JUDGMENT :- Heard the learned counsel Mrs. S. S. Jadhav for the Applicant and the learned APP. Mr. M. L. Dharashive, for the Respondent-State. 2. Rule. Rule made returnable forthwith and heard finally by consent of the parties. 3. The Applicant's application i.e. Bail Petition No.292 of 2006, filed in the Court of the learned Sessions Judge at Aurangabad, is rejected by the Additional Sessions Judge, Aurangabad by order dated March 22nd, 2006. 4. The Applicant is a student of Jawaharlal Nehru Engineering College at Aurangabad. The Applicant is studying in 3rd year of Mechanical Engineering. Father of the Applicant is Sectional Engineer in Irrigation Department of the State Government. The Applicant is the only son. Father of the Applicant has purchased a mobile hand set of Nokia Make No.6681 on 5-3-2006. 5. FIR in the present case, is lodged by Anwar Khan Aziz Khan Pathan, Police Sub-Inspector, Crime Detection Branch at Aurangabad. According to the informant, the in-charge Police Station Officer of Osmanpura Police Station Mr. K. D. Chate, had received an information that the students of Jawaharlal Nehru Engineering College at Aurangabad, were transmitting obscene photographs of one girl student from the said college. This act of transmission of obscene photographs was, in session at Sant Eknath Rang Mandir, Osmanpura. According to the information received, the obscene matter was stored in a mobile hand set and with the help of blue tooth function, being circulated/transmitted to friends. On account of this publication and transmission of the obscene material, girl student was being defamed. On receipt of this information and for verification of the said information, informant, accompanied by Police Head Constable Bakkal No.1658 Mr. Khadke, Police Constable Bakkal No.2128 and some other Police Officers, panch witness reached on the spot. Parking their vehicle at Sant Eknath Rang Mandir all of them have apprehended two students, who were in front of Om Optical Shop at about 8.00 p.m. on 6-3-2006. After apprehending, the two students, first informant, and Police party came to know that one of them was Mr. Hanoj s/o. Khushis Mehta, about 20 years old resident of Bombay and another student was Mr. Nikhil Ramesh Racheti, r/o. Jawahar Nagar, Aurangabad (present Applicant). Mobile hand set possessed by both the students were inspected in the presence of the Panch-witnesses. Mobile hand set of Nokia make bearing No.6681, was in the possession of Mr. Hanoj Mehta. Hanoj s/o. Khushis Mehta, about 20 years old resident of Bombay and another student was Mr. Nikhil Ramesh Racheti, r/o. Jawahar Nagar, Aurangabad (present Applicant). Mobile hand set possessed by both the students were inspected in the presence of the Panch-witnesses. Mobile hand set of Nokia make bearing No.6681, was in the possession of Mr. Hanoj Mehta. In this Mobile hand set, blue tooth facility, was available. This mobile hand set also contained obscene picture image of boy student and girl student. In the gallery function of this mobile hand set, some other obscene photographs of male and female, were also found. Mr. Nikhil Racheti, the present Applicant was possessing mobile hand set of Nokia make No.6230 i, model. Mr. Hanoj Mehta, on enquiry, informed the Police SubInspector, that he is having a girl friend Oliviency Santoshkumar Marbenyang from Shillong, State of Meghalaya, studying in lawaharlal Nehru Engineering College at Aurangabad. Mr. Hanoj Mehta and his girl friend Oliviency prior to three months, were in a hotel, namely 'Bargar Point', situated in Cannaught Place, Aurangabad. At that time, he had caused the shooting of their obscene acts, in his mobile hand set. Shooting which was caused by Mr. Hanoj Mehta, was caused with the help of hand set of Mr. Nikhil, i.e. the present Applicant and it was also loaded in the Computer of Mr. Hanoj Mehta. Both the students, alongwith their Mobile hand sets, were taken to the Police Station in the presence of the Panch witnesses. With the help of Police station computer, obscene picture, which was in the mobile hand set of Mr. Hanoj Mehta, was stored in a computer disk. The other pictures, in gallery function of Mr. Hanoj Mehta's hand set, remained in the said mobile hand set of Mr. Hanoj Mehta. It is also alleged that on 6-3-2006, Mr. Hanoj Mehta and Nikhil Racheti, i.e. the present Applicant, were found transmitting the obscene picture, through Blue tooth function. Offences under sections 292. 294 of Indian Penal Code and under sections 67 and 72 of the Information Technology Act, 2000, were registered against Mr. Hanoj Mehta and the present Applicant; at C.R. No. II 9/2006 with Osmanpura Police Station. 6. The Trial Court has rejected the Application of the present Applicant as the Applicant has taken undue advantage of his friendship with his girl friend. Hanoj Mehta and the present Applicant; at C.R. No. II 9/2006 with Osmanpura Police Station. 