Justice GR Swaminathan added that while Section 43 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 mandates that the govt take measures to spread public awareness and even if there are online surveillance measures, this might not be enough to discourage potential offenders.
" This alone may not be sufficient. That the “Big Brother” is watching us might not deter those that are determined to like such acts of perversity. The system also might not be ready to prosecute every offender. Therefore, it's only through moral education, there are often how out. It is only the Bharatiya culture that will act as a bulwark. The menace of kid pornography is often tackled as long as all folks inculcate the proper values", he observed.
The Judge also acknowledged that while watching pornography privately could also be viewed as a part of one's free expression and privacy, pornography may be a serious offense that's placed outside this circle of freedom.
"It is clear that the instant 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 sole option is to remain outside such networks. Of course, within the current world, it's not a viable option", Justice Swaminathan observed.
Before parting with the matter, the Judge also mentioned the writings of Tamil writer Nanjil Naadan, who has written,
"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 always be compassionate towards any child. We should make sure that no child is sexually exploited. The writer utters several such noble sentiments ... I only wish the petitioner who ironically has been named as 'Infant' reads the above essay and imbibes the emotions expressed therein", he remarked.
The case before the Court involved allegations that the petitioner had browsed, downloaded, and transmitted child pornographic material through his e-mail and Facebook account on June 27, 2020.
The criminal case registered against the petitioner cited of the POCSO, 2012, and Section 67B of the IT Act, 2000.
The Court granted the petitioner anticipatory bail considering that:
1. Even going by the prosecution's case, the alleged occurrence happened almost a year back and seemed to be a one-off act instead of a billboard act;
2. The custodial interrogation of the petitioner wasn't warranted since he has already handed over his mobile and SIM card to the authorities in line with the Court's earlier orders;
3. Arrest should be avoided unless necessary during the prevailing pandemic times.
"Of course, pornography may be a very serious issue warranting a firm approach. But I might make a distinction between a one-time consumer and people who transmit or propagate or display or distribute within the digital domain. In the case available, the petitioner is claimed to possess shared the offending material together 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 co-operation with the investigation, I'm inclined to grant him anticipatory bail", the Court added.