Kerala High Court Quashes Final Report in POCSO Case Due to Lack of Evidence on Sharing or Transmission of Pornographic Material

Kerala High Court emphasizes the necessity of proving intent to share or transmit under Section 15(1) of POCSO Act and Section 67B of IT Act.

The Kerala High Court has quashed the final report in a high-profile case under the Protection of Children from Sexual Offences (POCSO) Act and the Information Technology (IT) Act, citing a lack of evidence to prove the accused shared or transmitted pornographic material involving children. The decision underscores the critical need for clear proof of intent in cases involving digital sexual offenses.

The petitioner, Shantheeshlal T., was accused in Crime No.911/2020 of Payyannur Police Station, Kannur, of offenses under Section 15(1) of the POCSO Act and Section 67B of the IT Act. The charges were based on the discovery of pornographic material involving children on his mobile device. However, the petitioner contended that there was no evidence to show he shared, transmitted, or published the material, a necessary condition for the offenses.

Justice A. Badharudeen, presiding over the case, thoroughly reviewed the prosecution's records and found that the evidence did not substantiate the allegations against the petitioner. The court emphasized that mere possession of child pornographic material, without evidence of intent to share or transmit, does not fulfill the requirements of Section 15(1) of the POCSO Act or Section 67B of the IT Act.

The court referred to previous rulings to support its decision. In Manuel Benny v. State of Kerala & Anr. [2022 KHC Online 3437], it was held that mere possession of obscene material is not an offense unless there is intent to distribute. Similarly, in Aneesh v. State of Kerala [2023(6) KHC 10], the court concluded that watching obscene material in privacy does not constitute an offense under Section 292 of the Indian Penal Code unless there is intent to circulate or publicly exhibit the material.

Section 15(1) of the POCSO Act requires that the person must store or possess pornographic material involving a child with the intent to share or transmit it. The court found no such intent in the present case. Justice Badharudeen elaborated, "Mere storing or possessing pornographic material by itself is not an offense. Thus, in order to attract an offense under Section 15(1) of the POCSO Act, the stored or possessed pornographic materials should be shared or transmitted."

Similarly, under Section 67B of the IT Act, there must be proof of publishing, transmitting, or causing the transmission of material depicting children in sexually explicit acts. The court noted that there was no evidence to suggest the petitioner had done so.

The court concluded that the prosecution failed to establish the necessary ingredients to support the charges under the POCSO Act and the IT Act. As a result, the final report and all subsequent proceedings in the case were quashed.

Justice Badharudeen noted, "The materials available do not suggest the ingredients to find prima facie, commission of offense under Section 67B of the IT Act. Therefore, none of the offenses alleged against the petitioner are made out prima facie."

This judgment highlights the stringent evidentiary requirements for proving intent in digital sexual offense cases under the POCSO Act and IT Act. It serves as a crucial reminder for law enforcement and prosecutors about the importance of establishing clear intent to share or transmit illegal material, beyond mere possession, to secure convictions under these statutes.
 

Date of Decision: 22 May 2024