Publication must depict actual sexual acts to invoke Section 67A of the IT Act.

ORDER :

Kauser Edappagath, J.

This application is filed by the sole accused in Crime No.33/2025 of Cyber Crime Police Station Kochi, Ernakulam City, under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, BNSS ), seeking pre-arrest bail.

2. The applicant is the chief editor of a YouTube channel named CRIME ONLINE. On 29/8/2025, the applicant posted a video on the said YouTube channel as well as in his Facebook account named CRIME STORY with a caption

(“What exactly did Pinarayi do by lifting Saritha Nair’s skirt...the video is out”). On the same day itself, at 9.41 p.m., the Cyber Crime Police Station, Kochi, registered a crime against the applicant for the offences punishable under Section 192 of the Bharatiya Nyaya Sanhita, 2023 (for short, the BNS) and Sections 67 and 67A of the Information Technology Act, 2000 (for short, the IT Act). Annexure 1 is the FIR.

3. The allegation in Annexure 1 is that the above- mentioned video contains obscene material involving sexually explicit content, and the applicant published it on his social media platforms with the intention of inciting public mutiny and tarnishing the reputation of the Hon'ble the Chief Minister of Kerala, Sri. Pinarayi Vijayan and thereby committed the offences mentioned above.

4. I have heard Sri.S.Rajeev, the learned counsel for the applicant and Sri.U. Jayakrishnan, the learned Senior Public Prosecutor. Perused the case diary.

5. The learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the above crime. The learned counsel further submitted that no material is on record linking the applicant to the alleged crime; hence, he is entitled to bail. According to the learned counsel, by no stretch of imagination, Section 67 A of the IT Act would be attracted as the post cannot be categorised as relating to any sexually explicit act or conduct. The learned counsel justified the post, contending that it was purely a political and comparative analysis in the backdrop of the allegation of molestation by a young MLA against a woman and the double standard taken by the ruling party led by the Hon'ble the Chief Minister when similar allegations arose against the leaders of their party. It is submitted that the applicant, a journalist, used his poetic vocabulary for the comparison and there was no obscene or sexually explicit act or conduct in the video to attract Sections 67 and 67A of the IT Act. The counsel added that the investigation is almost over, the Cyber Police, Thiruvanathapuram, already seized the hard disk containing the post in Crime No.38/2025, and hence the custodial interrogation of the applicant is not necessary.

6. The learned Public Prosecutor, on the other hand, submitted that the alleged incident occurred as part of the applicant's intentional criminal acts, and if he is released on bail at this stage, it will affect the course of the investigation. The learned Public Prosecutor further submitted that the investigation is in the early stage and it is too early to conclude that the offences alleged will not be attracted. According to the learned Public Prosecutor, the intention of the applicant was to embarrass and humiliate the Hon'ble the Chief Minister. The learned Public Prosecutor also submitted that the custodial interrogation of the applicant is necessary for the purpose of investigation. The applicant has criminal antecedents and he is involved in several crimes of similar nature, added the learned Public Prosecutor.

7. Even though in Annexure 1 FIR, the offences under Section 192 of BNS, along with Sections 67 and 67A of the IT Act, were incorporated, later during the investigation, Section 192 of BNS was deleted, and what remains is Sections 67 and 67A of the IT Act.

8. The provisions of Sections 67 and 67A of the IT Act operate in distinct circumstances. Section 67 refers to publishing or transmitting obscene material in electronic form, whereas Section 67 A refers to transmittin