R

31st August, 2024

CYBER LAW: SERIES 2: ISSUE 1

Inayathulla N. v. State of Police Sub-Inspector

Bengaluru – Watching Child Porn on a
pornographic website not a crime in India
Criminal Petition No. 13141 of 2023
1. Brief Facts
1.1 A complaint was registered against the petitioner alleg- or conduct or
ing that he viewed a website containing pornographic (b) creates text or digital images, collects, seeks,
material of children. This is noticed by the cyber browses, downloads, advertises, promotes,
Tipline, which placed an alert on its Tipline with regard exchanges or distributes material in any elec-
to the IP address. IP address led to the mobile number tronic form depicting children in obscene or
of the petitioner and then to his address. The complaint indecent or sexually explicit manner or
was registered two months after the above incident took
place. Hence, an FIR was lodged against the petitioner (c) cultivates, entices or induces children to online
as watching child pornography is an offence under Sec- relationship with one or more children for and Bhavna Sharma
tion 67B of the Information Technology Act, 2000 (IT on sexually explicit act or in a manner that may
Act). offend a reasonable adult on the computer IPR Team Head, MCO Legals
resource or
1.2 The present Criminal Petition was filed under Section B.Sc., LLM
482 of the Criminal Procedure Code (Cr.PC). The (d) facilitates abusing children online or
Learned Counsel for the petitioner contented that Sec-
tion 67B of the IT Act isn’t attracted as the petitioner
was only viewing the pornography on his mobile as he
(e) records in any electronic form own abuse or Expertise:
that of others pertaining to sexually explicit act
is a porn addict and he never intends to circulate any- with children, Litigation & Arbitration (IPR), Due
thing further. Diligence and Statutory Compliance
shall be punished…….. ten lakh rupees"
2. Issues
3.2 As per the interpretation by the Hon’ble Court, Sec-
2.1 Whether watching child pornographic material would tion 67B of the IT Act punishes those persons who
attract Section 67B of the IT Act. would publish, transmit the material depicting chil-
dren in sexually explicit acts in electronic form. The
3. Arguments and Decision soul of the provision is publishing or transmitting of
material depicting children in sexually explicit act.
3.1 Section 67B of the IT Act talks about ‘Punishment for
publishing or transmitting of material depicting chil- 3.3 The Hon’ble Court observed that the petitioner was
dren in sexually explicit act, etc. in electronic form’ watching a pornographic website. This doesn’t
states that - ‘Whoever – imply publishing or transmitting of child por-
nographic material, as necessary under Section 67B
(a) publishes or transmits or causes to be published or
of the IT Act. He can be called as a porn addict but
transmitted material in any electronic form which
nothing beyond this.
depicts children engaged in sexually explicit act -

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© MCO Legals
PAGE 1
 3.4 Referring to the judgment of the Apex Court in the State of Hary- 4.3 Therefore, Section 67B(b) of the IT Act, indeed employs the
ana v. Bhajanlal, 1992 Supp(1) SCC 335, the inherent powers term "browses" within the context of prohibited activities relat-
under Section 482 of the Cr.PC could be exercised either to pre- ed to child sexual abuse material (CSAM). The term "browses"
vent abuse of the process of any court or otherwise to secure the is intentionally broad, encompassing a spectrum of online
ends of justice – Where the allegations made in the first informa- activities, from casual exploration to deliberate searches.
tion report or the complaint, even if they are taken at their face
value and accepted in their entirety do not prima facie constitute 4.4 Here, in the present case, it seems that the Hon’ble court
any offence or make out a case against the accused or where the viewed that mere act of "browsing" constitutes an offense under
allegations made in the FIR or complaint are so absurd and inher- Section 67B(b) without considering the intent or knowledge of
ently improbable on the basis of which no prudent person can the user might lead to overly broad interpretation and potential
ever reach a just conclusion that there is sufficient ground for pro- abuse. Here, a more nuanced interpretation of Section 67B is
ceeding against the accused. In the present case, the Hon’ble taking a U-turn from the literal interpretation and adoption of
Court applied the test of plausibility, requiring that the allegations the golden rule of interpretation keeping in mind the growing
in the FIR or complaint must be inherently probable and suffi- use of technology and online platforms. While the act of brows-
cient to establish a prima facie case for prosecution. ing for CSAM with the intent to view, possess, or distribute
such material should undoubtedly be criminalized, inadvertent-
3.5 Basing the following reference, the Hon’ble court held that even ly stumbling upon such content might not warrant the same
if the facts that forms the complaint is accepted as true, it would level of culpability.
not make out any offence under section 67B of the IT Act and
therefore, investigation stands discontinued and criminal petition
is allowed and proceeding stand quashed.

