Karnataka HC Recalls Order Which Held Watching Child Porn Online Not An Offence, Says Erroneously Overlooked Relevant Provision Of IT Act

The Karnataka High Court on Friday recalled its order passed on July 10, wherein it had held that a person watching child pornography online cannot be charged for an offence under Section 67B of the Information Technology Act.

A single judge bench of Justice M Nagaprasanna said “This court had passed the order without noticing section 67B (b), it is an error.”

The court had quashed the proceedings initiated against one Inayathulla N stating that watching pornographic website would not amount to "publishing or transmitting of material", as is necessary under Section 67B of the IT Act.

However, on the recall application moved by the State government, the court noted that the said order was passed only on the basis of Section 67B (a). However, Section 67B (b) of the Act provides that whoever, creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner, would become open for proceedings under Section 67B.

The court said “The sub clause b of Section 67B is what becomes applicable to the case at hand.”

Further it said, “Since the proceedings were annulled without permitting further investigations and noticing section 67B (b) it would undoubtedly become a reason for recall of the order passed quashing the proceeding in favour of the petitioner.”

Rejecting the contention of the petitioner's counsel that once an order is passed it would not be open for this court to recall the order or review the order as the case would be as Section 362 CrPC would create a bar, the court said,

“The said submission is unacceptable as Section 482 of CrPc cannot be controlled by Section 362 of CrPC. As inherent powers cannot be controlled by other provisions.”

Before concluding it said, “We judges are also humans. Infallibility is not known to humanity since judges are humans, we are also not infallible. Fallibility is also akin to what functions that we perform. Therefore to perpetuate this error after coming to know that there is a folly in the order passed by this court is no heroism.”

Accordingly it permitted further investigation in the case and recalled its earlier order quashing the proceedings.

Appearance: Advocate S Jagan Babu for Petitioner.

HCGP Harish Ganapathi for Respondent

Citation No: 2024 LiveLaw (Kar) 320

Case Title: Inayathulla N AND State By Police Sub Inspector

Case No: CRIMINAL PETITION NO. 13141 OF 2023