IMPORTANT POINT
Possession of child pornographic material requires proof of intent to transmit; mere downloading without intent does not constitute an offence under applicable laws.

ORDER :

This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (`BNSS’ for short) seeking quashment of Annexure-1 final report and proceedings pursuant thereto in S.C.No.305/2022 on the files of Fast Track Special Court, Alathur.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the relevant documents, including Annexure-1 final report.

3. The prosecution case is that the accused herein was found in possession of child sexual exploitative and abuse material in his mobile phones used with BSNL and Airtel SIMs downloaded at 7.30 am on 04.10.2020 by the first witness. Accordingly, the same were recovered and crime was registered alleging commission of offences punishable under Section 67B of the Information Technology Act, 2000 and Section 15(1) r/w 2(1)(da) of Protection of Children from Sexual Offences Act (`POCSO Act’ for short). While seeking quashment of the proceedings on the submission that none of the offences is made out prima facie, the learned counsel for the petitioner would submit that as per the ratio of the decision of this Court reported in [2024 LiveLaw Ker 376 : 2024 Ker 43756 : 2024 KHC 513 : KLT Online 1854], Sebin Thomas v. State of Kerala, this Court held that none of the offences alleged against the petitioner are made out and finally quashed the proceedings in the said case.

4. But the learned Public Prosecutor opposed the quashment on the submission that the accused herein downloaded child sexual exploitative and abuse material with intention to transmit, carry or to deploy or distribute the same and, therefore, he committed offences punishable under Section 67B of the I.T Act and Section 15(1) r/w 2(1) (da) of POCSO Act alleged by the prosecution.

5. In Sebin Thomas v. State of Kerala (supra), this Court held that automatic or accidental downloading of children engaged in sexually explicit act or conduct is not an offence under Section 67B, once the specific intention to do so is not established, by the materials which form part of the prosecution records.”

6. Here as per Annexure A1, the Scientific Officer (Documents), Regional Forensic Science Laboratory, Ramavarmapuram, Thrissur, noted the result of examination as under:

“13. Results of Examination:

i. Numerous obscene picture files and video files including child pornographic content were retrieved from the questioned mobile phone marked Q1, soft copy of the retrieved child pornographic files is enclosed in a folder named `Retrieved child pornographic files from Q1’ in Annexure-1 Pendrive.

ii. Evidence of transmission/sharing details of pornographic contents depicting children in obscene or sexually explicit manner could not be retrieved from the questioned mobile phone Q1.”

7. Accordingly it is submitted that since in the scientific expert report it was found that no evidence of transmission or sharing details of pornographic contents depicting children in obscene or sexually explicit manner could not be retrieved from the questioned mobile phone, none of the offences would attract in this case.

8. In this connection, it is relevant to refer the latest Apex Court decision in [2024 SCC OnLine SC 2611], Just Rights For Children Alliance and Another v. S.Harish and others. The Apex Court considered the offences under Sections 67, 67A and 67B of the IT Act as well as Section 15 of the POCSO Act and held as under:

“222. We summarize our final conclusion as under:—

(I) Section 15 of the POCSO provides for three distinct offences that penalize either the storage or the possession of any child pornographic material when done with any particular intention specified under subsection(s) (1), (2) or (3) respectively. It is in the nature and form of an inchoate offence which penalizes the mere storage or possession of any pornographic material involving a child when done with a specific intent prescribed thereunder, without requiring any actual transmission, dissemi