Section 67A IT Act: Sexually Explicit Content, Punishment and Bail

Section 67A of the Information Technology Act, 2000 is the middle tier of the IT Act's content offences. It covers sexually explicit material, which is more serious than the "obscene" material under Section 67 but separate from material involving children under Section 67B. It is commonly invoked in cases of leaked intimate videos, "revenge porn", sextortion and the circulation of explicit clips on messaging apps.

What Section 67A says

Whoever publishes or transmits, or causes to be published or transmitted, in electronic form, any material which contains a sexually explicit act or conduct commits an offence under Section 67A.

Punishment:

• First conviction: up to five years and a fine of up to ₹10 lakh.
• Second or subsequent conviction: up to seven years and a fine of up to ₹10 lakh.

The section has a built-in exception. It does not apply to material whose publication is justified as being for the public good, in the interest of science, literature, art or learning, or which is kept or used for bona fide heritage or religious purposes.

67 vs 67A: why the difference matters

The line is between material that is obscene (Section 67) and material that actually depicts a sexually explicit act or conduct (Section 67A). Police sometimes invoke 67A for content that is suggestive, abusive or partly nude but does not show any sexual act. If 67A is not made out, the case falls back to Section 67. A first offence under Section 67 is bailable, so the bail position changes completely.

Is Section 67A bailable?

No. Being punishable with more than three years, it is non-bailable and cognizable under Section 77B of the IT Act. It is also not compoundable, because Section 77A only allows compounding of offences punishable with up to three years.

However, because the maximum sentence is five years (seven for a repeat offence), it falls within the category of offences punishable with up to seven years. That brings in important BNSS safeguards.

How bail is approached

1. Notice instead of arrest (Section 35 BNSS)

For offences punishable with up to seven years, the police should ordinarily issue a notice of appearance rather than make an arrest, unless the conditions for arrest are met and recorded in writing. The Supreme Court has repeatedly directed compliance, most notably in Arnesh Kumar and Satender Kumar Antil. Responding to the notice and joining investigation is often the first protection.

2. Anticipatory bail (Section 482 BNSS)

The Sessions Court or the High Court can grant pre-arrest bail. Relevant factors include:

• whether the accused actually published or transmitted the material, or merely received or possessed it;
• whether the content really shows a sexually explicit act, or only falls under Section 67 or 66E;
• the relationship between the parties and whether the material was shared consensually in private;
• whether the devices are already seized and the content taken down; and
• willingness to join the investigation and hand over devices.

3. Regular bail (Sections 480 and 483 BNSS)

After arrest, a Magistrate can grant bail, and the Sessions Court and High Court can be approached if it is refused. If the chargesheet is not filed within 60 days, default bail under Section 187(3) BNSS becomes available.

4. Likely conditions

Courts usually impose conditions such as no contact with the complainant, no use of certain accounts, a ban on re-uploading or circulating any material, and surrender of the passport.

If the person shown is under 18

If the material involves anyone under 18, the case moves to Section 67B and the POCSO Act. Those offences are far more serious and are tried by a Special Court. See our post on Section 67B.

For victims

If your intimate content has been shared without consent, you can report it on the National Cyber Crime Reporting Portal (cybercrime.gov.in) or by calling 1930, and ask platforms for urgent takedown. See our guide on sextortion complaints.

Legal help in Gurugram

Rajat Kadyan and Associates handles cyber crime and bail matters, for complainants and for the accused, before the District and Sessions Court, Gurugram, and the Punjab & Haryana High Court.

Phone: +91 82954 13475 · Email: contact@rajatkadyan.com

Disclaimer: This article is for general information only and is not legal advice. Every case depends on its own facts.