4. Conclusion
4.1 In the present case, it seems that the Hon’ble court overlooked
certain aspects of section 67B of the IT Act leading to the misin-
terpretation of the provision.

4.2 Section 67B(b) states – ‘Whoever,creates text or digital images,

collects, seeks, browses, downloads, advertises, promotes,
exchanges or distributes material in any electronic form depicting
children in obscene or indecent or sexually explicit manner’; it
clearly uses the word ‘browses’ material in any electronic form
depicting children in obscene or indecent or sexually explicit
manner. The term ‘browses’ can be broadly defined as the act of
exploring or examining information, typically online, in a casual
or systematic manner. It implies some degree of conscious and
deliberate action on the part of the user.

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© MCO Legals
PAGE 2
 -1-
NC: 2024:KHC:26513
CRL.P No. 13141 of 2023

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 10TH DAY OF JULY, 2024

BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA

CRIMINAL PETITION NO. 13141 OF 2023

BETWEEN:

INAYATHULLA N
S/O NAWAB JAN,
AGED ABOUT 46 YEARS,
R/AT 5TH CROSS, V V EXTENSION
HOSAKOTE, BENGALURU DIST. - 562114
…PETITIONER
(BY SRI. S JAGAN BABU, ADV. AND
SRI. PARAMESH KUMAR H.K., ADV.)

AND:

1. STATE BY POLICE SUB-INSPECTOR

BENGALURU CEN CRIME POLICE STATION,
BANGALORE DISTRICT,
KARNATAKA - 560 052
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
Digitally signed BENGALURU - 560 001
by NAGAVENI
Location: HIGH 2. YOGESH D L
COURT OF NO.05, MILLERS ROAD,
KARNATAKA BENGALURU CEN CRIME POLICE STATION,
BENGALURU - 560 052
…RESPONDENTS
(BY SRI. THEJESH P., HCGP A/W
SRI. HARISH GANAPATHI, HCGP)

THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO

QUASH THE FIR IN CR.NO.200/2023 FOR THE OFFENCE P/U/S
67B OF I.T. ACT, BENGLAURU CEN CRIME POLICE STATION,
BENGALURU DISTRICT NOW PENDING ON THE FILE OF C.J.M.,
BENGLAURU RURAL DISTRICT, BENGALURU.
 -2-
NC: 2024:KHC:26513
CRL.P No. 13141 of 2023

THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,

THE COURT MADE THE FOLLOWING:

ORDER

The petitioner is before this Court calling in question the

proceedings in Crime No.200/2023 registered for offence

punishable under Section 67B of the Information Technology

Act, 2008 (hereinafter referred to as 'the Act' for short).

2. Heard the learned counsel Sri.S.Jagan Babu,

appearing for the petitioner and the learned HCGP

Sri.Harish Ganapathi, appearing for respondent No.1.

3. The facts in brief, germane, are as follows:

A compliant comes to be registered against the petitioner

on an incident that happens on 23.03.2022. The incident is

that the petitioner, between 3:50 p.m. to 4:40 p.m., has

viewed a website, which holds in it pornographic material of

children. This is noticed by the cyber Tipline, which placed an

alert on its Tipline with regard to the IP address. IP address led

to the mobile number of the petitioner and then to his address.

A complaint then comes to be registered on 03.05.2023 after

about two months on the aforesaid incident. The complaint

 -3-
NC: 2024:KHC:26513
CRL.P No. 13141 of 2023

then becomes a crime in Crime No.200/2023 for offence

punishable under Section 67B of the Information Technology

Act, 2008 (hereinafter referred to as 'the IT Act' for short).

Registering the crime, immediately drives the petitioner to this

Court, in the subject petition.

4. Learned counsel for the petitioner would

vehemently contend that Section 67B of the IT Act is not even

attracted in the case at hand. All that the petitioner was doing

was, viewing a pornographic website on his mobile for about

50 minutes. The allegation is that he has viewed child

pornography. He would contend that the petitioner is some

what a porn addict and never intends to circulate anything, as

he was himself only viewing the existing website.

