IMPORTANT POINTS:
" The court while exercising its powers as a statutory court in terms of provisions contained in Sections 438 and 439 it has necessarily to consider contentions that the proceedings are only in the matter of grant of anticipatory bail and the very legality and correctness of the criminal proceedings are not directly challenged in a proceedings.
" A comparison of the relevant wordings in Section 292(1) and Section 67 of the Information Technology Act, 2000 would make out it clear that in order to make the publication or transmission or causing of publication or transmission in the electronic form to be brought within the contours of Section 67 of the Information Technology Act, 2000.
" In the definition of obscenity under 292(1) I.P.C., the words used must be in a sense lascivious or it must appeal to the prurient interest or will deprave and corrupt persons.
" Even if the words are extremely unparliamentary, unprintable and abusive in nature, so long as the words in question are not one capable of arousing sexual thoughts in the minds of the hearers and does not involve lascivious elements arousing sexual thoughts or feelings or the words must have the effect of depraving persons, and defiling morals by sex appeal or lustful desires etc., it cannot be brought within the broad contours of the penal provisions as contained in Sections 294 and 292 of the IPC corresponding to Section 67 of the Information Technology Act, 2000.

Petitioner is the sole accused in Crime No.468 of 2019 of Medical College Police Station, Thiruvananthapuram, which has been registered for the offences punishable under Section 509 of the IPC, Section 67 of the Information Technology Act, 2000 and Section 120(o) of the Kerala Police Act, 2011.

2. The brief of the prosecution case is that the lady de facto complainant in this case is an Assistant Professor of Law and also a media person and that with the intention to insult the womanhood and the reputation of the lady de facto complainant and to cause mental distress on the lady de facto complainant, the petitioner (accused) had made postings in her Facebook account, which has the effect of raising lascivious interest on the people who sees it and has also sent obscene messages to insult her womanhood by making such postings in her Facebook account.

3. The learned counsel appearing for the petitioner would submit that indisputably the offences under Section 509 of the IPC and Section 120(o) of the Kerala Police Act, 2011 are bailable offences and further that going by the nature of the factual allegations raised in the first information statement, the offence under Section 67 of the Information Technology Act, 2000 is not disclosed.

4. Per contra, the learned Public Prosecutor points out that the contentions of the petitioner that no offence is made out in terms of Section 67 of the Information Technology Act, 2000 is untenable.

5. After hearing both sides, it appears that the lady de facto complainant and her husband are activists of the ruling party CPI(M) and on the day prior to the incident in question, the petitioner’s husband had participated in television channel discussion on the correctness or otherwise of the Apex Court’s judgment on the right of women devotees of menstrual age to enter and worship in the Sabarimala Temple, wherein the de facto complainant’s husband has taken a very strong stand that the judgment of the Apex Court is legally correct and that it has to be complied with in letter and spirit. It appears that the petitioner ardently believes that the tradition should not permit women of menstrual age to visit the Sabarimala Temple, and that it cannot be interfered with by the judicial courses and is quite irritated and annoyed by the specific stand taken by the lady de facto complainant’s husband and thereupon he had made some postings in the Facebook account of the lade de facto complainant describing her husband in highly abusive and unparliamentary and unprintable words. A photocopy of the said Facebook account and making of other disparaging remarks that for issues relating to the faith of the people who followed Hindu religion, the views of the de facto complainant’s husband, is unnecessary etc. Presumably the said comment has been made by the petitioner accused as the lady de facto complainant’s husband, is a Muslim. It further appears that the lady de facto complainant is a Hindu. The abusive and unprintable words used against the de facto complainant’s husband is something analogous to the word “son of a bitch etc.” though the Malayalam word is not the exact corresponding word to the above said English word and has the effect of degrading and abusing womanhood and motherhood.

6. It is beyond any dispute that the offences under Section 509 of the IPC, 120(o) of the Kerala Police Act, 2011 are bailable offences. Section 67 of the Information Technology Act, 2000 reads as follows:

“67. Punishment for publishing or transmitting obscene material in electronic form-Whoever publishes or transmits or causes to be published or transmitted in the 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 first conviction with imprisonment of either description for a term w