Shantheeshlal T. v. State of Kerala & Anr.

-:1:- ## **Crl.M.C. NO.2048 OF 2024** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 22[ND] DAY OF MAY 2024 / 1ST JYAISHTA, 1946** **CRL.MC NO. 2048 OF 2024** **CRIME NO.911/2020 OF PAYYANNUR POLICE STATION, KANNUR** **S.C. NO.463 OF 2022 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT-I, KASARAGOD/I ADDITIONAL MACT, KASARAGODE.** ## **PETITIONER/ACCUSED:** **SHANTHEESHLAL T.,** **AGED 24 YEARS, S/O. SURENDRAN P., POYRAN HOUSE, MURINGATT, KOZHUMAL P.O., PERALAM, KARIVELLOOR, KANNUR DISTRICT-670 521, NOW RESIDING AT CHARAKANAM, THIMIRI, KASARAGOD DISTRICT, PIN-671 313.** **BY ADVS.** **T.MADHU C.R.SARADAMANI RENJISH S. MENON VRINDA T.S. AISWARYA JAYAPAL** ## **RESPONDENTS/STATE:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN-682 031.** - **2 THE STATION HOUSE OFFICER, PAYYANNUR POLICE STATION, KANNUR DISTRICT, PIN-670 307.** - **3 THE DEPUTY SUPERINTENDENT OF POLICE, CRIME BRANCH CRIME INVESTIGATION DEPARTMENT, KANNUR, PIN-670 001.** **SRI.RENJITH GEORGE, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.05.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** -:2:- **Crl.M.C. NO.2048 OF 2024** **'C.R.'** ## **ORDER** **Dated this the 22[nd] day of May, 2024** The sole accused in Crime No.911 of 2020 of Payyannur Police Station, who is alleged to have committed offences punishable under Section 15(1) of the Protection of Children from Sexual Offences Act (hereinafter referred to as 'POCSO Act') and Section 67B of the Information Technology Act (hereinafter referred to as 'IT Act') has approached this Court and filed this petition under Section 482 of the Code of Criminal Procedure to quash the final report mainly on the ground that the ingredients to attract the above offences have not been made out from the prosecution records. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case records in detail. 3. It is submitted by the learned counsel for the petitioner that tracing out the ingredients to attract offences under Section 15(1) of the POCSO Act and Section 67B of the IT Act, there must be materials showing sharing, transmission or publishing of sexually explicit act and pornographic materials in any form involving a child. According to the learned counsel, even though pornographic materials involving a child were recovered during -:3:- ## **Crl.M.C. NO.2048 OF 2024** investigation, nothing is available in the final report to see that the accused herein either shared or transmitted the same. Similarly, there is no material to show that he has published the same so as to attract penal consequences of Section 15(1) of the POCSO Act and 67B of the IT Act. Therefore, the final report is liable to be quashed. 4. Opposing this contention, the learned Public Prosecutor placed the report of the investigating officer and the relevant materials stating that the accused shared the videos and thereby committed the offences. Hence, quashment of the final report is unwarranted. 5. On perusal of the report, the investigating officer stated that the accused shared the pornographic materials, but going through the materials available, no materials seen collected during investigation to show that the accused herein shared, transmitted or published the pornographic messages found in his mobile phone, as alleged by the prosecution. 6. In this connection, it is necessary to trace out the ingredients to attract offence under Section 15(1) of the POCSO Act and Section 67B of the IT Act. 7. The learned counsel for the petitioner placed a decision of this Court reported in **Manuel Benny v. State of Kerala & Anr. [2022 KHC** -:4:- **Crl.M.C. NO.2048 OF 2024 Online 3437]** contending that in order to attract an offence under Section 67B of the IT Act, the videos or materials have to be voluntarily downloaded into any device. He also placed another decision of this Court reported in **Aneesh v. State of Kerala [2023(6) KHC 10]** , wherein a learned Single Judge of this Court considered the ingredients to attract an offence under Section 292 of the Indian Penal Code, wherein this Court held as under: _“I am of the considered opinion that watching of an obscene photo by a person in his privacy by itself is not an offence under S.292 IPC. Similarly, watching of an obscene video by a person from a mobile phone in his privacy is also not an offence under S.292 IPC. If the accused is trying to circulate or distribute or publicly exhibit any obscene video or photos, then alone the offence under S.292 IPC is attracted. In this case, even if the entire prosecution case is accepted in toto, no offence under S.292 IPC is made out against the petitioner. In the light of the above principle laid down by this Court, I am of the considered opinion that, even if the entire allegations in Annexure 2 final report are accepted in toto, no offence under S.292 IPC is made out against the petitioner. Therefore, this Crl.M.C. is to be allowed.”_ 8. In order to see the ingredients to attract section 15(1) of the POCSO Act extraction of the said provision is necessary and the same is provides as under: _“Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same_ -:5:- ## **Crl.M.C. NO.2048 OF 2024** - _to the designated authority, as may be prescribed, with an intention to share or transmit child pornography, shall be liable to fine not less than five thousand rupees and in the event of second or subsequent offence, with fine which shall not be less than ten thousand rupees.”