IMPORTANT POINT
Pre-arrest bail – Cyber bullying remains inadequately addressed by current legal frameworks.

JUDGMENT

This appeal under Section 14A of the Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act) has been filed by the petitioner/accused in crime no.251/2024, Infopark police station, Ernakulam, aggrieved by the dismissal of his petition under Section 438 Cr.P.C., namely, Crl.M.C. No. 1407/2024, on the file of the Court of Session, Ernakulam, seeking pre-arrest bail.

2. It was submitted by the learned counsel for the appellant/accused that the materials on record do not make out any offence(s) under the Act. The appellant/accused has never referred to or mentioned the caste name of the 2nd respondent/informant in the video uploaded by him. Relying on the dictum in Hitesh Verma v. State of Uttarakhand, (2020) 10 SCC 710, it was submitted that merely because the 2nd respondent/informant is a member of a scheduled caste or a scheduled tribe, an offence under the Act would not be made out unless there is an intention to humiliate her only for the reason that she belongs to such caste. The materials on record do not make out an offence under Section 3(1)(r) of the Act and hence the bar under Section 18 or 18A is not attracted, goes the argument.

2.1. Per contra, it was submitted by the learned Public Prosecutor that the edited video uploaded by the appellant/accused contains several derogatory statements against the 2nd respondent/informant. The offences alleged are clearly made out. Moreover, custodial interrogation of the appellant/accused is required as seizure of the equipment used for editing and uploading the video is necessary and hence no pre-arrest bail can be granted.

3. The learned Public Prosecutor submits that though notice was issued to the victim through the SHO concerned, she did not accept the notice. However, she has been informed of the pendency of the appeal. Heard both sides.

4. The prosecution case is that the appellant/accused on account of his previous enmity towards the 2nd respondent/informant as she had filed complaints against online platforms like Crime online, True T.V., Bharat Live T.V. etc., with the knowledge that she belongs to a scheduled caste community and with the intention to defame and outrage her modesty, uploaded a video in his YouTube channel. Initially the appellant/accused downloaded the videos and pictures uploaded by one Sooraj Palakkaran, editor of True T.V., in which the 2nd respondent/informant has been picturized as a person who had been arrested for immoral traffic. The appellant/accused downloaded the said videos and photographs, edited it by including an interview with the husband of the 2nd respondent/informant; his views on the topic etc., created a video using his mobile phone and other electronic devices and on 22/06/2022 uploaded the same through his YouTube channel, namely, Visal Media. Thus, the appellant/accused as per the FIR is alleged to have committed the offences punishable under Section 354A(i)(iii), 354A(1)(iv), 509 IPC; Section 66-E, 67-A of the Information Technology Act, 2000 (IT Act) and Section 3(1)(r), (s), (w), (ii) and Section 3(2)(va) of the Act.

5. Section 66E of the IT Act deals with punishment for violation of privacy. As per the Section, whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, is liable to be punished with imprisonment or with fine or with both. Clause (c) to the Explanation to the Section defines “private area” as the naked or undergarment clad genitals, pubic area, buttocks or female breast. Apparently, the materials on record now available before the court do not attract the ingredients of the offence under Section 66E of the IT Act.

6. Reference was made to Section 67A of the IT Act which says that whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct is li