Case Title: Sebin Thomas vs State of Kerala

The Kerala High Court has ruled that the inadvertent or unintentional downloading of content depicting children engaging in sexually explicit acts or conduct does not constitute an offense under Section 67B (b) of the Information Technology Act, provided there is no clear evidence of deliberate intent.

In the case at hand, the accused was charged with violations under Section 15(2) of the POCSO Act and Section 67B (b) of the Information Technology Act. The accusation centered on the possession and storage of pornography video content involving minors, purportedly downloaded onto the petitioner’s mobile device from the messaging platform Telegram.

“In the present case, the materials collected during investigation would show that some pornographic messages, which would depict children engaged in sexually explicit act or conduct were found in the devise of the accused. But there are no materials to show that the petitioner intentionally downloaded or browsed or recorded the same. More particularly there are no materials to show that the petitioner had either shared or transmitted or propagated or displayed or distributed the same in any manner.”

The petitioner argued that there was a lack of evidence demonstrating their involvement in sharing or transmitting pornographic materials related to children, despite the materials being discovered during the investigation.

 Upon reviewing Section 15(2) of the POCSO Act, the Court clarified that the act of solely storing or possessing pornographic materials does not constitute an offense. It emphasized that to prove a violation under Section 15(2) of the POCSO Act, there must be evidence indicating that the accused possessed or stored pornographic materials with the intent to transmit, disseminate, display, or distribute them.

The Court noted that even the evidence from the chemical analysis report did not indicate that there was transmission, propagation, display or distribution of pornographic materials involving a child.

The Court stated that as per Section 67B of the IT Act, the act of publishing, transmitting, or causing any material in electronic form depicting children engaged in sexually explicit acts or conduct, or creating text or digital images, constitutes the essential ingredients of the offence.

The bench acquitted the petitioner.