Possession of child pornography without intent to share or transmit does not constitute an offense under the PoCSO Act or IT Act.

Dated this the 19th day of July, 2024 This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973 , by the petitioner, who is the accused in Crime No.965/2020 of Vanchiyoor Police Station, Thiruvananthapuram, now pending as S.C.No.2426/2022 on the files of the Special Court for the trial of offences under the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the PoCSO Act’ hereinafter), Thiruvananthapuram and the prayer herein is as under:

Call for the records pertaining to Annexure A2 Final Report and quash the same by invoking the powers of this Hon’ble court u/s.482 of Criminal Procedure Code.

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

3.The prosecution allegation as narrated in FIR is that, the accused, with intention to download and share child pornography in the computer, mobile phone and hard disk owned by him, visited child pornography websites on his desktop computer and downloaded child pornography video files to his mobile phone and hard disk. This is the base on which, the prosecution alleges commission of offences punishable under Section 15 (1) of the PoCSO Act and Section 67 B(b) of the Information Technology Act, 2000 (for short, ‘the IT Act’ hereinafter).

4.At the time of hearing, the learned counsel for the petitioner, who sought quashment of the proceedings, submitted that the petitioner is innocent and the entire allegations are without any iota of truth. He would also submit that the prosecution allegation is only confined to that of presence of porn videos in the mobile phone and hard disk owned by the accused and that no materials are available to show that the petitioner had either shared, transmitted or published the video, in any manner. The learned counsel for the petitioner submitted that this Court considered the same issue in its earlier decisions. The learned counsel has placed reliance on decisions of this Court in Shantheeshlal T. v. State of Kerala reported in [2024 KHC OnLine 433 : 2024 KER 35968] and Akash Vijay v. State of Kerala reported in [2024 KHC OnLine 494 : 2024 KER 42626] , to buttress his contention.

5.Strongly opposing quashment of the proceedings, where the offences alleged are specifically made out, prima facie, the learned Public Prosecutor would submit that, Annexure A3 FSL Report shows that the hard disk of the accused was used to visit pornographic websites including child pornographic websites, and large volumes of obscene images and video files were retrieved from the phone memory of the mobile phone of the accused. Therefore, quashment as sought for, is liable to be rejected.

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 videos in the mobile phone and hard disk owned by the accused alone.

7.In the decision of this Court in Shantheeshlal ’s case (supra), 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 it