Automatic Or Accidental Downloading Of Child Pornography Is Not Offence: Kerala HC

It is most significant to note that while ruling on the vital question of when downloading of child pornography is not an offence, the Kerala High Court in a most learned, laudable, landmark, logical and latest judgment titled Sebin Thomas vs State of Kerala in Crl.Rev.Pet No. 610 of 2024 and Crime No.231/2023 of Anthikad Police Station, Thrissur against the order dated 16.05.2024 in CRL.M.APPL NO.88/2024 in SC No.1003 of 2023 of Fast Track Special Court II, Thrissur and cited in Neutral Citation No.: 2024:KER:43756 that was pronounced as recently as on June 19, 2024 minced just no words to hold that accidental or automatic downloading of child pornography without intent does not constitute an offence under Section 67B of the Information Technology Act, provided no evidence of intent is shown. It is most relevant to note here that the Single Judge Bench comprising of Hon’ble Mr Justice A Badharudeen of Kerala High Court who authored this notable judgment very rightly stated that mere possession of pornographic content involving children without an intention to download it or without any intention to transmit, propagate, display or distribute it does not meet the criteria for an offence under Section 67B. We must note here that the petitioner was facing charges under Section 15(2) of the Protection of Children from Sexual Offences Act (POCSO Act) and Section 67B(b) of the IT Act. Hence, we thus see that it was entirely in order that the Kerala High Court allowed the petition that had been filed by the petitioner – Sebin Thomas and set aside the order of the Fast Track Court.

At the very outset, this commendable judgment sets the ball in motion by first and foremost putting forth in para 1 that, “This Criminal Revision Petition has been filed under Section 397 read with 401 of the Code of Criminal Procedure, 1973, challenging the order dated 16.05.2024 in C.M.P. No.88/2024 in S.C. No.1003/2023 on the files of the Fast Track Special Court-II, Thrissur (Sessions Division Thrissur).”

Needless to say, the Bench states in para 2 that, “Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the relevant materials available.”

To put things in perspective, the Bench envisages in para 3 while elaborating on the prosecution case that, “In this matter, the prosecution case is that at about 14.00 hours on 26.02.2023, the accused stored and possessed pornographic materials involving child which was downloaded from Telegram X Application by using his Samsung SMA 307 FN mobile and sim number 8921208934. Thus, the accused alleged to have committed the offence punishable under Section 15(2) of the Protection of Children from Sexual Offences Act [hereinafter referred as ‘POCSO Act’ for short] and under Section 67(B)(b) of the Information Technology Act, 2000 [hereinafter referred as ‘IT Act’ for short].”

Do note, the Bench notes in para 8 that, “The learned counsel for the petitioner placed a decision of this Court reported in Manuel Benny v. State of Kerala & Anr. [2022 KHC Online 3437] contending that in order to attract an offence under Section 67B of the IT Act, the videos or materials have to be voluntarily downloaded into any device. He also placed another decision of this Court reported in Aneesh v. State of Kerala [2023(6) KHC 10], wherein a learned Single Judge of this Court considered the ingredients to attract an offence under Section 292 of the Indian Penal Code, wherein this Court held as under:

“I am of the considered opinion that watching of an obscene photo by a person in his privacy by itself is not an offence under S.292 IPC. Similarly, watching of an obscene video by a person from a mobile phone in his privacy is also not an offence under S.292 IPC. If the accused is trying to circulate or distribute or publicly exhibit any obscene video or photos, then alone the offence under S.292 IPC is attracted. In this case, even if the entire prosecution case is accepted in toto, no offence under S.292 IPC is made out against the petitioner. In the light of the above principle laid down by this Court, I am of the considered opinion that, even if the entire allegations in Annexure 2 final report are accepted in toto, no offence under S.292 IPC is made out against the petitioner. Therefore, this Crl.M.C. is to be allowed.””

