Automatic Or Accidental Downloading of Child Porn Not an Offence: Kerala High Court

The Kerala High Court has observed that automatic or accidental downloading of child pornography is not an offence under Section 67B of the IT Act, unless there is evidence showing a specific intention to download such material.

In that context, the Bench of Justice A Badharudeen observed that, "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 heard a petition challenging an order from a Fast Track Special Court in Thrissur on May 16. The special judge had dismissed his plea for discharge, stating that a prima facie case was made to proceed against him.

The petitioner faced 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, the petitioner stored and possessed child pornographic material, downloaded from Telegram, on his Samsung mobile device.

The petitioner argued that there was no evidence showing he shared or transmitted the material. The chemical analysis report did not indicate any transmission, propagation, display, or distribution of the child pornographic material. It was emphasized that for an offence under Section 15(2) of the POCSO Act or Section 67B(b) of the IT Act, there must be evidence of sharing, transmission, or publishing the content.

The High Court observed that "it is emphatically clear that storing or possessing pornographic materials in any form involving a child for the purpose of transmitting or propagating or displaying or distributing in any manner is an offence. Therefore, mere storing or possessing pornographic materials by itself is not an offence. In order to bring home an offence under Section 15(2) of the POCSO Act, there should be materials to show that the accused stored or possessed pornographic materials for the purpose of transmitting or propagating or displaying or distributing the same."

It was further noted that there were no materials to show that the petitioner intentionally downloaded or browsed or recorded the pornographic materials.

In light of the same, the Court found that none of the offences alleged against the petitioner were prima facie made out.

Cause Title: Sebin Thomas vs State of Kerala 

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