Holding

Section 15 of the POCSO Act creates three distinct inchoate offences that punish storage or constructive possession of child pornographic material with the requisite intent, and the statutory presumption of culpable mental state under Section 30 applies even in quashing proceedings, rendering the High Court’s order quashing the case erroneous.

Summary

The case arose from an FIR filed in 2020 alleging that the accused, S. Harish, had downloaded and stored child pornographic videos on his mobile phone. The investigation recovered two such videos and a chargesheet was filed under Section 15(1) of the Protection of Children from Sexual Offences Act (POCSO) and Section 67B of the Information Technology Act. The accused sought quashing of the proceedings, arguing that mere possession and viewing did not constitute an offence and that he was unaware that the material was illegal. The Supreme Court examined the scope of Section 15 (including its three distinct inchoate offences), the doctrine of constructive possession, the ambit of Section 67B, and the applicability of the statutory presumption of culpable mental state under Section 30 of POCSO in a quashing petition. It held that viewing, storing or exercising control over child pornographic material amounts to possession, that Section 15 creates three separate offences punishable without actual transmission, and that the statutory presumption can be invoked at the quashing stage. Consequently, the High Court’s order quashing the criminal proceedings was set aside and the trial was restored.

Issues considered

What is the scope and distinction between sub‑sections (1), (2) and (3) of Section 15 of the POCSO Act?
Whether mere viewing, possessing or storing child pornographic material constitutes an offence under Section 15 of POCSO and Section 67B of the IT Act
What is the true scope of Section 67B of the Information Technology Act
What foundational facts are required to invoke the statutory presumption of culpable mental state under Section 30 of POCSO
Whether the statutory presumption under Section 30 can be applied in a quashing proceeding under Section 482 of the Cr.P.C.
Whether the High Court was justified in quashing the criminal proceedings

Legislation cited

Indian Penal Code, 1860s. 292
Information Technology Act, 2000s. 67, s. 67A, s. 67B, s. 79
Information Technology (Amendment) Act, 2008
Protection of Children from Sexual Offences Act, 2012s. 15, s. 2(1)(d), s. 2(1)(da), s. 30
Protection of Children from Sexual Offences (Amendment) Act, 2019
Protection of Children from Sexual Offences Rules, 2020

Subjects

Section 15 of POCSOSection 67B of IT ActChild pornographyConstructive possessionStatutory presumption of culpable mental stateQuashing under Section 482 CrPCInchoate offenceSection 30 of POCSOInformation Technology ActReporting obligations under POCSO

Judgment

[2024] 10 S.C.R. 154 : 2024 INSC 716

Just Rights for Children Alliance & Anr.
v.
S. Harish & Ors.
(Criminal Appeal No(s). 2161-2162 of 2024)
23 September 2024
[Dr. Dhananjaya Y. Chandrachud, CJI, J.B. Pardiwala,* J.]

Issue for Consideration
What is the scope of Section 15 of the Protection of Children
from Sexual Offences Act, 2012 (POCSO); what is the underlying
distinction between sub-section(s) (1), (2) and (3) respectively
of the POCSO; whether, mere viewing, possessing or storing of
any child pornographic material is punishable under the POCSO;
what is the true scope of Section 67B of the IT Act; what is the
scope of Section 30 of the POCSO; what are the foundational
facts necessary for invoking the statutory presumption of culpable
mental state in respect of Section 15 of the POCSO; whether, the
statutory presumption contained in Section 30 of the POCSO can
be invoked only at the stage of trial by the Special Court alone
established under the POCSO; whether it is permissible for the
High Court in a quashing petition filed under Section 482 of the
Cr.P.C. to resort to the statutory presumption of culpable mental
state contained in Section 30 of the POCSO.

Headnotes†
Protection of Children from Sexual Offences Act, 2012 –
s.15 – Scope – Interpretation – Protection of Children from
Sexual Offences (Amendment) Act, 2019 – Mere viewing,
possessing or storing of any child pornographic material, if
punishable under the POCSO:
Held: Yes – Any activity of viewing, distributing or displaying etc., of
any child pornographic material by a person over the internet without
any actual or physical possession or storage of such material in
any device or in any form or manner would amount to ‘possession’
in terms of Section 15 of the POCSO, provided the said person
exercised an invariable degree of control over such material, by
virtue of the doctrine of constructive possession (possession beyond
physical control, having the power and intention to control the
contraband) – s.15 provides for three distinct offences that penalize
* Author
[2024] 10 S.C.R. 155

Just Rights for Children Alliance & Anr. v. S. Harish & Ors.

either the storage or the possession of any child pornographic
material when done with any particular intention specified under
sub-section(s) (1), (2) or (3) respectively – It is in an inchoate
offence which penalizes the mere storage or possession of any
pornographic material involving a child when done with a specific
intent as prescribed, without requiring any actual transmission,
dissemination etc. – 2019 Amendment Act made three different
forms of storage or possession of child pornography a punishable
offence u/s.15, unlike the unamended s.15, which criminalized
only the storage of child pornography for a commercial purpose –
s.15(1) penalizes the failure to delete, destroy or report any child
pornographic material found to be stored or in possession of any
person with an intention to share or transmit the same – The mens-
rea or the intention required under this provision is to be gathered
from the actus reus itself i.e., from the manner in which such
material is stored or possessed and the circumstances in which the
same was not deleted, destroyed or reported – s.15(2) penalizes
both the actual transmission, propagation, display or distribution of
any child pornography as-well as the facilitation of any of the said
acts – The mens rea is to be gathered from the manner in which
the pornographic material was found to be stored or in possession
and any other material apart from such possession or storage
indicative of any facilitation or actual transmission, propagation,
display or distribution of such material – Further, s.15(3) penalizes
the storage or possession of any child pornographic material when
done for any commercial purpose wherein there must be some
additional material or attending circumstances that may sufficiently
indicate that the said storage or possession was done with the
intent to derive any gain or benefit however, to constitute an offence
under sub-section (3) there is no requirement to establish that such
gain or benefit had been actually realized – Sub-section(s) (1), (2)
and (3) of Section 15 constitute independent and distinct offences
with distinction between the varying degree of culpable mens-rea
required under the three sub-sections – The three offences cannot
co-exist simultaneously in the same set of facts. [Paras 73, 76,
86, 114, 118, 222]
Information Technology Act, 2000 – s.67B – Scope:
Held: s.67B is a comprehensive provision designed to address and
penalize the various electronic forms of exploitation and abuse of
children online – It not only punishes the electronic dissemination
of child pornographic material, but also the creation, possession,
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propagation and consumption of such material as-well as the
different types of direct and indirect acts of online sexual denigration
and exploitation of the vulnerable age of children – s.67B ought
to be interpreted in a purposive manner that suppresses the
mischief and advances the remedy and ensures that the legislative
intent of penalizing the various forms of cyber-offences relating to
children and the use of obscene/pornographic material through
electronic means is not defeated by a narrow construction. [Paras
151, 153, 222]
Protection of Children from Sexual Offences Act, 2012 – s.15 –
“Punishment for storage of pornographic material involving
child” – Inchoate Crime/Offence – ‘Actus Reus’; ‘Mens Rea’ – If
there is any requirement for an actual transmission of any child
pornographic material in order to fall within the ambit of s.15:
Held: No – s.15 is in the nature and form of an inchoate offence
wherein it is the intention which is being punished and not the
commission of any criminal act in the traditional sense – What
is sought to be penalized under Section 15 is the storage or
possession of any child pornographic material when done with a
particular intention or purpose as stipulated in sub-section(s) (1),
(2) or (3), as the case may be. [Paras 81, 86]
Criminal jurisprudence – Doctrine of Inchoate Crimes –
Concept and aim – Discussed.
Interpretation of Statutes – Aid of marginal note – Protection of
Children from Sexual Offences Act, 2012 – s.15 – “Punishment
for storage of pornographic material involving child” –
Interpretation with the aid of marginal note when there is no
contradiction between marginal note and the substantive parts:
Held: In the absence of any inherent conflict or contradiction
between the marginal note and the substantive parts of a particular
provision, the marginal note may be used to aid in the interpretation
of the provision – s.15 along with the marginal note indicates, that it
punishes only the storage of pornographic material involving a child
when done with a specific intent prescribed thereunder and that there
is no requirement for any actual transmission – Thus, s.15 is in the
nature and form of an inchoate offence which penalizes the mere
storage or possession of any pornographic material involving a child
when stored with a specific intent prescribed thereunder, without
requiring any actual transmission, dissemination etc. [Para 86]
[2024] 10 S.C.R. 157

Just Rights for Children Alliance & Anr. v. S. Harish & Ors.