It would be instructive to note that the Bench then observes in para 9 that, “In order to see the ingredients to attract section 15(2) of the POCSO Act, extraction of the said provision is necessary and the same is provides as under:

“Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description which may extend to three years, or with fine, or with both.””

Quite significantly, the Bench then propounds in para 10 postulating precisely that, “Reading the provision, it is emphatically clear that storing or possessing pornographic materials in any form involving a child for the purpose of transmitting or propagating or displaying or distributing in any manner is an offence. Therefore, mere storing or possessing pornographic materials by itself is not an offence. In order to bring home an offence under Section 15(2) of the POCSO Act, there should be materials to show that the accused stored or possessed pornographic materials for the purpose of transmitting or propagating or displaying or distributing the same.”

Be it noted, the Bench notes in para 11 that, “Going by the facts of this case with reference to the chemical analysis report, it could be noticed that no evidence available in this matter to show transmitting or propagating or displaying or distributing pornographic materials. Thus, the offence under Section 15(2) of the POCSO Act could not made out.”

It must be also noticed that the Bench lays bare in para 12 stating that, “Coming to Section 67(B)(b) of the IT Act also, the same provides as under:

67B. Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form.– Whoever –

(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or

(b) 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; or

(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or

(d) facilitates abusing children online, or

(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children,

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 and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees:

Provided that provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting representation or figure in electronic form-

(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing drawing, painting representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or

(ii) which is kept or used for bona fide heritage or religious purposes.

Explanation.-For the purposes of this section “children” means a person who has not completed the age of 18 years.””

It would be worthwhile to mention that the Bench points out in para 14 that, “In paragraph 5 of Manuel Benny’s case (supra), this Court held as under:

“A perusal of the final report would show that the only allegation against the petitioner is that he downloaded and enjoyed material depicting children in obscene, indecent and sexually explicit manner from the application called ‘Telegram’. In order to attract the offence under Section 67B of the IT Act, the videos or material has to be voluntarily downloaded into any device. In other words, there should be intention on the part of the petitioner to download the material in order to view it. The definite case of the petitioner is that he did not download any offensive material. Even in Annexure A3 FSL report it is seen that the path of those images is from Android backup and the child pornographic videos were accessed through ‘Telegram’. The learned Additional DGP submitted that the contents transmitted in the ‘Telegram’ can be automatically downloaded in the mobile phone by default. Hence, it cannot be said that the petitioner has intentionally downloaded the material, considering the features of the ‘Telegram’ App. Since there is no material so show that the petitioner has browsed or downloaded child pornographic material, the offence under Section 67B of the IT Act is not attracted.”

Most significantly, the Bench expounds in para 15 holding that, “Therefore, going by the decision, 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.”

Most forthrightly and most remarkably, we see that what tilted the case in favour of the petitioner is then encapsulated in para 16 postulating that, “In the present case, the materials collected during investigation would show that some pornographic messages, which would depict children engaged in sexually explicit act or conduct were found in the devise of the accused. But there are no materials to show that the petitioner intentionally downloaded or browsed or recorded the same. More particularly there are no materials to show that the petitioner had either shared or transmitted or propagated or displayed or distributed the same in any manner.”

It is worth noting that the Bench notes in para 17 that, “Thus, the materials available do not suggest the ingredients to find prima facie commission of offence under Section 67(B)(b) of the IT Act also.”

Most brilliantly and as a corollary, the Bench then propounds in para 18 that, “To sum up, it is found that none of the offences alleged against the petitioner are made out prima facie, and the contra view taken by the Special Judge is not justifiable. In such view of the matter, this revision petition seeking to set aside the order impugned would succeed.”

Finally, the Bench then concludes by holding in para 19 that, “In the result, the order dated 16.05.2024 in C.M.P. No.88/2024 in S.C. No.1003/2023 on the files of the Fast Track Special Court-II, Thrissur (Sessions Division Thrissur) stands set aside and the accused is discharged from the above said offences for want of materials to go for trial. Accordingly, this revision petition stands allowed.”

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.