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:
2025:KER:1160
Crl.M.C.No.6325/2024 2
"C.R"
A. BADHARUDEEN, J.
================================
Crl.M.C.No.6325 of 2024
================================
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 2025:KER:1160 Crl.M.C.No.6325/2024 3 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 2025:KER:1160 Crl.M.C.No.6325/2024 4 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 2025:KER:1160 Crl.M.C.No.6325/2024 5 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 2025:KER:1160 Crl.M.C.No.6325/2024 6 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, 2025:KER:1160 Crl.M.C.No.6325/2024 7 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 2025:KER:1160 Crl.M.C.No.6325/2024 8 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 2025:KER:1160 Crl.M.C.No.6325/2024 9 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 2025:KER:1160 Crl.M.C.No.6325/2024 10 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 2025:KER:1160 Crl.M.C.No.6325/2024 11 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.
2025:KER:1160 Crl.M.C.No.6325/2024 12 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 2025:KER:1160 Crl.M.C.No.6325/2024 13 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/ 2025:KER:1160 Crl.M.C.No.6325/2024 14 APPENDIX OF CRL.MC 6325/2024 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.