IMPORTANT POINTS
Whoever uses a child in any form of media for the purpose of sexual gratification, it is punishable under Section 14 of the Act. The main ingredient of the Section is that, the child should be used in any form of medium for the purpose of sexual gratification. In Section 13(a) to (c) gives inclusive definitions. Section 13(c) says that, the offence includes the indecent or obscene representation of a child. Whether the action of the petitioner amounts to an offence under Section 13 is a question to be decided during the time of the investigation. What is now available is only an F.I.R. Whether an offence under Section 13 of the POCSO Act is attracted in this case, is a matter to be decided at the time of the investigation.

ORDER :

These Bail Applications filed under Section 438 of the Criminal Procedure Code (Cr.P.C) were heard through Video Conference.

2. The petitioner, a mother asked her two minor children, aged 14 (boy) and 8 (girl) to paint on her naked body above the navel. The children painted on her naked body. The petitioner recorded it as a video. After that, the video is uploaded in social media with the heading "Body Art and Politics."

3. When this video was found by the Cyber dome, Kochi City Police, they submitted a report before the Inspector General of Police and the Commissioner of Police, Kochi stating that this is a child pornography related crime in social media. The Inspector General of Police and the Commissioner of Police, Kochi City, forwarded the report to the Station House Officer, Ernakulam Town South Police Station for necessary action. Based on the report, Crime No.478 of 2020 was registered by the Ernakulam Town South Police Station alleging offences punishable under Sections 13, 14 and 15 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act') and under Section 67B(d) of the Information Technology Act, 2000 (I.T.Act). Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 is also alleged against the petitioner. Crime No.2067 of 2020 was registered at Thiruvalla Police Station for the same set of facts against the petitioner. Therefore, B.A. No.3861 of 2020 and B.A. No.4041 of 2020 are filed by the petitioner under Section 438 of the Code of Criminal Procedure (Cr.PC). When these applications came up for consideration, the learned Public Prosecutor submitted that the Crime registered at Thiruvalla Police Station is clubbed with Crime No.478/2000 of the Ernakulam Town South Police Station. Therefore, B.A. No.4041 of 2020 is infructuous.

4. What now remains is Crime No.478 of 2000 of Ernakulam Town South Police Station. The learned counsel for the petitioner submitted that, even if the entire allegations in the F.I.R. are accepted in toto, no offence under Sections 13, 14, and 15 of the POSCO Act is made out. The learned counsel also submitted that, the offence under Section 67B (d) of the I.T. Act and Section 75 of the Juvenile Justice (Care and Protection of Children)Act, 2015 is also not made out.

5. The petitioner's submission is that she is an Activist and has been fighting her battle against body discrimination. The petitioner submitted that, it is her firm belief that, there needs to be openness so far as the discussion on body and body parts is concerned, and there is nothing to be hidden within and outside the family about the same. According to the petitioner, the children should be given sex education, and they also need to be made aware of the body and body parts as well. In which event, they would mature themselves to view the body and body parts as a different medium altogether rather than seen it as a sexual tool alone. According to her, she uploaded the above video with such an intention. The petitioner contends that, morality of the society and public outcry cannot be a reason and logic for instituting a crime and prosecuting a person. Hence, the petitioner filed this Bail Application under Section 438 Cr.P.C apprehending arrest in the above case.

6. This court issued notice to the Public Prosecutor. The de facto complainant in Thiruvalla Crime filed a petition for impleading him in the case and the same was allowed.

7. Heard the learned counsel for the petitioner Advocate Renjith B. Marar, the learned counsel for the 2nd respondent Advocate Sasith Panicker and the learned Public Prosecutor Suman Chakravarthy.

8. The learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for the de facto complainant filed separate argument notes before this court.

9. The counsel of the petitioner submitted that, the petitioner uploaded the video with a write up. The petitioner extracted the English translation of the same in his argument note which i