Factual Matrix 

In the case of X v. State of Punjab Separate requests for anticipatory bail under Section 438 of the Criminal Procedure Code, 1973 were made by the complainant’s husband and co-accused for violations under Sections 67 and 67-A of the Information Technology Act, 2000 (the “IT Act”). 

The complainant filed the First Information Report (or “FIR”) against her spouse and another after receiving some messages from the co-accused that contained inappropriate photos and videos with her husband on her Instagram ID. Her spouse is accused of tricking her into allowing the films and photos to be made with the ultimate goal of blackmailing her. It was emphasised that the complainant had filed a police report under Sections 406, 498-A of the IPC against her husband and in-laws alleging that her husband was having an illicit relationship with the co-accused and that her husband had given the co-accused the complainant’s pornographic videos and photographs, who was then blackmailing and threatening the complainant.

Court Decision 

The spouse and co-accused were given anticipatory bail by the single judge bench of the Punjab and Haryana High Court Justice Gurbir Singh since the prosecution’s case was based on the creation and transmission of videos to the complainant and not the broader public. 

The Investigating Officer determined that the videos and photos were created by the husband on his mobile device with the help of the co-accused, even though the Inquiry Officer during the pre-registration investigation determined that the obscene video was prepared by the complainant herself.

The IT Act’s Sections 67 and 67A prohibit “publishing or transmitting obscene material in electronic form or publishing or transmitting material containing sexually explicit act or conduct, in electronic form,” the court said. It further emphasised that notices were given to the petitioners by Section 41A of the CrPC, but that they did not participate in the investigation and that there is no documentation to support properly served notices. According to the court, the petitioners are qualified for the award of anticipatory bail because the prosecution’s case states that the husband prepared pornographic movies and photos that were sent by the co-accused to the complainant’s phone and not to the broader public.