IMPORTANT POINT
The necessity of strict proof of the age of the victim in child pornography cases, the relevance of expert testimony in determining the age of the model, and the application of Section 45 of the Indian Evidence Act in child pornography cases.

Is strict proof of the age of the victim required in all cases of child pornography ? Should the prosecution prove the identity of the victim in child pornography cases ? These are essentially the questions raised in all these petitions. Therefore, I prefer to dispose of all these cases analogously.

2. In Crl.M.C.No.2231 of 2023, the petitioner challenges the final report and the order dated 1.11.2022 in CMP.No.468 of 2022, an application seeking discharge, passed by the Court of Additional District and Sessions Judge, Ernakulam (for the trial of cases relating to Atrocities & Sexual Violence against Women and Children). In Crl.M.C.No.1736 of 2021, the petitioner challenges the final report in S.C.No.519/2020 on the file of the Additional District and Sessions Court-I, Kasaragod.

3. In all the Criminal Revision Petitions, the petitioners challenge the orders rejecting their applications seeking discharge under Section 227 Cr.P.C..

Crl.M.C.No.1736 of 2021

4. The prosecution case is that on 27.6.2020 at 8 a.m., the Police found naked videos and photos of minor girls in the mobile phone of the accused. After completing the investigation the Police submitted final report alleging offences punishable under Sections 15(1) & 15(2) of the Protection of Children from Sexual Offences Act, 2012 (for short “the POCSO Act”) and Section 67-B(b) of the Information Technology Act, 2000 (for short “the I.T. Act”).

Crl.M.C.No.2231 of 2023

5. The prosecution case is that on 4.10.2020, pursuant to the information received from the Cyber Cell, Kochi City, the Inspector of Police, Info Park Police Station found child pornographic videos and pictures in the message application installed in the mobile phone of the accused. After completing the investigation the Police submitted final report alleging offences punishable under Sections 67 & 67-B of the I.T. Act and Section 15 of the POCSO Act.

Crl.R.P.No.70 of 2023

6. The prosecution alleges that on 4.10.2020, the Police found obscene videos containing child pornography in the laptop in the possession of the accused. The Police submitted final report alleging offences punishable under Section 15(1) of the POCSO Act and Section 67-B(b) of the I.T. Act. The petitioner/accused filed an application seeking discharge under Section 227 Cr.P.C. as Crl.M.P.No.575/2022. The Court below dismissed the application. This order is under challenge in the Crl.R.P.

Crl.R.P.No.221 of 2023

7. The prosecution alleges that the Police found pornographic photos and videos downloaded in the mobile phone in the possession of the accused. The Police submitted final report alleging offences punishable under Section 15 of the POCSO Act and Section 67-B(b) of the I.T. Act. The petitioner/accused filed an application seeking discharge under Section 227 Cr.P.C. as Crl.M.P.No.06/2022. The Court below dismissed the application. This order is under challenge in the Crl.R.P.

Crl.R.P.No.281 of 2023

8. The prosecution case is that on 4.10.2020, the Police found obscene videos and photos containing child pornography in the mobile phone in the possession of the accused. The Police submitted final report alleging offences punishable under Section 15(1) of the POCSO Act and Section 67-B(b) of the I.T. Act. The petitioner/accused filed an application seeking discharge under Section 227 Cr.P.C. as C.M.P.No.48/2022. The Court below dismissed the application. This order is under challenge in the revision petition.

9. I have heard the learned counsel for the petitioners, the learned Amici Curiae Sri.Renjith B Marar and Sri.John S Ralph and the learned Public Prosecutor Smt.Pushpalatha.

10. Sri.Sarath Babu Kottakkal, the learned counsel appearing for the petitioner in Crl.R.P.No.70/2023 submitted the following:

The offences under the POCSO Act are attracted only if the victim is a child. The term ‘child’ is defined as any person below the age of eighteen years. If the age is not established, no prosecution under the POCSO Act will lie. For any offence under the