Criminal jurisprudence – Inchoate Crimes – Protection of
Children from Sexual Offences Act, 2012 – s.15 – Child
pornographic material – “Possession” – Doctrine of
constructive possession – “actus-reus”:
Held: Under inchoate crimes possession is sought to be punished –
Constructive possession extends the concept of possession beyond
physical control to situations where an individual has the power
and intention to control the contraband, even if it is not in their
immediate physical possession – For establishing constructive
possession both the power to control the material in question
and the knowledge of exercise of such control are required –
Wherever a person indulges in any activity such as viewing,
distributing or displaying etc. pertaining to any child pornographic
material without actually possessing or storing it in any device
or in any form or manner, such act would still tantamount to
‘possession’ in terms of Section 15 of the POCSO, if he exercised
an invariable degree of control over such material, applying
the doctrine of constructive possession – Thus, in terms of the
Doctrine of Constructive Possession, any form of intangible or
constructive possession of any child pornographic material will
also amount to “possession” under Section 15 of the POCSO –
There is no requirement of a physical or tangible “storage” or
“possession” of such material in Section 15 – Thus, where any
child pornographic material is in the constructive possession of an
accused, the failure or omission to report the same would constitute
the requisite actus-reus for the purposes of Section 15 sub-section
(1) of POCSO. [Paras 114, 117, 118, 122]
Protection of Children from Sexual Offences Act, 2012 – s.15(1),
(2), (3) – ‘mens rea’ required under – Distinction between:
Held: Section 15 sub-section (1) requires the existence of the
requisite mens rea or intention due to which the child pornographic
material was not deleted, destroyed or reported whereas, Section
15 sub-section (2) requires the existence of the requisite mens rea
or intention which propelled or led the person accused to not only
store or possess the said material but also to take some additional
steps towards either the actual transmission, propagation, display
or distribution or the facilitation of the same – In contrast, Section
15 sub-section (3) requires the existence of the requisite mens
rea or intention due to which the person accused not only stored
or possessed the child pornographic material but also compelled
him to take some additional steps either for any gain or benefit or
158 [2024] 10 S.C.R.

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in lieu or expectation of some form of gain or benefit – Distinction
further explained through examples. [Para 95]
Protection of Children from Sexual Offences Act, 2012 – s.15 –
Protection of Children from Sexual Offences (Amendment)
Act, 2019 – ‘Possession’ added to make s.15 more stringent
to deter the dissemination and use of child pornography:
Held: Word “possession” was originally absent in the unamended
Section 15 and the legislature specifically added it in the amended
Section 15 – Hence, now both the storage or the possession of any
child pornographic material would be liable to be punished when
done with any of the specified intention thereunder. [Para 112]
Protection of Children from Sexual Offences Act, 2012 – s.15 –
‘storage’; ‘possession’ of child pornographic material – To
constitute offence u/s.15, ‘storage’ and ‘possession’ not to
continue to be there at the time of registration of FIR:
Held: Section 15 does not fixate any particularly time-frame – What
is simpliciter required to constitute an offence under Section 15
of the POCSO is the establishment of ‘storage’ or ‘possession’ of
any child pornographic material with the specified intention under
sub-section(s) (1), (2) or (3), at any relevant point of time – Thus,
an offence can be made out under Section 15 even if the said
‘storage’ or ‘possession’ no longer exists at the time of registration
of the FIR, if it is established that the person accused had ‘stored’
or ‘possessed’ of any child pornographic material with the specified
intention at any particular point of time even if it is anterior in time.
[Para 124]
Protection of Children from Sexual Offences Act, 2012 –
s.15 – Information Technology Act, 2000 – s.67B – Ingredients
necessary to constitute offences under – Divergent views of
different High Courts – Discussed.
Protection of Children from Sexual Offences Act, 2012 vis-à-
vis Protection of Children from Sexual Offences (Amendment)
Act, 2019 – Statement of Object and Reasons – Discussed.
Information Technology Act, 2000 – ss.67, 67A, 67B –
Information Technology (Amendment) Act, 2008 – History of
amendment traced.
Interpretation of Statutes – Information Technology Act,
2000 – Information Technology (Amendment) Act, 2008 – ss.67,
67A vis-à-vis s.67B – Purposive interpretation:
[2024] 10 S.C.R. 159

Just Rights for Children Alliance & Anr. v. S. Harish & Ors.

Held: A conjoint reading of Section(s) 67 and 67A vis-a-vis 67B
would reveal that unlike the former which penalizes only the
publication or transmission of any obscene material or pornographic
material,scope and ambit of Section 67B is much wider as it
recognizes and penalizes five different forms/categories of actus
reus – s.67B not only punishes the electronic dissemination of
child pornographic material, but also the creation, possession,
propagation and consumption of such material as well as the
different types of direct and indirect acts of online sexual denigration
and exploitation of the children – ss.67, 67A, s.67B being a
complete code, ought to be interpreted in a purposive manner that
suppresses the mischief and advances the remedy and ensures
that the legislative intent of penalizing the various forms of cyber-
offences relating to children and the use of obscene/pornographic
material through electronic means is not defeated by a narrow
construction. [Paras 150, 153]
Protection of Children from Sexual Offences Act, 2012 –
Protection of Children from Sexual Offences (Amendment) Act,
2019 – ss.15, 2(1)(d), 2(1)(da) – “child”; “child pornography” –
Pornographic material must prima facie appear to involve
a Child – “Subjective satisfaction” criteria – “Subjective
satisfaction” criteria, as existing in various countries
discussed:
Held: Any visual depiction of a sexually explicit act which any
ordinary person of a prudent mind would reasonably believe to
prima facie depict a child or appear to involve a child, would be
deemed as ‘child pornography’ – Courts are only required to form
a prima facie opinion to arrive at the subjective satisfaction that
the material appears to depict a child from the perspective of any
ordinary prudent person for any offence under the POCSO that
relates to child pornographic material, such as Section 15 – Such
satisfaction may be arrived at from any authoritative opinion such as
a forensic science laboratory (FSL) report of such material or from
any expert opinion or by the assessment of such material by the
courts themselves – Practical difficulties in conclusively establishing
the age of an individual in a pornographic material through objective
means or criteria resulting in absurd consequences, enumerated.
[Paras 131, 222]
Protection of Children from Sexual Offences Act, 2012 –
Protection of Children from Sexual Offences (Amendment)
Act, 2019 – ss.15, 2(1)(da), 2(1)(d) – “but appear to depict a
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child” – Purport of s.2(1)(da) – Section 2(1)(da) is a departure
from the existing objective criterion of determination of age
in terms of Section 2(1)(d):
Held: Neither Section 15 of the POCSO nor Section 2(1)(da) can
be interpreted or invoked in isolation from the other – Section 2(1)
(da) of the POCSO, made a conscious departure from the already
existing objective criterion of determination of age in terms of
Section 2(1)(d) which is generally applicable to the POCSO, as the
legislature was alive to inherent difficulty posed by such criteria –
Section 2(1)(da) of the POCSO was inserted to explicitly define
and delineate what type of visual depictions would be considered
‘child pornography’ to remove any ambiguity that existed earlier and
more importantly, to mitigate the tendency of the courts to refer and
apply the objective criteria of age determination prescribed under
Section 2(1)(d) of the POCSO, even when dealing with matters
involving child pornography – Thus, the legislature in addition to
explaining the contour of visual depiction in Section 2(1)(da) of the
POCSO, also specifically added the words “but appear to depict
a child” in the end – If the courts while dealing with any matter
involving child pornography, continue to refer and rely on Section
2(1)(d) of the POCSO, then the same will frustrate the intention
behind Section 2(1)(da), rendering the words “but appear to
depict a child” otiose and nugatory – The true purport of Section
2(1)(da) of the POCSO is to ensure that for offences pertaining
to child pornography, it is Section 2(1)(da) that is given due
regard and not Section 2(1)(d) – Thus, it is the definition of ‘child
pornography’ which is of relevance while considering whether
Section 15 of the POCSO can be invoked or not. [Paras 139-143]
Protection of Children from Sexual Offences Act, 2012 – ss.2(1)
(d), 2(1)(da)– Protection of Children from Sexual Offences
(Amendment) Act, 2019 – “child”; “child pornography” – Whether
the individual involved is a ‘child’ or not – Determination –
“but appear to depict a child”:
Held: Under s.2(1)(d), an objective criterion is prescribed based
on the age of the individual in question which involves ascertaining
and establishing whether he or she is under eighteen years of age,
if so, such person would be considered a ‘child’ for the purposes
of any offence in respect of such child that is punishable under
the POCSO – Further, under the unamended Section 15, there
was only one criteria for ascertaining whether the material in
[2024] 10 S.C.R. 161

