Kerala High Court
Aswin vs State Of Kerala on 7 January, 2025
2025:KER:1160
Crl.M.C.No.6325/2024 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 7TH DAY OF JANUARY 2025 / 17TH POUSHA, 1946
CRL.MC NO. 6325 OF 2024
CRIME NO.919/2020 OF Alathur Police Station, Palakkad
AGAINST THE JUDGMENT IN SC NO.305 OF 2022 OF FAST TRACK
SPECIAL COURT, ALATHUR
PETITIONER/SOLE ACCUSED:
ASWIN,
AGED 30 YEARS
S/O.MURALI, SOUPARNIKA VEEDU, ARANGATTUPARAMBU,
ALATHUR.P.O, ALATHUR TALUK, PALAKKAD, PIN - 678541.
BY ADV V.A.JOHNSON (VARIKKAPPALLIL)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031.
PUBLIC PROSECUTOR SRI T.S JIBU
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
17.12.2024, THE COURT ON 07.01.2025 PASSED THE FOLLOWING:
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Crl.M.C.No.6325/2024 2
"C.R"
A. BADHARUDEEN, J.
================================
Crl.M.C.No.6325 of 2024
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Dated this the 7th day of January, 2025
ORDER
This Criminal Miscellaneous Case has been filed under Section
528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (`BNSS' for short)
seeking quashment of Annexure-1 final report and proceedings pursuant
thereto in S.C.No.305/2022 on the files of Fast Track Special Court,
Alathur.
2. Heard the learned counsel for the petitioner and the
learned Public Prosecutor in detail. Perused the relevant documents,
including Annexure-1 final report.
3. The prosecution case is that the accused herein was
found in possession of child sexual exploitative and abuse material in
his mobile phones used with BSNL and Airtel SIMs downloaded at 7.30
am on 04.10.2020 by the first witness. Accordingly, the same were
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recovered and crime was registered alleging commission of offences
punishable under Section 67B of the Information Technology Act, 2000
and Section 15(1) r/w 2(1)(da) of Protection of Children from Sexual
Offences Act (`POCSO Act' for short). While seeking quashment of the
proceedings on the submission that none of the offences is made out prima
facie, the learned counsel for the petitioner would submit that as per the
ratio of the decision of this Court reported in [2024 LiveLaw Ker 376 :
2024 Ker 43756 : 2024 KHC 513 : KLT Online 1854], Sebin Thomas v.
State of Kerala, this Court held that none of the offences alleged against
the petitioner are made out and finally quashed the proceedings in the said
case.
4. But the learned Public Prosecutor opposed the
quashment on the submission that the accused herein downloaded child
sexual exploitative and abuse material with intention to transmit, carry or
to deploy or distribute the same and, therefore, he committed offences
punishable under Section 67B of the I.T Act and Section 15(1) r/w 2(1)
(da) of POCSO Act alleged by the prosecution.
5. In Sebin Thomas v. State of Kerala (supra), this Court
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held 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."
6. Here as per Annexure A1, the Scientific Officer
(Documents), Regional Forensic Science Laboratory, Ramavarmapuram,
Thrissur, noted the result of examination as under:
"13. Results of Examination:
i. Numerous obscene picture files and video files including child
pornographic content were retrieved from the questioned mobile phone marked Q1,
soft copy of the retrieved child pornographic files is enclosed in a folder named
`Retrieved child pornographic files from Q1' in Annexure-1 Pendrive.
ii. Evidence of transmission/sharing details of pornographic
contents depicting children in obscene or sexually explicit manner
could not be retrieved from the questioned mobile phone Q1."
7. Accordingly it is submitted that since in the scientific
expert report it was found that no evidence of transmission or sharing
details of pornographic contents depicting children in obscene or sexually
explicit manner could not be retrieved from the questioned mobile phone,
none of the offences would attract in this case.
8. In this connection, it is relevant to refer the latest Apex
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Court decision in [2024 SCC OnLine SC 2611], Just Rights For Children
Alliance and Another v. S.Harish and others. The Apex Court
considered the offences under Sections 67, 67A and 67B of the IT Act as
well as Section 15 of the POCSO Act and held as under:
"222. We summarize our final conclusion as under:--
(I) Section 15 of the POCSO provides for three distinct offences
that penalize either the storage or the possession of any child
pornographic material when done with any particular intention
specified under subsection(s) (1), (2) or (3) respectively. It is in the
nature and form of an inchoate offence which penalizes the mere
storage or possession of any pornographic material involving a
child when done with a specific intent prescribed thereunder,
without requiring any actual transmission, dissemination etc.
