Holding 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 High Court of Kerala quashed criminal proceedings against two persons.

The petitioners before the Court - a man and a woman - had to suffer an invasive search by the police while they were waiting at a bus station. The police had seized a video camera from them, which contained few sexually explicit photographs and videos of the woman. Based on this, criminal proceedings were initiated against them under Section 6 of the Act for advertisement and publication of indecent pictures of a woman.

Contending that the pictures in private collection were not advertised or published, the petitioners approached the High Court under Section 482 of the Code of Criminal Procedure for quashing the proceedings.

The prosecution submitted that the photos and videos of the woman were taken by the man with the intention of circulating.

Justice Raja Vijayaraghavan, the single judge who heard the matter, 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.

To constitute office under Section 6 of the Act, there should be advertisement or publication of indecent pictures. In the given case, even if the prosecution allegations are accepted, no offence was made out, the Court found.

Therefore, the proceedings were quashed.

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