Storage of child pornography an offence under POCSO & IT Acts: Karnataka High Court

The Karnataka High Court has refused to quash criminal proceedings against a man accused of storing child pornographic material on his mobile phone. The Court further observed that mere storage of such content can attract offences under the Protection of Children from Sexual Offences (POCSO) Act and the Information Technology (IT) Act even if the material was not transmitted. The presiding Justice dismissed the petition filed by the accused, who had sought quashing of the proceedings pending before a Bengaluru special court.

“Merely because the petitioner has not transmitted anything from his phone would not mean that he would not be liable for the ingredients of the said offence,” the high court’s order dated January 12 read.

The observations of the High court include:

·         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.