Granting Pre Arrest Bail On The Basis Of Age Factor Will Only Result In Adverse Effects : Kerala High Court

KEY TAKEAWAYS

• The case in reference is Jaimon v. State of Kerala [B.A. No. 8663/2020 of Kerala High Court, Ernakulam.
• The decision in the case was pronounced by Kerala High Court Judge J. Shircy V.
• The bail application before the court was in essence one of "transmitting morphed content online ".
• The accused in this case is an 18 year old college student named Jaimon.
• Jaimon has been charged guilty for offences under Sections 67 and 67-A of the Information Technology Act, 2000. (I.T Act)

BACKGROUND DETAILS

• The Petitioner who is the sole accused is a neighbour of the defacto complainant and had close acquaintance with the family of the defacto complainant which consists of his wife and 3 children.
• The Petitioner i.e. the accused used to quite often visit the complainant’s home to play shuttle with his kids.
• The prosecution submitted that while visiting their home he clicked photos of defacto complainant’s wife from his cell phone.
• Later he morphed those photographs, made a fake profile in her name, then published and transmitted those morphed and sexually explicit photos on social media in exchange for money which he gained from various sources.
• And thus he is charged under the said offences as concluded by the petitioner’s counsel.

FURTHER DETAILS

• The counsel for the accused submitted that the accused is a college student and currently pursuing his studies and absolutely innocent.
• The investigating officer reported that this was a bailable offence and the same was submitted.
• Under the influence of the defacto complainant he has also been charged and implicated for non- bailable offences. Also the defacto complainant is in adverse terms with the petitioner’s parents.
• While the public prosecutor opposed the bail application and submitted that the offences registered against the accused are serious and grave in nature. Also the investigation is under way.
• The counsel for the complainant who opposed the bail application contended that “the petitioner misused and took advantage of the freedom he received as a friend of his children and exploited the situation by indulging himself into such heinous crime for the sake of money".

SECTION 67 AND 67-A OF I.T. ACT, 2000

• Section 67 of the Information Technology Act, 2000 states the punishment for publishing, transmitting obscene materials in electronic form.
• Whereas, section 67-A of the same act punishes a person for publishing / transmitting material containing sexually explicit act or conduct in electronic form.
• When reading section 67 with section 67-A, it appears as a complete code.

COURT’S OBSERVATIONS

• After hearing both the sides the bench observed, that prima facie it is detectable that the photographs of the defacto complainant’s wife which were submitted in a CD file by the prosecution clearly shows that the photos were morphed and were circulated on social media.
• Secondly the chat details collected by the investigating agency which were retrieved from his cell phone that he collected money by collecting money from morphed obscene photos of the complainant’s wife.
• The money which he received was via Google pay as revealed by investigating agency during investigation.
• The court noted the following:

◦ The investigating agency would require time to investigate as the money was collected via Google pay, to find out more about the transactions.
◦ As the transmission of obscene photos was in digital form the investigating officer would definitely require time to collect evidences for prosecution.
◦ Forensic Analysis of the device is important to retrieve digital evidences.
◦ Solely seizure of the cell phone would not suffice to proceed with the investigation.

THE CURRENT SCENARIO

• The Court before pronouncing the order whether the bail should be granted or not laid down the following view point :

◦ The offences levelled against the accused are outrageous and offensive against the society at large.
◦ Granting bail to the accused would only send a wrong message to the wrong doers.
◦ Such kind of cases are indeed fast increasing in our society.

• Thus in order to curb such offences in our society, granting pre arrest bail on the basis of consideration of age factor of the accused will only give adverse effects.
• Hence, the court clearly stated that ‘it was not inclined’ to grant pre arrest bail to the petitioner even though he is only an eighteen year old college student.
• Thus the bail application was dismissed by the court.

CONCLUSION

The court while rejecting the bail application exercised its power of not granting the bail as it was in the discretion of the court whether or not the bail should be granted which the court clearly pointed out by saying it was not inclined.

The court also displayed its concerns about the growing number of such kind of cases in the society and in order to curb the same the court wanted to set an example so as to have a deterrent effect on other wrongdoers.

Thus the court made it clear that even though the accused is a young 18 year old pupil, the court can not let go an offender just because of his or her age as such offences are against the society at large.