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question can be regarded as ‘child pornography’ or not, which
was by establishing that the material depicts or involves a person
who is under the age of eighteen years – “child pornography” was
specifically defined after the 2019 Amendment Act meaning any
visual depiction of a child involved in any sexually explicit conduct
wherein the expression ‘visual depiction’ is inclusive in nature –
Further, “but appear to depict a child” lays down the test or criteria
for ascertaining, whether any of the mentioned visual depiction is a
‘child pornography’ or not, by prescribing a prima facie subjective
satisfaction that the material appears to depict a child – The use
of the comma before the words “but appear to depict a child” is
significant which is used both as a disjunctive and a conjunctive to
the words preceding it – It has been used as a disjunctive to stress,
that the subjective criteria that the material in question appears
to depict a child is not inextricably linked or limited to just one
category of visual depictions i.e., the last category being “image
created, adapted, or modified” – At the same time, it has been
used as a conjunctive in relation to all types of visual depictions
that have been illustrated in the said provision, to clearly indicate,
that this subjective criterion applies to the entire provision i.e., to
all types of visual depictions mentioned therein or in other words
to ‘child pornography’. [Paras 126-130]
Protection of Children from Sexual Offences Act, 2012 – s.30 –
Culpable mental state under – Presumption mandatory yet,
rebuttable:
Held: The statutory presumption of culpable mental state on the
part of the accused as envisaged under Section 30 of the POCSO
can be made applicable provided the prosecution is able to
establish the foundational facts necessary to constitute a particular
offence under the POCSO that may have been alleged against
the accused – Such presumption can be rebutted by the accused
either by discrediting the prosecution’s case or by leading evidence
to prove the contrary, beyond a reasonable doubt – The standard
prescribed for rebutting the said statutory presumption of culpable
mental state is beyond a reasonable doubt. [Paras 156, 222]
Protection of Children from Sexual Offences Act, 2012 –
s.30 – Statutory presumption of culpable mental state under –
Reasons therefor, stated – Principle of Foundational Facts:
Held: Statutory presumption of culpable mental state is in view of
the exigency posed by the difficulty that exists in establishing certain
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types of offences such as inchoate offences due to its clandestine
nature – Such presumptions are in essence an exception to the
cardinal principle of criminal jurisprudence that the act does not make
a person guilty unless the mind is also guilty – Before the statutory
presumption of culpable mental state could be validly invoked, the
prosecution must first establish certain foundational facts beyond a
reasonable doubt – Initial burden always lies on the prosecution –
Thus, the establishment of foundational facts by the prosecution is
a prerequisite for triggering the statutory presumption for shifting
the onus on the accused to prove the contrary – It is a delicate
balance struck between the practical need for such presumption in
law and the cardinal principles of criminal jurisprudence to ensure
that the presumption does not cross or transgress the fine line
that demarcates presumption of ‘culpable mental state’ from the
‘presumption of guilt’ itself – Even if the prosecution establishes
such foundational facts and the presumption is raised against the
accused, he can rebut the same either by discrediting prosecution’s
case as improbable or absurd or could lead evidence to prove
his defence, in order to rebut the presumption, however the said
presumption under Section 30 of the POCSO will be said to have
been rebutted only where the accused by way of his defence
establishes a fact contrary to the presumption and proves the same
beyond a reasonable doubt. [Paras 166, 171, 172, 174]
Protection of Children from Sexual Offences Act, 2012 –
s.15(1), (2), (3) – Statutory presumption of culpable mental
state for offence u/s.15 – Necessary foundational facts to be
established for invocation thereof:
Held: For the purpose of sub-section (1), the foundational facts
that the prosecution may have to first establish is the storage or
possession of any child pornographic material and that the person
accused had failed to delete, destroy or report the same – In
order to invoke the statutory presumption of culpable mental state
for an offence under sub-section (2), the prosecution would be
required to first establish the storage or possession of any child
pornographic material, and also any other fact to indicate either the
actual transmission, propagation, display or distribution of any such
material or any form of an overt act such as preparation or setup
done for the facilitation of the transmission, propagation, display
or distribution of such material, whereafter it shall be presumed by
the court that the said act was done with the intent of transmitting,
displaying, propagating or distributing such material and that the
[2024] 10 S.C.R. 163

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said act(s) had not been done for the purpose of either reporting
or for use as evidence – Further, for the purpose of sub-section
(3) the prosecution must establish the storage or possession of
such material and further prove any fact that might indicate that
the same had been done to derive some form of gain or benefit
or the expectation of some gain or benefit. [Para 222]
Protection of Children from Sexual Offences Act, 2012 – s.30 –
Code of Criminal Procedure, 1973 – s.482 – Presumption
u/s.30, if can be resorted to in a quashing proceeding –
Two videos depicting children involved in a sexual activity
were recovered from the mobile phone of respondent no.1-
accused – FIR alleged offences u/ss.14(1) of the POCSO and
67B of the IT Act, however, in the chargesheet, the offence
u/s.14(1) of the POCSO was substituted and instead offence
u/s.15(1) of the POCSO was alleged – Criminal proceedings
quashed by High Court – Correctness:
Held: There is no bar for the High Court to invoke the statutory
presumption at the stage of deciding the quashing petition in respect
to any offence to which such a presumption is applicable – The
statutory presumption envisaged under Section 30 of the POCSO
is applicable and can be invoked in any proceeding which involves
an offence under the said Act that requires a culpable mental state,
irrespective of the court where such proceeding is taking place –
Once the investigation is over and chargesheet is filed, the FIR
pales into insignificance – Child pornographic material that was
recovered from the personal mobile phone of the accused which
was regularly in use by him, which prima facie establishes the
storage or possession of child pornographic material – Further,
since the aforesaid child pornographic material was found to
have been stored in the said personal mobile phone since 2016
and 2019, prima facie there was a failure on his part to delete,
destroy or report such material – High Court failed to advert to
Section 15 of the POCSO especially when the chargesheet had
already been filed at the time of passing of the Impugned Order
and erred in quashing the criminal proceedings – In view of the
statutory presumption of culpable mental state being attracted,
any defence of the accused such as the absence of knowledge
or intention would be a matter of trial – Absence of culpable
mental state has to be established before the trial court by leading
cogent evidence in that regard, such defences should not be
looked into at this stage – Impugned judgment set aside, criminal
proceedings restored. [Paras 185, 193, 201, 203, 221, 261]
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Code of Criminal Procedure, 1973 – s.482 – Duty of High
Court – Quashing of criminal proceedings, when justified –
Discussed.
Protection of Children from Sexual Offences Act, 2012 – s.15 –
Ignorance of law vis-à-vis incognizance of law – Ignorance of
law, when can be used as a valid defence – Plea of the accused
that he was unaware that storing of child-pornography was
a punishable offence under Section 15 of POCSO along with
the bona-fide belief that such storage was not an offence:
Held: Rejected – For a plea of ignorance of law, the ignorance
or mistake of law must be such which legitimately gives rise
to a bona-fide belief of the existence of a right or a claim, and
the said person commits any act on the strength of such right
or claim – Even if a person is unaware that the possession or
storage of such material is punishable, it by no stretch can be
considered to give rise to any right or assertion as there exists no
such right to either store or possess such material, and thus it is
not a valid defence – No person of an ordinary prudent mind with
the same degree of oblivion or unawareness as to the law, more
particularly Section 15 of POCSO could as a natural corollary be
led to a belief of existence of a right to store or possess any child
pornographic material – The ignorance or unawareness must have
a reasonable nexus with the right or assertion claimed i.e., the
ignorance or unawareness must be such which could legitimately
and reasonably give rise to a corresponding right or claim and the
existence of which must be bona-fidely believed – Thus, even if
the accused was unaware about Section 15 of POCSO, this by
itself does not give rise to a corresponding legitimate or reasonable
ground to believe that there was any right to store or possess child
pornographic material – As such the four-prong test for a valid
defence is not fulfilled and the defence of ignorance of law by the
accused fails – Even otherwise, one must be mindful to the fact
that such a plea is not a statutory defence with any legal backing,
but rather a by-product of the doctrine of equity – Unawareness
or incognizance of law should not be conflated with ignorance of
law. [Paras 212, 214, 217]
Suggestions by Court – Protection of Children from Sexual
Offences Act, 2012 – Suggestions made to Ministry of Women
and Child Development, Union of India:
[2024] 10 S.C.R. 165

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Held: The term “child pornography” is a misnomer that fails
to capture the full extent of the crime – Each case of what is
traditionally termed “child pornography” involves the actual abuse
of a child, the use of the term “child pornography” trivializes the
crime, as pornography is often seen as a consensual act between
adults – It undermines the victimization because the term suggests
a correlation to pornography- conduct that may be legal, whose
subject is voluntarily participating in, and whose subject is capable
of consenting to the conduct – The term “child sexual exploitation
and abuse material”(“CSEAM”) more accurately reflects the reality
that these images and videos are not merely pornographic but
are records of incidents, where a child has either been sexually
exploited and abused or where any abuse of children has been
portrayed through any self-generated visual depiction – CSEAM
rightly places the emphasis on the exploitation and abuse of the
child, highlighting the criminal nature of the act and the need for
a serious and robust response – Courts forbidden from using the
term “child pornography” and instead the term CSEAM should
be used in judicial orders and judgements of all courts across
the country – Parliament should consider to amend the POCSO
for substituting the term “child pornography” with “child sexual
exploitation and abuse material” (CSEAM) – Further, though, there
is a tangible difference between the act of viewing CSEAM and the
act of engaging in sexual abuse of children, yet the latter desire is
always inherent in the former – Need for and importance of positive
age-appropriate sex education emphasized – Implementation of
comprehensive sex education programs – Impact of CSEAM on
victims; need for legal, social, therapeutic support to the victims
and rehabilitation programs for the offenders, stated – These
services should include psychological counselling, therapeutic
interventions and educational support to address the underlying
issues and promote healthy development – For those involved in
viewing or distributing child pornography, CBT has proven effective
in addressing the cognitive distortions that fuel such behaviour –
Raising awareness about the realities of child sexual exploitative
material and its consequences through public campaigns can help
reduce its prevalence – Identifying at-risk individuals early and
implementing intervention strategies for youth with problematic
sexual behaviours (PSB) involves several steps and requires a
coordinated effort among various stakeholders, including schools,
educators, healthcare providers, law enforcement, and child welfare
services – Union of India may consider constituting an Expert
166 [2024] 10 S.C.R.

