Karnataka High Court
Inayathulla N vs State By Police Sub Inspector on 19 July, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:28204
CRL.P No. 13141 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 13141 OF 2023
BETWEEN:
INAYATHULLA N
S/O NAWAB JAN,
AGED ABOUT 46 YEARS,
R/AT 5TH CROSS, V V EXTENSION
HOSAKOTE, BENGALURU DIST. - 562114
...PETITIONER
(BY SRI. S JAGAN BABU, ADVjOCATE)
AND:
1. STATE BY POLICE SUB-INSPECTOR
BENGALURU CEN CRIME POLICE STATION,
BANGALORE DISTRICT,
KARNATAKA - 560 052
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
BENGALURU - 560 001
Digitally signed
by NAGAVENI
2. YOGESH D L
Location: HIGH NO.05, MILLERS ROAD,
COURT OF
KARNATAKA BENGALURU CEN CRIME POLICE STATION,
BENGALURU - 560 052
...RESPONDENTS
(BY SRI B.N.JAGADEESH, ADDL. SPP FOR R-1)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE FIR IN CR.NO.200/2023
FOR THE OFFENCE P/U/S 67B OF I.T. ACT, BENGLAURU CEN
CRIME POLICE STATION, BENGALURU DISTRICT NOW
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NC: 2024:KHC:28204
CRL.P No. 13141 of 2023
PENDING ON THE FILE OF C.J.M., BENGLAURU RURAL
DISTRICT, BENGALURU.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question a crime registered in Crime No.200 of 2023 registered for offence punishable under Section 67B of the Information Technology Act, 2008 ('the Act' for short).
2. Re-heard Sri S.Jagan Babu, learned counsel appearing for the petitioner and Sri B N Jagadeesh, learned Additional State Public Prosecutor appearing for respondent No.1.
3. The facts, in brief, germane are as follows:
A complaint comes to be registered against the petitioner on an incident that happens on 23-03-2022. The incident is that the petitioner, between 3.50 p.m. to 4.40 p.m., has viewed a website, which holds in it pornographic material of children. This is noticed by the cyber Tipline, which placed an alert on its Tipline with regard to the IP address. IP address led -3- NC: 2024:KHC:28204 CRL.P No. 13141 of 2023 to the mobile number of the petitioner and then to his address.
A complaint then comes to be registered on 03-05-2023 after about a year and two months of the aforesaid incident. The complaint then becomes a crime in Crime No.200 of 2023 for offence punishable under Section 67B of the Act. Registering the crime drives the petitioner to this Court, in the subject petition.
4. The learned counsel for the petitioner would vehemently contend that Section 67B of the Act is not even attracted in the case at hand. All that the petitioner was doing was, viewing a pornographic website on his mobile for about 50 minutes. The allegation is that he has viewed child pornography. He would contend that the petitioner is somewhat a porn addict and never intended to circulate anything, as he was himself viewing the existing website.
5. This Court accepting the facts had allowed the petition in terms of its order dated 10-07-2024. The reasons so rendered for quashing the proceedings by this Court, read as follows:
-4-NC: 2024:KHC:28204 CRL.P No. 13141 of 2023 "7. The afore-narrated facts, lie in a narrow compass. What leads to registration of crime, is an alert in the cyber Tipline that the petitioner watching a particular website on his mobile between 3:50 p.m. to 4:40 p.m. This results in registration of the complaint.
