The Kerala High Court ruled that unintentional or accidental downloading of material depicting children engaged in sexually explicit acts does not constitute an offence under Section 67B (b) of the Information Technology Act, provided there is no evidence of deliberate intent.

In the case, the petitioner was accused of violating Section 15(2) of the POCSO Act and Section 67B (b) of the Information Technology Act. The allegation specified that the petitioner had stored and possessed pornographic material depicting children, which had been downloaded onto his phone from Telegram.

The bench observed that no prima facie case was established against the petitioner under Section 15(2) of the POCSO Act and Section 67B (b) of the Information Technology Act, and consequently held as follows:

“In the present case, 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 devise 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 petitioner argued that there was no evidence to indicate that they had shared or transmitted pornographic material involving a child, even though such material was discovered during the investigation.

Upon analyzing Section 15(2) of the POCSO Act, the Court clarified that mere storing or possessing pornographic materials does not constitute an offence in itself. The Court emphasized that to establish an offence under Section 15(2) of the POCSO Act, there must be evidence demonstrating that the accused possessed or stored pornographic materials with the intention to transmit, propagate, display, or distribute them.

The Court noted that even the evidence from the chemical analysis report did not indicate any transmission, propagation, display, or distribution of pornographic materials involving a child.

Regarding Section 67B of the IT Act, the Court stated that the essential elements of the offence include publishing, transmitting, or causing any material in electronic form that depicts children engaged in sexually explicit acts or conduct, or creating text or digital images.

In the facts of the case, the Court found that prima facie no offence was made out under Section 67 B (b).

Accordingly, the Court allowed the criminal revision petition and discharged the petitioner.

Counsel for Petitioner: Advocate V.A.Johnson (Varikkappallil)

Counsel for Respondents: Senior Public Prosecutor Renjit George