IMPORTANT POINT
Automatic or accidental downloading of pornographic material involving children is not an offense under Section 67B of the IT Act if specific intention is not established.

ORDER :

1. This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, to quash all further proceedings pursuant to Annexure-C Final Report in Crime No. 623/2022 of Petta Police Station, Thiruvananthapuram, now pending as S.C. No. 2098/2023 on the files of the Additional District and Sessions Court (for the trial of cases relating to atrocities against women and children), Thiruvananthapuram.

2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor, in detail. Perused the relevant materials available.

3. In this matter, the prosecution alleges commission of offences punishable under Section 67(b) of the Information Technology Act (hereinafter referred as ‘IT Act’ for short) and Section 15 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred as ‘POCSO Act’ for short).

4. Precise allegation of the prosecution against the accused is that, as against the prohibitions to download, store or transmit videos of child or children aged upto 18 years, the accused herein downloaded porn videos and seen the same. It is on this premise, the prosecution alleges commission of the above said offences by the accused.

5. At the time of hearing the learned counsel for the petitioner submitted that the petitioner is innocent and the allegations are false. He has pointed out that, there is no allegation in the Final Report that the petitioner, either intentionally downloaded, browsed or shared the video, in any manner. The prosecution allegation is only confined to that of presence of porn video in the mobile phone of the accused and there is no evidence collected during investigation to show that the petitioner intentionally downloaded or browsed or recorded the same. Particularly, no materials are available to show that the petitioner had either shared, transmitted or published the video, in any manner.

6. On perusal of the prosecution records, no materials collected during investigation to show that the petitioner intentionally downloaded or browsed or recorded the same and there are no materials available to show that the petitioner had either shared, transmitted or published the video, in any manner. The allegation is confined to that of presence of porn video in the mobile phone of the accused alone.

7. In the decision of this Court reported in Shantheeshlal T. vs. State of Kerala, 2024 KHC Online 433 : 2024 KER 35968, this Court considered the essentials to constitute the offence punishable under Section 15(1) of the POCSO Act and Section 67B of the IT Act and in paragraph Nos. 9 to 13 of the said decision it is held as under:

“9. Reading the provision, it is emphatically clear that storing or possessing pornographic materials in any form involving a child and failure to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography, shall be an offence. So mere storing or possessing pornographic material is not an offence under S.15(1) of POCSO Act, if the said storing or possession is without any intention to share or transmit the same. Therefore, mere storing or possessing pornographic materials by itself is not an offence. Thus, in order to attract an offence under S.15(1) of the POCSO Act, the stored or possessed pornographic materials should be shared or transmitted. In the instant case, there is no material available to hold that the accused either shared or transmitted pornographic materials, though storing of the same was detected. Therefore, the offence under S.15(1) of the POCSO Act is not made out in the instant case.

10. Coming to S.67B of the IT Act also, the same provides as under:

67B Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form.

Whoever:

(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sex