1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 710 OF 2008 Van De Lanotte Gaetan .. Applicant versus State of Maharashtra .. Respondent ... Mr.A.P. Mundargi with Ms.Sharmila Kaushik i/b Vijay Hiremath for the applicant. Mr.Rajesh More APP for the State. CORAM : D.G.KARNIK, J DATED : 24th March 2008 P.C.: 1. Heard. 2. The applicant, who is a Belgian National, seeks bail in connection with C.R.No. 15 of 2008 of D.N. Nagar police station (re-numbered as C.R.No.7/08 of CID Crime Branch Unit-9) in connection 2 with the alleged offence punishable u/s.292 of the IPC and section 67 of the Information Technology Act, 2000 (for short "the I.T ACT"). 3. The prosecution case in short is that the applicant came to India under a work permit/work visa for doing some photography work. He took nude and/or semi nude photographs of male Indian models which were stored by him in his laptop. It is alleged that the said photographs were transmitted by him by e-mail to the models themselves. Thereby, the applicant is alleged to have committed the offence u/s.292 of the IPC and section 67 of the I.T.Act 4. The alleged offence u/s.292 of the IPC is non-cognizable and bailable. In the circumstances, the only question is required to be seen is whether the applicant is entitled to a bail in respect of alleged offence punishable u/s.67 of the I.T. Act. Section 67 of the I.T. Act provides that whoever publishes or transmits or causes to be published in 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 3 first conviction with imprisonment of either description for a term which may extend to five years and with fine. It appears that the nude and/or semi-nude photographs of the male models were taken with their consent and perhaps for consideration. The photographs were transmitted to the models themselves and not to third parties. It is not clear that how such transmission is likely to tend to deprave or corrupt the male models who received their own photographs, perhaps allowed to be taken for consideration. Thus prima facie the offence u/s.67 of the I.T. Act does not appear to have been made out. Assuming however that offence u/s.67 is made out, still it is not a grave offence and is not punishable with death or imprisonment for life or even imprisonment in excess of 5 years. 5. The applicant has been arrested on 13th January 2008 and is in custody for more than two months. Taking this into consideration the fact that offence is not punishable with imprisonment for death or imprisonment for life or even for imprisonment in excess of five years, in my view, the applicant is entitled to bail. However, it would be necessary to impose strict conditions to secure the presence of the applicant at trial. Hence, I pass the following order:- 4 O R D E R . The applicant be released on bail on personal bond of Rs.50,000/- with one surety of the like amount subject to the following conditions:- i) The applicant shall surrender his passport to the concerned police station if the same has not already been seized. In the event the passport has been seized the applicant shall not be entitled for return of the passport except upon an order of this court or the Judge trying the applicant. ii) The applicant shall not apply for a duplicate passport or any travel documents entitling him to leave India without the leave of this court and shall file an undertaking to that effect in this court. iii) The applicant shall report to the DCB CID Unit-9 once a fortnight on every alternate Monday or Tuesday till the conclusion of trial. 5 iv) The applicant shall be entitled to move the trial Judge for expeditious hearing of the case. If such a request is made it shall be considered it on its own merits taking into consideration that the applicant is a foreign national not allowed to leave the country till the conclusion of trial. 6. It is clarified all observations made herein are only prima facie and the trial Judge shall not in any way be influenced by them at the time of trial. (D.G. KARNIK, J)