6. The Trial Court has rejected the Application of the present Applicant as the Applicant has taken undue advantage of his friendship with his girl friend. By taking disadvantage of the situation, obscene photographs of the girl friend were recorded in the mobile hand set, thereafter the photographs were stored in the hard disk of the computer and then after lapse of some time, these photographs were transmitted to the mobile hand sets of friends, using blue tooth technology. The accused being a Computer student, he has misused his knowledge. In other words, he has used his knowledge for defaming his girl friend. Now the hard disk is sent for examination to CFISS, Hyderabad and report is not received. Still investigation of the case is not complete. With these observations, the Application of the Applicant as noted above is rejected by the learned IInd Additional Sessions Judge, Aurangabad. A bare look to Section 292 of the Indian Penal Code, shows that the offence under section 292 of the Indian Penal Code is bailable, having punishment upto two years for first conviction with fine of Rs.2,000/-. Offence under section 294 is also bailable and punishable with imprisonment of either description of a term, which may extend to six months or with fine or with both. Since I am considering the Bail application, I have only noted the fact that offence under sections 292 and 294 are bailable offences. The Applicant is also indicted for offence under sections 67 and 72 of the Information Technology Act, 2000. Since I am considering the Bail application, I have only noted the fact that offence under sections 292 and 294 are bailable offences. The Applicant is also indicted for offence under sections 67 and 72 of the Information Technology Act, 2000. The offence under section 67 of the Information Technology Act, 2000, reads as : Section 67 "Whoever published 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 lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh." A bare look to this Section, shows that it covers the offence of publication of obscene material, publication of lascivious material or material, which appeals to the prurient interest. It is also contemplated that if this material effects to tend to deprave and corrupt persons, who are likely, having regard to all the relevant circumstances, to read, see or hear the matter contained or embodied in it such offence is established. Punishment provided under section 67 of the Information Technology Act, 2000, is on first conviction with imprisonment, which may extend to five years and with fine which may extend to one lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term, which may extend to ten years or fine, which may extend to two lakh rupees. 7. While considering the ingredients of Section 67 of Information Technology Act, 2000, it can be said that firstly there must be a publication or transmission of any material in the electronic form. Secondly, such material must be lascivious or appeals to the prurient interest. Thirdly, such transmission and publication must be such as to tend to deprave and corrupt persons, who are likely to read, see or hear the matter contained or embodied in it. Secondly, such material must be lascivious or appeals to the prurient interest. Thirdly, such transmission and publication must be such as to tend to deprave and corrupt persons, who are likely to read, see or hear the matter contained or embodied in it. While considering the terms 'publication' and 'transmission', it is to be established that the person charged with the offence, must have published or transmitted such material. The material, will include written material as well as the pictures, including photographs, cartoons and or drawn material. The nature of material, lascivious, however, needs to be taken into consideration as opposed to the standards of the decency. So far as the obscenity is concerned, such publication of material in the electronic form, will not cover only the internet, but also storage on floppy/CD and distribution thereof. In the internet, who is publisher assumes importance and is also complex. So far as Publication through print media is concerned it is easy to see in the index page, where the name and the address of the publisher and the editor is required to be given in accordance with the provisions of law. 8. Having considered the nature of the allegations in the present case, the publication and transmission of the obscene material, is important. Section 72 of the Information Technology Act, provides for breach of the confidentiality and privacy. Punishment provided is for a term of two years or with fine, which may extend to one lakh rupees, or with both. 9. The Application filed by the accused, for bail, can be considered under Section 436 of the Indian Penal Code, if the offence alleged is bailable. If offence alleged is non-bailable, Application for bail can be filed under section 437 of the Code of Criminal Procedure. Under Sub-Clause (a) of Section 2 of the Code of Criminal Procedure, 1973, "Bailable offence", is defined as the offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force, and "Non-bailable offence" means any other offence. The First Schedule of the Code of Criminal Procedure, classifies of offences. Under (I), offence under the Indian Penal Code, have been listed and their nature as bailable or non-bailable is mentioned. Under (II) classification of offences against other laws is provided. The First Schedule of the Code of Criminal Procedure, classifies of offences. Under (I), offence under the Indian Penal Code, have been listed and their nature as bailable or non-bailable is mentioned. Under (II) classification of offences against other laws is provided. Here the punishment provided is considered while defining the offence as to whether it is bailable or non-bailable. It is further provided that if punishable with death imprisonment for life, or imprisonment for more than seven years, said offence is 'Cognizable' and defined as non-bailable. In the case on hand, punishment provided for offence under Section 67 of the Information Technology Act, 2000, on the First conviction is with imprisonment of either description for a term which may extend to five years and with fine, which may extend to one lakh rupees. Since the case on hand, is of the first conviction. it can be said, with the help of II classification of offence against other laws of the first schedule, that offence under section 67 of the Information Technology Act. 2000 is 'Cognizable and Non-bailable'. The offence under Section 72 of the Information Technology Act, is provided with imprisonment for a term which may extend to two years or with fine which may extend to one lakh rupees or with both and, therefore, is 'Non-cognizable' and can be said to be 'Bailable offence'. Thus, in the present case, Application filed by the Applicant can be considered within the parameters of Section 437 of the Code of Criminal Procedure. 