Merely downloading or watching child porn may not be an offence, says SC bench led by CJI during hearing

The top court is hearing an appeal filed by an NGO against a Madras HC order quashing a criminal case against a man charged with downloading and watching child pornography
Chief Justice DY Chandrachud (Photo | PTI)
Chief Justice DY Chandrachud (Photo | PTI)

The Supreme Court on Friday reserved its verdict in the appeal filed by an NGO, which works for the welfare of the children, against a Madras High Court order holding that merely downloading and or watching child pornography on one's electronic device did not constitute an offence under the POCSO and the IT Act.

The Madras High Court had, on January 11, quashed the criminal case against a 28-year-old man, S Harish, charged by the prosecution for downloading and watching on his mobile phone some pornographic content involving children.

The High Court had quashed the criminal case against Harish under the Protection of Children from Sexual Offences (POCSO) Act, 2012 and the Information Technology Act, 2000.

The HC had granted relief to Harish on the ground that to constitute an offence under Section 67-B of Information Technology Act, 2000, the accused person must have published, transmitted, created material depicting children in a sexually explicit act or conduct. A careful reading of this provision does not make watching child pornography an offence under the said section.

Challenging this judgment, the NGO, Just Right for Children Alliance, had knocked the doors of the apex court seeking the setting aside of the HC order and appropriate directions against the accused.

During the course of the hearing in the top court on Friday, a bench led by CJI D Y Chandrachud observed that merely downloading or watching child porn may not be an offence but, certainly, using children in pornography is an offence. The CJI clarified that there has to be an intention to distribute the content.

The accused, Harish, in his defence said there was auto download in WhatsApp if you are connected over Wifi.

Advocate Swarupama Chaturvedi, appearing for the National Commission for Protection of Child Rights (NCPCR), had filed an intervention application. The apex court asked her to file her written submissions by Monday, 5 pm.

The petitioner had told the top court that the tip-off came from the home ministry to the district police. The person was allegedly watching child pornography for two years.

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