When the matter was listed on 08.06.2021, the learned
Government Counsel opposed the grant of anticipatory bail by
contending that only seizure of the incriminating electronic
devices and their examination would reveal the actual content
and that it is too early to assume in favour of the petitioner that
what he watched was not child pornography. {Para 7}
8.The petitioner is a M.E degree holder and presently
pursuing Ph.D. Even according to the prosecution, the
occurrence took place almost one year back. It appears to be a
one-off act. It is not the case of the prosecution that the
possession or transmission was for commercial purposes. I
therefore, directed the petitioner to appear before the respondent
and hand over the mobile phone together with the sim card
mentioned in the FIR and other devices involved in the offence.
Liberty was given to the respondent to seize the same and send
it for forensic examination. Accordingly, the petitioner appeared
before the respondent and handed over the devices and
materials in question.
9.I am therefore of the view that custodial interrogation of
the petitioner is not warranted. I also bear in mind that we are
in pandemic times and that unless necessary, arrest should be
avoided. Of course, child pornography is a very serious issue
warranting a firm approach. But I would make a distinction
between a one time consumer and those who transmit or
propagate or display or distribute in digital domain. In the case
on hand, the petitioner is said to have shared the offending
material with his friend through Facebook messenger. Since the
petitioner has not come under adverse notice after the
occurrence and since he had also extended his fullest cooperation
with the investigation, I am inclined to grant him
anticipatory bail.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
( Criminal Jurisdiction )
PRESENT
Mr.Justice G.R.SWAMINATHAN
CRL OP(MD). No.7426 of 2021
P.G.Sam Infant Jones Vs. State
Date : 11/06/2021
ORDER : The Court made the following order :-
The petitioner is figuring as an accused in Crime No.27 of
2021 registered on the file of the Inspector of Police, AWPSThallakulam,
Madurai City for the offences under Section 15(1)
of Protection of Children From Sexual Offences Act, 2012 and
Section 67 B of the Information Technology Act, 2000.
2.Since the petitioner apprehended arrest at the hands of
the respondent, this petition for anticipatory bail has been filed.
3.The case of the prosecution is that on 27.06.2020 at
17.38:51 hours, the petitioner browsed, downloaded and
transmitted child pornographic material by using Airtel Sim
bearing No.9787973370 through his e-mail and Facebook
Account.
4.The learned counsel for the petitioner would contend that
during the relevant time, the petitioner was in hostel and that
the material made available so far is not sufficient to show that it
was the petitioner who had personally committed the acts in
question. There is also nothing to indicate that the offending
content pertained to child pornography.
5.Viewing pornography privately will not constitute an
offence. Offence is an act that is forbidden by law and made
punishable. That is the definition found in Section 40 of IPC. As
on date, there is no provision prohibiting such private acts.
There are some who even elevate it as falling within one's right
to free expression and privacy. But child pornography falls
outside this circle of freedom. Section 67-B of the Information
Technology Act, 2000 penalises every kind of act pertaining to
child pornography. Whoever 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 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 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
facilitates abusing children online, or records in any electronic
form own abuse or that of others pertaining to sexually explicit
act with children is liable to be punished. Therefore, even
viewing child pornography constitutes an offence.
6.How come the offending activity that took place in a
private place came to light ?. Last year, Indian Express carried a
news report quoting a police officer warning citizens that they
must understand that activities on cyber space are always
monitored. There is an international NGO called NCMEC
(National Center for Missing & Exploited Children) and it
maintains a Cyber Tipline. There is a Memorandum of
Understanding between National Crime Records Bureau (NCRB),
India and NCMEC, USA and that provides access to the material
available with NCMEC. One such Tipline report sent to the
respondent police implicated the petitioner herein and that is
how, the case came to be registered.
7.When the matter was listed on 08.06.2021, the learned
Government Counsel opposed the grant of anticipatory bail by
contending that only seizure of the incriminating electronic
devices and their examination would reveal the actual content
and that it is too early to assume in favour of the petitioner that
what he watched was not child pornography.
8.The petitioner is a M.E degree holder and presently
pursuing Ph.D. Even according to the prosecution, the
occurrence took place almost one year back. It appears to be a
one-off act. It is not the case of the prosecution that the
possession or transmission was for commercial purposes. I
therefore, directed the petitioner to appear before the respondent
and hand over the mobile phone together with the sim card
mentioned in the FIR and other devices involved in the offence.
Liberty was given to the respondent to seize the same and send
it for forensic examination. Accordingly, the petitioner appeared
before the respondent and handed over the devices and
materials in question.
9.I am therefore of the view that custodial interrogation of
the petitioner is not warranted. I also bear in mind that we are
in pandemic times and that unless necessary, arrest should be
avoided. Of course, child pornography is a very serious issue
warranting a firm approach. But I would make a distinction
between a one time consumer and those who transmit or
propagate or display or distribute in digital domain. In the case
on hand, the petitioner is said to have shared the offending
material with his friend through Facebook messenger. Since the
petitioner has not come under adverse notice after the
occurrence and since he had also extended his fullest cooperation
with the investigation, I am inclined to grant him
anticipatory bail.
10.It is obvious that the moment one steps into digital
space, one comes under the surveillance either of the State or
those manning the social networking sites. If one is zealous
about privacy, the only option is to stay outside such networks.
Of course, in the current world, it is not a viable option.
11.Section 43 of POCSO Act, 2012 mandates the Central
and State Governments to take measures to spread public
awareness about the provisions of the statute. But this alone
may not be sufficient. That the “Big Brother” is watching us may
not deter those who are determined to indulge in such acts of
perversity. The system also may not be able to prosecute every
offender. Therefore, it is only through moral education, there can
be a way out. It is only the Bharatiya culture that can act as a
bulwark. The menace of child pornography can be tackled only
if all of us inculcate the right values. Nanjil Naadan, a well
known writer, in his article “kd;DGfo; nfsriy jd; kzptapW
tha;j;jtNd!”, while referring to the famous Kural,
“Foy; ,dpJ> aho; ,dpJ> vd;gjk; kf;fs;
koiyr; nrhy; Nfshjth;.”
[“the pipe is sweet, the lute is sweet,” say those who have
not heard the prattle of their own children.” ]
comes up with an expansive interpretation. According to him,
the expression “children” need not be confined to one's own
children. It should encompass all children. He emphatically
states that we should be compassionate towards any child. We
should ensure that no child is sexually exploited. The writer
utters several such noble sentiments (from tpRk;gpd; Jsp
published by Vijaya Publications). I only wish the petitioner who
ironically has been named as “Infant” reads the above essay and
imbibes the sentiments expressed therein.
12.The petitioner is ordered to be released on bail in the
event of arrest by the respondent police on executing personal
bonds for a sum of Rs.5,000/- [Rupees Five Thousand only] with
two sureties each for a likesum to the satisfaction of the
respondent police and on further condition that the petitioner
shall appear before the learned Sessions Court/Special Court for
trial of cases under POCSO Act, Madurai, and execute fresh
personal bonds for a sum of Rs.5,000/- [Rupees Five Thousand
only] with two sureties each for a likesum to the satisfaction of
the Sessions Court/Special Court within a period of one month,
from the date of resumption of regular work in subordinate
Courts and on further conditions that the petitioner shall report
before the respondent police as and when required for
interrogation.
(G R S J)
11.06.2021
No comments:
Post a Comment