The Kerala High Court granted pre-arrest bail to the editor of a YouTube channel in a case arising from the publication of a video that allegedly contained obscene content involving the Chief Minister of Kerala. The case was registered following the upload of a video with a caption that was alleged to be sexually suggestive and defamatory, referring to the Chief Minister and another individual who had figured in a past public controversy. The Cyber Crime Police registered the case under provisions of the Information Technology Act dealing with the publication and transmission of obscene and sexually explicit material in electronic form.
The prosecution alleged that the video was uploaded with the intention of spreading obscene content, provoking public disorder, and damaging the reputation of the Chief Minister. It was contended that the video went beyond permissible political criticism and crossed into the realm of sexually explicit insinuation. Based on these allegations, the investigating agency argued that custodial interrogation of the accused was necessary and opposed the grant of anticipatory bail, also pointing to the criminal antecedents attributed to the petitioner.
While considering the bail application, the High Court examined the contents of the video and the statutory requirements under the relevant provisions of the Information Technology Act. The court observed that, to attract the offence relating to sexually explicit material, there must be depiction or portrayal of actual or simulated sexual acts or conduct. On a prima facie examination, the court found that the video did not contain such explicit depiction. Instead, it appeared to be in the nature of political commentary drawing a comparison between different public controversies, even though the language used might be offensive or objectionable to some.
The High Court noted that mere reference to sexuality or use of provocative language, without depiction of sexual acts as required by law, would not automatically bring the content within the scope of the provision dealing with sexually explicit material. The court also took into account that the electronic device containing the video had already been seized in connection with a related matter and that the investigation was at an advanced stage, reducing the necessity for custodial interrogation.
Addressing the prosecution’s reliance on the petitioner’s previous cases, the High Court reiterated that criminal antecedents alone cannot be a decisive factor in denying anticipatory bail if the facts of the present case otherwise justify relief. The court held that the right to personal liberty must be balanced against the needs of investigation, and in the absence of compelling reasons showing that arrest was indispensable, pre-arrest bail could be granted.
Accordingly, the High Court allowed the application for anticipatory bail, subject to appropriate conditions, and clarified that the order was based on a prima facie assessment limited to the bail stage. The court made it clear that the observations would not affect the merits of the ongoing investigation or any subsequent proceedings arising from the case.
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