Automatic or accidental downloading of child pornography is not offence: Kerala High Court

The Court was hearing a petition filed by one Sebin Thomas challenging an order passed by a Fast Track Special Court in Thrissur on May 16.

The special judge had dismissed his plea for discharge on the ground that prima facie case was made out to proceed against the petitioner.

The petitioner was facing charges under Section 15(2) of the Protection of Children from Sexual Offences Act (POCSO Act) and Section 67B(b) of the IT Act.

The prosecution alleged that on February 26, 2023, Thomas stored and possessed pornographic material involving a child, downloaded from Telegram, on his Samsung mobile device.

The counsel appearing for Thomas argued that there was no evidence to show that he shared or transmitted the pornographic material. Even the chemical analysis report did not indicate any transmission, propagation, display or distribution of the pornographic material involving children.

The counsel emphasized that to constitute an offence under Section 15(2) of the POCSO Act or Section 67B(b) of the IT Act, there must be material evidence of sharing, transmission or publishing of the content.

Section 15(2) of the POCSO Act criminalizes storing or possessing child pornographic material with the intent to transmit, propagate, display, or distribute it.

Section 67B(b) of the IT Act penalizes creating, downloading, or distributing electronic material depicting children in sexually explicit acts.

Source: Barandbench