 ALL SCR (Cri) 59

The Supreme Court recently in Sharat Babu Digumarti v. Govt. of NCT of Delhi – 2016 SCC OnLine SC 1464, has ruled that in a case if no charge has been made out under Section 67 of IT Act (dealing with obscenity in E-form), then the accused cannot be prosecuted against under Section 292 IPC.

The decision came in perhaps one of the first cases of Cyber Obscenity that hit India – The Bazee.com case, where Avnish Bajaj was prosecuted for an offence under the IT Act and Section 292 of the IPC in the capacity of CEO of Baazee.com. Later, Avnish Bajaj was discharged of all offences on the ground that in the absence of company being made an accused, vicarious liability cannot be fastened to Avnish Bajaj, as he was arraigned only in the capacity of being a director and had played no personal role attributed to him.

In that very case, another official of the company Sharat Babu Digumarti was also prosecuted. The High Court opined that Section 67 of the IT Act (dealing with publishing of obscene material in e-form) was not attracted in the present case, however proceedings u/s 292 IPC can continue. Aggrevied by this decision, the appellant approached the Supreme Court, which held that :-

i) S.67A and Section 67B of the IT Act is a special offence dealing with publishing of obscene information in electornic stream. In this regard, Section 79 of the IT Act provides a crucial protection to intermediaries having regard to pecularities of the Cyber World, which are not available in a traditional prosecution for obsenity in offline form – and therefore, Section 292 of the IPC has no application in such cases, especially when Section 292 was never amended to include the words “electronic Record” and since it does not afford the accused with additional safeguards laid down in S.79 IT Act through which an intermediary can avoid liability by certain remedial actions/due dilgence mechanisms.

ii) The Court essentially applied the doctrine of “Generalia Specialibus non derogant” where a more specific law overrides the more general one.

The relevant excerpts from the Court decision are reproduced as follows :-

“30. Having noted the provisions, it has to be recapitulated that Section 67 clearly stipulates punishment for publishing, transmitting obscene materials in electronic form. The said provision read with Section 67A and 67B is a complete code relating to the offences that are covered under the IT Act. Section 79, as has been interpreted, is an exemption provision conferring protection to the individuals.However, the said protection has been expanded in the dictum of Shreya Singhal (supra) and we concur with the same. Section 81 also specifically provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. All provisions will have their play and significance, if the alleged offence pertains to offence of electronic record. It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 of the IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent. This is the mandate behind Section 81 of the IT Act. The additional protection granted by the IT Act would apply.

…

34. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of the IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission is covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC.