Ker HC | Abusive words lacking lascivious elements cannot be brought within contours of S. 67 of Information Technology Act

Kerala High Court: Alexander Thomas, J. allowed anticipatory bail application of a person accused of posting obscene remarks on the Facebook page of a woman who was a member of a political party.

Applicant herein and a male member of CPI(M) party were part of a television debate on the correctness or otherwise of Supreme Court’s judgment on the right of women devotees of menstrual age to enter and worship in the Sabarimala Temple (Indian Young Lawyers Assn. v. Union of India, 2018 SCC OnLine SC 1690) wherein the member of CPI(M) strongly took a stand in favour of the said judgment. Being of the opinion that traditions must be followed and women must not be permitted to enter Sabarimala, applicant was agitated by the stand taken by CPI(M)’s member and he made certain posts on Facebook page of the said member’s wife [who is also a member of CPI-M, a media person and also an Assistant Professor of Law] describing her husband in highly abusive language and also made disparaging remarks regarding faith and religion. He also sent obscene messages to the lady with the intention to insult her womanhood and reputation and to cause her mental distress. The lady filed a case against him under Section 509 of the Penal Code, 1860, Section 67 of the Information Technology Act, 2000 and Section 120(o) of the Kerala Police Act, 2011. Hence, the present application for pre-arrest bail.

Learned counsel appearing for the applicant, Mr. Siraj Karoly, submitted that offences under Section 509 IPC and Section 120(o) of the Kerala Police Act are bailable offences. Further, the nature of the factual allegations raised in FIR did not disclose an offence under Section 67 of IT Act. Whereas, the learned Public Prosecutor appearing on behalf of the State contended that the impugned publication on complainant’s Facebook page would be covered under Section 67 of IT Act.

The Court observed that even if the words are extremely unparliamentary, unprintable and abusive in nature, so long as the words in question are not one capable of arousing sexual thoughts in the minds of the hearers and does not involve lascivious elements arousing sexual thoughts or feelings or the words do not have the effect of depraving persons, and defiling morals by sex appeal or lustful desires, it cannot be brought within the broad contours of the penal provisions as contained in Sections 294 and 292 of the Penal Code corresponding to Section 67 of the Information Technology Act, 2000.

The Court noted that presumably, the accused-applicant had made such comments as he was a Hindu and complainant’s husband was a Muslim. It also expressed lament at the increasing intolerance, for views/ opinions of other people, in the society and remarked that perhaps the same was a result of increasing addictive use of social media.

However, confining itself to the application at hand, it held that custodial interrogation of the applicant was not warranted in the facts and circumstances of the case, and thus granted anticipatory bail to the applicant.[Sreekumar V. v. State of Kerala, 2019 SCC OnLine Ker 1305, Order dated 03-04-2019]

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