Automatic or accidental downloading of child pornography is not offence: Kerala High 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 recently held [Sebin Thomas v State of Kerala]. .Section 67B penalises the publication or transmission of material depicting children in sexually explicit acts, in electronic form. 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 one 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. Section 67B(b) of the IT Act penalizes creating, downloading, or distributing electronic material depicting children in sexually explicit acts..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. Similarly, under Section 67B of the IT Act, publishing or transmitting material depicting children in sexually explicit acts is required to attract the offence.No prima facie offence under Section 67B(b) of the IT Act was made out in this case since there was no evidence of intent to distribute or propagate the material, the Court ruled."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," the Court said..Hence, it allowed the petition filed by Thomas and set aside the order of the Fast Track Court..The petitioner was represented by advocate VA Johnson (Varikkappallil).Senior Public Prosecutor Renjit George appeared for the state..[Read Order]