5. Per contra, the learned HCGP would submit that the

petitioner has admittedly indulged in watching child

pornography. Therefore, such things should not be permitted

to be continued. He would contend that it is a matter of

investigation, as what the petitioner has done in the later days.

He would seek dismissal of the petition.

 -4-
NC: 2024:KHC:26513
CRL.P No. 13141 of 2023

6. I have given my anxious consideration to the

contentions of respective learned counsel and have perused the

material on record.

7. The afore-narrated facts, lie in a narrow compass.

What leads to registration of crime, is an alert in the cyber

Tipline that the petitioner watching a particular website on his

mobile between 3:50 p.m. to 4:40 p.m. This results in

registration of the complaint. The complaint reads as follows:

"“ ೕಲ ಂಡ ಷಯ ೆ ಸಂಬಂ ದಂ ೆ ತಮ ೇ ೊಳ ವ ೇ!ೆಂದ"ೆ #ಾನ& ಸ'ೕ(ಚ*

!ಾ&+ಾಲಯzÀ , ೇ(ಶನದ ಅನ/ಯ ೇಂದ0 ಸ ಾ(ರವ 2018 ರ ಮ23ೆಯರ ಮತು5
ಮಕ ಳ/ಇತ"ೆ/ªÀÄಕ ಳ ರುದ8 9ೈಂ;ಕ ಅಪ"ಾಧಗಳನು? ತ@ೆಗಟುBವ ,CBನ ಪ0 ೆ&ೕಕDಾದ
(CCPWC) & (NCCRP) & (NCMEC) Eೕಟ(Fಗಳನು? ೆ"ೆGದುH, ಕ!ಾ(ಟಕ "ಾಜ& ೆ
ಸಂಬಂ ದಂ ೆ ಮಕ ಳ ರುದ8 9ೈಂ;ಕ ಅಪ"ಾಧಗಳನು? ಕುJತು ೇಂದ0 ಸ ಾ(ರದ (MHA)
ದವರು ಸಂಗ02 ದ #ಾ2Kಯನು? ೇಂದ0 ಸ ಾ(ರದ ಎM. .ಆO.P. ಮೂಲಕ EೕQ(F
ನ / Rಯ SೈಬO ಅಪ"ಾಧಗ Tೆ ಸಂಬಂ ದಂ ೆ ದೂರುಗಳನು? ಪJUೕ ಕ0ಮ
ೈTೊಳ ಲು ಐR ಘಟಕ ೆ ಕಳ 2 ದH ಸದJ ದೂರುಗಳನು? ಸದJಯವರು Rಯ
ಪ@ೆದು ೊಂಡು ಅವ ಗಳನು? ಾಂK0ಕDಾ; ಪJUೕ ಅದರ ರುವ Tೌಪ& #ಾ2K Zೇಷ[ೆ
#ಾR ಸಂಬಂಧಪಟB SೇDಾ ಾರJಂದ (Service Provider) #ಾ2Kಯನು? ೊ0ೕ\ೕಕJ ,
C] 9ೈM ನಂಬO-120928689 ರ Rಯ ರುವ #ಾ2Kಯನು? ಪJUೕ ಸ9ಾ;ದುH,
ಆ"ೋ^ G!ಾಂಕ: 23/03/2022 ರಂದು ಮ ಾ&ಹ? 03.50 ಗಂ`ೆaಂದ ಸಂbೆ 4.40
ಗಂ`ೆಯವ"ೆTೆ ಮಕ ಳ ಅUೕಲ ೆ cಾವdತ0/ Reೕ ೕf[ೆ #ಾRರುವ ಬTೆg ಇದ"ೊಂGTೆ
ಲಗK5 ೊಂRರುವ ಆ"ೋ^ಯ ಐ.^. 3ಾಸGಂದ hಾಗೂ ಇತ"ೆ #ಾ2Kಯನು?
ಒಳTೊಂRರುವ ದು ಕಂಡು ಬಂGದುH, Rಯ ರುವ #ಾ2Kಯನು? Extension, Hosakote.
jkೈF ಸಂlೆ& 7019087692 ಆ;ದುH, ಈ ಬTೆg ದೂರು ಾಖ ಆ"ೋ^ಯ ರುದ8
ಾನೂನು JೕKಯ ಸೂಕ5 ಕ0ಮ dgÀÄV¸À®Ä ಈ ಮೂಲಕ ,DೇG ೊಂRರು ೆ5.”
 -5-
NC: 2024:KHC:26513
CRL.P No. 13141 of 2023

This complaint, leads to registration of a crime in Crime

No.200/2023 for offence punishable under Section 67B of the

IT Act. Whether watching pornography material would attract

Section 67B of the IT Act, is what is required to be noticed.

