Karnataka High Court: While deliberating over the instant application filed before the Court seeking to recall the Court’s judgment dated 10-07-20241, where it had held that watching pornographic website does not amount to publishing or transmitting of material, as necessary under Section 67-B of the Information and Technology Act, 2000; the Bench of M. Nagaprasanna, J.*, recalled the impugned judgment dt. 10-07-2024 and restored the petition to the file for re-hearing.
While considering the instant application, M. Nagaprasanna, J., who had also given the afore-stated impugned judgment, stated that to rectify the error is the compulsion of the judicial conscience. “Errors do happen; to err is human; we Judges are also humans, infallibility is not known to humanity and, therefore at times we are fallible. Fallibility is not alien to the functions that judges perform (…) To eternalize or immortalize the error, after coming to know of it, is no heroism”.
Background (Impugned judgment dt. 10-07-2024): The Bench of M. Nagaprasanna, J., had to consider the petition challenging criminal proceedings registered against the petitioner for an offence punishable under Section 67-B of the Information Technology Act, 2000. The Cyber Tipline got an alert vis-a-vis petitioner’s activities, and a complaint was registered against him for watching a website containing child pornography.
Counsel for the petitioner argued that the petitioner was only viewing a pornographic website on his mobile for about 50 minutes and that he is somewhat a porn addict and never circulated anything.
Per contra, the State argued that the petitioner admittedly indulged in watching child pornography. Therefore, such things should not be permitted to be continued and the matter should be further investigated.
Perusing the contentions and afore-stated statutory provision that was invoked, the Court pointed out that the soul of Section 67-B is publishing or transmission of material depicting children in sexually explicit acts. The Court held that since the petitioner watched a pornographic site, therefore it would not become publishing or transmitting material, as is necessary under the provision. Thus, the Court quashed the criminal proceedings against the petitioner.
The Recall Application: Aggrieved with the afore-stated judgment, the Additional State Public Prosecutor moved the matter to recall the order of quashment contending that the proceedings were quashed at the threshold, notwithstanding the fact that the action of the petitioner did make out an offence and the complainant agency i.e., the Cyber Tipline was not heard at the time when the matter was disposed of.
The Additional State Public Prosecutor further contended that an application has been filed before the concerned Court to draw in for the offence under Protection of Children from Sexual Offences Act, 2012 (POCSO).
Court’s Assessment: Persusing the points raised in the instant application, the Court admitted that was error while interpreting S. 67-B of IT Act, 2000 in the impugned judgment.
Perusing the provision, the Court observed that S. 67-B punishes a person who creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, any obscene or indecent material depicting children in a sexually explicit manner. Section 67-B(b) of the IT Act, 2000 makes it an offence against any person who browses child pornographic material.
The Court pointed out that the word ‘browse’ in Section 67-B of the IT Act, 2000 assumes certain significance as it is in the character of aiding such material. Therefore, the impugned judgment and order that was passed only noticing Section 67B(a) was an error.
The Court noted that the petitioner admittedly browsed a child pornographic website, for about 50 minutes. Hence, making Section 67-B (a) applicable to the instant case led to quashment of the proceedings against the petitioner via the impugned order, as even if construed to be as true that the petitioner watched pornographic material, it would not make out an offence under S. 67-B(a) of IT Act, 2000.
Therefore, the Court concluded that Section 67-B(b) of IT Act, which makes browsing child pornographic sites punishable, was not noticed. Therefore, merely because the petitioner did not transmit any child pornographic material, it would not absolve him from the offence under Section 67-B(b), as the offence alleged is not in particular, but potentially attracts entire Section 67-B. “Therefore, it is an error apart from the fact that the complainant was not heard”.
Considering whether the Court could recall or review any of its orders, it was pointed out that Section 482 of the CrPC2 being the inherent power to prevent injustice, cannot be controlled by other provisions under the Code particularly, Section 362 of the CrPC3.
The Court noted that, firstly, the complainant agency Cyber Tipline, which tracks browsing child pornographic website, was not made a party to the suit and therefore, was not heard in the matter, which was a violation of principles of natural justice; and secondly the petitioner clearly made an offence under S. 67-B(b) of IT Act, 2000 and it would have been gravely unjust if only Section 67-B(b) was considered and made applicable to the case.
Therefore, taking note of the violation of principles of natural justice and ensuring prevention of injustice, the Court deemed it fit to recall the impugned order dt. 10-07-2024.
[Inayathullah v. State, I.A.NO.1 OF 2024, decided on 19-07-2024]
*Order by Justice M. Nagaprasanna
Advocates who appeared in this case:
For petitioner- Advocate S. Jagan Babu
For State: B.N. Jagadeesh, Additional State Public Prosecutor
1. Inyathullah v. State, Crl P. 13141 of 2023, decided on 10-07-2024
2. Corresponding Section 528, Nagrik Suraksha Sanhita, 2023 (NSS)
3. Corresponding Section 403, NSS
