Watching porn privately is not an offence, says Kerala High Court

The Kerala High Court, while quashing proceedings against the accused person who was watching a pornographic video on his phone near the roadside, said that parents should not gift mobile phones to their minor children to make them happy. 

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ON September 5, Justice P.V. Kunhikrishnan of the Kerala High Court ruled that watching pornography privately without exhibiting it to others does not amount to an offence under Section 292 (sale, etc., of obscene books) of the Indian Penal Code, 1860 (IPC).

In Aneesh versus State of Kerala & Ors, Justice Kunhikrishnan said: "A court of law cannot declare that the same amounts to an offence for the simple reason that it is [a person's] private choice and interference with the same amounts to an intrusion of privacy."

Brief facts

The petitioner was accused under Section 292 of IPC.

The petitioner was seen standing on the roadside near Aluva palace, Kerala, watching obscene videos on his mobile phone.

A police officer from the Aluva police station arrested him and filed a first information report (FIR).

The police also seized the mobile phone of the petitioner.

A chargesheet was submitted before a magistrate, who took cognisance of the offence. 

What does the law say?

The relevant part of the provision is Section 292(2)(a), which says that there must be evidence to show that a person sells, lets to hire, distributes, publicly exhibits; or in any manner puts in circulation; or for the purpose of sale, hire, distribution, public exhibition or circulation, makes or produces; or has in his possession any obscene books, pamphlets, paper, drawing, painting, representation or figures or any other obscene object whatsoever.

The matter shall be deemed to be obscene if it is 'lascivious' or 'appeals to the prurient interest' or 'tends to deprave and corrupt persons' who are likely to read, see or hear it.

The court relied on two judgments namely, Ramesh Krishnan versus State of Kerala (1999) and Abdul Rasheed versus State of Kerala (2008).

In Ramesh Krishnan, a pornographic film was exhibited in the residence of one of the accused persons while the two other accused persons were viewers.

The high court in this case observed that exhibiting a pornographic movie in the residence did not make out a case under Section 292(2)(a).

The court reasoned that unless the obscene object was sold, let on hire, distributed or publicly exhibited, there is no offence under Section 292(2)(a).

On the contrary, in Abdul Rasheed, the accused person was found managing a video shop wherein obscene cassettes containing pornographic film were kept for hire to the potential customers.

The high court found that an offence under Section 292 was made out.

Kerala High Court

The court acknowledged that the prosecution has not alleged that the petitioner publicly exhibited the pornographic video.

In this respect, the court found "that watching of an obscene photo by a person in his privacy by itself is not an offence under Section 292 IPC".

The court added that if the petitioner had tried circulating, distributing or publicly exhibiting any obscene video or photos, then it would have attracted an offence under Section 292.

The Kerala High Court said "that even if the entire allegations are accepted in toto, no offence under Section 292 IPC is made out against the petitioner".

Before parting with the case, the court made certain remarks. 

The judge cautioned: "If minor children start to watch porn videos … there will be far-reaching consequences."

The judge continued: "Instead of delicious food made by the mother and a cake-cutting ceremony on birthdays of children, parents are giving mobile phones with internet access to their minor children as a gift on such occasions to make them happy."

"Instead of purchasing food from restaurants through 'Swiggy' and 'Zomato', let the children taste the delicious food made by their mother and let the children play at playgrounds at that time and come back home to the mesmerising smell of mother's food," the judge averred.