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The court dismissed the prosecution initiated against a 28-year-old man accused  under the POCSO and IT Acts for downloading and viewing child pornography. It  clarified that the offenses would only be established if the individual had  distributed the downloaded pornographic content publicly or to others. 

Justice N Anand Venkatesh asserted that merely downloading and viewing child  pornography on a personal electronic device does not amount to an offense under  the POCSO Act and the IT Act. The escalating accessibility of sexually explicit  material on the internet is giving rise to increasing concerns about porn addiction.  With just a click of a button, young individuals can find themselves exposed to  countless pages of adult content, as noted by the judge. 

In the current instance, a case was initiated based on a letter received by the  Additional Deputy Commissioner of Police (Crime against women and children),  alleging that the accused had downloaded child pornographic material onto his  mobile device. Subsequently, as part of the investigation, the mobile phone was  confiscated, and a forensic analysis was carried out. The analysis confirmed the  presence of two files on the mobile phone containing child pornography content  featuring teenage boys. 

The court acknowledged the offense under Section 67B of the Information  Technology Act 2000 and Section 14(1) of the Protection of Children from Sexual  Offences (POCSO) Act. In response, the accused approached the High Court,  seeking to quash the ongoing criminal proceedings. 

Regarding the allegations under Section 67B of the IT Act, the court emphasized  that for the accused to be charged, there must be evidence of publishing,  transmitting, or creating materials depicting children engaged in sexually explicit  acts or conduct. The court clarified that the section doesn’t criminalize mere  possession or viewing of child pornography. Therefore, the court highlighted that  the Act does not encompass situations where an individual has simply downloaded  child pornography on their electronic device and watched it without further action.

What is POSCO? 

The Protection of Children from Sexual Offences Act (POCSO), 2012 was enacted  to establish a robust legal framework aimed at safeguarding children from sexual  assault, harassment, and pornography. The primary focus of the Act is to prioritize  the welfare of the child throughout the legal proceedings. The Act is designed to be  user-friendly, incorporating mechanisms for child-friendly reporting, evidence  recording, investigation, and the expeditious trial of offenses through designated  Special Courts. 

Encompassing various offenses for which an accused can be held accountable, the  POCSO Act goes beyond penile-vaginal penetration and extends to other forms of  penetration, including acts of immodesty against children. The offenses outlined in  

the Act cover a range of actions, including penetrative sexual assault, sexual  assault through inappropriate touching, sexual harassment involving gestures or  remarks, and child pornography. 

The Act is gender-neutral, applying equally to both children and accused  individuals. Concerning pornography, the Act criminalizes the viewing or  collection of pornographic content involving children. Additionally, the Act deems  abetment (encouragement) of child sexual abuse as an offense. 

In a 2019 amendment, the POCSO Act was made more stringent. The minimum  punishment for penetrative assault was increased from 7 to 10 years, and for  victims below 16 years, the minimum punishment was raised to 20 years. The Act  allows for a maximum punishment of life imprisonment, with the provision for the  death penalty in cases of aggravated penetrative assault. 

Case Title: S Harish v Inspector of Police and Another 

Anshra Zafar, a 2nd year B.A.LLB student at IILM University, Greater Noida, 4th semester. An intern  under Legal Vidhiya.

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