1. This application is filed under section 438 of the Code of Criminal Procedure.

2. The petitioner herein is the 2nd accused in Crime No.2079 of 2017 of the Central Police Station, Ernakulam registered alleging offences punishable under sections 511 of 384, 506, 354 read with 34 of the IPC, section 120 (o) of the Kerala Police Act and under sections 66E and 67A of the Information Technology Act.

3. The aforesaid crime was originally registered against one Kiran Kumar and some others on the basis of information furnished by a cine actress. According to the de facto complainant, the 1st accused feigned love and on a false promise of marriage, became close to her. She was taken to various hotels and certain photographs were taken of their private moments. Later their relationship became strained when she learned that the 1st accused was a married person. When she tried to distance herself, he uploaded the photographs of their private moments in the Internet and facilitated the sharing of the same in the social media and other Internet sites.

4. It so appears that the petitioner is the Director of Bisan Media Private Limited, which runs an online news portal under the name and style 'Kerala Online News”. When the fact that the private photographs of the actress was uploaded by the 1st accused in various sites became viral, he also reported the same in his news portal. On the allegation that the said report would ipso facto violate Section 66 E and 67 A of the Information Technology Act, he has been roped in as the 2nd accused.

5. Heard the learned counsel appearing for the petitioner as well as the learned public prosecutor

6. According to the learned Counsel, the news portal owned by him has been recognized by the Public Relations Department in the State of Kerala. Referring to the news item that appeared in Kerala Online News, it is submitted that all that he had reported was that certain private images of the actress had sprung up online. He had only shown blurred out picture of the faces of two persons sitting side by side and had also reported that it was doubtful whether the picture was morphed or not.

According to the learned counsel, even if the allegations against the petitioner are accepted as such, the offences under sections 66E and 67A of the Information Technology Act, 2000 will not be attracted.

7. The learned public prosecutor on instructions submitted that the allegation against the petitioner is that he had uploaded some images in his news portal and if that be the case, offence alleged would definitely be attracted.

8. I have considered the submissions and have gone through the case diary.

9. Section 66E penalizes a person who violates the privacy of any person. It says that 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, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both. Private area has been defined to mean the naked or undergarment clad genitals, public area, buttocks or females breast. In the instant case, the prosecution has no case that the petitioner has either published or transmitted the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person.

10. Section 67A of the IT Act penalizes a person for publishing or transmitting material containing sexually explicit act etc., in electronic form. After going through the case diary, it does not appear that the prosecution has a case that the petitioner has either published or transmitted in electronic form any material which contains a sexually explicit act or conduct.

11. What the petitioner has published in his news portal is the fact that certain private pictures of the victim had surfaced online and he has taken care to show only blurred out photographs of the faces of two per