HON’BLE SRI JUSTICE P.DURGA PRASAD Crl.P.No.1161 of 2009 O R D E R: This Criminal Petition is filed under Section 482 of Cr.P.C. for quashing the proceedings against the petitioners in Cr.No.4 of 2009 on the file of Koyyalagudem Police Station. The brief facts of the case as per the charge sheet are as follows: That on 09.01.2009 while the petitioners-accused were watching blue film pictures and some obscene pictures at their respective shops and down loading the same to the cell phones of customers, they were arrested and their computers along with accessories were seized and a case in Crime No.4 of 2009 was registered by the Koyyalagudem Police for the offence punishable under Section 292(2) r/w 34 IPC and Section 67 of The Information Technology Act. Subsequently, after completion of investigation, police have filed the charge sheet before the concerned Court. The petitioners counsel has pleaded that the allegations made in the charge sheet only attract the offence under Section 67 of Information Technology Act and as per Section 78 of Information Technology Act, a Police Officer not below the rank of Deputy Superintendent of Police is only entitled to investigate the said offence and as per Section 81 of the Information Technology Act, it has overriding effect on any enactment. As such, the offence under Section 292 (2) r/w 34 IPC is not applicable to the present facts of the case. Hence, the proceedings are liable to be quashed. As per the charge sheet filed against the petitioners, on 09.01.2000 at 9.00 A.M. the 1st petitioner was arrested at his shop named ‘Annapurna Cell Shop’, Kannapuram village of Koyyalagudem Mandal while he was watching and possessing blue film pictures and some obscene pictures and it is also alleged that he used to down load the same to the cell phones of the customers and police seized 1) Samsung Company 17” black coloured monitor, 2) Odessy company black coloured CPU, 3) Logitech mouse, 4) Logitech key board, 5) creative company speakers-2, 6) Numeric company UPS under the cover of mediators report. On the same day at 9.45 A.M., the 2nd petitioner was arrested at ‘Sri Venkateswara Jewellary and cell shop’, Kannapuram village of Koyyalagudem Mandal while he was in possession of blue film pictures and some obscene pictures and it is also alleged that he used to down load the same to the cell phones of customers and police seized 1) Samsung company 17” black coloured monitor, 2) Frontech company black coloured CPU, 3) Logitech Mouse, 4) Logitech key board, 5) intex company Home theatre under the cover of mediators report. Therefore, as per the averments made in the charge sheet, the blue films and obscene pictures are only on the computer and they are not seized black and white from the possession of the accused. Section 67 of the Information Technology Act prescribes publishing of information, which is obscene in electronic form. In the present case, the obscene information is available only in the electronic form. Therefore, Section 67 squarely applies to the allegation made against the present petitioners. Section 78 of the Information Technology Act deals with power to investigate the offences, according to which, notwithstanding anything contained in the Code of Criminal Procedure, 1973, a police officer not below the rank of Deputy Superintendent of Police shall investigate an offence under this Act. Therefore, the Police Officer not below the rank of Deputy Superintendent of Police is only competent to investigate the offences under Section 67 of Information Technology Act. But in the present case, the investigation was done by the Sub-Inspector of Police and charge sheet was also filed by him under Section 292(2) of IPC. Since Section 81 of the Information Technology Act is having the overriding effect and the person who investigated the case and filed charge sheet is not competent to investigate the offence, the further proceedings in Crime No.4 of 2009 of Koyyalagudem Police Station are liable to the quashed. Accordingly, the Criminal Petition is allowed and the further proceedings in Cr.No.4 of 2009 on the file of Koyyalagudem Police Station, are hereby quashed. _____________________ JUSTICE P.DURGA PRASAD 31st December, 2010 PNV