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Gujarat High Court · body

2025 DIGILAW 323 (GUJ)

Kabir Jitendra Tejwani v. State of Gujarat

2025-03-26

HASMUKH D.SUTHAR

body2025
ORDER : Registry to accept vakalatnama of learned advocate Mr. Salman S. Khan, who has instructions to appear for the original complainant. 1. RULE. Learned APP and learned advocate Mr. Salman S. Khan waive service of notice of rule on behalf of the respondent Nos.1 and 2 respectively. 2. By way of the present application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”), the the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being CR No.11191067240173 of 2024 registered with Cyber Crime Police Station, Crime Branch, Ahmedabad City for the offences under Sections 67, 67(a) of the Information Technology Act, 2000 (for short “IT Act”) and sections 12 and 14 of the Protection of Children from Sexual Offences Act (for short “POCSO Act”). 3. The case of the complainant in the FIR is to the effect that the complainant was informed by her niece that someone has uploaded obscene video of the victim i.e. daughter of the complainant who is aged 16 years 9 months and studying in 11 th Std. on Telegram App at Crowdy Link channel having user name @crowdylinkk wherein there is a Txt Creator Bot having username @txtcratorbot having link https://t.me/txtcratorbot?start=Z2VOLTEwOTU5NDgyMDAyMTE2MTQ and on opening the said link, the complainant could see obscene video of her daughter and when the complainant asked the victim about the same, she said that she had willingly recorded the said video but did not share the same to anyone. In this regard, the complaint came to be filed. 4. Learned advocate for the applicant submits that the applicant is not named in the FIR however, on 18.12.2024, the applicant was taken to police station in police jeep and seized the i-phone 11 of the applicant without any seizure memo. Further, the applicant after being beaten up in the police station to confess, was allowed to go home. Thus, the applicant has cooperated in investigation and even his mobile phone from which alleged obscene material was uploaded or forwarded has already been seized and therefore, now nothing remains to be recovered or discovered from the present applicant and therefore, custodial interrogation of the applicant at this stage is not necessary. Besides, the applicant is available during the course of investigation and will not flee from justice. Besides, the applicant is available during the course of investigation and will not flee from justice. It is submitted that present applicant is a student pursuing his studies. There is no allegation worth the name against the present applicant and it is alleged that someone has uploaded obscene video of the daughter of the complainant on Telgram App and in this regard complaint is filed. Hence, he has finally requested to consider the case of the applicant as no custodial interrogation is required. Learned advocate for the applicant has submitted that she is ready and willing to join the investigation. In view of the above, he has requested to grant anticipatory bail to the applicant. 5. Learned Additional Public Prosecutor appearing on behalf of the respondent No.1 – State and learned advocate Mr. Salman S. Khan appearing for respondent No.2 – original complainant have opposed the present application seeking anticipatory bail on the ground that offence is against a minor girl and considering the severity of the offence and allegations levelled against the applicant as offence is serious in nature, custodial interrogation is required. Further, the applicant lured the victim to create an obscene video of the victim and send it to Instagram account of the applicant having ID: kabir.tejwani and thereafter, the applicant opened the said video on his mobile and through the mobile of co-accused Saumya Rakeshbhai Thakkar recorded the said obscene video and then shared to his mobile through airdrop and then deleted the recording of video from the mobile of co-accused namely Saumya Thakkar. Thereafter, the applicant uploaded the said obscene video on Crowdy Link channel on Telegram App, having username @crowdylinkk wherein there is a Txt Creator Bot having username @txtcratorbot having link https://t.me/txtcratorbot?start=Z2VOLTEwOTU5NDgyMDAyMTE2MTQ and thus, the applicant has been instrumentality in making viral the said video and thus, the victim is defamed. It is submitted that present applicant has played an active role to facilitate the crime. The mobile phone of the applicant in which nude video of the victim was obtained is yet to be recovered. Hence, he has requested to dismiss the present application as investigation is at primary stage and custodial interrogation is also required. 6. The Court has to consider the involvement of the accused in the alleged offence and as to whether prima facie it appears that accused has committed an offence, is required to be considered. Hence, he has requested to dismiss the present application as investigation is at primary stage and custodial interrogation is also required. 6. The Court has to consider the involvement of the accused in the alleged offence and as to whether prima facie it appears that accused has committed an offence, is required to be considered. So far as the anticipatory bail is concerned, the jurisdiction to grant bail has to be exercised on the basis of the well settled principles having regard to the facts and circumstances of each case and the following factors are to be taken into consideration while considering an application for bail:- (i) the nature of accusation and the severity of the punishment and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses and threat to the complainant of the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations are required to be considered. 