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2024 Supreme(Online)(KER) 39326
HIGH COURT OF KERALA
C.S. DIAS, J
BIJU P.G – Appellant
Versus
STATE OF KERALA – Respondent
Bail Appl. 6857/2024
BABU S. NAIR
The court allowed pre-arrest bail, emphasizing that the lack of explicit material may not constitute an offence under Section 67(A) of the IT Act, while imposing stringent conditions for bail.
Headnote:(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 482 - Bharatiya Nyaya Sanhita, 2023 - Section 79 r/w Section 3(5) - Information Technology Act - Section 67(A) - Application for pre-arrest bail - Allegations of transmitting obscene material - The petitioner argued lack of explicit material and innocence; prosecution contended necessity for custodial interrogation. (Paras 2, 5, 6, 8)
(B) Bail - Conditions for grant - The court allowed bail with stringent conditions, emphasizing the need for investigation and the presumption of innocence until proven guilty. (Paras 9(i)-(ix))
Facts of the case:
The petitioner is accused of forwarding an explicit conversation and a nude photograph of the de facto complainant, which led to the registration of offences under the BNS and IT Act. The petitioner claims innocence, stating no explicit material was involved.
Findings of Court:
The court found valid grounds for granting bail, subject to conditions, while acknowledging the need for further investigation.
Issues: The main issues were whether the allegations warranted custodial interrogation and if the offences under the relevant sections were applicable.
Ratio Decidendi: The court determined that the lack of explicit material may not constitute an offence under Section 67(A) of the IT Act, allowing bail while ensuring the investigation proceeds.
Result: Application allowed with conditions.
O R D E R
The application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita , 2023 ( for short, BNSS ), for an order of pre-arrest bail.
2. The petitioner is the first accused in Crime No.538/2024 of the Vellathooval Police Station, Idukki, which is registered against three accused persons for allegedly committing the offences punishable under Section 79 r/w Section 3 (5) of the Bharatiya Nyaya Sanhita , 2023 ( for short, ‘ BNS ’)and Section 67 (A) of the Information Technology Act ( for short, ‘IT Act’).
3. The crux of the prosecution case is that: the accused 1 and 2 had made an obnoxious conversation about the de facto complainant and forwarded the conversation with a nude picture of the de facto complainant standing with the first accused, to the third accused, who in turn forwarded the conversation and the picture to various mobile numbers, including posting it in the social media. Thus, the accused have committed the above offences.
4. Heard; Sri. Babu S. Nair, the learned counsel appearing for the petitioner and Smt.Pushpalatha M.K. the learned Senior Public Prosecutor.
5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. By no stretch of imagination can the offences be attracted to the facts of the case. Actually, it was a conversation between the accused 1 and 2 that was allegedly transmitted to the third accused. The said conversion can in no way outrage the modesty of the de facto complainant. The learned counsel for the petitioner submitted that even though the offence under Section 79 of the BNS is bailable, the offence under Section 67 (A) of the IT Act is non-bailable. But, to attract an offence under Section 67 (A) of the IT Act, there should be publication and transmission of sexually explicit material. A reading of the First Information Report would clearly reveal that there was no sexually explicit material or contact between the accused 1 to 3. Even assuming, though not admitted, that the petitioners had spoken bad of the de facto complainant, the same will attract an offence under Section 67 (A) of the IT Act. The petitioner is a law abiding citizen, without any criminal antecedents. Hence, the application may be allowed.
6.The learned Public Prosecutor opposed the application. She submitted that the petitioner had forwarded an obnoxious conversation of the de facto complainant to the third accused. Similarly, the petitioner also send his nude picture with a lady, claiming that it was the de facto complainant. Therefore, the petitioner’s custodial interrogation is necessary. Hence, the application may be dismissed.
7. The prosecution allegation is that, the accused 1 and 2 had spoken obnoxious things of the de facto complainant and transmitted the conversation with a nude photograph of the petitioner and a lady, whom they claimed was the de facto complainant, to the third accused, who in turn posted the same in the social media and forwarded to other persons.
8. Indisputably, the offence under Section 79 of the BNS is bailable. In order to attract an offence under Section 67 (A) of the IT Act, as rightly contended by the learned counsel for the petitioner, that there should be a publication and transmission of sexually explicit material. The de facto complainant does not have a case that the lady that was found along with the petitioner was her. Therefore, the transmission of the nude picture of the petitioner, prima facie, may not attract an offence under the realm of Section 67 (A) of the IT Act. Nonetheless, there are matters to be investigated and decided after trial.
9. On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly for the reasons already observed above, I am convinced and satisfied that the petitioner has made out valid grounds to invoke the discretionary jurisdiction of this Court under Section 482 of the BNSS . H
