IMPORTANT POINT
The main legal point established in the judgment is the necessity of sharing, transmitting, or publishing sexually explicit materials involving a child to establish offences under Section 15(1) of the POCSO Act and Section 67B of the IT Act.

ORDER :

1. The sole accused in Crime No. 911 of 2020 of Payyannur Police Station, who is alleged to have committed offences punishable under Section 15(1) of the Protection of Children from Sexual Offences Act (hereinafter referred to as ‘POCSO Act’) and Section 67B of the Information Technology Act (hereinafter referred to as ‘IT Act’) has approached this Court and filed this petition under Section 482 of the Code of Criminal Procedure to quash the final report mainly on the ground that the ingredients to attract the above offences have not been made out from the prosecution records.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case records in detail.

3. It is submitted by the learned counsel for the petitioner that tracing out the ingredients to attract offences under Section 15(1) of the POCSO Act and Section 67B of the IT Act, there must be materials showing sharing, transmission or publishing of sexually explicit act and pornographic materials in any form involving a child. According to the learned counsel, even though pornographic materials involving a child were recovered during investigation, nothing is available in the final report to see that the accused herein either shared or transmitted the same. Similarly, there is no material to show that he has published the same so as to attract penal consequences of Section 15(1) of the POCSO Act and 67B of the IT Act. Therefore, the final report is liable to be quashed.

4. Opposing this contention, the learned Public Prosecutor placed the report of the investigating officer and the relevant materials stating that the accused shared the videos and thereby committed the offences. Hence, quashment of the final report is unwarranted.

5. On perusal of the report, the investigating officer stated that the accused shared the pornographic materials, but going through the materials available, no materials seen collected during investigation to show that the accused herein shared, transmitted or published the pornographic messages found in his mobile phone, as alleged by the prosecution.

6. In this connection, it is necessary to trace out the ingredients to attract offence under Section 15(1) of the POCSO Act and Section 67B of the IT Act.

7. The learned counsel for the petitioner placed a decision of this Court reported in Manuel Benny vs. State of Kerala and Another, 2022 KHC Online 3437 contending that in order to attract an offence under Section 67B of the IT Act, the videos or materials have to be voluntarily downloaded into any device. He also placed another decision of this Court reported in Aneesh vs. State of Kerala, 2023 (6) KHC 10, wherein a learned Single Judge of this Court considered the ingredients to attract an offence under Section 292 of the Indian Penal Code, wherein this Court held as under:

“I am of the considered opinion that watching of an obscene photo by a person in his privacy by itself is not an offence under S.292 IPC. Similarly, watching of an obscene video by a person from a mobile phone in his privacy is also not an offence under S.292 IPC. If the accused is trying to circulate or distribute or publicly exhibit any obscene video or photos, then alone the offence under S.292 IPC is attracted. In this case, even if the entire prosecution case is accepted in toto, no offence under S.292 IPC is made out against the petitioner. In the light of the above principle laid down by this Court, I am of the considered opinion that, even if the entire allegations in Annexure 2 final report are accepted in toto, no offence under S.292 IPC is made out against the petitioner. Therefore, this Crl. M.C. is to be allowed.”

8. In order to see the ingredients to attract section 15(1) of the POCSO Act extraction of the said provision is necessary and the same is provides as under:

“Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated a