Punjab and Haryana High Court: In separate petitions filed by the complainant's husband and co-accused under Section 438 of Criminal Procedure Code, 1973 (‘CrPC') seeking anticipatory bail for offences under Sections 67, 67-A of the Information Technology Act, 2000 (‘IT Act'), Gurbir Singh, J. granted anticipatory bail to the husband and co-accused, since the prosecution case was based on preparation and transmission of videos to the complainant and not the general public.
The First Information Report (‘FIR') was filed by the complainant against her husband and another after she received some messages containing her obscene videos and objectionable photographs with her husband on her Instagram ID by co-accused. It was alleged that the videos and photographs were taken by her husband by deceiving her with the intention of blackmailing her from the very beginning.
It was pointed that the complainant had registered a police complaint against her husband and in-laws under Sections 406, 498-A of IPC stating that her husband was having illicit relationship with the co-accused in the instant matter, and that her husband had given the complainant's indecent videos and photographs to the co-accused, who was blackmailing and threatening the complainant.
The Court pointed towards the fact that although the Inquiry Officer during pre-registration inquiry found that the obscene video was prepared by the complainant herself, but after registration of FIR, the Investigating Officer viewed that the videos and photographs were prepared by the husband on his own mobile in connivance with the co-accused.
The Court noted that Sections 67 and 67A of IT Act pertain to ‘publishing or transmitting obscene material in electronic form or publishing or transmitting material containing sexually explicit act or conduct, in electronic form.' It further pointed out that notices were issued to the petitioners under Section 41A of CrPC, but they failed to join the investigation and that there is a lack of record confirming properly served notices.
The Court said that since the case of prosecution alleges preparation of obscene videos and photographs by the husband which were circulated by the co-accused to the complainant's phone and not to the general public, the petitioners are entitled for grant of anticipatory bail.
The Court directed both the husband and co-accused to join investigation and hand over their mobile phones and co-operate with the Investigating Officer. Thus, the Court granted anticipatory bail to the husband and the co-accused while applying the usual terms.
[X v. State of Punjab, 2023 SCC OnLine P&H 475, decided on May 12, 2023]
Judgment by: Justice Gurbir Singh
Advocates who appeared in this case :
For Petitioner: Advocate Varun Chhibba, Advocate Manmeet Singh Bindra
For State: Additional Advocate General Himani Arora
For Complainant: Advocate Harish Sharma