Ker HC | Indecent Representation of Women (Prohibition) Act: Not applicable on mere possession of sexually explicit photographs, without distribution or publication thereof

Kerala High Court: Raja Vijayaraghavan V., J.  allowed a petition quashing the proceedings, invoking its inherent powers under Section 482 of the Code of Criminal Procedure, 1973, stating that the criminal proceedings against the petitioner were nothing but an abuse of the process of law.

In 2008, there was a search operation at the Transport Bus Stand, Kollam. The petitioners, who were standing together, were asked by the police to hand over their bags, inside which they found a video camera and a digital camera. On inspection, the cameras were found to contain certain sexually explicit pictures and videos of the 2d accused petitioner. The petitioners were arrested and their cameras were taken into custody. The crime was registered, and after investigation, a final report was presented before the Judicial Magistrate. And as the petitioners failed to appear before the court, the case against them was removed to the list of long pending cases as LP No. 334/2014.

The learned counsel appearing for the petitioners, stated that, first, the pictures were of the 2nd and 1st accused together, and the 1st accused was the partner of the 2nd accused, and second, that as there was only possession of the sexually explicit photographs with the accused, and no publication or advertisement, the prosecution has no case against them. The learned Public Prosecutor on instruction submitted that the explicit pictures and videos in the camera, were recorded for the purpose of circulation and distribution.

The Court having considered the submissions of both the sides, stated that the Indecent Representation of Women (Prohibition) Act, 1986, prohibits indecent representation of women through advertisements or publications, and with reliance on it, there is no case for the prosecution there being no advertisement or publication or circulation of their private pictures found in the cameras which were in their possession. The Court laid down that if there are some sexually explicit pictures or videos with a person, of his own, then the mere possession will not be a criminal offence, unless there is distribution or publication of the pictures for advertisement or for any other incidental purpose.

Thus, the petition was allowed, and the proceedings against the petitioners were declared void.[Smitha v. State of Kerala, 2019 SCC OnLine Ker 1834, decided on 26-02-2019]

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