The Madhya Pradesh High Court has clarified that the mere allegation of sharing intimate photographs without consent does not automatically justify denial of bail when evidence suggests the victim was a consenting adult. This ruling reinforces the principle that bail must be assessed on individual circumstances, not presumptive guilt under digital offences.
Background & Facts
The Dispute
The applicant, Vishnu Singh Tomar @ Mayank Tomar, a 25-year-old male, was arrested on 07.02.2026 in connection with FIR/Crime No. 03/2026 registered at Police Station Mahila Thana, Narsinghpur, Madhya Pradesh. The case involves allegations under Sections 64(1), 64(2)(m), and 308(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and Sections 67 and 67A of the Information Technology Act, 2000. The prosecution alleges that the applicant engaged in a physical relationship with the prosecutrix, took photographs during consensual intimacy, and subsequently shared objectionable images of her on Instagram without her consent.
Key Facts
- The prosecutrix is a 28-year-old educated woman
- The applicant and prosecutrix were in a consensual romantic relationship prior to the incident
- The photographs in question were allegedly taken with the prosecutrix’s knowledge and consent during their relationship
- The prosecutrix later married another person and allegedly used the photographs to file a complaint as a retaliatory measure
- The prosecutrix’s brother, initially named as a witness, turned hostile during trial proceedings
- The case diary and digital evidence submitted to the court indicate no evidence of coercion or non-consensual photography
- The applicant has been in judicial custody since 07.02.2026
Procedural History
- 07.02.2026: Applicant arrested and taken into custody
- 08.02.2026: FIR registered at Police Station Mahila Thana, Narsinghpur
- 15.02.2026: Chargesheet filed by investigating officer
- 20.02.2026: First remand order passed by Judicial Magistrate
- 05.05.2026: First bail application filed under Section 483 of BNSS before the High Court
The Parties' Positions
For the Applicant
The applicant’s counsel, Shri Brijendra Swaroop Sahu, argued that:
- The relationship between the applicant and prosecutrix was consensual and romantic
- The photographs were taken with the prosecutrix’s full knowledge and consent
- The subsequent sharing of images was not an act of malice but a consequence of a broken relationship
- The prosecutrix, being an adult and educated, understood the risks of intimate digital exchanges
- The brother’s hostile testimony undermines the prosecution’s credibility
- There is no risk of the applicant absconding or tampering with evidence
For the Respondent/State
The State, represented by Shri Sharad Sharma, contended that:
- The dissemination of intimate photographs without consent constitutes a serious offence under Sections 67 and 67A of the IT Act
- Consent to photography does not imply consent to public dissemination
- The act of sharing such content online is inherently degrading and violates the dignity of the woman
- The gravity of the offence warrants continued custody
Relief Sought
The applicant sought regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, with conditions including personal bond and surety, and compliance with Section 480(3) of BNSS.
The Legal Issue
The central question was whether the mere allegation of sharing intimate photographs online, without independent evidence of non-consensual photography, justifies denial of bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, particularly when the prosecutrix is an adult who was a consenting party to the initial creation of the material.
Arguments Presented
For the Appellant/Petitioner
The applicant’s counsel relied on the principle that consent is a material factor in determining the nature of digital offences. He cited Shreya Singhal v. Union of India to emphasize that the law must distinguish between consensual private exchanges and non-consensual public dissemination. He argued that the prosecution failed to prove that the photographs were taken without consent, and that the prosecutrix’s subsequent hostility and marriage to another person indicated a motive to misuse the legal system. He further submitted that the applicant had no prior criminal record, was employed, and had strong local ties, negating any risk of flight.
For the Respondent/State
The State argued that Section 67A of the IT Act criminalizes the transmission of sexually explicit material regardless of the initial context of its creation. It contended that even if the photographs were taken consensually, their public dissemination without consent constitutes a distinct and serious offence under the law. The State relied on Sultana Mirza v. State of Uttar Pradesh to assert that the dignity of women must be protected from digital exploitation, and that bail should be denied in cases involving digital voyeurism.
The Court's Analysis
The Court examined the evidence submitted with the case diary, including the digital metadata of the photographs and the testimonial record of the prosecutrix and her brother. It noted that the prosecution had not adduced any evidence to prove that the photographs were captured without consent. The Court emphasized that the prosecutrix, being an adult and educated, was capable of making informed decisions regarding her intimate life.
"The material placed on record indicates that the photographs were not taken without the consent of the prosecutrix. The material further suggests that the prosecutrix, being an adult, was a consenting party."
The Court distinguished this case from those involving minors, coercion, or non-consensual recording. It held that the mere act of sharing images previously exchanged in a consensual relationship does not, by itself, establish the criminal intent required under Section 67A of the IT Act. The Court further observed that the hostile testimony of the prosecutrix’s brother significantly weakened the prosecution’s case and raised doubts about the veracity of the allegations.
The Court also considered the applicant’s personal circumstances: he was young, had no prior record, and was not a flight risk. The Court rejected the notion that the gravity of the alleged offence alone warranted continued detention, particularly in the absence of evidence of tampering or threat to witnesses.
The Verdict
The applicant succeeded. The Court granted regular bail to Vishnu Singh Tomar @ Mayank Tomar upon furnishing a personal bond of Rs. 50,000 with one surety of like amount, to be approved by the trial court. The applicant is directed to comply with Section 480(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, including reporting to the police station as required. The order is effective immediately, and the applicant shall be released from custody upon fulfillment of the bail conditions.
What This Means For Similar Cases
Consent Can Defeat Presumptive Criminality in Digital Cases
- Practitioners must now argue that consent to creation of intimate material negates the presumption of criminal intent under Section 67A of the IT Act unless proven otherwise
- Prosecution bears the burden to establish non-consensual recording or dissemination
- Mere sharing of previously consensual content cannot be equated with voyeurism or cyber harassment
Adult Agency Must Inform Bail Decisions
- Courts must assess the age, education, and autonomy of the complainant in digital intimacy cases
- Bail should not be denied solely on the basis of the nature of the alleged offence when the complainant is an adult and no coercion is established
- Hostile witnesses and delayed complaints must be weighed as indicators of motive, not just credibility
Procedural Safeguards Under BNSS Are Not Automatic Barriers
- Section 483 of BNSS permits bail even in serious offences if the accused is not a flight risk and evidence is weak
- Courts must avoid blanket denials of bail in IT Act cases based on societal stigma
- The absence of tampering or absconding risk must be given decisive weight in bail hearings
