Privately Watching Porn Video Without Exhibiting It To Others Will Not Attract Offence Of Obscenity U/S 292 IPC: Kerala High Court
The Kerala High Court last week quashed criminal proceedings initiated against a man who was arrested by the Police from roadside for watching pornography on his mobile phone.Justice P.V.Kunhikrishnan stated that "privately" watching obscene photos or videos on one’s phone without distributing or publicly exhibiting it will not attract the offence of obscenity under IPC. It added that...
The Kerala High Court last week quashed criminal proceedings initiated against a man who was arrested by the Police from roadside for watching pornography on his mobile phone.
Justice P.V.Kunhikrishnan stated that "privately" watching obscene photos or videos on one’s phone without distributing or publicly exhibiting it will not attract the offence of obscenity under IPC. It added that watching such content is a person’s private choice and the Court cannot intrude into his privacy.
"The question to be decided in this case is whether a person watching a porn video in his private time without exhibiting it to others amounts to an offence? A court of law cannot declare that the same amounts to an offence for the simple reason that it is his private choice and interference with the same amounts to an intrusion of his privacy," Court observed.
It added, “I am of the considered opinion that, watching of an obscene photo by a person in his privacy by itself is not an offence under Section 292 IPC. Similarly, watching of an obscene video by a person from a mobile phone in his privacy is also not an offence under Section 292 IPC. If the accused is trying to circulate or distribute or publicly exhibits any obscene video or photos, then alone the offence under Section 292 IPC is attracted.”
Justice Kunhikrishnan however cautioned parents regarding the lurking danger in handing over mobile phones to minor children, without supervision. The Court warned that porn videos are easily accessible in mobile phones with internet access and if children watch them, it could have far reaching consequences. The Court thus motivated the parents to show informative news and videos to children and send them for outdoor activities, rather than playing with mobile phones. It added,
“Instead of purchasing food from restaurants through ‘swiggy’ and ‘zomato’, let the children taste the delicious food made by their mother and let the children play at play grounds at that time and come back home to the mesmerizing smell of mother’s food. I leave it there to the wisdom of the parents of minor children of this society.”
The Court made these observations in a criminal miscellaneous petition filed by the accused to quash the criminal proceedings initiated against him u/s 292 of IPC.
In the proemial passage the Court observed that consensual sex between man and woman in their privacy is not an offence in our country. The Court held that it need not recognize consensual sex or watching of porn video in privacy because these are within the domain of the will of society and the decision of legislature.
The Court examined the law of obscenity u/s 292 of IPC and held that for attracting an offence of obscenity, there must be evidence to show that the accused sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever.
Accordingly, it quashed the criminal proceedings initiated against the accused.
Counsel for the accused: Advocates Bobby Rapheal.C and E.C.Poulose
Counsel for the respondent: Public Prosecutor Vipin Narayan
Citation: 2023 LiveLaw (Ker) 473
Case title: Aneesh V State of Kerala
Case number: CRL.MC NO. 7421 Of 2022