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Committee for devising a comprehensive program or mechanism
for health and sex education, as well as raising awareness about
the POCSO among children – Obligation of the appropriate
government and the commission under Section(s) 43 and 44 of
the POCSO does not end at just spreading awareness about the
provisions of the POCSO – Their efforts must go beyond just the
textual wording of the said provisions and to earnestly take into
account the pragmatic necessities for curtailing the issue of child
abuse, exploitation and addiction to pornography – Collective
responsibility of the society u/s.19, 20 of the POCSO, specified –
Parliament to consider amending Section 15(1) of POCSO to make
it more convenient for the general public to report by way of an
online portal, any instance of storage or possession of CSEAM
to the specified authorities for the purpose of the said provision.
[Paras 227-229, 248, 260]
Protection of Children from Sexual Offences Act, 2012 –
Information Technology Act, 2000 – ss.2(w), 79 – Protection
of Children from Sexual Offences Rules, 2020 – Role and
obligations of “intermediaries”:
Held:Significance of role of “intermediaries” as defined under
Section 2(w) of the IT Act in checking the proliferation of child
pornography; obligation on the intermediaries under Protection of
Children from Sexual Offences Rules, 2020, enumerated – Social
media intermediaries in addition to reporting the commission or the
likely apprehension of commission of any offence under POCSO
to the National Centre for Missing & Exploited Children (NCMEC)
are also obligated to report the same to authorities specified under
Section 19 of POCSO – Courts to refrain from showing any leniency
or leeway in offences under Section 21 of the POCSO, particularly
to schools/educational institutions, special homes, children’s
homes, shelter homes, hostels, remand homes, jails, etc. who fail
to discharge their obligation of reporting the commission or the
apprehension of commission of any offence or instance of child
abuse or exploitation under the POCSO – Section(s) 19, 20 and
21 of the POCSO are mandatory in nature, and there can be no
dilution of the salutary object and purport of these provisions – In
view of the the mandatory character of Sections 19 and 20 of the
POCSO read with Rule 11 of the POCSO Rules, an intermediary
cannot claim exemption from the liability under Section 79 of the
IT Act for any third-party information, data, or communication link
made available or hosted by it, unless due diligence is conducted
[2024] 10 S.C.R. 167

Just Rights for Children Alliance & Anr. v. S. Harish & Ors.

by it and compliance is made of these provisions of the POCSO –
Such due diligence includes not only removal of child pornographic
content but also making an immediate report of such content to the
concerned police units in the manner specified under the POCSO
Act and the Rules thereunder. [Paras 254-256, 258-260]
Words and Phrases – Protection of Children from Sexual
Offences Act, 2012 – s.2(da) – “child pornography”;
‘Possession’, ‘Constructive Possession’; ‘Immediate Control’
u/s.15 – Concept.

Case Law Cited
Chandi Kumar Das Karmarkar v. Abanidhar Roy AIR (1965) SC
585; Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. [1979]
2 SCR 641 : (1979) 2 SCC 409 - held inapplicable.
Independent Thought v. Union of India & Anr. [2017] 13 SCR 821
: (2017) INSC 1030; Attorney General for India v. Satish [2021] 10
SCR 955 : (2021) INSC 762; Eera through Dr. Manjula Krippendorf
v. State (Govt. of NCT of Delhi) & Anr. [2017] 7 SCR 924 : (2017)
INSC 658; Nawabuddin v. State of Uttarakhand [2022] 1 SCR 1083
: (2022) INSC 162; Sharat Babu Digumarti v. Govt. of NCT of Delhi
[2016] 8 SCR 1015 : (2017) 2 SCC 18; State of M.P. v. Harsh
Gupta (1998) 8 SCC 630; Prakash Nath Khanna v. CIT [2004]
2 SCR 434 : (2004) 9 SCC 686; R. Kalyani v. Janak C. Mehta
& Ors. [2008] 14 SCR 1249 : (2009) 1 SCC 516; Rathis Babu
Unnikrishnan v. The State (Govt. of NCT of Delhi) & Anr. [2022]
4 SCR 989 : (2022) INSC 480; R.P. Kapur v. State of Punjab AIR
(1960) SC 866; State of Haryana v. Bhajan Lal (1992) AIR SC 604;
S.M. Datta v. State of Gujarat [2001] Supp. 2 SCR 140 :(2001) 7
SCC 659; National Spot Exchange Ltd. v. Anil Kohli, Resolution
Professional for Dunar Foods Ltd. [2021] 7 SCR 1024 : (2022)
11 SCC 761; M. Siddiq v. Mahant Suresh Das (2020) 1 SCC 1;
Shankar Kisanrao Khade v. State of Maharashtra [2013] 6 SCR
949 : (2013) 5 SCC 546; State of Maharashtra & Anr. v. Maroti
[2022] 8 SCR 821 : (2023) 4 SCC 298 – relied on.
Bhanabhai Khalpabhai v. Collector of Customs [1994] 2 SCR 348
: (1994) Supp. (2) SCC 143; Devchand Kalyan Tandel v. State of
Gujarat [1996] Supp. 4 SCR 382 : (1996) 6 SCC 255; State of
Punjab v. Baldev Singh [1999] 3 SCR 977 : (1999) 6 SCC 172;
Seema Silk Sarees v. Directorate of Enforcement [2008] 8 SCR
201 : (2008) 5 SCC 580; Noor Aga v. State of Punjab & Anr. [2008]
168 [2024] 10 S.C.R.

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10 SCR 379 : (2008) 16 SCC 417; Bhola Singh v. State of Punjab
[2011] 2 SCR 642 : (2011) 11 SCC 653; Baldev Singh v. State of
Haryana [2015] 12 SCR 969 : (2015) 7 SCC 554 – referred to.
Nupur Ghatge v. State of Madhya Pradesh (MCRC No. 52596 of
2020); P.G. Sam Infant Jones v. State represented by Inspector
of Police (2021) SCC OnLine Mad 2241; Ajin Surendran v. State
of Kerala & Anr. (2022) KER 7207; Manuel Benny v. State of
Kerala (2022) KER 9730; Lakshya v. State of Maharashtra & Anr.
(Criminal Writ Petition No. 479 of 2022); Shantheeshlal T. v.
State of Kerala (2024) KER 35968; Akash Vijay v. State of Kerala
(2024) KER 42626; Akhil Johny v. State of Kerala (2024) KER
53767; Inayathulla N (1) v. State (2024) KHC 26513; Inayathulla
N (2) v. State (2024) KHC 28204 – referred to.
U.S. v. Tucker 150 F. Supp. 2d 1263 (D. Utah. 2001); U.S. v. Romm
455 F. 3d. 990 (9th Cir., 2006); Regina v. Michael Land (1997)
EWCA Crim J1010-15; John Leadbetter v. Her Majesty’s Advocate
(2020) HCJAC 51; United States v. Katz 178 F.3rd 368 (5th Cir.
1999); Commonwealth v. Robert (829 A.2d. 127) – referred to.
Books and Periodicals cited
50th Report of the Standing Committee on Information Technology
on the ‘Information Technology (Amendment) Bill, 2007; Eva J.
Klain, Heather J Davies, Molly A. Hicks Et. Al., Child Pornography:
The Criminal Justice-System Response, 8 (Penn State University
Press, 2001); Philip Jenkins, Beyond Tolerance: Child Pornography
on the Internet (New York University Press, 2003); Burgess, Ann
W. & C.R. Hartman, Child Abuse Aspects of Child Pornography, 7
PSYCHIATRIC ANNALS, 248 (1987); Audrey Rogers, The Dignity
Harm of Child Pornography – From Producers to Possessors,
in Carissa Byrne Hessick (Eds.), Refining Child Pornography
Law – Crime, Language and Social Consequences (University
of Michigan Press, 2016); Tali Gal, Child Victims and Restorative
Justice – A Needs Rights Model, 17 (Oxford University Press,
2011); Jonah R. Rimmer, Child Sexual Exploitation, (Oxford
Research Encyclopaedia Criminology, 2024); Mary Graw Leary,
The Language of Child Sexual Abuse and Exploitation, in Carissa
Byrne Hessick (Eds.), Refining Child Pornography Law – Crime,
Language and Social Consequences (University of Michigan Press,
2016); Danijela Frangež, Anton Toni Klančnik, Mojca Žagar Karer
Et. Al., The Importance of Terminology Related to Child Sexual
[2024] 10 S.C.R. 169

Just Rights for Children Alliance & Anr. v. S. Harish & Ors.