7. Having heard the learned advocates for the respective parties and having gone through the evidence on record, it appears that at the instance of the complainant, FIR is registered for the offences under Sections 67, 67(a) of the Information Technology Act, 2000 and sections 12 and 14 of the POCSO Act. It is alleged that present applicant has played active role and obscene nude video of the minor victim has been uploaded from the mobile phone of the present applicant for which the applicant lured the victim to create an obscene video of the victim and send it to Instagram account of the applicant having ID: kabir.tejwani pursuant to which victim shot her own video under the influence of accused / applicant and then through her Instagram ID: muskanhere211 posted and thereafter, the applicant opened the said video on his mobile and through the mobile of co-accused Saumya Rakeshbhai Thakkar recorded the said obscene video and then futher he shared to his own mobile through airdrop and then deleted the recording of video from the mobile of co-accused namely Saumya Thakkar. 7.1 Thereafter, the applicant uploaded the said obscene video by editing on Crowdy Link channel on Telegram App, having username @crowdylinkk wherein there is a Txt Creator Bot having username @txtcratorbot having link https://t.me/txtcratorbot? start=Z2VOLTEwOTU5NDgyMDAyMTE2MTQ and thus, the applicant has been instrumentality not only in making viral the said video but in keeping storage and possession of such obscene material. 7.2 Further, perusing the investigation papers more particularly the statement of Saumya Rakeshbhai Thakkar dated 21.12.2024 recorded under Section 183 of the BNSS, it appears that the said co-accused has stated that victim and present applicant had exchanged their Instagram IDs at the time of Navratri and he was informed by the applicant that applicant and victim are talking on instagram ID and were friends. It further states that one day the applicant had taken mobile of said Saumya and when Saumya asked as to what he had deleted then applicant had informed that victim had sent one video on the instagram account of applicant as ‘ one time seen ’ and it could not be downloaded and therefore, applicant recorded the said one time seen video in the mobile device of said co-accused Saumya and then transferred the said video to his own mobile through airdrop and deleted from the mobile of co-accused Saumya. Thus, it is abundantly clear that it was the applicant who instigated the victim to record obscene video and share with the applicant and therefore, custodial interrogation is required as the offence is against a minor girl. 8. Now, coming back to the facts, section 2(da) of the POCSO Act defines the term “child pornography” [Child Sexual Exploitative and Abuse Material ( CSEM )] as under: “child pornography” means any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer generated image indistinguishable from an actual child, and image created, adapted, or modified, but appear to depict a child” Admittedly, herein the victim is minor. To download, to store or to watch such objectionable content itself is an offence under Section 15 of the POCSO Act. To download, to store or to watch such objectionable content itself is an offence under Section 15 of the POCSO Act. Herein, applicant has received CSEM and then as he was aware that he can open the said CSEM only once, with an intention to store and to keep the possession of the said objectionable material, applicant has not simplicitor watched it but recorded in another mobile phone of his friend Saumya whose statement under Section 183 of the BNSS is recorded and thereafter, he has kept the storage and possession of the said objectionable material with ulterior motive, which clearly falls under Section 15(1), 15(2) and 15(3) of the POCSO Act. Not only that, he has also thereafter edited and circulated the same obviously as a chat for viewing, distributing, displaying etc. of such objectionable material by a person over the internet without any actual or physical possession or storage of such material in any device or in any form or manner would also amount to possession and applicant invariably having all control over the said material, prima facie it appears that present applicant is involved in such an offence. And for that, to collect the material as well as to come to the authoritative opinion like FSL and expert opinion is required in order to prove the case and for that, provisions of section 66 of the IT Act is penalized as applicant is facing serious charge and prima facie involvement is found. Considering the statutory presumption of culpable mental status on the part of the present applicant – accused governed by section 30 of the POCSO Act which can be made applicable obviously after establishing the foundational fact to constitute a particular offence. Hence, argument canvassed by the learned advocate for the applicant that applicant is innocent and having no any control or possession over the said objectionable material is not acceptable. 8.1 Further, learned advocate for the applicant has submitted that applicant is only 21 years and having no past antecedent and he has joined the investigation. He appeared before the police, he was beaten up by the police and police has seized his mobile phone. Now, objectionable material is in possession of police and hence, custodial interrogation is not required. 8.1 Further, learned advocate for the applicant has submitted that applicant is only 21 years and having no past antecedent and he has joined the investigation. He appeared before the police, he was beaten up by the police and police has seized his mobile phone. Now, objectionable material is in possession of police and hence, custodial interrogation is not required. Perusing the investigation papers and record, it appears that the said defences are nothing but afterthought defences and taking undue advantage of knowledge and influence, applicant is able to escape from the clutches of law. In the police station, while the applicant was being interrogated, at that time, under the pretext of his illness, he left the police station and since then though time and again police visited his house, applicant is not available within the State and he is on run till date and is not traceable. Not only that, though the phone of the applicant is with the police but authenticity of said phone as to how the applicant received the objectionable material and by which medium or using which platform he has circulated the said material or elsewhere he has stored or having the domain or control or constructive possession over such objectionable material is itself a question of interrogation for which custodial interrogation is required and investigation is at its infancy. 