“Infallibility is not known to humanity and therefore at times we Judges are fallible”. Karnataka High Court recalls its Judgment on child pornography.

Inayathulla N vs State by Police Sub Inspector and another
Criminal Petition 13141 of 2023. Order dated 19 July 2024.
Justice M Nagaprasanna.
CRL.P NO. 13141/2023

Learned Additional State Public Prosecutor has moved the matter to recall the order dated 10.07.2024 on the score that the proceedings were quashed at the threshold, notwithstanding the fact that the action of the petitioner does make out an offence and the complainant, the agency – Cyber Tipline was not heard at the time when the matter stood disposed.

There appears to be an error committed by this court in the interpretation of Section 67B Information Technology Act, 2008 (‘the Act’ for short) which mandates that one who publishes, transmits or causes to be published or transmitted any material in any electronic form which depicts children engaged in sexually explicit act or conduct would make it an offence. Since the petitioner had not transmitted or published or intending to publish any such material, the crime came to be quashed.

It 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. The petitioner has admittedly browsed a child pornographic website which would contain sexually explicit material of children, for about 50 minutes. Section 67B(b) makes it an offence against any person who browses child pornographic material. The word ‘browse’ in Section 67B of the Act assumes certain significance as it partakes the character of aiding such material. Therefore, the order that was passed only noticing Section 67B(a) was an error. Making Section 67B (a) applicable to the case at hand led to quashment of the proceedings against the petitioner as even if it is construed to be as true that the petitioner has viewed pornographic material it would not make out an offence under Section 67B(a) of the Act is what was observed while passing the order.

Section 67B(b) as observed hereinabove which makes browsing child pornographic sites also punishable was not noticed. Therefore, merely because the petitioner has not transmitted any child pornographic material, it would not absolve the petitioner from the offence under Section 67B(b) of the Act as the offence alleged is not in particular, but entire Section 67B. Therefore, it is an error apart from the fact that the complainant was not heard.

The issue now would be, whether this Court could review / recall a final order passed under Section 482 of the Cr.P.C. or it would be a bar under Section 362 of the Cr.P.C. In the considered view of the Court, Section 482 of the Cr.P.C. being inherent powers to prevent injustice, cannot be controlled by other provisions under the Code particularly, of Section 362 of the Cr.P.C.

The Apex Court holds that in exceptional circumstances a final order passed under Section 482 of the Cr.P.C. can be recalled in exercise of inherent power of the High Court to prevent injustice.

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 rectify the error is the compulsion of the judicial conscience. To eternalize or immortalize the error, after coming to know of it, is no heroism. In the aforesaid circumstances answering the judicial conscience, compelling enough it is, apart from it being legally expedient, I deem it appropriate to recall the order dated 10th July, 2024 passed in Criminal Petition No.13141 of 2023, restore the petition to file for being re-heard.

Read the order here: