Intentional downloading of material is necessary to attract the offence under Section 67B of the IT Act.

ORDER :

1. This Crl. M.C. has been filed to quash Annexure A2 final report in Crime No. 531/2020 of Melukavu Police Station now pending as C.C. No. 257/2021 on the files of the Judicial Magistrate of the First Class, Erattupetta.

2. The petitioner is the accused. The crime was registered against him initially for the offences punishable under Section 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and under Section 67B of the Information Technology Act, 2000 (IT Act). The case was suo motu registered based on the information from the Cyber Cell, Kottayam as part of P-Hunt Raid. The allegations in the FIR was that the petitioner downloaded and kept in his mobile phone, child pornographic material for commercial purpose.

3. After completion of the investigation, the offence under Section 15 of the POCSO Act was deleted and final report was filed for the offence under Section 67B of the IT Act. According to the petitioner, even if the entire allegations in the FIR are taken at face value, they do not constitute the offence under Section 67B of the IT Act and it is in these circumstances, this Crl. M.C. has been filed under Section 482 of Cr.P.C. to quash the proceedings.

4. I have heard Sri. Sujith Mathew Jose, the learned counsel for the petitioner and Sri. Grashious Kuriakose, the learned Additional DGP.

5. A perusal of the final report would show that the only allegation against the petitioner is that he downloaded and enjoyed material depicting children in obscene, indecent and sexually explicit manner from the application called “Telegram.” In order to attract the offence under Section 67B of the IT Act, the videos or material has to be voluntarily downloaded into any device. In other words, there should be intention on the part of the petitioner to download the material in order to view it. The definite case of the petitioner is that he did not download any offensive material. Even in Annexure A3 FSL report it is seen that the path of those images is from Android backup and the child pornographic videos were accessed through “Telegram.” The learned Additional DGP submitted that the contents transmitted in the “Telegram” can be automatically downloaded in the mobile phone by default. Hence, it cannot be said that the petitioner has intentionally downloaded the material, considering the features of the “Telegram” App.

6. Since there is no material so show that the petitioner has browsed or downloaded child pornographic material, the offence under Section 67B of the IT Act is not attracted. Hence, no purpose will be served in proceedings with the matter further. Accordingly, the Crl. M.C. is allowed. All further proceedings pursuant to Annexure A2 final report in Crime No. 531/2020 of Melukavu Police Station now pending as C.C. No. 257/2021 on the files of the Judicial Magistrate of the First Class, Erattupetta stands hereby quashed.