ORDER : 1. This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, to quash all further proceedings pursuant to Annexure-C Final Report in Crime No. 623/2022 of Petta Police Station, Thiruvananthapuram, now pending as S.C. No. 2098/2023 on the files of the Additional District and Sessions Court (for the trial of cases relating to atrocities against women and children), Thiruvananthapuram. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor, in detail. Perused the relevant materials available. 3. In this matter, the prosecution alleges commission of offences punishable under Section 67(b) of the Information Technology Act (hereinafter referred as ‘IT Act’ for short) and Section 15 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred as ‘POCSO Act’ for short). 4. Precise allegation of the prosecution against the accused is that, as against the prohibitions to download, store or transmit videos of child or children aged upto 18 years, the accused herein downloaded porn videos and seen the same. It is on this premise, the prosecution alleges commission of the above said offences by the accused. 5. At the time of hearing the learned counsel for the petitioner submitted that the petitioner is innocent and the allegations are false. He has pointed out that, there is no allegation in the Final Report that the petitioner, either intentionally downloaded, browsed or shared the video, in any manner. The prosecution allegation is only confined to that of presence of porn video in the mobile phone of the accused and there is no evidence collected during investigation to show that the petitioner intentionally downloaded or browsed or recorded the same. Particularly, no materials are available to show that the petitioner had either shared, transmitted or published the video, in any manner. 6. On perusal of the prosecution records, no materials collected during investigation to show that the petitioner intentionally downloaded or browsed or recorded the same and there are no materials available to show that the petitioner had either shared, transmitted or published the video, in any manner. The allegation is confined to that of presence of porn video in the mobile phone of the accused alone. 7. The allegation is confined to that of presence of porn video in the mobile phone of the accused alone. 7. In the decision of this Court reported in Shantheeshlal T. vs. State of Kerala, 2024 KHC Online 433 : 2024 KER 35968, this Court considered the essentials to constitute the offence punishable under Section 15(1) of the POCSO Act and Section 67B of the IT Act and in paragraph Nos. 9 to 13 of the said decision it is held as under: “9. Reading the provision, it is emphatically clear that storing or possessing pornographic materials in any form involving a child and failure to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography, shall be an offence. So mere storing or possessing pornographic material is not an offence under S.15(1) of POCSO Act, if the said storing or possession is without any intention to share or transmit the same. Therefore, mere storing or possessing pornographic materials by itself is not an offence. Thus, in order to attract an offence under S.15(1) of the POCSO Act, the stored or possessed pornographic materials should be shared or transmitted. In the instant case, there is no material available to hold that the accused either shared or transmitted pornographic materials, though storing of the same was detected. Therefore, the offence under S.15(1) of the POCSO Act is not made out in the instant case. 10. Coming to S.67B of the IT Act also, the same provides as under: 67B 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. (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. (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. (d) facilitates abusing children online. (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. (d) facilitates abusing children online. (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 extend to five years and with 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 provisions of S.67, S.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. (ii) which is kept or used for bona fide heritage or religious purposes. Explanation - For the purposes of this section “children” means a person who has not completed the age of 18 years. 11. Publishing, transmitting or causing any material in electronic form which depicts children engaged in sexually explicit act or conduct or creation of text or digital images etc. are the ingredients under S.67B of the IT Act also. 12. In paragraph 5 of Manuel Benny's case (supra), this Court held as under: “A perusal of the final report would show that the only allegation against the petitioner is that he downloaded and enjoyed material depicting children in obscene, indecent and sexually explicit manner from the application called Telegram. In order to attract the offence under S.67B of the IT Act, the videos or material has to be voluntarily downloaded into any device. In other words, there should be intention on the part of the petitioner to download the material in order to view it. In order to attract the offence under S.67B of the IT Act, the videos or material has to be voluntarily downloaded into any device. In other words, there should be intention on the part of the petitioner to download the material in order to view it. The definite case of the petitioner is that he did not download any offensive material even in Annexure A3 FSL report it is seen that the path of those images is from Android backup and the child pornographic videos were accessed through Telegram. The learned Additional DGP submitted that the contents transmitted in the Telegram can be automatically downloaded in the mobile phone by default. Hence, it cannot be said that the petitioner has intentionally downloaded the material, considering the features of the Telegram App. Since there is no material so show that the petitioner has browsed or downloaded child pornographic material, the offence under S.67B of the IT Act is not attracted. Hence, no purpose will be served in proceedings with the matter further. Accordingly, the Crl. M.C. is allowed. All further proceedings pursuant to Annexure A2 final report in Crime No. 531/2020 of Melukavu Police Station now pending as C.C. No. 257/2021 on the files of the Judicial Magistrate of the First Class, Erattupetta stands hereby quashed.” 13. Therefore, going by the decision, automatic or accidental downloading of children engaged in sexually explicit act or conduct is not an offence under S.67B, once the specific intention to do so is not established, by the materials which form part of the prosecution records.” 8. Reading the facts of this case, the same is similar to the facts dealt in Shantheeshlal T. case (supra). Therefore, applying the same ratio, this Crl. M.C. is liable to be allowed. 9. Accordingly, all further proceedings pursuant to Annexure-C Final Report in Crime No. 623/2022 of Petta Police Station, Thiruvananthapuram, now pending as S.C. No. 2098/2023 on the files of the Additional District and Sessions Court (for the trial of cases relating to atrocities against women and children), Thiruvananthapuram stand quashed.