Vaibhav Bipinbhai Tamboli vs State Of Gujarat

Nikhil S. Kariel, J

Heard learned Senior Advocate Mr. Mahesh Jethmalani with learned Advocate Mr. A.C. Choksi and learned Advocate Mr. B.B. Choksi for the

applicants, learned APP Ms. M.D. Mehta for the respondent-State. Learned Senior Advocate Mr.I.H. Syed with learned Advocate Mr. Rahil Jain

have requested permission to be heard on behalf of the respondent No.2- original complainant.

By way of this application the applicants have prayed for quashing and setting aside the FIR being C.R. No. 11198067210046 of 2021 dated 19.

01.2021 registered with Vartej Police Station, District Bhavnagar for the offences punishable under Sections 354-C of the Indian Penal Code (for

short “IPCâ€​) and offence punishable under Sections 67 and 67A of the Information and Technology Act, 2000 (for short “the IT Actâ€​).

Learned Senior Advocate Mr. Jethmalani appearing on behalf of the the applicants submits that the impugned complaint inter alia alleges that the

photographs of private act involving the respondent No.2 â€" complainant had been allegedly circulated by the applicants herein. Learned Senior

Advocate submits that the impugned complaint deserves to be quashed since it is maliciously instituted at the behest of one Mehul Tamboli, brother of

applicant No.1 and son of applicant No.2. Learned Senior Advocate has also drawn the attention of this Court to a criminal complaint filed by the

applicant No.2 herein against the said Mehul Tamboli alleging offence punishable under Section 324 of IPC and 135 of the Gujarat Police Act,

inasmuch as allegations in the complaint being that the said Mehul Tamboli had assaulted his brother-applicant No.1 herein with a knife during the

meeting of the Board of Directors of one Tamboli Casting Limited in which company applicant No.1 was Chairman from his inception and applicant

No.2 was its Director. It is submitted that the complainant was in good terms with the said Mehul Tamboli and whereas the pictures allegedly

circulated by the applicants were of a private act between the said Mehul Tamboli and respondent No.2.

Learned Senior Advocate has further submitted that Section 354-C of the IPC would not be applicable since the said Section states about “any

man who watches or capture the image of a woman engaging in private act in circumstances where she would usually have expectation of not being

observedâ€. Learned Senior Advocate has submitted that the act in question was engaged in the office of the said Mehul Tamboli who at the relevant

point of time was Director of the company and the images in question had been captured by CCTV Camera placed by the said Mr. Mehul Tamboli

himself inside his office. Learned Senior Advocate has thus submitted that the act in question was engaged inside the office which cannot be

construed as a place where the complainant could have the expectation of not being observed and furthermore the act had been engaged in full view

of the CCTV Camera and therefore also the respondent No.2 cannot claim expectation of not being observed by anybody. It is further submitted in

this regard that Explanation-1 to Section 354-C of IPC states about a place where the act had been engaged which would reasonably be expected to

provide privacy as stated in Explanation-1 of Section 354-C and since the act had been engaged inside the cabin of applicants which would by no

stretch of imagination would be treated to be a place which would provide privacy for doing a private act, therefore offence under Section 354-C may

not lie. It is further submitted that most importantly the act in question was “kissing†which would not fall in the explanation of a “private actâ€

as mentioned in Explanation-1.

As far as Sections 67 and 67A of the IT Act is concerned, learned Senior Advocate has submitted that neither were the images in question lascivious

or appealing to the prurient interest nor were the same showing any sexually explicit act and thus no offence as defined under the said Sections has

been committed. In support of his contentions he has relied upon the decision of the Supreme Court in case of Aveek Sarkar Vs. State of West

Bengal reported in 2014 (4) SCC 257.

Learned APP Ms. M.D. Mehta for the respondent-State has submitted that after filing of the complaint the investigating agency has carried out

their duties and whereas they have acted in accordance with law. She further submits that considering the allegations made in the complaint this Court

may not interfere with the impugned complaint.

Learned Senior Advocate Mr. I.H. Syed with learned Advocate Mr. Rahil Jain who have been permitted to make submissions on behalf of the

complainant have submitted that the complainant is being victimized and her image is tarnished since the applicants felt that she was in some relation

with the said Mehul Tamboli against whom the applicants have an axe to grind. It is further submitted that complainant had reasonable expectation

that she would not be observed in doing the act in question since it happened inside the office room. It is further submitted that the act of kissing was

definitely a private act and disseminating such pictures were definitely punishable both under Section 354-C of IPC as well as Sections 67 and 67A of

the IT Act.

In rejoinder, learned Senior Advocate Mr. Jethmalani has submitted that the pictures/images in question had been submitted by the applicants in

sealed cover to the police and whereas the applicants have not circulated the images at all. It is further submitted that applicant No.1 herein was

suffering from serious illness which got further aggravated on account of the injury sustained due to the assault by the said Mehul Tamboli. It is

submitted that applicant No.2 is aged about 77 years. It is further submitted that both the applicants have cooperated with the investigation and they

are ready and willing to cooperate with the investigation. Under such circumstances, it is requested that this Court may interfere with the impugned

complaint.

Heard learned Advocates for the parties. Considering the submissions made on behalf of the applicants, this Court is of the opinion that the

following questions arise for determination of this Court namely :

(i) Whether the act in question was “private actâ€​ as explained in Explanation-1 of Section 354-C of the IPC?;

(ii) Whether an office where the private act was engaged would be a place where the persons engaging in the private act would have the reasonable

expectation of not being observed, more particularly when the act in question was done in full view of CCTV Camera?;

(iii) Whether the images of the act contain material which have lascivious appeal being prurient interest or contain sexually explicit material?

In view of the questions hereinabove, this Court is of the opinion that a prima facie case for interference has been made out by the applicants.

Hence, issue Notice returnable on 20.07.2021.

By way of interim relief it is directed that there shall be no coercive action against the applicants subject to the condition that the applicants

cooperate with the investigation.