Judgment by the Madras High Court in a case involving child pornography
The Madras High Court, in S. Harish vs Inspector of Police, quashed the judicial proceedings and held that downloading child pornography was not an offence under Section 67B of the Information Technology (IT) Act, 2000.
The High Court categorically said that watching child pornography per se was not an offence as the accused had merely downloaded it onto his electronic gadget and had watched it in private.
The High Court also referred to a case decided by the Kerala High Court where it had been held that watching pornography in private space was not an offence under Section 292 of the IPC.
This case related to the quashing a criminal case registered against a youth in 2016 by the Aluva police as he had been watching pornographic material on his mobile phone on the roadside at night.
In this case, after investigation, the police had filed the final report and cognisance had been taken by the High Court under Section 14(1) of the Protection of Children from Sexual Offences (POCSO) Act, 2012 and Section 67B of the IT Act.
Section 14(1) of the POCSO Act, 2012 and Section 67B, Section 67B sub-clauses, from (a) to (e) of the IT Act
It is undisputed that two files pertaining to child pornography were downloaded and available on the mobile phone of the accused.
The forensic science report also corroborated the presence of the two files.
These facts are sufficient to attract the application of Section 67B(b) of the IT Act.
But the High Court held that in order to constitute an offence, the accused must have published, transmitted, created material depicting children in sexually explicit act or conduct.
The High Court did not reproduce Section 67B in its judgment for justification.
Section 67B has five sub-clauses, from (a) to (e).
While sub-clause (a) talks about publishing or transmitting material depicting children engaged in sexually explicit act or conduct, sub-clause (b) deals with acts including downloading of child pornography material.
Sub-clause (c) talks about cultivating, enticing or inducing children to online sexually explicit relationship.
Sub-clause (d) talks about facilitating abuse of children online.
Sub-clause (e) talks about recording abuse/a sexually explicit act with children.
Thus, the High Court reached its judgment without analysing all of Section 67B, and reading into sub-clause (b), which clearly delineates the act of the accused.
Section 482 of the Criminal Procedure Code (CrPC)
The Madras High Court used its inherent powers under Section 482 of the Criminal Procedure Code (CrPC).
This Prevent misuse of the process of court and quashed the judicial proceedings.
The Supreme Court has laid down certain guidelines in State of Haryana vs Bhajan Lal (1992) to exercise powers under Section 482 of the CrPC.
Therefore, under the given facts and circumstances of the case, the Madras High Court could not in its wisdom quash the judicial proceeding when an offence was clearly made out under Section 67B(b) of the IT Act.
However, it is agreed that the police had wrongly applied Section 14 of the POCSO Act as there was no evidence pertaining to the use of any child or children for pornographic purposes by the accused himself.
Also, Section 15 of the POCSO Act punishes storage or the possession of child pornographic material only if it is done with an intent to share or transmit, or display or distribute, or for commercial purpose.
COMMENTS