XXX vs State Of Kerala

Dr. Kauser Edappagath, J

Annexure-7 order is under challenge in this Crl.M.C.

The petitioner is the accused in SC.No.1104 of 2021 on the files of the Fast Track Special Court, Thrissur (for short 'the court below').

The petitioner faces trial for the offences punishable under Sections 15 of POCSO Act and 67A and 67B of the Information Technology Act.

The prosecution allegation is that the petitioner has downloaded child Pornographic contents in his mobile phones and viewed it. The Police thereafter seized the mobile phones and crime was registered.

The mobile phones containing the alleged pornographic contents were sent for forensic examination and report was obtained. The data extracted from the mobile phones, sim cards and memory cards were copied in a hard disc and produced at the court below. The report shows that in two folders there are pornographic contents.

The petitioner filed two petitions at the court below as Crl.M.P.No.581 of 2022 and Crl.M.P.No.586 of 2022. Crl.M.P.No.581 of 2022 has been filed to issue a copy of the hard disc, which forms part of the forensic report, to him or his counsel. Crl.M.P.No.586of 2022 has been filed to grant a minimum time of 18 hours to the petitioner and his counsel to view the contents of the hard disc. The court below, as per the impugned order, dismissed the said petitions.

I have heard Sri.Jithin Babu A., the learned counsel for the petitioner and Smt.T.V.Neema, the learned Senior Public Prosecutor.

Going by the dictum laid down by the Apex Court in P.Gopalakrishnan @ Dileep v. State of Kerala [2019 (4) KLT 853], the copy of the hard disc containing the pornographic contents cannot be issued to the petitioner. Hence, the dismissal of Crl.M.P.No.581 of 2022 is only to be confirmed.

Insofar as the prayer in Crl.M.P.No.586 of 2022 is concerned, the impugned order would show that the court below on 18.12.2022 viewed the contents of two folders containing pornographic contents in the presence of the Public Prosecutor, counsel for the petitioner and the petitioner.

The learned counsel for the petitioner submitted that the entire case is based on the pornographic contents contained in the so called two folders and therefore the petitioner should be given sufficient opportunity to peruse the contents in detail to build up his defence. The said prayer sought for by the petitioner appears to be reasonable. Hence, the dismissal of Crl.M.P.No.586 of 2022 cannot be sustained. However, 18 hours sought for by the petitioner cannot be allowed.

In the light of the above findings, the court below is directed to permit the counsel for the petitioner as well as the petitioner to view two folders containing the pornographic contents in the hard disc which forms part of the forensic report, on 23.01.2023 for two hours, in the presence of the Special Public Prosecutor and the learned Judge or any authorised officer deputed by the learned Judge.

This Crl.M.C is allowed.