Karnataka High Court recalls its order in child porn case; says judges also fallible

The Karnataka High Court recently recalled its order in which it had held that merely watching child pornography online is not an offence [Inayatullah N V. State of Karnataka].In an order passed on July 10, Justice M Nagaprasanna had quashed the criminal proceedings against one Inayathulla N who had been booked for having watched child pornography. However on July 19, the judge recalled the same saying that he had overlooked provisions of Section 67B of the Information Technology (IT) Act. "This court had passed the order without noticing Section 67B (b), it is an error," the single-judge said while dictating the new order in the open court. Judges are also humans and not immune from making mistakes, the Court added. “We judges are also humans. Infallibility is not unknown to humanity. Since, judges are humans, we are also not infallible. Therefore to perpetuate this error after coming to know that there is a folly in the order passed by this court is no heroism," the order said. .In its order of July 10, the Court had said that merely watching child pornography was not the same as publishing or transmitting such material, and only the latter is an offence under the IT Act."The allegation against the petitioner is that he has watched a pornographic website. This, in the considered view of the Court, would not become publishing or transmitting of material, as is necessary under Section 67B of the IT Act. At best, as contended, the petitioner could be a porn addict, who has watched pornographic material. Nothing beyond this, is alleged against the petitioner. If the facts are pitted against the ingredients necessary to drive home Section 67B of the IT Act, what would unmistakably emerge is, further proceedings cannot be permitted to be continued, as it would become an abuse of process of law," the Court had said at the time..Later, the Karnataka government moved a recall application before the bench. The State pointed out that the Court had quashed all proceedings only on the basis of sub Section (a) of Section 67B of the IT Act that prohibits transmitting, publishing in electronic form, any material that depicts children engaged in sexually explicit act or conduct.However, sub Section (b) of Section 67B of the Act says that the act of creating text or digital images, collecting, seeking and also browsing and downloading material depicting children in obscene or indecent or sexually explicit manner, is also an offence.The Court agreed that it had overlooked sub-section 'b'."The sub-clause b of Section 67B is what becomes applicable to the case at hand. Since the proceedings were annulled without permitting further investigations and noticing section 67B (b) it would undoubtedly become a reason for recall of the order passed quashing the proceeding in favour of the petitioner," Justice Nagaprasanna said.The Court also rejected the argument of the petitioner's counsel that once an order was passed, it was not open for the court to recall it or review. "The said submission is unacceptable as Section 482 of CrPC cannot be controlled by Section 362 of CrPC. As inherent powers cannot be controlled by other provisions," the High Court said..Accordingly, the Court allowed further investigation in the case and recalled its earlier order quashing the proceedings..Advocate S Jagan Babu appeared for the petitioner Inayathulla. Advocate Harish Ganapathi appeared for respondent Karnataka police. .[Read Order]