Child Pornography: "Only 'Bharatiya Culture' Can Act As A Bulwark; Can Tackle Menace By Inculcating Right Values": Madras High Court

Noting that child pornography is a very serious issue warranting a firm approach, the Bench of Justice G. R. Swaminathan, however, made the distinction between a onetime consumer and those who transmit or propagate or display or distribute in the digital domain.

Importantly, the Court observed that the moment one steps into digital space, one comes under the surveillance either of the State or those manning the social networking sites.

"If one is zealous about privacy, the only option is to stay outside such networks. Of course, in the current world, it is not a viable option," added the Court.

Further, noting that Section 43 of POCSO Act, 2012 [Public awareness about Act] mandates the Central and State Governments to take measures to spread public awareness about the provisions of the statute, the Court remarked:

"But this alone may not be sufficient. That the 'Big Brother' is watching us may not deter those who are determined to indulge in such acts of perversity. The system also may not be able to prosecute every offender. Therefore, it is only through moral education, there can be a way out. It is only the Bharatiya culture that can act as a bulwark."

The case before the Court

The Accused was booked of offences under Section 15(1) of Protection of Children From Sexual Offences Act, 2012 and Section 67 B of the Information Technology Act, 2000 and apprehending arrest, he filed an anticipatory Bail plea.

In the case on hand, the Court noted that he is said to have shared the offending material with his friend through Facebook messenger and since, he had not come under adverse notice after the occurrence and since he had also extended his fullest cooperation with the investigation, the Court granted him anticipatory bail.

Lastly, noting that it was a one-off act and that it was not the case of the prosecution that the possession or transmission was for commercial purposes.

Therefore, the Court directed the accused to appear before the Police and hand over the mobile phone together with the sim card mentioned in the FIR and other devices involved in the offence.

Therefore, he was ordered to be released on bail in the event of arrest by the respondent police on executing personal bonds for a sum of Rs.5,000/- with two sureties each for a like sum.

Message to the Accused

Quoting from Nanjil Naadan's article, a well-known writer, the Court said:

"the pipe is sweet, the lute is sweet," say those who have not heard the prattle of their own children."

The Court further noted that, according to him, the expression "children" need not be confined to one's own children and that it should encompass all children and that emphatically states that we should be compassionate towards any child.

"We should ensure that no child is sexually exploited. The writer utters several such noble sentiments. I only wish the petitioner who ironically has been named as 'Infant' reads the above essay and imbibes the sentiments expressed therein," remarked the Court.

"Child pornography falls outside this circle of freedom"

Significantly, the Court observed that as on date, there is no provision prohibiting such private acts of viewing pornography, however, the Court did add that even though there are some who even elevate it as falling within one's right to free expression and privacy, but child pornography falls outside this circle of freedom.

Referring to Section 67-B of the Information Technology Act, 2000, which penalises every kind of act pertaining to child pornography, the Court ruled that even viewing child pornography constitutes an offence.

The Court noted that last year The Indian Express had quoted a police officer, who had warned the citizens that they must understand that activities on cyber space are always monitored.

The Court also took into account the fact that there is an international NGO called NCMEC (National Center for Missing & Exploited Children) and it maintains a Cyber Tipline, and since, there is a Memorandum of Understanding between National Crime Records Bureau (NCRB), India and NCMEC, USA, thus, the NGO provides access to the material available with NCMEC.

"One such Tipline report sent to the respondent police implicated the petitioner herein and that is how, the case came to be registered," noted the Court.

Case title- P.G.Sam Infant Jones v. State rep. by the Inspector of Police, Thallakulam AWPS, Madurai

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