CASE : S. Harish vs Inspector of Police 2020
Downloading child pornography is an offence or not?
Whether the child pornography is an offence or not, it is decided by the Apex court in this case.
Facts of the case
A case was registered against the accused for downloading child pornographic in his mobile. During the investigation, the mobile phone was seized and two files contained with child pornography content involving some teen boys was found in the forensic test. A case was registered of the offence under Section 67B of the Information Technology Act 2000 and Section 14(1) of the Protection of Children from Sexual Offences (POCSO) Act. The accused had challenged this case in the Madras High Court and seeking relief from the criminal proceedings.
Section 67B of the IT Act says, ‘whoever, – creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner’ shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees.
The decision of the High Court:
The High Court in this case, analyze that Section 67B which has five sub-clauses. 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 and sub-clause (e) talks about recording abuse/ sexually explicit act with children. The High Court says that according to the Section 67B, the accused must have published, transmitted, or created any materials that depicting children in sexually explicit acts or conduct. Thus, the Ld. Court noted that the Act did not cover any case, where a person had downloaded child pornography in his personal device and watched the same without doing any offence. Justice Anand Venkatesh explained that, to attract the offences under the POCSO Act, a child or children must have been used for pornography purposes. In the present case, the Ld. Court observed that the accused had watched pornography videos in his personal device but had not used any child or children for the purposes of pornography.
The High Court also referred to a precedent of a similar case dealt by the High Court of Kerala in Aneesh vs State of Kerala, where the Ld. High Court said that watching an obscene photograph or obscene videos by a person by itself was not an offence within the ambit of Section 292 of the IPC.
The Ld. Court had observed in this case that even assuming that the accused person had watched child pornography video, still it strictly will not fall within the scope of Section 14(1) of Protection of Child from Sexual Offences Act, 2012. Since he has not used a child or children for pornographic purposes. Therefore, after observing the facts and circumstances of the case the Madras High Court could not found any materials which make out an offence under IT Act or the POCSO Act, the court opined 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 and this proceedings will amount abuse of process of court and would be a stumbling block for the accused’s career. The court, thus quashed the criminal proceedings.