A timeless guidance of Hon’ble Madras High Court for young generation to stay away from pornography

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.

Facts

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.

Petitioner’s mobile phone contains two files contain child videography content where two teen boys involved in sexual activity with an adult woman

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.

Direct enquiry of Hon’ble High Judge with the petitioner

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.

Admission of petitioner about his habit of watching porn

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 counselling to get rid of the addiction.

Verifying Case diary

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.

Section 14(1) POCSO analysis

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 person had watched child pornography video, that 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, at the best, it can only be construed as a moral decay on the part of the accused person.

Section 67-B of Information Technology Act analysis

10. In order to constitute an offence under Section 67-B of Information Technology Act, 2000, the accused person must have published, transmitted, created material depicting children in sexual explicit act or conduct. A careful reading of this provision does not make watching a child pornography, per se, an offence under Section 67-B of Information Technology Act, 2000. Even though Section 67-B of Information Technology Act, 2000, has been widely worded, it does not cover a case where a person has merely downloaded in his electronic gadget, a child pornography and he has watched the same without doing anything more.

Section 292 IPC

11. The Kerala High Court had an occasion to deal with the scope of Section 292 IPC. That was a case where a person was caught watching porn videos and a First Information Report came to be registered against him. While dealing with this issue, the Kerala High Court held that, watching an obscene photo or obscene video by a person by itself will not constitute an offence under Section 292 IPC. This is in view of the fact that this act is done by the concerned person in privacy without affecting or influencing anyone else. The moment the accused person tries to circulate or distribute or publicly exhibits obscene photos or videos, then the ingredients of the offence starts kicking in.

No offence committed by the petitioner

12. In the considered view of this Court, the materials that have been placed before this Court does not make out an offence against the petitioner under Section 67-B of Information Technology Act, 2000 and Section 14(1) of Protection of Child from Sexual Offences Act, 2012.

Petition quashed

18. In the light of the above discussion, the continuation of the proceedings against the petitioner will amount to abuse of process of Court. That apart, it will be a stumbling block for the petitioner’s career in future. Therefore, this Court is inclined to quash the proceedings in Spl.S.C.No.170 of 2023 on the file of the Sessions Judge, Mahila Neethi Mandram (Fast Track Court), Tiruvallur District.

Parties

S.Harish S/o.Santhanam …Petitioner Vs. 1.The Inspector of Police, AWPS – Ambattur, Chennai – 600 053. 2.V.Ramani Inspector of Police, AWPS – Ambattur, Chennai – 600 053. …Respondents – CRL.O.P No.37 of 2024 and Crl.M.P No.79 of 2024 – DATED: 11.01.2024 – 2024:MHC:5769 – CORAM THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

https://mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/1095975

S.Harish vs. The Inspector of Police

Further study

• Whether Magistrate can commit the cross-case triable by Magistrate offences to Sessions court under section 323 Cr.P.C?
• SECTION 27 EVIDENCE ACT – THERE CANNOT BE A “DISCOVERY” OF AN ALREADY DISCOVERED FACT. DISCOVERY SHOULD BE OF A DISTINCT FACT FROM THE FACTS ALREADY DISCOVERED.
• BAIL – BAIL CAN BE GRANTED DESPITE THE PRESENCE OF THE ACCUSED IF HE IS IN POLICE CUSTODY
• SECTION 321 Cr.P.C – WITHDRAWAL OF PROSECUTION
• Custody of child in Mohammaden Law: No system of adoption of child in Mohammaden law: Custody of children is the welfare of children and not the right of their parents