_ 9. Reading the provision, it is emphatically clear that storing or possessing pornographic materials in any form involving a child and failure to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography, shall be an offence. So mere storing or possessing pornographic material is not an offence under Section 15(1) of POCSO Act, if the said storing or possession is without any intention to share or transmit the same. Therefore, mere storing or possessing pornographic materials by itself is not an offence. Thus, in order to attract an offence under Section 15(1) of the POCSO Act, the stored or possessed pornographic materials should be shared or transmitted. In the instant case, there is no material available to hold that the accused either shared or transmitted pornographic materials, though storing of the same was detected. Therefore, the offence under Section 15(1) of the POCSO Act is not made out in the instant case. 10. Coming to Section 67B of the IT Act also, the same provides as -:6:- **Crl.M.C. NO.2048 OF 2024** under: ## _**67B. Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form.** Whoever -_ _(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or_ _(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or_ _(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or_ ## _(d) facilitates abusing children online, or_ _(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children,_ _shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees:_ ## -:7:- ## **Crl.M.C. NO.2048 OF 2024** _Provided that provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting representation or figure in electronic form-_ _(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing drawing, painting representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or_ - _(ii) which is kept or used for bona fide heritage or religious purposes._ _Explanation. -For the purposes of this section "children" means a person who has not completed the age of 18 years._ 11. Publishing, transmitting or causing any material in electronic form which depicts children engaged in sexually explicit act or conduct or creation of text or digital images etc. are the ingredients under Section 67B of the IT Act also. 12. In paragraph 5 of **Manuel Benny's case** (supra), this Court held as under: “A perusal of the final report would show that the only allegation against the petitioner is that he downloaded and enjoyed material depicting children in obscene, indecent and sexually explicit manner from the application called 'Telegram'. In order to attract the offence under Section 67B of the IT Act, the videos or material has to be ## -:8:- ## **Crl.M.C. NO.2048 OF 2024** voluntarily downloaded into any device. In other words, there should be intention on the part of the petitioner to download the material in order to view it. The definite case of the petitioner is that he did not download any offensive material. Even in Annexure A3 FSL report it is seen that the path of those images is from Android backup and the child pornographic videos were accessed through 'Telegram'. The learned Additional DGP submitted that the contents transmitted in the 'Telegram' can be automatically downloaded in the mobile phone by default. Hence, it cannot be said that the petitioner has intentionally downloaded the material, considering the features of the 'Telegram' App. Since there is no material so show that the petitioner has browsed or downloaded child pornographic material, the offence under Section 67B of the IT Act is not attracted. Hence, no purpose will be served in proceedings with the matter further. Accordingly, the Crl.M.C is allowed. All further proceedings pursuant to Annexure A2 final report in Crime No.531/2020 of Melukavu Police Station now pending as C.C.No.257/2021 on the files of the Judicial Magistrate of the First Class, Erattupetta stands hereby quashed.” 13. Therefore, going by the decision, automatic or accidental downloading of children engaged in sexually explicit act or conduct is not an offence under Section 67B, once the specific intention to do so is not established, by the materials which form part of the prosecution records. 14. In the present case, the materials collected during investigation -:9:- ## **Crl.M.C. NO.2048 OF 2024** would show that some pornographic messages, which would depict children engaged in sexually explicit act or conduct were found in the devise 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, transmitted or published the same in any manner. 15. Thus, the materials available do not suggest the ingredients to find prima facie, commission of offence under Section 67B of the IT Act. 16. Summation of the discussion is that none of the offences alleged against the petitioner are made out prima facie, and in such view of the matter, this petition is liable to be allowed. Accordingly, this petition stands allowed. Annexure A final report and all further proceedings in Crime No.911 of 2020 of Payyannur Police Station, Kannur District which is re-numbered as C.R. No.74/CB/CU-II/EKM/R/2020 of the CBCID, Kannur which is now pending as S.C. No.463 of 2022 on the files of the Additional Sessions Court-I, Kasaragod stands quashed. Sd/- **A. BADHARUDEEN JUDGE** bpr -:10:- ## **Crl.M.C. NO.2048 OF 2024** ## **APPENDIX OF CRL.MC 2048/2024** ## **PETITIONER'S ANNEXURES** **Annexure A1 THE CERTIFIED COPY OF THE FIR DATED 27/6/2020 IN CRIME NO.911/2020 OF PAYYANNUR POLICE STATION; KANNUR DISTRICT** **Annexure A2 THE CERTIFIED COPY OF THE FINAL REPORT DATED NIL IN CRIME NO.911/2020 OF PAYYANNUR POLICE STATION, KANNUR DISTRICT, RE REGISTERED AS C R NO.74/CB/CU-II/EKM/R/2020 OF THE CBCID, KANNUR** **Annexure A3 THE TRUE COPY OF THE MEMO OF EVIDENCE DATED NIL IN CRIME NO.911/2020 OF PAYYANNUR POLICE STATION, KANNUR DISTRICT, RE REGISTERED AS C R NO.74/CB/CU-II/EKM/R/2020 OF THE CBCID, KANNUR**