Exploitation, 66(4) REV. ZA. KRIM. KRIMINOL. 291 (2015);
Kathryn C. Seigfried Spellar & Virginia Soldino, Child Sexual
Exploitation: Introduction to a Global Problem, in Thomas J. Holt &
Adam M. Bossler (Eds.); The Palgrave Handbook of International
Cybercrime and Cyberdeviance, (Palgrave Macmillian, Cham,
2020); Vaughn I. Rickert & Owen Ryan, Is the Internet the
Source, 40 J. ADOLESC. HEALTH 104 (2007); Dr. Ethel Quayle,
Assessment issues with young people who engage in problematic
sexual behaviour through the Internet, in M.C. Calder (Ed.), New
Developments with young people who sexually abuse (Russel
House Publishing, Lyme Regis, UK, 2007); Matthew L Long,
Laurence A. Alison & Michelle A McManus, Child pornography
and likelihood of contact abuse: a comparison between contact
child sexual offenders and noncontact offenders, 25(4) SEX
ABUSE, 370 (2013); Dr. Ethel Quayle Et. Al., The role of sexual
images in online and offline sexual bheaviour with minors, 17(6)
CURR. PSYCHIATRY REP. 1 (2019); Melissa Hamilton, The
Child Pornography Crusade and Its Net- Widening Effect, 33
CARDOZO L. REV. 1694 (2012); Esposito & Lesli C., Regulating
the Internet: The Battle Against Child Pornography, 30 CASEW.
RES. J. INT’L. L. 5 (1998); Jason S. Carrol Et Al., Generation
XXX, Pornography Acceptance and Use Among Emerging Adults,
23 J. ADOLESCENT RES. 6 (2008); Clare McGlynn & Dr. Hannah
Bows, Possessing Extreme Pornography: policing, prosecutions
and the need for reform, 83(6) J. CRIM. LAW., 473 (2019); Dr.
Ethel Quayle, Lars Loof and Tink Palmer, Child Pornography and
Sexual Exploitation of Children Online, 64 (ECPAT International,
2008); Michael C. Seto, Kailey Roche, Nicole C Rodrigues Et. Al.,
Evaluating Child Sexual Abuse Perpetration Prevention Efforts: A
Systematic Review, 33 J. CHILD SEX. ABUS. 22 (2024); Paul G.
Cassel, James Marsh & Jeremy M. Christiansen, The Case for
Full Restitution for Child Pornography Victims, 82 GEO. WASH. L.
REV. 61 (2013); Padminin Iyer & Peter Aggleton, Seventy years
of sex education – A Critical Review, 74(1) HEALTH EDUC. J. 3
(2015); Udaan Adolescent Education Program by the Centre for
Catalyzing Change in Jharkhand in India; Cortney Lollar, Child
Pornography and the Restitution Revolution, 103 J. CRIM. L. &
CRIMINOLOGY 343 (2013); Jagdish Khubchandani, Jeffrey Clark
& Raman Kumar, Beyond Controversies: Sexuality Education for
Adolescents in India, 3(3) J. FAMILY MED. PRIM. CARE. 175
(2014) – referred to.
170 [2024] 10 S.C.R.

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List of Acts
Protection of Children from Sexual Offences Act, 2012; Protection of
Children from Sexual Offences (Amendment) Act, 2019; Information
Technology Act, 2000; Information Technology (Amendment) Act,
2008; Protection of Children from Sexual Offences Rules, 2020.
List of Keywords
Section 15 of the Protection of Children from Sexual Offences
Act, 2012; Section 67B of the Information Technology Act, 2000;
POCSO; Child pornography; Child; Pornographic content; Child
pornographic material; Child sexual exploitation; Child sexual
abuse; Exploitation and abuse of children; Use of obscene/
pornographic material through electronic means; Online sexual
denigration and exploitation of children; Cyber-offences relating
to children; Videos showing children involved in a sexual activity;
Statutory presumption of culpable mental state; Quashing;
Storage or possession; Mere storage or possession; Intangible
possession; Constructive possession; “Deleted, destroyed, reported”;
Failure or omission to report; Transmission; Propagation; Display
or distribution; Foundational facts; Marginal note; Commercial
purpose; Inchoate offence; Mens-rea; Culpable mens-rea;
Requisite mens rea; Intention; Actus reus; Purposive interpretation;
“Subjective satisfaction” criteria; Ignorance of Law; Incognizance of
Law; Suggestions by Court; Due diligence; Intermediaries; “Child
Sexual Exploitation and Abuse Material”(CSEAM).
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 2161-
2162 of 2024
From the Judgment and Order dated 11.01.2024 of the High Court
of Judicature at Madras in CRLOP No. 37 of 2024 and CRLMP No.
79 of 2024
Appearances for Parties
H.S. Phoolka, Sr. Adv., Jagjit Singh Chhabra, Bhuwan Ribhu, Ms.
Rachna Tyagi, Saksham Maheshwari, Ms. Shashi, Ms. Taruna
Panwar, Ms. Tanvi Chaudhry, Advs. for the Appellants.
Ms. Swarupama Chaturvedi, Sr. Adv., Prashant S. Kenjale, Amol
Nirmalkumar Suryawanshi, Ms. Srishty Pandey, Ashutosh Chaturvedi,
M/s. Juristrust Law Offices, Abhaid Parikh, Ms. Katyayani Anand,
Ms. Saumya Kapoor, Aayush Shivam, D. Kumanan, Sheikh F. Kalia,
Advs. for the Respondents.
[2024] 10 S.C.R. 171

Just Rights for Children Alliance & Anr. v. S. Harish & Ors.

Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.:
For the convenience of exposition, this judgment is divided into the
following parts: -
INDEX*
A. FACTUAL MATRIX........................................................................... 4
B. IMPUGNED ORDER....................................................................... 10
C. SUBMISSIONS OF THE PARTIES................................................ 16
i. Submissions on behalf of the Appellants............................. 16
ii. Submissions on behalf of the National Commission for
Protection of Child Rights (NCPCR).................................... 18
iii. Submissions on behalf of the respondent no. 1 / the Sole
Accused................................................................................... 20
iv. Submissions on behalf of the respondent nos. 2 & 3 / the
State......................................................................................... 22
D. ISSUES FOR DETERMINATION.................................................... 24
E. ANALYSIS........................................................................................ 25
i. Relevant Statutory Scheme and Provisions....................... 25
a. Legislative History and Scheme of the POCSO................ 25
b. Relevant Provisions of the IT Act....................................... 38
ii. Scope of Section 15 of the POCSO and Section 67B of
the IT Act................................................................................. 40
a. Contradictory Views of different High Courts on the subject.. 40
b. Three distinct offences punishable under Section 15 of
the POCSO.......................................................................... 55
I. Concept of an Inchoate Crime – The ‘Actus Reus’
and ‘Mens Rea’ required under Section 15................. 60
II. Concept of ‘Possession’, ‘Constructive Possession’
and ‘Immediate Control’ under Section 15 of the
POCSO........................................................................ 78
c. Pornographic Material must prima facie appear to involve a
Child................................................................................... 86
d. Scope of Section 67B of the IT Act.................................... 95

* Ed. Note: Pagination as per the original Judgment.
172 [2024] 10 S.C.R.

