The court established that anticipatory bail requires more than mere serious allegations, necessitating strong justification for custodial interrogation.

O R D E R

This bail application is filed under section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘ BNSS ’).

2. Petitioner is the second accused in Crime No.10 of

2025 of Cyber Police Station, Ernakulam, registered for the offences punishable under sections 75(1), 75(3), 75(1)(iv) and 79 of the Bharatiya Nyaya Sanhita, 2023 (for short ‘ BNS ’) and Sectionos 67 and 67A of the Information Technology Act, 2000 (for short ‘IT Act’) and Section 120 (o) of the Kerala Police Act .

3. According to the FIR, the accused had with intend to sexually harass the de facto complainant, created an Instagram account and published the morphed nude photographs of the victim and sent an invite to her to join the group, which message was seen by her on 22.02.2025, thereby causing mental agony and harm to the reputation and thereby committed the offences alleged.

4. Sri.Arjun S., the learned counsel for the petitioner, contended that the offences alleged against the petitioner cannot be attracted considering the nature of allegations. According to the learned counsel, Section 75 is not attracted since the victim was not part of the group where the alleged obscene post was published. It was further submitted that the petitioner was not the administrator of the group, and he had no control over whom to include and whom not to include. It was further submitted that even the offence under Section 67 A of the IT Act is not attracted and, at the most, going by the allegations, Section 67 of the IT Act could be attracted which is a bailable offence and therefore petitioner ought to be released on anticipatory bail.

5. Sri.Prasanth M P., the learned Public Prosecutor, on the other hand, submitted that allegations are serious which require custodial interrogation. It was also submitted that the details and the manner in which the petitioner published the obscene post needed to be probed into and hence, custodial interrogation is necessary.

6. Petitioner claims to be suffering from spastic cerebral palsy, which has caused him locomotor disability of 50%. However, it is conceded that the petitioner is gainfully employed and had even completed his graduation. Hence the disability claimed is not a reason to grant him anticipatory bail.

7. The offences alleged are Section 75 and Section 79 of BNS of which the former is the non bailable offences. On a reading of the allegations, it is doubtful whether Section 75 would be attracted as there was never any direct contact with the victim. Since the victim was not part of the group where the alleged obscene posts were published. Further, the allegations indicate only a nude morphed photo that was published and not any sexually explicit act or conduct. Thus prima facie only the offence under Section 67 of the IT Act will be attracted which is a bailable offence as per Section 77B of the said Act.

8. InSushila Aggarwal v. State (NCT of Delhi), 2020 (5) SCC 1 , it was held that while considering whether to grant anticipatory bail or not, Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case. Grant of anticipatory bail is a matter of discretion and the kind of conditions to be imposed or not to be imposed are all dependent on facts of each case, and subject to the discretion of the court.

9. In Ashok Kumar v. Union Territory of Chandigarh , [2024 SCC OnLine SC 274], it has been held that a mere assertion on the part of the State while opposing the plea for anticipatory bail that custodial interrogation is required would not be sufficient and that the State would have to show or indicate more than prima facie case as to why custodial interr