Section 67A of the I.T. Act requires depiction of actual sexual acts for conviction; mere transmission of nude images is insufficient for this charge.

O R D E R

This application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, BNSS ), seeking pre-

arrest bail.

2. The applicant is the sole accused in Crime No.2043/2025 of Adoor Police Station, Pathanamthitta District. The offences alleged are punishable under Sections 77 and 351(3) of the Bharatiya Nyaya Sanhita, 2023 and Sections 66E , 67 and 67A of the Information Technology Act, 2000 (for short, 'the I.T.Act').

3. The prosecution case, in short, is that, the applicant, who is the husband of the defacto complainant had sent the nude photographs of the defacto complainant to the mobile phone numbers viz. 7306329640 and 9447564171 respectively used by the defacto complainant and her stepfather, from his mobile phone Nos.956718898 and 6012220306 on 5.8.2025, at about 6.21 a.m. In addition to that, he had intimidated her raising threat that he will disseminate more such videos and photographs and thereby committed the offences.

4. I have heard Sri. Mohammed Shah, the learned counsel for the applicant and Sri.K.A.Noushad, 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 counsel further submitted that no materials are on record to connect the applicant with the alleged crime; hence, he is entitled to bail. The learned Senior 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. 6. The only non-bailable offence alleged against the applicant is under Section 67A of the I.T.Act. The learned counsel for the applicant submitted that, even if the entire allegations in the FI Statement are believed in toto, no offence under Section

67A of the I.T.Act is attracted. According to the learned counsel, at best an offence under Section 66E or Section 67 of the I.T.Act would be attracted. On the other hand, the learned Senior Public Prosecutor, relying on the decision of the Single Bench of this Court in Majeesh K. Mathew v. State of Kerala and Another [ 2018 (4) KHC 253 ], submitted that even the publication or transmission of a genitals or pubic area of any person would attract A of the I.T.Act.

7. Section 67A of the I.T.Act reads as follows:

“67A. Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form.–Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.”

To attract Section 67A, the accused must publish, transmit, or cause to publish or transmit in electronic form any material containing sexually explicit act or conduct. The I.T. Act does not define sexually explicit act or conduct. This Court in T.P.Nandakumar v. State of Kerala and another [2026 (1) KHC 549] has recently held that, to invoke Section 67A of the I.T.Act, the publication in question must depict actual or simulated sexual acts or intercourse. Admittedly, in this case, even as per the prosecution case, what was sent by the applicant to the defacto complainant and the father of the defacto complainant was a nude photograph of the defacto complainant. No doubt, the said image does not depict any actual or simulated sexual act or intercourse. The learned counsel for