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Watching child porn not an offence under Pocso and IT Act: Madras HC
Justice Anand Venkatesh said “a child or children must have been used for pornography purposes” to attract charges under the Pocso Act
The Madras high court has said that merely watching child pornography is not an offence under the Protection of Children from Sexual Offences (Pocso) Act and the Information and Technology Act, 2000, as it quashed the case against a 28-year-old who was charged with downloading and watching pornographic content involving children.
Justice Anand Venkatesh said “a child or children must have been used for pornography purposes” to attract charges under the Pocso Act.
“To make out an offence under Section 14(1) of the Pocso Act, a child or children must have been used for pornography purposes. Even assuming that the accused person had watched child pornography video, that strictly will not fall within the scope of Section 14(1) of Protection of Child from Sexual Offences Act, 2012,” the court said in its January 11 order.
In January 2020, petitioner S Harish was booked under the two acts based on a letter received by the additional deputy commissioner of police (crime against women and children). His mobile phone was seized as part of the investigation. The forensic science department submitted a report to police identifying two files that contained child pornography content. In his petition, the 28-year-old said that while he regularly watched pornography, he did not view child pornographic content.
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“Since he has not used a child or children for pornographic purposes, at best, it can only be construed as a moral decay on the part of the accused person,” the court said.
Section 14 of the Pocso Act prescribes punishment for using a child for pornographic purposes.
“Whoever, uses a child or children for pornographic purposes shall be punished with imprisonment for a term which shall not be less than five years and shall also be liable to fine,” the section says.
The HC said the petitioner cannot be booked under Section 67-B of the IT Act as the videos were neither published nor transmitted to others.
“In order 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 sexual explicit act or conduct. A careful reading of this provision does not make watching a child pornography, per se, an offence under Section 67-B of Information Technology Act, 2000,” the high court said.
Section 67-B of the IT Act prescribes punishment “for publishing or transmitting of material” depicting children in sexually explicit act, etc., in electronic form”.