(II) Sub-section (1) of Section 15 penalizes the failure to delete,
destroy or report any child pornographic material that has been
found to be stored or in possession of any person with an intention
to share or transmit the same. The mens-rea or the intention
required under this provision is to be gathered from the actus reus
itself i.e., it must be determined from the manner in which such
material is stored or possessed and the circumstances in which the
same was not deleted, destroyed or reported. To constitute an
offence under this provision the circumstances must sufficiently
indicate the intention on the part of the accused to share or
transmit such material.
(III) Section 15 sub-section (2) penalizes both the actual
transmission, propagation, display or distribution of any child
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pornography as-well as the facilitation of any of the above
mentioned acts. To constitute an offence under Section 15 sub-
section (2) apart from the storage or possession of such
pornographic material, there must be something more to show i.e.,
either (I) the actual transmission, propagation, display or
distribution of such material OR (II) the facilitation of any
transmission, propagation, display or distribution of such material,
such as any form of preparation or setup done that would enable
that person to transmit it or to display it. The mens rea is to be
gathered from the manner in which the pornographic material was
found to be stored or in possession and any other material apart
from such possession or storage that is indicative of any facilitation
or actual transmission, propagation, display or distribution of such
material.
(IV) Section 15 sub-section (3) penalizes the storage or possession
of any child pornographic material when done for any commercial
purpose. To establish an offence under Section 15 sub-section (3),
besides the storage or possession of the pornographic material
involving a child, there must be some additional material or
attending circumstances that may sufficiently indicate that the said
storage or possession was done with the intent to derive any gain
or benefit. To constitute an offence under sub-section (3) there is no
requirement to establish that such gain or benefit had been actually
realized.
(V) Sub-section(s) (1), (2) and (3) respectively of Section 15
constitute independent and distinct offences. The three offences
cannot coexist simultaneously in the same set of facts. They are
distinct from each other and are not intertwined. This is because,
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the underlying distinction between the three sub-sections of Section
15 lies in the varying degree of culpable mens rea that is required
under each of the three provisions.
(VI) The police as well as the courts while examining any matter
involving the storage or possession of any child pornography, finds
that a particular sub-section of Section 15 is not attracted, then it
must not jump to the conclusion that no offence at all is made out
under Section 15 of the POCSO. If the offence does not fall within
one particular subsection of Section 15, then it must try to ascertain
whether the same falls within the other sub-sections or not.
(VII) Any act of viewing, distributing or displaying etc., of any
child pornographic material by a person over the internet without
any actual or physical possession or storage of such material in
any device or in any form or manner would also amount to
'possession' in terms of Section 15 of the POCSO, provided the
said person exercised an invariable degree of control over such
material, by virtue of the doctrine of constructive possession.
(VIII) Any visual depiction of a sexually explicit act which any
ordinary person of a prudent mind would reasonably believe to
prima facie depict a child or appear to involve a child, would be
deemed as 'child pornography' and the courts are only required to
form a prima facie opinion to arrive at the subjective satisfaction
that the material appears to depict a child from the perspective of
any ordinary prudent person for any offence under the POCSO that
relates to child pornographic material, such as Section 15. Such
satisfaction may be arrived at from any authoritative opinion like a
forensic science laboratory (FSL) report of such material or
opinion of any expert on the material in question, or by the
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assessment of such material by the courts themselves.
(IX) Section 67B of the IT Act is a comprehensive provision
designed to address and penalize the various electronic forms of
exploitation and abuse of children online. It not only punishes the
electronic dissemination of child pornographic material, but also
the creation, possession, propagation and consumption of such
material as-well as the different types of direct and indirect acts of
online sexual denigration and exploitation of the vulnerable age of
children. Section(s) 67, 67A and 67B respectively of the IT Act
being a complete code, ought to be interpreted in a purposive
manner that suppresses the mischief and advances the remedy and
ensures that the legislative intent of penalizing the various forms of
cyber-offences relating to children and the use of
obscene/pornographic material through electronic means is not
defeated by a narrow construction of these provisions.
(X) The statutory presumption of culpable mental state on the
part of the accused as envisaged under Section 30 of the POCSO
can be made applicable provided the prosecution is able to
establish the foundational facts necessary to constitute a particular
offence under the POCSO that may have been alleged against the
accused. Such presumption can be rebutted by the accused either
by discrediting the prosecution's case or by leading evidence to
prove the contrary, beyond a reasonable doubt.
(XI) The foundational facts necessary for the purpose of
invoking the statutory presumption of culpable mental state for an
offence under Section 15 of POCSO are as follows:--
(a) For the purpose of sub-section (1), the necessary
foundational facts that the prosecution may have to first establish is
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the storage or possession of any child pornographic material and
that the person accused had failed to delete, destroy or report the
same.
