IMPORTANT POINT
The central legal point established in the judgment is the necessity of evidence showing sharing, transmission, or publishing of sexually explicit and pornographic materials involving a child to establish offences under Section 15(2) of the POCSO Act and Section 67(B)(b) of the IT Act.

ORDER :

This Criminal Revision Petition has been filed under Section 397 read with 401 of the Code of Criminal Procedure, 1973, challenging the order dated 16.05.2024 in C.M.P. No.88/2024 in S.C. No.1003/2023 on the files of the Fast Track Special Court-II, Thrissur (Sessions Division Thrissur).

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

3. In this matter, the prosecution case is that at about 14.00 hours on 26.02.2023, the accused stored and possessed pornographic materials involving child which was downloaded from Telegram X Application by using his Samsung SMA 307 FN mobile and sim number 8921208934. Thus, the accused alleged to have committed the offence punishable under Section 15(2) of the Protection of Children from Sexual Offences Act [hereinafter referred as ‘POCSO Act’ for short] and under Section 67(B)(b) of the Information Technology Act, 2000 [hereinafter referred as ‘IT Act’ for short].

4. It is submitted by the learned counsel for the petitioner that tracing out the ingredients to attract offences under Section 15(2) of the POCSO Act and Section 67(B)(b) 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(2) of the POCSO Act and 67(B)(b) of the IT Act.

5. The learned counsel for the petitioner specifically pointed out the finding in the chemical analysis report produced as Annexure.A1 and submitted that, as per the chemical analysis report also sharing, transmitting or publishing of sexually explicit act and pornographic materials by the accused are not made out. Therefore, the impugned order requires interference.

6. The learned Public Prosecutor opposed granting of the reliefs sought for.

7. In this connection, it is necessary to trace out the ingredients to attract offence under Section 15(2) of the POCSO Act and Section 67(B)(b) of the IT Act.

8. The learned counsel for the petitioner placed a decision of this Court reported in Manuel Benny v. State of Kerala & Anr. [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 v.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 all owed.”

9. In order to see the ingredients to attract section 15(2) 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 chi