Offences Under IT Act Punishable With 3 Years Imprisonment Are Bailable Under Section 77B: Kerala High Court Grants Pre-Arrest Bail In KCA Data Theft Case

"The maximum punishment provided for all the offences under the IT Act charged against the applicants is three years. Going by Section 77B of the IT Act, the offence punishable with imprisonment of three years is bailable," Kerala High Court, in a significant ruling, held that offences under the Information Technology Act carrying a maximum punishment of three years are bailable as per Section 77B of the Act.

While granting pre-arrest bail to an accountant and a member of the Kerala Cricket Association (KCA) accused of unauthorized data collection, a bench of Dr. Justice Kauser Edappagath observed that custodial interrogation is unnecessary when the relevant electronic devices have already been seized.

The court noted that the provisions of the Information Technology (Amendment) Act, 2008, specifically Section 77B, categorize offences punishable with imprisonment of up to three years as bailable. The bench emphasized that when the primary evidence is digital and already in the custody of the investigating agencies, the liberty of the individual should be protected.

The case arose from allegations that Jithin K.P. (Accused No. 1), an accountant at the KCA, and S. Haridas (Accused No. 2), a KCA member, unauthorizedly collected data from the Association's computers between August and November 2025. It was alleged that the data, dating back to 2011, was shared with other office bearers, thereby causing wrongful loss to the KCA.

The prosecution charged the applicants under Sections 61, 316, and 318(2) read with 3(5) of the Bharatiya Nyaya Sanhita (BNS), 2023, along with Sections 43, 66, 66B, and 72 of the Information Technology (Amendment) Act, 2008. The applicants moved the High Court seeking pre-arrest bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

The primary question before the court was whether the applicants were entitled to pre-arrest bail under the newly enacted Section 482 of the BNSS. The court was also called upon to determine whether the offences under the IT Act were bailable and whether custodial interrogation was justified given the factual circumstances.

Court’s Observations On Bailable Nature Of IT Act Offences

Statutory Classification Under Section 77B IT Act

The court meticulously examined the penal provisions invoked against the applicants. It noted that the maximum punishment provided for the offences under the IT Act, including unauthorized access and breach of confidentiality, does not exceed three years.

The bench held that by virtue of Section 77B of the IT Act, such offences are bailable. "The maximum punishment provided for all the offences under the IT Act charged against the applicants is three years. Going by Section 77B of the IT Act, the offence punishable with imprisonment of three years is bailable," the court observed.

Absence Of Dishonest Intent And Mens Rea

Court Analyzes First Information Statement (FIS)

Upon perusing the case records and the First Information Statement, the court found that the allegations did not prima facie establish a dishonest intention. It was noted that Accused No. 1 was deputed to verify accounts and the data was shared only within the office bearers of the KCA.

The court observed that there was no allegation that the data was shared with any external third party for personal gain. "In the FIS, there is no allegation that the accused No.1 dishonestly accessed the data with requisite mens rea," the bench remarked.

Custodial Interrogation Deemed Unnecessary

Seizure Of Digital Devices And Forensic Examination

The court evaluated the necessity of custodial interrogation by reviewing the status of the investigation. The report from the investigating officer confirmed that the laptop and pen drive used for the alleged unauthorized data collection had already been produced by the Secretary of the KCA and seized.

Since the devices were already sent to the Forensic Science Laboratory (FSL) for scientific examination, the court found no reason to keep the applicants in custody. The bench noted that the applicants had no criminal antecedents and were unlikely to flee from justice.

Conditions For Pre-Arrest Bail

In view of these findings, the court allowed the applications for pre-arrest bail. The applicants were directed to be released on bail in the event of their arrest upon executing a bond of Rs. 1,00,000 each with two solvent sureties.

The court imposed several conditions, including a mandate to cooperate fully with the investigation and to appear before the investigating officer every Saturday between 10.00 a.m. and 11.00 a.m. The applicants were also restrained from tampering with evidence or leaving the State of Kerala without prior permission.

The ruling reinforces the principle that where offences are bailable or where custodial interrogation serves no investigative purpose due to the prior seizure of evidence, pre-arrest bail remains a vital safeguard for personal liberty. By clarifying the application of Section 77B of the IT Act, the court has provided clarity on the bailable status of mid-level cyber offences.

Date of Decision: 11 June 2026