10. I have perused the papers of investigation made available by the learned APP. Mr. M. L. Dharashive. Undisputedly, according to the case of the prosecution, Mr. Hanoj Mehta, was having a girl friend, namely Oliviency, at the time of occurrence. Statement of the girl friend of Mr. Hanoj Mehta, namely Ms. Oliviency, is recorded during the course of investigation. She has stated in her statement that she was a student of second year Engineering Computer Science. The learned counsel Mr. Panhale i/b. the learned Advocate Mrs. S. S. Jadhav submits that the Applicant is a student of Mechanical Engineering. It seems that the Trial Court has factually missed this aspect of the matter and observed that the present Applicant is a student of Computer Science and has misused his knowledge. Secondly the Trial Court has also observed that the Applicant (Mr. S. S. Jadhav submits that the Applicant is a student of Mechanical Engineering. It seems that the Trial Court has factually missed this aspect of the matter and observed that the present Applicant is a student of Computer Science and has misused his knowledge. Secondly the Trial Court has also observed that the Applicant (Mr. Nikhil) has taken undue advantage of his friendship with his girl friend. It is not the case of the prosecution that Ms. Oliviency is the girl friend of the present Applicant. Allegation made by the prosecution that Mr. Hanoj Mehta is having a girl friend i.e. Ms. Oliviency. The Trial Court has observed that the Applicant has taken disadvantage of his friendship with Ms. Oliviency and recorded obscene photographs of his girl friend on his mobile phone. Factually this observation is also incorrect. It is the case of prosecution that Mr. Hanoj Mehta co-accused recorded some obscene photographs of himself and his girl friend Ms. Oliviency, three months prior to the F.I.R. in a hotel at Cannaught Place, Aurangabad. 11. Circumstance that the hard disk is sent for examination to CFISS Hyderabad is also immaterial while considering the Application of the present Applicant for a simple reason that the said Hard disk was seized from Mr. Hanoj Mehta, which is clear from the papers of investigation. I have also read the statements of the other witnesses recorded during the course of investigation. Prima facie, there is no material showing the act of publication or transmission at the instance of the present Applicant; or by the present Applicant; with blue tooth technology. 12. The learned APP, Mr. Dharashive has made available the manuals of hand sets. According to the prosecution, mobile hand set, Nokia make 6230 i, at the relevant time, was owned and possessed by Mr. Hanoj Mehta, co-accused. Present Applicant, according to his contention, has purchased the mobile hand set of Nokia make 6681 on 5-3-2006. From the manual of mobile hand set Nokia make 6230 i, owned by co-accused Mr. Hanoj Mehta, it appears that the said mobile hand set, was having in built facility of blue tooth wireless technology. Mobile hand set of Nokia make 6681 purchased by the present Applicant, according to his contention on 5-3-2006, also is aided with such connectivity i.e. blue tooth wireless technology. Hanoj Mehta, it appears that the said mobile hand set, was having in built facility of blue tooth wireless technology. Mobile hand set of Nokia make 6681 purchased by the present Applicant, according to his contention on 5-3-2006, also is aided with such connectivity i.e. blue tooth wireless technology. All these facts, I have verified from the manual which are produced on record by the learned APP, Mr. Dharashive. With the help of this blue tooth technology one is able to send images, video clips, music and sound clips and notes or to connect by wireless communication. It is also possible with this blue tooth technology to communicate wirelessly to two devices such as computers etc. From the manual it appears that range for such blue tooth connectivity in these two hand sets is within the range/radius of 10 mtrs. With the use of this blue tooth technology, material/photographs/ pictures, can be transmitted by person concerned. The mobile hand sets in the radius of 10 mtrs. area from such transmitting mobile hand sets, can receive such messages/ photographs. The recipient however, could not get its knowledge unless such messages are seen If or read. From the allegations in the FIR, and in It relation to section 67 of the Information If Technology Act, 2000, in my view such f transmission, in the present case, is most s important and at this stage, there is no material, e to implicate the present Applicant prima facie; II in the offence under section 67 of the 1 Information Technology Act, 2000. 13. In this view of the matter, Applicant needs to be released on bail. In the result Criminal Application filed by the Applicant is allowed. Applicant is directed to be released on bail on furnishing PR. bond in the sum of Rs.15,0001- with one surety in the like amount. Rule accordingly, is made absolute in the above terms and the Application stands disposed of. There are prima case observations. The learned Judge without being influenced shall decide the case on the basis of evidence laid and the provisions of law. Application allowed.