Watching Obscene Video On Mobile Phone In Privacy Without Exhibiting To Others Is Not An Offence U/s. 292 IPC: Kerala HC

The Kerala High Court in a case has held that watching of an obscene video i.e., porn by a person from a mobile phone in his/her privacy without exhibiting it to others is not an offence under Section 292 of the Indian Penal Code (IPC). It was dealing with a plea filed by a man aged 33 years who was accused in a crime pending before the Judicial Magistrate.

The Court before parting with the case said that the parents instead of purchasing food from restaurants through ‘Swiggy’ and ‘Zomato’, should let the children taste the delicious food made by their mothers and let them play at play grounds.

A Single Bench of Justice P.V. Kunhikrishnan observed, “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 Section 292 IPC. Similarly, watching of an obscene video by a person from a mobile phone in his privacy is also not an offence under Section 292 IPC. If the accused is trying to circulate or distribute or publicly exhibits any obscene video or photos, then alone the offence under Section 292 IPC is attracted. … Instead of purchasing food from restaurants through ‘swiggy’ and ‘zomato’, let the children taste the delicious food made by their mother and let the children play at play grounds at that time and come back home to the mesmerizing smell of mother’s food.”

The Bench said that even if the entire prosecution case is accepted in toto, no offence under Section 292 IPC is made out against the accused.

Advocate Bobby Rapheal appeared on behalf of the accused/petitioner while Public Prosecutor Vipin Narayan appeared on behalf of the State/respondent.

Facts of the Case -

The petitioner was the sole accused in a criminal case which was charge sheeted against him alleging offence punishable under Section 292 IPC. The prosecution case was that, while the complainant and his associates were on patrol duty, the accused was seen standing on the road side watching obscene videos in his mobile phone and hence he was arrested and his mobile phone was seized. Thereafter, the police laid a charge sheet before the Judicial First Class Magistrate Court-I and the said Magistrate took cognizance of the offence based on the Final Report.

According to the petitioner, even if the entire allegations were accepted in toto, no offence under Section 292 IPC was made out. The short point to be decided in this case was whether the offence under Section 292 IPC was made out i.e., whether a person watching a porn video in his private time without exhibiting it to others amounts to an offence.

The High Court in view of the facts and circumstances of the case noted, “Pornography has been in practice for centuries. The new digital age has made it more accessible than ever before and it is available even to children and adults at their fingertips. … A court of law cannot declare that the same amounts to an offence for the simple reason that it is his private choice and interference with the same amounts to an intrusion of his privacy. But God designed sexuality as something for a man and a woman within marriage. It is not only a lust but also a matter of love and for having children too.”

The Court added that a male and female who have attained majority, doing sex with consent is not an offence and hence, a consensual sex between a man and woman is not an offence in our country, if it is within their privacy. It also said that a court of law need not recognise consensual sex or watching of a porn video in privacy because these are within the domain of the will of society and the decision of legislature and that the duty of the court is only to find out whether it amounts to an offence.

“… I am of the considered opinion that, even if the entire allegations in Annexure 2 final report are accepted in toto, no offence under Section 292 IPC is made out against the petitioner. Therefore, this Crl.M.C. is to be allowed. … But before parting with this case, I must remind the parents of minor children in our country. Watching pornography may not be an offence. But if minor children start to watch porn videos, which are now accessible in all mobile phones, there will be far reaching consequences”, further noted the Court.

The Court said that the innocent parents give mobile phones to their minor children to make them happy and instead of delicious food made by the mother and a cake cutting ceremony on birthdays of children, they give mobile phones with internet access to their minor children as a gift on such occasions to make them happy.

“The parents should be aware of the danger behind it. Let the children watch informative news and videos from the mobile phones of their parents in their presence. Parents should never hand over mobile phones to minor children to make them happy and thereafter complete their daily routine works in their house allowing unsupervised use of mobile phones by children. Let the children play cricket or football or other games they like during their leisure time. That is necessary for a healthy young generation who are to become the beacons of hope of our nation in the future”, observed the Court.

The Court concluded that it leaves the same to the wisdom of the parents of minor children of the society.

Accordingly, the High Court allowed the plea and quashed the proceedings against the accused.

Cause Title- Aneesh v. State of Kerala & Anr. (Neutral Citation: 2023:KER:53584)

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