On Friday, 19th July, the Karnataka High Court rescinded its 10th July ruling which stated that the Information Technology Act does not criminalise merely viewing child pornography. Judge M. Nagaprasanna’s division bench withdrew the order and said that on 18th July the bench had “misread” Section 67B (b) while pronouncing the initial judgment.
“We are also human beings and mistakes do happen on our side. There is always an opportunity for corrections. An inquiry will be done in this regard and a new order will be delivered. This order is cancelled,” the bench conveyed.
It also noted that the order was passed under Section 67B (a) of the IT Act, following a petition filed in this regard by the state government. According to the IT Act’s Section 67B (b), creating text or digital pictures, collecting, searching, browsing, downloading, making advertisements, circulating, exchanging, or picturising children in an obscene, indecent manner is open for investigation under the section.
The court’s reconsideration came after a previous ruling that had granted relief to a person who had been charged with spending fifty minutes viewing child porn on the internet. A complaint was filed against the petitioner for distributing or sending content that included children in violation of Section 67B of the IT Act. The petitioner’s attorney contended that since his client only visited the website and did not disseminate anything, the section was not applicable in the case.
Judge Nagaprasanna dismissed the charges against N Inayatullah and stated that one doesn’t turn into an accused by only watching pornographic content online. He added that the material must be published or distributed for prosecution under Section 67B of the Information Technology Act. The court’s ruling drew heavy criticism. A recall application was filed with the court by the state administration following which the bench discovered that it had not considered Section 67B (b) of the Information Technology Act as it rendered the decision.
According to the Karnataka High Court, Section 67B (b) is pertinent to the matter at hand. It further clarified that the original decision’s omission to take this section into account was an error. The proceedings have been quashed as a result. Judge M Prasanna of the High Court then cancelled the earlier directive.
The petitioner, Inayatullah, had looked at pornographic pictures of kids on his phone on 23rd March 2023, between 3:30 and 4:40 pm and a complaint was filed to the Bangalore Cyber Crime Station of the Bangalore City CID unit by the National Crime Records Bureau (NCRB). NCRB obtained information via the portal established by the national government to combat sexual abuse against women and children.
A case was filed against the perpetrator under Section 67B(b) of the Information Technology Act on 3rd May 2023, at the Bangalore Cyber Crime Police Station, following verification of the information. Inayatulla was identified as the individual who checked the obscene video of children. The petitioner filed a request before the High Court to have the lawsuit dismissed.
A case of a similar nature had previously reached the Supreme Court. During the hearing in April of this year, the apex court declared that visiting child pornographic websites was not illegal but the use of kids in such videos is a crime. The observation was made while reserving the order on a plea challenging the Madras High Court judgment that stated that downloading child pornography was not an offence under the Protection of Children from Sexual Offences (POCSO) Act.
Judge N Anand Venkatesh of the Madras High Court during a hearing on 11th January 2024, pronounced that downloading and viewing child porn in private is not unlawful under the IT (Information Technology) Act and POCSO (Protection of Children from Sexual Offenses) Act. A case under POCSO will only be brought if a minor is used for pornography.
