The Patna High Court has clarified that mere possession of a mobile phone used to disseminate obscene content does not establish criminal liability in the absence of evidence linking the owner to the act or intent. This ruling reinforces the principle that anticipatory bail must be granted where allegations are vague and the accused are not directly implicated in the alleged offence.
Background & Facts
The Dispute
The petitioners, Kasish Raj and Kajal Kumari, sisters of Anuraj Kumar, seek anticipatory bail in connection with Civil Line Police Station Case No. 282 of 2023, registered on 25.04.2023. The case involves allegations under Sections 354-B, 506, and 509 of the Indian Penal Code, Sections 66(c) and 66(D) of the Information Technology Act, and Section 14(1) of the POCSO Act. The informant, Samita Kumari, alleges that a fake Instagram account, using her photographs and those of her niece Princy, was created to harass her family and customers. She claims the account was operated using mobile numbers belonging to the petitioners.
Key Facts
- The informant, Samita Kumari, is a makeup artist who posts bridal photos on Instagram
- On 24.04.2023, she received a call from mobile number 6389104245, claiming the number was obtained from her Instagram profile
- She alleges that a follower messaged her that requests for her photos were coming from a fake Instagram ID containing her images alongside obscene photographs
- Her brother received threats via mobile number 7281858183, warning that images would be made viral
- The petitioners are not named as accused in the FIR
- The real perpetrator is identified as Anuraj Kumar, brother of the petitioners
- Anuraj Kumar had previously filed Criminal Miscellaneous No. 77801 of 2025 seeking anticipatory bail, which was granted by a coordinate bench on 09.04.2026
- A separate FIR (Civil Line P.S. Case No. 423 of 2023) was filed by Princy’s mother, Samita’s sister, against Anuraj Kumar and the petitioners
- The informant, being Samita’s own sister and Princy’s maternal aunt, was aware of the relationship between Anuraj and Princy and the subsequent harassment
Procedural History
- 25.04.2023: FIR No. 282 of 2023 registered at Civil Line Police Station, Gaya
- 09.04.2026: Anuraj Kumar granted anticipatory bail by a coordinate bench of the Patna High Court
- 28.04.2025: Petitioners file Criminal Miscellaneous No. 76871 of 2025 seeking anticipatory bail
- 30.04.2026: Hearing before Justice Satya Vrat Verma
The Parties' Positions
For the Petitioners: The petitioners were unaware of Anuraj’s actions. They did not create the fake account, send threats, or post content. Their mobile numbers were used without their knowledge. It is illogical to assume a person would use their own device to commit an offence that directly implicates them. The allegations are vague and lack specific acts attributable to the petitioners.
For the Respondent/State and Informant: Opposed the bail application, arguing that the petitioners’ mobile numbers were used in the offence and therefore they must be held accountable. No specific rebuttal was offered to the claim that the petitioners had no knowledge or involvement.
Relief Sought
The petitioners seek protection from arrest in connection with FIR No. 282 of 2023, pending investigation and trial, and request the grant of anticipatory bail under Section 438 of the CrPC read with Section 482(2) of the BNSS.
The Legal Issue
Can anticipatory bail be denied to individuals who are not named in the FIR, where the alleged offence was committed by a third party using their mobile devices, and there is no evidence of their knowledge, consent, or participation?
Arguments Presented
For the Petitioner
The petitioners’ counsel relied on the principle that mere possession of a device used in a crime does not equate to criminal liability. He cited Arnesh Kumar v. State of Bihar to emphasize that arrest cannot be automatic and must be preceded by reasonable satisfaction of the necessity. He argued that the petitioners, being women with no prior criminal antecedents, were being targeted due to familial association. The fact that Anuraj Kumar had already been granted anticipatory bail, and that the informant was aware of his role, further undermined the case against the petitioners. The allegations were described as speculative and lacking in specificity.
For the Respondent/State
The State and informant’s counsel opposed the bail application on the ground that the petitioners’ mobile numbers were used in the commission of the offence. However, they failed to present any evidence linking the petitioners to the creation of the fake account, the sending of threats, or the uploading of content. No assertion was made that the petitioners had access to or control over the device at the relevant time.
The Court's Analysis
The Court observed that the petitioners are not named in the FIR and that the informant herself is the maternal aunt of the actual victim, Princy, and was aware of the relationship between Anuraj Kumar and Princy. The Court noted that the informant’s failure to disclose this critical context in the FIR raises serious questions about the motive behind implicating the petitioners.
"No prudent person would use her own mobile for committing an occurrence and thus would create evidence against herself and hence would get implicated."
The Court emphasized that the burden of establishing a prima facie case against the petitioners lies with the prosecution, and that mere association through device ownership is insufficient. The Court distinguished this case from those where the accused is directly involved in the act, noting that the petitioners had no opportunity to commit the offence and were not even present at the scene. The Court further noted that Anuraj Kumar, the actual perpetrator, had already been granted anticipatory bail, and there was no reason to treat the petitioners differently.
The Court also considered the nature of the offences alleged, which involve serious violations of privacy and dignity, but held that the gravity of the offence cannot override the absence of direct involvement or intent on the part of the petitioners.
The Verdict
The petitioners succeeded. The Court granted anticipatory bail to Kasish Raj and Kajal Kumari. In the event of their arrest or surrender within six weeks from today, they shall be released on furnishing bail bonds of Rs. 10,000 each with two sureties of the like amount each, to the satisfaction of the trial court or its successor. The conditions under Section 482(2) of the BNSS shall apply. The Court directed that the petitioners shall not tamper with evidence or influence witnesses.
What This Means For Similar Cases
Possession of Device Is Not Proof of Guilt
- Practitioners must argue that ownership or access to a device used in a cybercrime does not, by itself, establish mens rea or participation
- The prosecution must prove active involvement, knowledge, or consent - mere association is legally insufficient
- In cases under Section 66(c) and 66(d) of the IT Act, courts must scrutinize whether the accused had control over the device at the time of the offence
Familial Association Cannot Substitute Evidence
- Courts must reject attempts to implicate family members based on proximity or shared residence
- Where the real offender is identified and granted relief, co-accused without direct involvement must be treated separately
- The informant’s knowledge of the true perpetrator and failure to disclose it in the FIR may be grounds to challenge the credibility of the complaint
Anticipatory Bail Is a Right, Not a Privilege
- The Arnesh Kumar principle remains binding: arrest must be a last resort
- Courts must apply the triple test - gravity of offence, likelihood of flight, and possibility of tampering - with strict scrutiny
- Where the accused is a woman, has no prior record, and is not named in the FIR, anticipatory bail should be the norm, not the exception
