Madras High Court: In a petition filed under Section 482 of Criminal Procedure Code, 1973 (‘CrPC’), praying to quash the criminal proceedings against the accused alleging downloading of pornographic materials pertaining to children in his mobile phone, N. Anand Venkatesh, J. while quashing the criminal proceedings against the accused, does not hold him guilty of the offence under Section 67-B of Information Technology Act, 2000 (‘IT Act’) and Section 14(1) of Protection of Child from Sexual Offences Act, 2012 (‘POCSO’).
The accused was charged for offences under Sections 67-B of IT Act and 14(1) of POCSO. The Court noted that as per the Forensic Science Department, a report was given by the analyst specifically identifying two files which contain child pornography content. Two videos were downloaded and available on the mobile phone belonging to the accused and it was neither published nor transmitted to others and it was within the private domain of the accused.
The Court said that to make out an offence under Section 14(1) POCSO, a child or children must have been used for pornography purposes. Thus, the accused should have used the child for pornographic purposes. Even if the accused had watched child pornography video, that strictly would not fall within the scope of Section 14(1) POCSO. Since he has not used a child or children for pornographic purposes, it can only be construed as a moral decay on the part of the accused person.
Further, it added that to constitute an offence under Section 67-B of IT Act, the accused must have published, transmitted, created material depicting children in sexually explicit act or conduct. Thus, merely watching a child pornography, per se, is not an offence under Section 67-B of IT Act.
The Court remarked that teenagers in today’s world are facing a new challenge from gadgets, which bombards them with all kinds of information without any censor, at the touch of a button. There is a growing rise in addiction watching porn photos/videos due to easily availability in the electronic gadgets.
While perusing the principles of “operant conditioning” for explaining porn addiction, where a certain behavior is reinforced, or rewarded, which in turn makes you want to do it again and again.
The Court said quashing the criminal proceedings alone will not help the accused, and the accused must help himself by getting rid of the addiction. Further, it advised the accused to attend counseling, if he is still afflicted with this addiction.
[S. Harish v Inspector of Police, 2024 SCC OnLine Mad 2, decided on 11-01-2024]
Advocates who appeared in this case :
For Petitioner: Advocate. J.N. Naresh Kumar
For Respondents: Additional Public Prosecutor A. Damodaran
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