The Kerala High Court in a recent order has held that mere possession of sexually explicit photos in private custody without circulation or publication will not amount to a crime under the Indecent Representation of Women (Prohibition) Act 1986.
The ruling was passed by a single judge Bench of Justice Raja Vijayaraghavan on petitions filed by a man and a woman under Section 482 of the Code of Criminal Procedure, 1973, praying to quash criminal proceedings initiated by the police against them under Section 6 of the Act for advertisement and publication of indecent pictures of a woman.
In August 2008, while police officers attached to the Kollam East Police Station were engaged in search operations they asked the man and the woman waiting at a bus station to hand over their bags. A video camera and a digital camera were found inside. On inspection, the police found that the camera contains few sexually explicit photographs and videos of the woman. Following this, criminal proceedings were initiated against them under Section 6 of the Act.
The learned counsel, appearing for the petitioners submitted before the court that the prosecution has no case as the pictures in private collection were not advertised or published by them.
On the other hand, the argument of the prosecution was that the photos and videos of the woman were taken by the man with the intention of circulating.
After hearing both the parties, the court noted that the prosecution had no case that petitioners had advertised or circulated the private pictures found in the cameras which were in their possession.
"If an adult person has a photograph of himself or herself in his or her possession which is sexually explicit in nature, the provisions of Act 60 of 1986 will not apply, unless the prosecution has a case that those photographs were distributed or published for advertisement or for any other incidental purpose,” the court said.
Thus holding that the evidence collected does not disclose the commission of any offence, the court invoked its inherent powers under section 482 of the Code to quash the criminal proceedings.
