Karnataka High Court’s warning: Storage of child pornography, even without sharing, an offence under POCSO, IT Acts

High court’s observations

• The submission of the learned counsel for the petitioner is that merely keeping videos and pictures of child pornography would not be an offence under the aforesaid sections.
• The submission is unacceptable and is in violation of the law laid down by the apex court.
• The Supreme Court, in the case of Just Rights for Children Alliance v Harish, while considering the entire spectrum of the law and interpretation of Section 67B of the IT Act and Section 15 of the POCSO Act, punishes storing, publishing or transmitting of material depicting children in sexually explicit acts.
• In the aforesaid judgment, the Supreme Court unambiguously holds that possession or storage of pornographic material involving a child would attract the rigours of those specific sections.
• The court further holds that Section 15 of the POCSO Act is in the nature and form of an inchoate (incomplete) offence, which also penalises the mere storage or possession of such material when done with the specific intent to share or transmit.
• It does not require any actual transmission or dissemination, since the intention 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.

Justice M Nagaprasanna dismissed the plea filed by the accused seeking to quash the proceedings.

‘Admittedly stored’

• The contention of the counsel that mere storage of child pornography would not amount to an offence and only if it is transmitted, it becomes an offence, does not hold ground in light of the Supreme Court’s judgment in the aforesaid case.
• The petitioner has admittedly stored sexually explicit pictures and videos of children, which would amount to storage of child pornography under Section 15 of the POCSO Act.
• There is no need for interference in the case at hand at this stage, particularly, after charges have been framed against the petitioner for the aforesaid offences and when the proceedings are at the stage of evidence.
• It is for the petitioner to come out clean in a full-blown trial.

Booked under POCSO, IT Acts

• The petitioner is one of several accused against whom a crime was registered for various offences.
• The petitioner’s mobile phone was seized and sent for forensic examination during which experts found a plethora of pictures and videos of child pornography.
• Therefore, a complaint was registered against the petitioner for offences punishable under Section 67B of the IT Act and Section 15 of the POCSO Act.
• The petitioner’s counsel argued that the petitioner was only holding those photos and videos in his phone and had not circulated them.

What do the sections say?

• Section 67B of the IT Act provides for punishment for publishing or transmitting material depicting children in sexually explicit acts, etc., in electronic form.
• Section 15 of the POCSO Act contains provisions for punishment for storage of pornographic material involving children.