The Kerala High Court has ruled that the automatic or accidental downloading of sexually explicit content involving children does not constitute an offense under Section 67B(b) of the Information Technology Act, provided there is no evidence of specific intent.
In this case, the petitioner was accused of violating Section 15(2) of the POCSO Act and Section 67B(b) of the IT Act. The specific allegation was that the petitioner had stored and possessed child pornographic material downloaded on his phone from Telegram.
The bench observed that no prima facie case was established against the petitioner under both sections. The court stated, “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 device 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.”
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The petitioner argued that there was no evidence indicating that he had shared or transmitted child pornographic material, even though such material was found during the investigation.
Upon analyzing Section 15(2) of the POCSO Act, the court noted that mere possession or storage of pornographic material is not an offense. To establish an offense under Section 15(2), there must be evidence showing that the accused intended to transmit, propagate, display, or distribute the material.
Furthermore, the court noted that the chemical analysis report did not indicate any transmission, propagation, display, or distribution of child pornographic material.
Regarding Section 67B of the IT Act, the court explained that the act of publishing, transmitting, or causing any material in electronic form depicting children in sexually explicit acts or conduct constitutes the essential elements of the offense. In this case, the court found no prima facie evidence of such an offense under Section 67B(b).
The court concluded, “Therefore, going by the decision, automatic or accidental downloading of children engaged in sexually explicit act or conduct is not an offense under Section 67B, once the specific intention to do so is not established, by the materials which form part of the prosecution records.”
Consequently, the court allowed the criminal revision petition and discharged the petitioner.
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