Section 67B of the IT Act, reads as follows:

""67 B Punishment for publishing or transmitting of

material depicting children in sexually explicit act, etc.
in electronic form.
Whoever,-
(a) publishes or transmits or causes to be
published or transmitted material in any
electronic form which depicts children
engaged in sexually explicit act or conduct
or

(b) creates text or digital images, collects,

seeks, browses, downloads, advertises,
promotes, exchanges or distributes
material in any electronic form depicting
children in obscene or indecent or sexually
explicit manner or

(c) cultivates, entices or induces children to

online relationship with one or more
children for and on sexually explicit act or
in a manner that may offend a reasonable
adult on the computer resource or

(d) facilitates abusing children online or

(e) records in any electronic form own abuse or

that of others pertaining to sexually explicit
act with children,
shall be punished on first conviction with
imprisonment of either description for a term which may
 -6-
NC: 2024:KHC:26513
CRL.P No. 13141 of 2023

extend to five years and with a fine which may extend

to ten lakh rupees and in the event of second or
subsequent conviction with imprisonment of either
description for a term which may extend to seven years
and also with fine which may extend to ten lakh rupees"
Provided that the provisions of section 67, section
67A and this section does not extend to any book,
pamphlet, paper, writing, drawing, painting,
representation or figure in electronic form-
(i) The publication of which is proved to be justified
as being for the public good on the ground that
such book, pamphlet, paper writing, drawing,
painting, representation or figure is in the interest
of science, literature, art or learning or other
objects of general concern; or

(ii) which is kept or used for bonafide heritage or

religious purposes

Explanation: For the purposes of this section, "children"

means a person who has not completed the age of 18 years.”

Section 67B of the IT Act punishes those persons who

would publish, transmit the material depicting children in

sexually explicit acts in electronic form. The soul of the

provision is publishing or transmitting of material depicting

children in sexually explicit act.

8. The allegation against the petitioner is that he has

watched a pornographic website. This, in the considered view

of the Court, would not become publishing or transmitting of

 -7-
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CRL.P No. 13141 of 2023

material, as is necessary under Section 67B of the IT Act. At

best, as contended, the petitioner could be a porn addict, who

has watched pornographic material. Nothing beyond this, is

alleged against the petitioner. If the facts are pitted against the

ingredients necessary to drive home Section 67B of the IT Act,

what would unmistakably emerge is, further proceedings

cannot be permitted to be continued, as it would become an

abuse of process of law. It would be apposite to refer the

judgment of the Apex Court in the case of STATE OF HARYANA

v. BHAJANLAL1, wherein it has held as follows:

“102. In the backdrop of the interpretation of the various

relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of decisions
relating to the exercise of the extraordinary power under Article
226 or the inherent powers under Section 482 of the Code which
we have extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such power
could be exercised either to prevent abuse of the process of any
court or otherwise to secure the ends of justice, though it may not
be possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or rigid formulae
and to give an exhaustive list of myriad kinds of cases wherein
such power should be exercised.

(1) Where the allegations made in the first information report or

the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.

(2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by police officers

1
1992 Supp(1) SCC 335
 -8-
NC: 2024:KHC:26513
CRL.P No. 13141 of 2023

under Section 156(1) of the Code except under an order of a

Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or

complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out a case
against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable

offence but constitute only a non-cognizable offence, no
investigation is permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so

absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there
is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the

provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala

fide and/or where the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the accused and with
a view to spite him due to private and personal grudge.”

The Apex Court in the afore laid postulates holds that

even if the facts that forms the complaint is accepted as true, it

would not make out any offence. In such cases, even

investigation should not be permitted to be continued.

Therefore, the impugned proceedings cannot be permitted to

be continued, as it does not make out an offence under Section

67B of the IT Act.

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CRL.P No. 13141 of 2023

9. For the aforesaid reasons, the following:

ORDER

i) The criminal petition is allowed; and

ii) The proceedings in Crime No.200/2023 on

the file of Chief Judicial Magistrate, Bengaluru
Rural District, Bengaluru, stand quashed.

Sd/-
JUDGE

KG
List No.: 1 Sl No.: 11