Merely Watching Child Pornography Not An Offence Under POCSO Act Or Section 67B Information Technology Act: Madras High Court

Justice Anand Venkatesh noted that to attract the offences under the POCSO Act, a child or children must have been used for pornography purposes. In the present case, the court noted that accused had watched pornography videos but had not used a child or children for pornographic purposes. This, in the opinion of the court, could only be construed as a moral decay on the part of the accused person.

“To make out an offence under Section 14(1) of Protection of Child from Sexual Offences Act, 2012, a child or children must have been used for pornography purposes. This would mean that the accused person should have used the child for pornographic purposes. Even assuming that the accused person had watched child pornography video, that strictly will not fall within the scope of Section 14(1) of Protection of Child from Sexual Offences Act, 2012. Since he has not used a child or children for pornographic purposes, at the best, it can only be construed as a moral decay on the part of the accused person,” the court observed.

In the present case, based on a letter received by the Additional Deputy Commissioner of Police (Crime against women and children), a case was registered against the accused for downloading child pornographic material in his mobile.

During the investigation, the mobile phone was seized and a Forensic analysis was conducted which confirmed that the mobile phone had two files which contained child pornography content involving teen boys. The court took cognizance of the offence under Section 67B of the Information Technology Act 200 and Section 14(1) of the POCSO Act. The accused had approached the High Court seeking to quash the criminal proceedings.

With respect to the charges under Section 67B of the IT Act, the accused must have published, transmitted, and created materials depicting children in sexually explicit acts or conduct. The court added that the section did not make child pornography, per se, an offence. Thus, the court noted that the Act did not cover a case where a person had merely downloaded child pornography in his electronic gadget and watched the same without doing anything more.

The court also relied on an order of the Kerala High Court which had observed that watching porn by a person itself was not an offence.

Thus, observing that the materials did not make out an offence under IT Act or the POCSO Act, the court opined that the continuation of the proceedings will amount to abuse of process of court and would be a stumbling block for the accused's career. The court, thus quashed the criminal proceedings.

Counsel for the Petitioner: Mr.J.N.Naresh Kumar

Counsel for the Respondents: Mr.A.Damodaran Additional Public Prosecutor

Citation: 2024 LiveLaw (Mad) 17

Case Title: S Harish v Inspector of Police and Another

Case No: CRL.O.P No.37 of 2024