Mere Storage Of Child Pornography Not An Offence Under POCSO Act & Information Technology Act: Kerala High Court
The Kerala High Court has held that automatic or accidental downloading of children engaged in sexually explicit act or conduct is not an offence under Section 67B (b) of the Information Technology Act when the evidence shows that there was no specific intent to do so.In the facts of the case, the petitioner was alleged to have committed offences under Section 15(2) of the POCSO Act and...
The Kerala High Court has held that automatic or accidental downloading of children engaged in sexually explicit act or conduct is not an offence under Section 67B (b) of the Information Technology Act when the evidence shows that there was no specific intent to do so.
In the facts of the case, the petitioner was alleged to have committed offences under Section 15(2) of the POCSO Act and Section 67 B (b) of the Information Technology Act. The specific allegation was that the petitioner stored and possessed pornographic material involving child which was downloaded on his phone from Telegram.
The bench observed that no prima facie case was made out against the petitioner Section 15(2) of the POCSO Act and Section 67 B (b) of the IT Act and held thus:
“In the present case, the materials collected during investigation would show that some pornographic messages, which would depict children engaged in sexually explicit act or conduct were found in the devise of the accused. But there are no materials to show that the petitioner intentionally downloaded or browsed or recorded the same. More particularly there are no materials to show that the petitioner had either shared or transmitted or propagated or displayed or distributed the same in any manner.”
The petitioner contended there was no evidence to show that the petitioner either shared or transmitted pornographic materials involving child even though it was recovered during the investigation.
On analyzing Section 15 (2) of the POCSO Act, the Court stated that mere storing or possessing pornographic materials by itself is not an offence. It stated that to establish an offense under Section 15(2) of the POCSO Act, there must be evidence to indicate that the accused possessed or stored pornographic materials with the intention to transmit, propagate, display, or distribute them.
The Court noted that even the evidence from the chemical analysis report did not indicate that there was transmission, propagation, display or distribution of pornographic materials involving a child.
The Court stated that as per Section 67B of the IT Act, the act of publishing, transmitting, or causing any material in electronic form depicting children engaged in sexually explicit acts or conduct, or creating text or digital images, constitutes the essential ingredients of the offence.
In the facts of the case, the Court found that prima facie no offence was made out under Section 67 B (b).
“Therefore, going by the decision, automatic or accidental downloading of children engaged in sexually explicit act or conduct is not an offence under Section 67B, once the specific intention to do so is not established, by the materials which form part of the prosecution records.”
Accordingly, the Court allowed the criminal revision petition and discharged the petitioner.
Counsel for Petitioner: Advocate V.A.Johnson (Varikkappallil)
Counsel for Respondents: Senior Public Prosecutor Renjit George
Citation: 2024 LiveLaw (Ker) 376
Case Title: Sebin Thomas v State of Kerala
Case Number: CRL.REV.PET NO. 610 OF 2024