By Astha Bhumish Shah 

The Karnataka High Court recalled its order passed on 10 July wherein it had held that a person watching child pornography online cannot be charged for an offence under Section 67B of the Information Technology Act. The Court had quashed the proceedings stating that watching pornographic website would not amount to “publishing or transmitting of material”, as is necessary under Section 67B of the IT Act. However, on a recall application moved by the State government, the Court noted that the said order was passed only on the basis of Section 67B (a). However, Section 67B (b) of the Act provides that whoever, creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner, would become open for proceedings under Section 67B. Hence sub-clause b of Section 67B becomes applicable to the present case. The Court rejected the contention of the petitioner that once an order is passed, Section 362 CrPC would create a bar on the Court to recall the order and review the case. It said that the same would not be applicable since Section 482 of CrPC cannot be controlled by Section 362 of CrPC. As inherent powers cannot be controlled by other provisions. Before concluding the Court said, “We judges are also humans. Infallibility is not known to humanity since judges are humans, we are also not infallible. Fallibility is also akin to what functions that we perform. Therefore, to perpetuate this error after coming to know that there is a folly in the order passed by this court is no heroism.” Accordingly, it permitted further investigation in the case and recalled its earlier order quashing the proceedings. (Inayathulla N and State by Police Sub Inspector – CRIMINAL PETITION NO. 13141 OF 2023) 

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