Question: My ex-boyfriend is sending obscene messages to my husband. Those messages contain pronographic photos and videos. Majority of those photos are photo shop. My husband however, showing faith in me but I want to take legal action against my ex-boyfriend. He wants to ruin my married life therefore, inducing my husband through those messages. Whether sending obscene messages constitute offence? If yes, please tell me in which section I can prosecute him?
Question from: Tamil Nadu
Sending obscene messages is an offence punishable under under Section 67 of the Information and Technology Act 2008. Section 67 of IT Act punishes the transmission or publication of lascivious material in electronic form. This offence is punishable with imprisonment for a term of three years. The court may also impose fine up to five lakh rupees.
You can take legal action against your ex-boyfriend for sending obscene messages. All the ingredients of section 67 are meeting in your case. Most of those photographs are pronographic materials. They tend to deprave or corrupt the mind of persons who read or see them. The photoshop images prove that he has the intention to harm your reputation. His criminal intention is thus proving from those messages.
Sending obscene or lascivious material in electronic form
You have evidence to prove that he has sent obscene messages. Therefore, you should lodge a first information report (FIR) against your ex-boyfriend. He has the intention to harm your reputation therefore, sent doctored photos and videos. Making such an imputation is sufficient to initiate criminal proceedings against him.
The prosecution will survive on obscenity of material and transmitting them in electronic form. These two things are decisive in your case. Both are existing in your case and they are sufficiently proving your ex-boyfriend’s culpability. The pronographic photo, video, caricature itself proves that it is obscene and the court does not take expert opinion in this matter.
Those obscene messages are vital for the prosecution
Those messages are material evidence. Therefore, storing or keeping electronic material in its original form is mandatory for the prosecution. The prosecution case will sustain on the originality or authenticity of electronic evidence. Those photos and videos are electronic evidence under section 65B of the Indian Evidence Act.
Thus, it becomes compulsory for you to retain those messages in the mobile phone. Keep them safe until you submit them before the court. There is a separate procedure for producing electronic evidence.
Also read: How to produce electronic evidence
Primary evidence is the best evidence. Prosecution always try to prove the guilt through the primary evidence. When you produce the mobile phone to prove transmission of obscene messages, the court will not ask you to furnish any affidavit or certificate to prove authenticity of those messages.
In Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801. The Court further clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced.
Your ex-boyfriend has sent obscene messages on your husband’s mobile phone. Tell your husband to retain them in his mobile phone. His mobile phone will prove the authenticity of those messages without any certificate.
Prepare secondary evidence of those obscene messages
You should prepare a secondary evidence of those obscene photos and videos. Don’t rely on mobile storage. If mobile data is destroyed or in any way corrupt then you cannot prove that your ex-boyfriend was sending obscene messages to your husband. The secondary evidence along with certificate is also admissible under section 65B of Evidence Act.
In Anvar P. V. vs P. K. Basheer, (2014) 10 SCC 473 the Supreme Court has held that electronic record by way of secondary evidence shall not be admissible as evidence unless the requirements of Section 65-B are satisfied.
You have sufficient evidence to prove the crime of your ex-boyfriend. Hence, you should initiate criminal proceeding against him. Your ex-boyfriend has sent obscene messages thereby committing an offence under section 67 IT Act. There is no legal impediment in your case. The court will thus convict your ex-boyfriend under section 67 IT Act.
Also read: My boyfriend harassing me.