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iii. Presumption of Culpable Mental State under Section 30
of the POCSO.......................................................................... 108
a. Concept of Statutory Presumption and Principle of
Foundational Facts............................................................ 110
b. Foundational Facts required under Section 15 of the
POCSO............................................................................... 126
c. Whether the Presumption under Section 30 of the POCSO
can be resorted to in a Quashing Proceeding?................ 130
iv. Whether the case at hand was one fit for the High Court
to quash?................................................................................ 141
a. Plea of Ignorance of Law: Ignorance of Law viz-a-viz
Incognizance of Law.......................................................... 147
v. Summary of our conclusion.................................................. 161
F. FEW MEANINGFUL SUGGESTIONS............................................. 167
i. The Lingering Impact of Child Pornography on the
Victimization & Abuse of Children....................................... 167
a. Obligation to report under Section(s) 19 & 20 respectively of
the POCSO and Role of the Society and all Stakeholders... 180
ii. Suggestions to the Union of India and to the courts......... 195
G. FINAL ORDER................................................................................. 198

1. Since the issues raised in both the captioned appeals are same and
the challenge is also to a self-same judgment and order passed by
the High Court those were taken up for hearing analogously and are
being disposed of by this common judgment and order.
2. The present appeals arise out of the final judgment and order
passed by the High Court of Judicature at Madras dated 11.01.2024
in Criminal Original Petition (Crl. O.P.) No. 37 of 2024 (“Impugned
Order”) filed by the respondent no. 1 (accused) herein under Section
482 of the Code of Criminal Procedure, 1973 (for short, the “Cr.P.C.”)
by which the High Court allowed the petition and thereby quashed
the chargesheet dated 19.09.2023 filed for the offences punishable
under Section 67B of the Information Technology Act, 2000 (for short,
the “IT Act”) and Section 15(1) of the Protection of Children from
Sexual Offences Act, 2012 (for short, the “POCSO”) arising out of
the FIR No. 03 of 2020, P.S. Ambattur, Chennai. As a consequence,
the criminal proceedings in Special Sessions Case No. 170 of 2023
stood terminated.
[2024] 10 S.C.R. 173

Just Rights for Children Alliance & Anr. v. S. Harish & Ors.

3. It may be necessary to clarify that the appellant no. 1 herein, ‘Just
Rights for Children Alliance’ is a collation comprising of five different
NGOs that work in unison against child trafficking, sexual exploitation
and other allied causes. Whereas the appellant no. 2 is a child rights
organization working towards protecting children from exploitation and
one of the partner NGOs to the aforesaid collation. The appellants
herein were not a party to the proceedings before the High Court.
However, having regard to the serious issue of public importance
involved in the matter they sought leave of this Court to challenge
the impugned judgment of the High Court. The respondent nos. 2 & 3
are the State of Tamil Nadu and the Inspector of Police, All-Women’s
Police Station Ambattur, Chennai, respectively.
A. FACTUAL MATRIX
4. On 29.01.2020, the All-Women’s Police Station Ambattur, Chennai,
Tamil Nadu i.e., the respondent no. 3 herein, received a letter from
the Additional Deputy Commissioner of Police (Crime against women
and children Branch) wherein it was mentioned that as per the Cyber
Tipline Report of the National Crimes Record Bureau (NCRB), the
respondent no. 1 herein is an active consumer of pornography and
has allegedly downloaded pornographic material involving children
in his mobile phone.
5. Accordingly, in view of the aforesaid letter an FIR was registered
against the respondent no. 1 herein on the very same day i.e.,
29.01.2020 at the All-Women’s Police Station Ambattur, Chennai,
Tamil Nadu as Crime No. 03 of 2020 for the offence punishable
under Section(s) 67B of the IT Act and 14(1) of the POCSO. The
relevant portion of the FIR reads as under: -
“Today on 29.01.2020 at 12.00 noon, I, the Inspector of
W28, All Women Police Station was on duty, received
letter RC. No. 03/ADC CWC/West/Camp/2020 dated
28.01.2020 from Thirumathi S. Megalina, Additional Deputy
Commissioner of Police, Prevention of Crimes against
Women and Children Division, Chennai, West Zone.
On perusal of the same, 4 References were mentioned
therein viz.
Ref: 1. DO.Lr.No.05/ADGP-CWC/NCMEC/2020
2. C. No.30/COP/CO/2020
174 [2024] 10 S.C.R.

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3. R.C. No. 228 VIII/DC CWC/Genl/2020 (CTR
No. 49303278)
4. RC No. 68 /Japu – ii/NCMEC/2020
As per the notice issued in CTR No. 49303278 by National
Crime Record Bureau, it is seen that Harris, resident of
Door No.2, 1st Main Road, VPC Nagar, Kallikuppam,
Ambattur, Mobile No. 99406 87836, has for the past
more than two years, been watching child pornographic
films. Details have also been obtained with regard to child
pornographic films which were made by using children who
have been exploited, children who have gone missing,
and by collecting information from centres which deal with
missing children, and details have been provided with
regard to the persons who have downloaded such child
pornographic films. When those notices were perused, it
was seen that the above said person had downloaded those
films through Old Site ID-KALLI/OLD/ Chm ID-CHM2307,
with a view to indulge in sexual activities, and these films
were made at the address ‘Gopalsamy, No.2, Gangai
Amman Kovil 3rd Main Road, Kallikuppam, Ambattur’ by
exploiting children in this area. Since this bad activity is
a crime against good social order, it was directed to take
appropriate action against the said person, and therefore,
Crime No. 03/2020 U/S 67B IT ACT r/w 14(1) POCSO Act
2012 was registered, and the original FIR has been sent
to the concerned Court of learned Judicial Magistrate,
and copies have been sent to the concerned superior
officers of police without any delay, and investigation has
been taken up.
13. Action Taken: Since the above information reveals
commission of offence(s) u/s as mentioned at Item No. 2,
registered the case and took up the investigation.
FIR read over to the complainant/Informant, admitted to be
correctly recorded and a copy given to the Complainant/
Informant free of cost.”
6. During the course of the investigation, the mobile phone belonging
to the respondent no. 1 was seized and sent to the Forensic Science
[2024] 10 S.C.R. 175

Just Rights for Children Alliance & Anr. v. S. Harish & Ors.

Laboratory for analysis. The respondent no. 1 was also questioned
whether he had ever viewed any pornographic content, to which the
respondent no. 1 admitted that he used to regularly view pornography
while he was in college.
7. As per the Computer Forensic Analysis Report dated 22.08.2020 it
was found that the mobile phone of the respondent no. 1 contained
two video files relating to child pornography depicting two underage
boys involved in sexual activity with an adult woman. The Computer
Forensic Analysis Report further stated that more than hundred other
pornographic video files were downloaded and stored in the said
mobile phone. The relevant portion of the said Computer Forensic
Analysis Report reads as under: -
“COMPUTER FORENSIC ANALYSIS REPORT
Received from : The Sessions Judge, Mahalir
Neethi Mandram, (Fast Track
Mahila Court) Tiruvallur.
Crime No. & P.S. : 03/2020 of Ambattur AWPS
Organization Report No. : CF/52/2020

Case received Date : 28.02.2020
Case received through : WHC 43450, Tmt. Poornima
Seals status : Correct & Intact
Nature of crime : 67(B) IT Act and 14(1) of
POCSO Act 2012
Tools used : UFED 4 PC.
Report date : 22.08.2020
Head of the Division : A. Visalakshi, M.Sc, PGDCA
Examiner : S. Hemalatha, M.Sc., (FS),
M.Sc., (CS)

RECEIVED DEVICE DESCRIPTION
One (1) sealed cloth-lined paper parcel marked, “PI No.
5/2020. Cr. No. 3/2020, Ambattur AWPS …” containing
the following item:

Marked Name of Details of the Item Packing /
as the Item Labelling
received details
176 [2024] 10 S.C.R.

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1 Mobile Make: MOTO
phone Model: XT 1804
IMEI1: 356477088126073 Kept in a
IMEI2: 356477088126081 plastic box
marked,
Airtel 4G 128K “PI No:
SIM 1 ICCID: 05/2020”.
8991000902533662473U

Strontium 16 GB
Memory Inbuilt
Card
Battery

Objective
The above item was examined with a view to find if there is
any facility of viewing video files using YouTube application
and the details. And also to find if any media files pertaining
to pornography were found accessed/downloaded/saved.
EXAMINATION
Mobile Phone : [MOTO]
The internal memory of the mobile phone was acquired
using file system extraction and examined using the
forensic software tool “UFED 4 PC”. The retrieved details
such as contacts, call logs, SMS messages and media files
are generated as a report and the report (in pdf) is copied
on to a Compact Disc marked as “CF 52/20”. Selected
pages from the report are given as Annexure-I. Some of
the findings from the report are as follows: - [...]
[...] Above findings indicated that the mobile phone
was found to be equipped with the facility of viewing
videos through YouTube Application.
4. (a) Video files pertaining to pornography (more than 100
Nos.) were found downloaded and stored in different paths,
the details of the same are given as Annexure – II. [...]
(b) Some of the vide files pertaining to pornographic
nature were found stored under the path “Motorola
GSM_XT1806 MotoG5SPlus.zip/sdcard/ProgramData/
Android/Language/.fr/Videos/wat up pono”. [...]
[2024] 10 S.C.R. 177

Just Rights for Children Alliance & Anr. v. S. Harish & Ors.

