Supreme Court To Consider Correctness Of Kerala HC View That Mere Storage Of Child Pornography Is No Offence Under POCSO/IT Acts

The Supreme Court today (August 12) issued notice in a petition challenging the Kerala High Court order which held that mere downloading of child pornography on one's mobile phone cannot be considered as an offence under the POCSO Act, 2012 or the Information Technology Act. 

The bench led by CJI DY Chandrachud comprising Justices JB Pardiwala and Manoj Misra heard the plea filed by Just Rights for Children Alliance.

The Petitioner has challenged the decision of the Kerala High Court which 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 or Section 15(2) of the Protection of Children from Sexual Offences Act when the evidence showed that there was no specific intent to transmit or distribute the same.

While issuing notice on the petition, CJI referred to the challenge against the Madras High Court order which held that watching child pornographic videos will not by itself attract offences under the Protection of Children from Sexual Offences (POCSO) Act. The High Court had discharged the accused in the said case. 

"We have reserved judgement in the Madras High Court order challenge, just wait for it," CJI told the petitioner's counsel

Senior Advocate HS Phoolka appearing for the petitioner informed the bench that the Kerala Police has found that several local children from the age group of 8-10 and 15-16 years were involved in the offending sexual videos

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 children which was downloaded on his phone from Telegram app.

S. 15(2) states : (2) Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description which may extend to three years, or with fine, or with both.

It may be recalled that previously the Court slammed a similar judgement of the Madras High Court which declared that downloading and viewing child pornography is not an offence.

"This is atrocious", the CJI had orally remarked about the Madras High Court's reasoning while issuing notice in the matter. The petition therein was also filed by the present petitioner NGO. 

Background 

The High Court bench of Justice A Badharudeen observed that no prima facie case was made out against the petitioner under Section 15(2) of the POCSO Act and Section 67 B (b) of the IT Act.

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 offence 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.

Case Detail : JUST RIGHTS FOR CHILDREN ALLIANCE AND ANR. Versus SEBIN THOMAS AND ANR. Diary No. 34443-2024 

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