The Madurai bench of the Madras High Court has granted anticipatory bail to a youth arrested for sharing child pornographic content and observed that viewing pornography privately will not constitute an offence and, as on date, there is no provision prohibiting such private acts. However, child pornography falls outside this circle of freedom of free expression and privacy.
Justice G.R. Swaminathan observed: “The system also may not be able to prosecute every offender. Therefore, it is only through moral education, there can be a way out. It is only the Bharatiya culture that can act as a bulwark. The menace of child pornography can be tackled only if all of us inculcate the right values.”
The bench noted that the petitioner is an M.E. degree holder and presently pursuing a Ph.D. Even according to the prosecution, the occurrence took place almost one year back. It appears to be an one-off act. It is not the case of the prosecution that the possession or transmission was for commercial purposes.
It was further observed by the Court that Section 43 of the POCSO Act, 2012 mandates the Central and State Governments to take measures to spread public awareness about the provisions of the statute. But this alone may not be sufficient. That the “Big Brother” is watching us may not deter those who are determined to indulge in such acts of perversity.
The court observed: “Section 67-B of the Information Technology Act, 2000 penalizes every kind of action pertaining to child pornography. Whoever publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in a sexually explicit act or conduct; or 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 cultivates, entices or induces children to online relationship with one or more children for and on a sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or facilitates abusing children online, or records in any electronic form own abuse or that of others pertaining to sexually explicit act with children is liable to be punished. Therefore, even viewing child pornography constitutes an offense.”
The case of the prosecution is that on June 27, 2020, at 17.38:51 hours, the petitioner browsed, downloaded, and transmitted child pornographic material by using his Sim through his e-mail and Facebook account.
The Petitioner, P.G. Sam Infant Jones, is an accused in a case registered on the file of the Inspector of Police, AWPS Thallakulam, Madurai City for the offences under Section 15(1) of Protection of Children From Sexual Offences Act, 2012 and Section 67 B of the Information Technology Act, 2000. Since the Petitioner apprehended arrest at the hands of the respondent, approached the High Court for anticipatory bail.
Venkateshwaran. R, Counsel for the petitioner contended that during the relevant time, the Petitioner was in hostel and that the material made available so far is not sufficient to show that it was the Petitioner who had personally committed the acts in question.
On June 8, the government counsel opposed the grant of anticipatory bail by contending that only seizure of the incriminating electronic devices and their examination would reveal the actual content and that it is too early to assume in favor of the petitioner that what he watched was not child pornography.
The order reads: “I am therefore of the view that custodial interrogation of the petitioner is not warranted. I also bear in mind that we are in pandemic times and that unless necessary, arrest should be avoided. Of course, child pornography is a very serious issue warranting a firm approach. But I would make a distinction between a one time consumer and those who transmit or propagate or display or distribute in digital domain. In the case on hand, the petitioner is said to have shared the offending material with his friend through Facebook messenger. Since the petitioner has not come under adverse notice after the occurrence and since he had also extended his fullest cooperation with the investigation, I am inclined to grant him anticipatory bail.”