(c) Under the same path two video files which could be
accounted for Child Pornography content were found
stored. In the videos boys (under-teen) were found involved
in sexual activity with a adult woman/girl. The details of
the same are pasted below: -
S. No. File Info Additional File Info
1. Name: VID-20190614-WA0006. Size (bytes): 11256288
mp4

Modified:
Path: Motorola GSM_XT1806 6/14/2019
MotoG5SPlus.zip/sdcard/ 15:44 (UTC +5:30)
ProgramData/Android/Language/.
fr/Videos/wat up pono/ VID-
20190614-WA0006.mp4
2. Name: Unmayal sollungal Ennodu Size (bytes): 20467994
sellungal with Vadivel Balaji in AIE
4-8-2012 – Youtube.3GP
Modified:
9/5/2016
Path: Media/Internal shared 23:12 (UTC +5:30)
storage/trending/adhu idu/Unmayal
sollungal Ennodu sellungal with
Vadivel Balaji in AIE 4-8-2012 –
Youtube.3GP

[...]
Memory Card: [Strontium 16 GB]
The memory card was acquired and examined using the
forensic software tool “UFED 4 PC”. The retrieved details
such as document, image and video files are generated as
a report and the report (in pdf) is copied on to a Compact
Disc marked as “CF 52/20”. The full report is given as
Annexure-III.
On perusing the medial files, multiple video snapshot
images and video files were found related to pornography.
The representative samples of the same are copied onto
the CD mentioned earlier under a specified folder. [...]”
8. Upon completion of the investigation, chargesheet dated 19.09.2023
was filed against the respondent no. 1 for the offences punishable
under Section(s) 67B of the IT Act and 15(1) of the POCSO
178 [2024] 10 S.C.R.