(b) In order to invoke the statutory presumption of
culpable mental state for an offence under sub-section (2) the
prosecution would be required to first establish the storage or
possession of any child pornographic material, and also any other
fact to indicate either the actual transmission, propagation, display
or distribution of any such material or any form of an overt act
such as preparation or set up done for the facilitation of the
transmission, propagation, display or distribution of such material,
whereafter it shall be presumed by the court that the said act was
done with the intent of transmitting, displaying, propagating or
distributing such material and that the said act(s) had not been
done for the purpose of either reporting or for use
as evidence.
(c) For the purpose of sub-section (3) the prosecution
must establish the storage or possession of such material and
further prove any fact that might indicate that the same had been
done to derive some form of gain or benefit or the expectation of
some gain or benefit.
(XII) The statutory presumption of culpable mental state
under Section 30 of POCSO can be made applicable in a quashing
proceeding pertaining to any offence under the POCSO."
9. Going by the decision of the Apex Court in Just Rights
For Children Alliance and Another v. S.Harish and others (supra), any
act of viewing, distributing or displaying etc., of any child pornographic
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material by a person over the internet without any actual or physical
possession or storage of such material in any device or in any form or
manner would also amount to 'possession' in terms of Section 15 of the
POCSO, provided the said person exercised an invariable degree of control
over such material, by virtue of the doctrine of constructive possession.
10. Reading Sections 15(1) to (3), the subject is `storage of
pornographic material involving child'. `Child' is defined in Section 2(d)
of the POCSO Act as, `any person below the age of eighteen years'. In
this context, a relevant question arises for consideration is merely by
appearance in the videos or in the pornographic material, one could not say
that the female involved therein is either a child below 18 years or the
female is a person attained majority, ie. 18 years and above. Thus the
crucial aspect to fasten criminal culpability on a person alleging that he
stored or possessed pornographic material in any form involving a child
with intention to share or transmit child sexual exploitative and abuse
material shall be punished as per Section 15(1) to (3) of the POCSO Act.
So the prosecution has a duty to collect evidence to show that the
pornographic material found and recovered, either in the mobile phone or
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in any other media is that of a child below 18 years.
11. As per the Apex Court judgment in Just Rights For
Children Alliance and Another v. S.Harish and others (supra), it has
been held that any visual depiction of a sexually explicit act which any
ordinary person of a prudent mind would reasonably believe to prima facie
depict a child or appear to involve a child, would be deemed as 'child
pornography' and the courts are only required to form a prima facie
opinion to arrive at the subjective satisfaction that the material appears to
depict a child from the perspective of any ordinary prudent person for any
offence under the POCSO that relates to child pornographic material, such
as Section 15. Such satisfaction may be arrived at from any authoritative
opinion like a forensic science laboratory (FSL) report of such material or
opinion of any expert on the material in question, or by the assessment of
such material by the courts themselves. Thus the courts have a duty to
ensure that the content in dispute is that of a child to hold the same as child
pornography to be arrived at from any authoritative opinion like Forensic
Science Lab (FSL) report or opinion of an expert on the material in
question or by the assessment of such material by the courts themselves.
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Thus in a case where the FSL report or the opinion of an expert in no way
suggests the content as child pornography, then the courts have to assess
such material by themselves to satisfy the same as child pornography. If
the FSL report or opinion of an expert or the assessment made by the
Judge would depict the fact that the content is not child pornography, no
conviction under Section 15 of the POCSO Act would be considered. In
cases where the FSL report or expert opinion rules out child pornographic
content, quashment of the proceedings can be resorted to. But when the
FSL report or report of expert prima facie suggest child pornographic
content, the matter would require trial.
12. As I have already pointed out, in the instant case, the
expert opined that numerous obscene picture files and video files,
including child pornographic content, were retrieved from the questioned
mobile phone marked as Q1. The mahazar prepared in connection with
this crime would disclose that child pornography content coming to 2088
items were recovered from the mobile phone of the accused. Thus it could
not be held in the facts of this case that none of the offences is made out,
prima facie, to quash the proceedings. In view of the above, quashment is
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liable to fail.
13. Accordingly, this petition stands dismissed.
14. Interim order already granted shall stand vacated.
Registry shall forward a copy of this order to the jurisdictional
court for information and further steps.
Sd/-
A. BADHARUDEEN, JUDGE
rtr/
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PETITIONER'S ANNEXURES
Annexure 1 TRUE COPY OF THE FINAL REPORT S.C.NO.305/2022
OF THE COURT OF FAST TRACK SPECIAL COURT,
PALAKKAD.
Annexure 2 TRUE COPY OF THE JUDGEMENT IN
CRL.R.P.NO.610/2024 OF THIS COURT DATED
09.06.2024.
