Downloading or watching child pornography is not an offence under POCSO or the IT Act.

S. Harish v Inspector of Police,

CRL.O.P No.37 of 2024, decided on 11-01-2024.

Madras High Court: N. Anand Venkatesh, J. quashed the criminal proceedings against the accused but did not find him guilty of the offence under Section 67-B of the Information Technology Act, 2000 (the “IT Act”) and Section 14(1) of the Protection of Child from Sexual Offences Act, 2012 (the “POCSO”) in a petition filed under Section 482 of the Criminal Procedure Code, 1973 (the “CrPC”), alleging downloading of pornographic materials pertaining to children on his mobile phone. The defendant was charged with violating POCSO Section 14(1) and IT Act Section 67-B.

The Court observed that the analyst had provided a report that precisely identified two files containing child pornography, according to the Forensic Science Department. Two videos were downloaded and accessible on the accused’s phone; they were in his or her private domain and were neither publicised nor shared with anybody else. According to the Court, a child or minor must have been used for pornographic purposes in order to establish an offence under Section 14(1) POCSO.

It follows that the accused ought to have exploited the youngster for obscene motives. The accused would not be covered by Section 14(1) POCSO even if they had watched videos of child pornography. As he hasn’t used a child or children for obscene motives, it can only be assumed that the accused has morally declined. It further stated that the accused must have published, transmitted, or manufactured content showing children engaging in sexually explicit acts or conduct for it to be considered an infraction under Section 67-B of the IT Act.

Therefore, viewing child pornography alone is not illegal under Section 67-B of the IT Act. The Court noted that modern youth face a new difficulty in the form of gadgets, which instantly and uncensoriously expose them to a wide range of material. Because pornographic images and movies are so readily available on electronic devices, there is an increasing trend of addiction to viewing them. Examining the ideas behind “operant conditioning,” which explains how addiction to pornography develops when a behaviour is rewarded or reinforced, it leads to a desire to repeat it. The accused must help himself by kicking the addiction, the court said, adding that just stopping the criminal procedures will not assist the accused. Additionally, it advised the accused to attend counselling if he is still afflicted with this addiction.

Adv.Khanak Sharma