The High Court of Jammu & Kashmir and Ladakh has held that an offence under Section 67 of the Information Technology Act cannot be made out unless there is proof that obscene or sexually explicit electronic content was actually published or circulated. Simply recovering devices containing such material, without evidence of transmission or proper technical verification, is insufficient to secure a conviction.
Justice Sanjay Dhar emphasized that the prosecution must prove that the alleged obscene or lascivious content was shared in electronic form and that it had the potential to corrupt or appeal to prurient interests.
The ruling came while the Court was hearing the State’s appeal against the acquittal of a person previously accused in a rape case. The man had been charged with gang rape, criminal intimidation, conspiracy, destruction of evidence, and publishing obscene material electronically. The prosecution had alleged that the accused sexually assaulted the victim, recorded the incident, and circulated the video online. However, the complainant later retracted her allegations during trial, stating she was not assaulted and had filed the case believing the viral video featured her.
The High Court noted that investigators had seized only a phone and memory card, and although these were sent for forensic testing, the laboratory lacked tools to authenticate the photos and videos. Without such authentication, the forensic report could not legally support a conviction under the IT Act, the Court said.
Further, the Court pointed out that no evidence was collected to demonstrate actual sharing or uploading of the material on platforms like WhatsApp or Facebook. In the absence of proof of publication or transmission, Section 67 could not be invoked.
Consequently, the Court agreed with the trial court’s decision to halt proceedings and uphold the accused’s acquittal, dismissing the State’s appeal.
