Accidental download not an offence: Court
Accidental or automatic downloading of child pornographic material does not constitute an offence under Section 67B(b) of the Information Technology Act (IT Act), the Kerala High Court has held.
Section 67B penalises the publication or transmission of material depicting children in sexually explicit acts, in electronic form.
The Bar and Bench reports that Justice A Badharudeen 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.
"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," the judge noted.
The Court was hearing a petition filed by Sebin Thomas challenging an order passed by a Fast Track Special Court in Thrissur on May 16.
The special judge had dismissed his plea for discharge on the ground that prima facie case was made out to proceed against the petitioner.
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.
The prosecution alleged that on February 26, 2023, Thomas stored and possessed pornographic material involving a child, downloaded from Telegram, on his Samsung mobile device.
The counsel appearing for Thomas argued that there was no evidence to show that he shared or transmitted the pornographic material.
Even the chemical analysis report did not indicate any transmission, propagation, display or distribution of the pornographic material involving children.
The counsel emphasized that to constitute an offence under Section 15(2) of the POCSO Act or Section 67B(b) of the IT Act, there must be material evidence of sharing, transmission or publishing of the content.
Section 15(2) of the POCSO Act criminalizes storing or possessing child pornographic material with the intent to transmit, propagate, display, or distribute it.
The Court after analysing the contentions observed that under Section 15(2) of the POCSO Act, opined that mere possession of child pornographic material is not an offence if there is no intent to transmit, propagate, display, or distribute it.