The complaint reads as follows:
"" ೕಲ ಂಡ ಷಯ ೆ ಸಂಬಂ ದಂ ೆ ತಮ ೇ ೊಳ ವ ೇ!ೆಂದ"ೆ #ಾನ& ಸ'ೕ(ಚ* !ಾ&+ಾಲಯzÀ , ೇ(ಶನದ ಅನ/ಯ ೇಂದ0 ಸ ಾ(ರವ 2018 ರ ಮ23ೆಯರ ಮತು5 ಮಕ ಳ/ಇತ"ೆ/ªÀÄಕ ಳ ರುದ8 9ೈಂ;ಕ ಅಪ"ಾಧಗಳನು? ತ@ೆಗಟುBವ ,CBನ ಪ0 ೆ&ೕಕDಾದ (CCPWC) & (NCCRP) & (NCMEC) Eೕಟ(Fಗಳನು? ೆ"ೆGದುH, ಕ!ಾ(ಟಕ "ಾಜ& ೆ ಸಂಬಂ ದಂ ೆ ಮಕ ಳ ರುದ8 9ೈಂ;ಕ ಅಪ"ಾಧಗಳನು? ಕುJತು ೇಂದ0 ಸ ಾ(ರದ (MHA) ದವರು ಸಂಗ02 ದ #ಾ2Kಯನು? ೇಂದ0 ಸ ಾ(ರದ ಎM. .ಆO.P. ಮೂಲಕ EೕQ(F ನ / Rಯ SೈಬO ಅಪ"ಾಧಗ Tೆ ಸಂಬಂ ದಂ ೆ ದೂರುಗಳನು? ಪJUೕ ಕ0ಮ ೈTೊಳ ಲು ಐR ಘಟಕ ೆ ಕಳ 2 ದH ಸದJ ದೂರುಗಳನು? ಸದJಯವರು Rಯ ಪ@ೆದು ೊಂಡು ಅವ ಗಳನು? ಾಂK0ಕDಾ; ಪJUೕ ಅದರ ರುವ Tೌಪ& #ಾ2K YೇಷZೆ #ಾR ಸಂಬಂಧಪಟB SೇDಾ ಾರJಂದ (Service Provider) #ಾ2Kಯನು? ೊ0ೕ[ೕಕJ , C\ 9ೈM ನಂಬO-120928689 ರ Rಯ ರುವ #ಾ2Kಯನು? ಪJUೕ ಸ9ಾ;ದುH, ಆ"ೋ] G!ಾಂಕ: 23/03/2022 ರಂದು ಮ ಾ&ಹ? 03.50 ಗಂ_ೆ`ಂದ ಸಂaೆ 4.40 ಗಂ_ೆಯವ"ೆTೆ ಮಕ ಳ ಅUೕಲ ೆ bಾವcತ0/ Rdೕ ೕeZೆ #ಾRರುವ ಬTೆf ಇದ"ೊಂGTೆ ಲಗK5 ೊಂRರುವ ಆ"ೋ]ಯ ಐ.]. 3ಾಸGಂದ gಾಗೂ ಇತ"ೆ #ಾ2Kಯನು? ಒಳTೊಂRರುವ ದು ಕಂಡು ಬಂGದುH, Rಯ ರುವ #ಾ2Kಯನು? Extension, Hosakote. ijೈF ಸಂkೆ& 7019087692 ಆ;ದುH, ಈ ಬTೆf ದೂರು ಾಖ ಆ"ೋ]ಯ ರುದ8 ಾನೂನು JೕKಯ ಸೂಕ5 ಕ0ಮ dgÀÄV¸À®Ä ಈ ಮೂಲಕ ,DೇG ೊಂRರು ೆ5."
This complaint, leads to registration of a crime in Crime No.200/2023 for offence punishable under Section 67B of the IT Act. Whether watching pornography material would attract Section 67B of the IT Act, is what is required to be noticed. Section 67B of the IT Act, reads as follows:
"67 B Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form.-5-
NC: 2024:KHC:28204 CRL.P No. 13141 of 2023 Whoever,-
(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct or
(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner or
(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource or
(d) facilitates abusing children online or
(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with a fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees"
Provided that the provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form-
(i) The publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or
(ii) which is kept or used for bonafide heritage or religious purposes -6- NC: 2024:KHC:28204 CRL.P No. 13141 of 2023 Explanation: For the purposes of this section, "children" means a person who has not completed the age of 18 years."
Section 67B of the IT Act punishes those persons who would publish, transmit the material depicting children in sexually explicit acts in electronic form. The soul of the provision is publishing or transmitting of material depicting children in sexually explicit act.
8. 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."
After release of the order, the State appears to have noticed the short assistance rendered by it, as also the fact that the cyber tipline/2nd respondent was not heard in the matter. The further fact is that the State has filed an application before the Court to bring in Section 15 of the Protection of Children from Sexual Offices Act, 2012 ('POCSO Act' for short). The application filed by the State seeking recall of the order reads as follows:
"3. It is submitted that at the time of argument, the provision of the Protection of Children from Sexual offices Act, 2012, was not brought to the knowledge of -7- NC: 2024:KHC:28204 CRL.P No. 13141 of 2023 this Hon'ble Court. It is further submitted that Section 15 of the Act says as follows:
15. Punishment for storage of pornographic material involving child.--(1) Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography, shall be liable to fine not less than five thousand rupees, and in the event of second or subsequent offence, with fine which shall not be less than ten thousand rupees.
(2) Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description which may extend to three years, or with fine, or with both.