8.2 Next argument of the learned advocate for the applicant is that applicant is a college going student and present is a first offence. But it is needless to say that perusing the record it appears that alongwith his studies, applicant is working at a Call Centre and the manner in which he has indulged in the offence shows his intellectual and maturity level and he has indulged in such illegal activity knowingly and he has not only received such objectionable material by misleading or luring the minor victim but he has subsequently edited and made viral the objectionable material on various social platform and source of link is yet to be found and investigated and hence, merely because offence is punishable with imprisonment upto 5 years or less than 7 years and is a first offence is not a ground to grant anticipatory bail to the applicant-accused considering the gravity of offence and societal interest. In this regard, reference is required to be made to the decision of the Hon’ble Supreme Court rendered in the case of Vijay Madanlal Chaudhary vs. Union of India [(2023) 12 SCC 1] wherein it has been observed that length of punishment is not only an indicator of the gravity of offence and it is to be judged by totality of facts especially keeping in mind the background in which the offence came to be recognized by the legislature in a specific international context as per the UN Convention on the Rights of Children which is also recognized by India in 1992. Keeping in mind the aforesaid decision, it is the specific duty caste upon the State to protect the child from all forms of sexual exploitation and abuses. 8.3 Learned advocate for the applicant has submitted that the complaint is filed belatedly but said argument is also not acceptable on two counts. As and when the complainant came to know about the said objectionable material being made viral, she has registered the FIR. Herein, intermediary also failed to report the said incident though they came to know about the said objectionable material they have not informed the police. Even otherwise, in such cases, delay is not a ground to grant anticipatory bail. Herein, reasonable explanation is offered by the complainant and there is no delay in lodgment of the complaint. Even considering the nature of allegation and repeated circulation or dissemination of such objectionable material on various social platforms has traumatized the minor and disrepute the minor victim. Considering the aforesaid fact and considering the nature of offence and relying on the decision of the Hon’ble Supreme Court in the case of Just Right for Children Alliance vs. S. Harish and Others reported in 2024 INSC 716 , no case is made out to grant anticipatory bail to the applicant. 9. Even, considering the statement and object, the reason of enactment of POCSO Act is that several child has inalienable human right to live with dignity, grow-up and develop in an atmosphere conducive to mental and physical health, to be treated with equality and not to be discriminated. The right to protection of privacy also includes the child right. It is a constitutional guarantee and basic human right to live with dignity. The right to protection of privacy also includes the child right. It is a constitutional guarantee and basic human right to live with dignity. Even, the directive policy of the State policy castes an obligation on the State to ensure that children are given an opportunity and facility to develop in healthy manner and in a condition of frame and dignity. Considering the aforesaid fact, to provide free fair, secure and conducive atmosphere for development of child and to protect the children from sexual exploitation with special purpose Act being produced. Once it is admitted and undisputed fact that the petitioner is major, though by taking undue advantage of tender age of victim, who is minor, she is abused by the present applicant. Considering the aforesaid fact, as the applicant was able to influence the minor victim her, and take undue advantage of her tender age, now he cannot claim that he is innocent. In case of minor, it is needless to say that consent has nothing to do and consent is insignificant. Even if the minor victim had shot her own obscene video and shown on instagram to the applicant, it does not mean that applicant – accused has right to store, possess and make viral such material on various social platforms. 10. In the case of Siddharam Satlingappa Mhetre vs State of Maharashtra, reported in (2011) 1 SCC 694 , the Hon’ble Court held that life and personal liberty are the most prized possessions of an individual but not at the cost of larger interest of society and public. This is not a case, wherein accused is falsely enroped in the offence with a view to tarnish his image. Considering the aforesaid fact, custodial interrogation is required. In the case of Jai Prakash Singh V/s State of Bihar and another , reported in (2012) 4 SCC 379 the Hon’ble Supreme Court was pleased to hold: "Parameters for grant of anticipatory bail in a serious offenceare required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty." 11. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty." 11. It would be apposite to refer the decision of the Hon’ble Apex Court in the case of Pratibha Manchanda vs. State of Haryana reported in AIR 2023 SC 3307 , wherein, para 19 read as under : “19. The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome.” 12. The prime consideration under the POCSO Act is victim is minor and is protected under the law of land. Once it is undisputed and admitted fact that the petitioner has taken undue advantage of the tender age of the victim and such act also cause trauma and psychological pressure and mental disturbance to the victim and her family also. 13. Hence, this Court is of the considered view that if the present accused is equipped with protective order, it would obviously adversely affect the case of the prosecution and the qualitative investigation he will tamper with evidence of prosecution. Further, the applicant cannot ask for anticipatory bail as of right and Court has to strike balance between societal interest and personal liberty. 14. Hence, the application stands dismissed. Rule is hereby discharged. It is hereby made clear that the observations made herein above are tentative in nature.