Mere watching of child pornography does not constitute an offense under Section 67-B of Information Technology Act, 2000 and Section 14(1) of Protection of Child from Sexual Offences Act, 2012.

JUDGMENT

(Prayer: Criminal Original Petition filed under Section 482 of Criminal Procedure Code, praying to call for the records in Spl.SC.No.170 of 2023 pending on the file of the Sessions Judge, Mahila Neethi Mandram (Fast Track Court), Tiruvallur District and quash the same against the petitioner.)

This petition has been filed to quash the proceedings pending in Spl.SC.No.170 of 2023 on the file of Sessions Judge, Mahila Neethi Mandram (Fast Track Court), Tiruvallur District.

2. The case of the prosecution is that a letter was received from the Additional Deputy Commissioner of Police (Crime against women and children). In that letter, it was mentioned that the petitioner had downloaded in his mobile phone pornographic materials pertaining to children. On receipt of the letter, the second respondent had registered a First Information Report in Crime No.03 of 2020 on 29.01.2020 for offences under Sections 67-B of Information Technology Act, 2000 and 14(1) of Protection of Child from Sexual Offences Act, 2012.

3. In the course of investigation, the mobile phone belonging to the petitioner was seized and it was sent to the Forensic Science Department for analysis. A report was given by the analyst specifically identifying two files which contain child pornography content. In those two videos, boys (under teen) were found involved in sexual activity with an adult woman/girl. In the light of the materials that were seized during the course of the investigation, a final report came to be filed before the Court below and the same was taken on file in Spl.SC.No.170 of 2023. The Court below took cognizance for the offences under Section 67-B of Information Technology Act, 2000 and Section 14(1) of Protection of Child from Sexual Offences Act, 2012. Aggrieved by the same, the proceedings have been put to challenge in the present quash petition.

4. Heard Mr.J.N.Naresh Kumar, learned counsel for the petitioner and Mr.A.Damodaran, Additional Public Prosecutor, appearing for first respondent.

5. When the matter came up for hearing on 04.01.2024, this Court directed the learned counsel for the petitioner to ensure that the petitioner is present before this Court at the time of hearing today. Accordingly, when the matter was taken up for hearing, the petitioner was present before this Court.

6. This Court enquired the petitioner and he stated that his date of birth is 13.11.1995 and that he has an elder brother. After a lot of persuasion, the petitioner admitted that during his teens, he had the habit of watching pornography. However, the petitioner made it clear that he had never watched child pornography. That apart, he also stated that he had never attempted to publish or transmit any of the pornographic materials to others. He had merely downloaded the same and he had watched pornography in privacy.

7. The petitioner further stated that he is now aged about 28 years and by passage of time, he was able to substantially get out of this habit. The petitioner was honest enough to admit that he cannot continue with this addiction anymore and that he will seek for counseling to get rid of the addiction.

8. This Court had the advantage of going through the entire CD file. The mobile phone that was seized from the petitioner did contain pornographic materials. However, for the purposes of this case, only two videos were identified as child pornography. Those two videos contain boys (under teen) involved in sexual activity with an adult woman/girl. Admittedly, those two videos were downloaded and available in the mobile phone belonging to the petitioner and it was neither published nor transmitted to others and it was within the private domain of the petitioner.

9. To make out an offence under Section 14(1) of Protection of Child from Sexual Offences Act, 2012, a child or children must have been used for pornography purposes. This would mean that the accused person should have used the child for pornographic purposes. Even assuming that the accused perso