(3) Any person, who stores or possesses pornographic material in any form involving a child for commercial purpose shall be punished on the first conviction with imprisonment of either description which shall not be less than three years which may extend to five years, or with fine, or with both, and in the event of second or subsequent conviction, with imprisonment of either description which shall not be less than five years which may extend to seven years and shall also be liable to fine."
4. It is submitted that though the Protection of Children from Sexual Offences Act, 2012 has not been invoked in the FIR investigation, there is no impediment to invoking the said provision during the course of the investigation. However, this issue was not brought to the notice of this Hon'ble Court. Therefore, this Hon'ble Court has quashed the proceedings against the petitioner.
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5. It is submitted that the Hon'ble Supreme Court has seized the issue on hand in the case of Just Rights for Children alliance & Another v. S.Harish & others
- Special Leave Petition (Criminal) Diary No.8562 of 2024. The Hon'ble Apex Court has reserved the order in this matter by order dated 19-04-2024.
6. It is submitted that the order passed in this case, especially when the matter is seized with the Apex court, sends a wrong signal to society and causes a serious impact on society.
7. It is submitted that the complaint in this case is the office in CID that deals with the Cyber Tip Line information. However, the petitioner has not made the complainant party. Therefore, the complainant was not heard in this case.
PRAYER WHEREFORE, the respondent-State most humbly prays that this Hon'ble Court may be pleased to recall the order dated 10-07-2024 in the above criminal petition may be recalled in the interest of justice and equity."
By a separate order passed on 19-07-2024, the I.A. filed by the State stood answered and the order dated 10-07-2024, by accepting the reasons indicated in the affidavit was recalled and the matter was restored to file.
6. The learned counsel appearing for the petitioner would reiterate his submission that alleging offences under Section 67B of the Act or Section 15 of the POCSO Act is contrary to law, as it is an invasion of the right to privacy of the petitioner, since he has only watched child pornography for about 40 -9- NC: 2024:KHC:28204 CRL.P No. 13141 of 2023 minutes in his mobile. This, according to the learned counsel, would not attract Section 67B of the Act at all, much less attracting Section 15 of the POCSO Act. He would submit that right to privacy is held to be a fundamental right by a Nine Judge Bench of the Apex Court and, therefore, these proceedings should not be permitted to be continued on a plain interpretation of Section 67B of the Act.
7. Per contra, the learned Additional Special Public Prosecutor would vehemently contend that Section 67B of the Act also notices browsing of child pornography to be an offence.
He would submit that nothing prevents the prosecution from invoking Section 15 of the POCSO Act at the time of filing of the final report, since it makes out an offence and therefore it should not be quashed and investigation should be permitted to continued is his submission.
8. The afore-narrated facts lie in a narrow compass. What is necessary to be noticed is Section 67B of the Act which is now invoked in Crime No.200 of 2023 for offence under Section 67B of the Act. Section 67B of the Act reads as follows:
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CRL.P No. 13141 of 2023
"67-B. Punishment for publishing or
transmitting of material depicting children in sexually explicit act, etc., in electronic form.-- Whoever,--
(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or
(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or
(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or
(d) facilitates abusing children online; or
(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees:
Provided that provisions of Section 67, Section 67- A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting representation or figure in electronic form--
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or
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(ii) which is kept or used for bona fide heritage or religious purposes.
Explanation.--For the purposes of this section, "children" means a person who has not completed the age of 18 years."
(Emphasis supplied) The reliance placed by the petitioner is on Section 67B(a) of the Act which was relied on and proceedings quashed. What becomes applicable to the case at hand is Section 67B(b).
Section 67B(b) open up prosecution against a person who creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner. It is not in dispute that the petitioner, in the case at hand, has browsed child pornographic material for about 50 minutes. Browsing child pornographic material makes it an offence under Section 67B(b) of the Act.
9. The learned Special Public Prosecutor has also indicated that Section 15 of the POCSO Act is invoked in the case at hand, in the application filed by the State. Section 15 of
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NC: 2024:KHC:28204 CRL.P No. 13141 of 2023 the POCSO Act could be invoked at any time and whether it could be invoked or not is not a matter which is before this Court. Making any observation with regard to invocation of Section 67B of the Act would cause prejudice to the case of the petitioner. Therefore, leaving all the remedies available in law open, the petition stands rejected.
It is made clear that the observations made in the course of this order would not bind or influence the investigation or any proceeding pending before the concerned Court qua the petitioner.
Sd/-
JUDGE bkp List No.: 3 Sl No.: 3