Important Points:
In order to attract Section 67 of the Information Technology Act, words used should be capable of arousing sexual thoughts in the minds of hearers and should involve lascivious elements arousing sexual thoughts or feelings or words must have the effect of depraving persons, and defiling morals by sex appeal or lustful desires etc.

ORDER :

This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference.

2. The petitioner is the accused in Crime No.987/2020 of Pathanamthitta Police Station. The above case is registered against the petitioner alleging offence punishable under Section 294(b) IPC, Section 67 of the Information Technology Act, 2000 and Section 120(o) of the Kerala Police Act.

3.The prosecution case in nutshell is that the petitioner is an anchor of an online news channel which is airing news in Youtube and Facebook, published a news item which is lascivious and appeals to the prurient interest and hence the act amounts to an offence under Section 67 of the Information Technology Act and other offences. Therefore, the petitioner committed the above offence.

4. The counsel for the petitioner submitted that, even if the entire allegations in the complaint submitted by the defacto complainant are accepted, no offence under Section 294(b) IPC and Section 67 of the Information Technology Act is attracted. He submitted that the only non bailable offence is under Section 67 of the Information Technology Act. He also submitted that, eventhough such a news item was transmitted through the online news channel, she is regretting about some of the statements mentioned in the news item.

5. The learned Public Prosecutor submitted that, the averments in the complaint prima facie make out an offence under Section 67 of the Information Technology Act. According to him, the petitioner committed a serious offence and therefore the extraordinary jurisdiction under Section 438 of Cr.P.C may not be exercised in this case.

6. I considered the contentions of the learned counsel for the petitioner and the learned Public Prosecutor. Since the learned counsel for the petitioner has got a contention that, even if the entire allegations in the complaint are accepted, no offence under Section 67 of the Information Technology Act will attract, I have to consider that point also. For deciding the case, it will be better to extract Section 67 of the Information Technology Act.

“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 or 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 which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.”

7. A reading of Section 67 of the Information Act, 2000 it is clear that 'or' is used in between 'lascivious', 'appeal to the prurient interest' and '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.' Therefore, these are not ingredients to constitute the offence but these are distinct offences. A person committed any of this act, Section 67 of the Information Technology Act is attracted. For clarity, the following acts are amounts to an offence under Section 67 of the Information Technology Act.

8. Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which is:-

(i) Lascivious.

(ii) Appeal to the prurient interest.

(iii) 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.

9. Therefore, if any of the above acts are committed by a person, an offence under Section 67 o