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respectively. It may not be out of place to state at this stage, that
although the FIR was registered for the offence punishable under
Section 14(1) of the POCSO yet in light of the materials collected
in the course of the investigation and the findings recorded in the
Computer Forensic Analysis Report, the chargesheet was ultimately
filed for the offence punishable under Section 15(1) of the POCSO.
The relevant portion reads as under: -
“Final Report
Before the Hon’ble Mahila Fast Track Mahila Court,
Tiruvallur
Police Final Report under 173(i) W28 Ambattur All Women
Police Station Crim no- 3/2020 U/s 67(B) IT ACT & 14 (1)
of POCSO ACT 2012 @67 (B) IT ACT 15(1) of POCSO
ACT 2012. [...]
Nature of the case
Mrs. Megallina, Additional Deputy Commissioner of Police,
Women and Child Crime Branch, Chennai, West Zone
LETTER RC.NO. 03/ADC CWC/West/Camp/2020 Dated:
28.01.2020 in that mentioned Ref: 1. Do. Lr. No. 05/
ADGP- CWC/ camp/ NCMEC/ 2020, 2. C.No.30/ COP/ CO/
2020, 3. R.CNO. 228 VIII/ DC CWC/ Genl/ 2020 (CTR No.
49303278), 4. RC.No. 68/ japu- ii/ NCMEC/ 2020 as per
the detail, Haris residing at 1st Main Road, Door No.03,
VPC Nagar, Kallikuppam, Ambattur has reported to NCRB
(National Crime Record Bureau) that he had seen child
pornography on his mobile phone number 99406 87836
for more than two years at CTR No. 49303278 has been
obtained and a report on child exploitation and missing
persons and details of those who have downloaded child
pornography against children banned by the data collection
system has been obtained. Aforesaid person OLD Size
ID- KALLI 4/OLD Chm Id- CHM2307 Downloaded from the
address No.2 Gopalsamy, 3rd Main Road, Gangaiyamman
Temple, Ampathur, Kallikuppam, with the malicious
intention of viewing children’s pornographic films for sexual
purposes. As this evil act is considered to be a crime of
disturbance of social morals, after being instructed to
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take appropriate action against the said person, the All
Women Police Station registered a case in CRIME NO.
03/20 U/ S 67B IT ACT r/ w 14(1) POCSO Act 2012 and
the copy of the same was sent to the concerned court
and the copies to the higher police officers without delay
for investigation. [...]
In the investigation conducted so far, crime scene no. 2,
VPC Nagar to Main Road Kallikuppam Ambattur, Chennai is
within the jurisdiction of Ambattur All Women Police Station.
On 28.01.2000 Additional Deputy Commissioner, Women
and Child Prevention Division, Chennai West Zone gone
through the case received from (NCMEC) According to
the National Center for Exploited Children in this case
accused Harish AGE 24/S/o. Santhanam No. 2 VPC Nagar
First Main Road Kallikuppam Ampathur Chennai has been
using his phone number ( 99406 87836) for more than two
years from his mobile phone number OLD Size ID- KALLI
4/OLD Chm Id- CHM2307 Downloaded from the address
No.2 Gopalsamy, 3rd Main Road, Gangaiyamman Temple,
Ampathur, Kallikuppam, with the malicious intention of
viewing children’s pornographic films for sexual purposes
As this evil act is considered to be a crime of disturbance
of social morals, as per CTR NO 49303278 a report of
the crime has been received by NCRB.
Therefore, the accused in this case is considered to
have committed an offense of disturbing public morals
and therefore has committed a cognizable offense under
Section 67 (B) IT ACT & 15 (1) of the POCSO Act 2012. [...]”
B. IMPUGNED ORDER
9. Aggrieved by the aforesaid, the respondent no. 1 went before the
High Court of Judicature at Madras by way of a quashing petition
being the Criminal Original Petition (Crl. O.P.) No. 37 of 2024 for
the purposes of getting the aforesaid chargesheet and the criminal
proceedings arising therefrom quashed.
10. The impugned judgment of the High Court is in three-parts. In other
words, the High Court quashed the criminal proceedings essentially
on three grounds: -
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(i) First, the High Court was of the view that to constitute an offence
under Section 14(1) of POCSO, a child must have been used by
the person accused for pornographic purposes. It observed that
although the two videos depicting children engaged in a sexual
activity were found to have been downloaded and stored in the
mobile phone belonging to the respondent no. 1, and assuming
that the accused had watched the same yet the same would
not constitute an offence under Section 14(1) of the POCSO.
The relevant observations read as under: -
“9. To make out an offence under Section 14(1) of
Protection of Child from Sexual Offences Act, 2012, a
child or children must have been used for pornography
purposes. This would mean that the accused person
should have used the child for pornographic purposes.
Even assuming that the accused person had watched
child pornography video, that strictly will not fall within
the scope of Section 14(1) of Protection of Child from
Sexual Offences Act, 2012. Since he has not used
a child or children for pornographic purposes, at the
best, it can only be construed as a moral decay on
the part of the accused person.”
(ii) Secondly, the High Court held that, to constitute an offence
under Section 67B of the IT Act, the person accused must
have published, transmitted or created material depicting
children in sexually explicit act or conduct. It held that although
the respondent no. 1 had admitted that he was addicted to
watching pornography, yet mere watching or downloading of
child pornography without any transmission or publication of the
same does not fall within the purview of Section 67B of the IT
Act. The relevant portion reads as under: -
“6. This Court enquired the petitioner and he stated
that his date of birth is 13.11.1995 and that he has an
elder brother. After a lot of persuasion, the petitioner
admitted that during his teens, he had the habit of
watching pornography. However, the petitioner made
it clear that he had never watched child pornography.
That apart, he also stated that he had never attempted
to publish or transmit any of the pornographic
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materials to others. He had merely downloaded the
same and he had watched pornography in privacy.
xxx xxx xxx
10. In order to constitute an offence under Section
67-B of Information Technology Act, 2000, the
accused person must have published, transmitted,
created material depicting children in sexual explicit
act or conduct. A careful reading of this provision
does not make watching a child pornography, per
se, an offence under Section 67-B of Information
Technology Act, 2000. Even though Section 67-B of
Information Technology Act, 2000, has been widely
worded, it does not cover a case where a person has
merely downloaded in his electronic gadget, a child
pornography and he has watched the same without
doing anything more.”
(iii) Lastly, the High Court in light of its aforesaid discussion and
by placing reliance on Section 292 of the Indian Penal Code,
1860 (for short, the “IPC”) took the view that although the
pornographic content was found to have been downloaded
and stored in the mobile phone of the respondent no. 1 yet in
the absence of any material to show that the respondent no. 1
had transmitted or published the same, no offence whatsoever
could be said to have been made out either under the POCSO,
IT Act or the IPC and thus quashed the criminal proceedings.
The relevant observations read as under: -
“8. This Court had the advantage of going through
the entire CD file. The mobile phone that was seized
from the petitioner did contain pornographic materials.
However, for the purposes of this case, only two
videos were identified as child pornography. Those
two videos contain boys (under teen) involved in
sexual activity with an adult woman/girl. Admittedly,
those two videos were downloaded and available in
the mobile phone belonging to the petitioner and it
was neither published nor transmitted to others and
it was within the private domain of the petitioner.
xxx xxx xxx
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11. The Kerala High Court had an occasion to deal
with the scope of Section 292 IPC. That was a case
where a person was caught watching porn videos
and a First Information Report came to be registered
against him. While dealing with this issue, the Kerala
High Court held that, watching an obscene photo or
obscene video by a person by itself will not constitute
an offence under Section 292 IPC. This is in view of
the fact that this act is done by the concerned person
in privacy without affecting or influencing anyone else.
The moment the accused person tries to circulate or
distribute or publicly exhibits obscene photos or videos,
then the ingredients of the offence starts kicking in.
11. Thus, the High Court vide its impugned judgment and order dated
11.01.2024 allowed the petition and thereby quashed the criminal
proceedings in Spl. S.C. No. 170 of 2023 on the ground that no offence
could be said to have been made out against the respondent no. 1
either under Section 14(1) of the POCSO or Section 67B of the IT
Act. The operative portion of the Impugned Order reads as under: -
“12. In the considered view of this Court, the materials
that have been placed before this Court does not make
out an offence against the petitioner under Section 67-B
of Information Technology Act, 2000 and Section 14(1) of
Protection of Child from Sexual Offences Act, 2012.
xxx xxx xxx
18. In the light of the above discussion, the continuation of
the proceedings against the petitioner will amount to abuse
of process of Court. That apart, it will be a stumbling block
for the petitioner’s career in future. Therefore, this Court
is inclined to quash the proceedings in Spl.S.C.No.170
of 2023 on the file of the Sessions Judge, Mahila Neethi
Mandram (Fast Track Court), Tiruvallur District.
Accordingly, this Criminal Original Petition stands allowed
and the proceedings in Spl.S.C.No.170 of 2023 on the file
of the Sessions Judge, Mahila Neethi Mandram (Fast Track
Court), Tiruvallur District, is hereby quashed. Consequently,
connected criminal miscellaneous petition is closed.”
(Emphasis supplied)
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12. From the aforesaid it could be said that the High Court laid down
three propositions of law which are as follows: -
i. Mere possession or storage of any pornographic material is
not an offence under the POCSO. We are mindful of the fact
that, whilst endorsing the aforesaid proposition of law, the High
Court in its impugned Order either consciously did not deem it
necessary to refer to Section 15 of the POCSO or inadvertently
failed to refer to Section 15 of the POCSO. Nevertheless, in
either case that may be, the aforesaid proposition of law found
favour with the High Court.
ii. Section 67B of the IT Act only makes the act of transmission,
publication or creation of material depicting children in sexually
explicit manner an offence. Mere watching or downloading of
child pornography in private domain is not punishable under
the same.
iii. In the absence of any material to indicate any transmission or
publication of pornographic content involving child, no offence
could be said to have been committed under the POCSO or
the IT Act, and the criminal proceedings would be liable to be
quashed. In other words, to attract the provisions of the POCSO
or the IT Act it is not sufficient to merely establish storage
or possession of child pornography and that transmission or
publication of the same is also required to be established. In
the absence of the same the criminal proceedings are liable
to be quashed.
13. In such circumstances referred to above, the appellants being
aggrieved with the Impugned Order passed by the High Court have
come up before this Court with the present appeal.
C. SUBMISSIONS OF THE PARTIES
i. Submissions on behalf of the Appellants.
14. Mr. H.S. Phoolka, the learned Senior Counsel appearing for the
appellants submitted that the interpretation of the relevant provisions
of POCSO by the High Court for the purpose of holding that mere
storage or possession of any child pornographic material does not
amount to an offence, poses a significant threat to the well-being of
children and may result in proliferation of child pornography, posing
a significant threat to the very social fabric of the society at large.
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In support of his submissions, Mr. Phoolka relied on the Convention
on Cybercrime and the United Nations Convention on the Rights of
the Child, 1989.
15. He further submitted that the chargesheet filed by the investigating
agency specifically records that, as per the information received
from the National Commission for Missing and Exploited Children,
USA (NC-MEC), the accused had been watching child pornographic
videos for the past two years.
16. He further contended that the High Court erroneously proceeded
under Section 14(1) of the POCSO, which deals with the use of
children for pornographic purposes, without giving due consideration
to Section 15(1) of the Act.
17. He further submitted that Section 15(1) explicitly penalizes the
downloading and failure to delete child pornography. In the present
case, the respondent’s stance that he had received two files containing
child pornography via WhatsApp is falsified by the NC-MEC report.
Furthermore, there is nothing on record to substantiate that the
videos were received on WhatsApp.
18. It was further argued that the High Court committed a serious error
in quashing the criminal proceedings without addressing itself on
Section 15 of the POCSO. He submitted that the impugned judgment
poses a significant threat to child welfare and is contrary to several
national and international commitments.
19. He further submitted that the High Court also failed to distinguish
between adult pornography and child pornography, as Sections
67 and 67A of the IT Act deal with adult pornography, while
Section 67B was specifically introduced in 2009 to provide more
stringent punishment for collecting, downloading, or watching child
pornographic material.
20. He further submitted that in view of Section 30 of the POCSO the
High Court was legally obliged to presume the existence of a culpable
mental state on the part of the accused for having committed any
offence under the Act that requires such a mental state.
21. In the last, Mr. Phoolka submitted that a conjoint reading of Section
67B of the IT Act, Section 15, and Section 30 of the POCSO leaves no
manner of doubt as regards the culpability of persons in possession
of child pornography.
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ii. Submissions on behalf of the National Commission for
Protection of Child Rights (NCPCR).
22. Ms. Swarupama Chaturvedi, the learned Senior Counsel appearing
for the National Commission for Protection of Child Rights (NCPCR),
submitted that there was a serious lapse on the part of the State in
failing to register the FIR for the offence punishable under Section
15 of the POCSO, 2012, as the possession of pornographic material
involving a child in any form by itself is an offence under Section
15(1) of the Act. It was also argued that the State as a Prosecuting
agency failed in its duty to bring it to the notice of the High Court
that chargesheet was ultimately filed for the offence under Section
15(1) of the POCSO & not Section 14.
23. She further submitted that the accused had downloaded pornographic
material involving a child onto his mobile phone, retained possession
of it, and failed to take any steps to delete the same for two years,
as mandated under Section 19 of the POCSO, 2012.
24. She contended that the High Court failed to appreciate the mandate
of Section 30, which raises a presumption of a culpable mental
state on the part of the accused for any offence under the Act that
necessitates such a mental state. The provision, therefore, shifts
the burden of proving the absence of a culpable mental state onto
the accused.
25. She would further submit that Section 19 of the POCSO imposes
mandatory reporting of an offence under the Act if there was an
apprehension that such offence is likely to be committed or knowledge
that such an offence has been committed. It was pointed out that
the failure to discharge this obligation by itself is punishable under
Section 21 of the POCSO. She pointed out that the social media
platforms claim to report such instances to the National Center for
Missing and Exploited Children (NCMEC), a US-based NGO, which
then reports them to the National Crime Records Bureau (NCRB).
However, Section 19 mandates reporting such cases to the Special
Juvenile Police Unit (SJPU) or the Special Police. Therefore, reporting
to an NGO cannot absolve the social media platforms of its liability
under Section 21 of the POCSO.
26. In the last, it was submitted that the issue as regards the plight of
minors involved or used in child pornography is a matter of serious
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concern for one and all. She prayed for issuance of appropriate
directions. She submitted that in an age when children require
internet access for educational purposes, it has become imperative
to provide them with a safe online environment in accordance with
Article 12 of the United Nations Convention on the Rights of the
Child (UNCRC).
iii. Submissions on behalf of the respondent no. 1 / the Sole
Accused.
27. Mr. Prashant S. Kenjale, the learned Counsel appearing for the
respondent no. 1 / the accused, submitted that the FIR was lodged
for the offence under Section 14(1) of the POCSO and Section 67B
of the IT Act, and thus, no error not to speak of any error of law
could be said to have been committed by the High Court in passing
the impugned order.
28. He further submitted that the date of the receipt of the videos
recovered from the mobile phone of the respondent no. 1 phone is
14.06.2019, at which point the 2019 amendment to Section 15 was
not yet in force.
29. He further contended that the two files found from the Respondent’s
phone were named (a.) VID-20190614-WA005.mp4 and (b.) VID-
20190823-WA0020.mp4. The use of “WA” in the file names indicates
that they were automatically downloaded by WhatsApp, which
has an auto-download feature, as shown in a research study. He
would submit that in such circumstances, the said videos had been
automatically downloaded onto his phone and that the respondent
no. 1 was unaware of their existence. He argued that the forensic
evidence clearly indicates both the creation and modification date as
14.06.2019, thereby indicating that the files were never accessed.
30. He further submitted that the mere possession of the aforesaid videos
does not constitute an offence under Section 15(1) of the POCSO,
as the respondent never had any intention to share or distribute
them. He also argued that even if it is assumed that the respondent
no. 1 had watched the said videos once and then failed to delete
it, he cannot be charged under Section 15(1) of the POCSO, as
he was unaware of its presence due to the government’s failure to
publicize the law.
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31. He submitted that ignorance of law on the part of the respondent
no. 1 was accompanied by a bona fide belief, and as such it would
not constitute an offence under Section(s) 15 of the POCSO and
67B of the IT Act. In support of this argument, he placed reliance
on the decisions of this Court in Chandi Kumar Das Karmarkar v.
Abanidhar Roy, reported in AIR 1965 SC 585, and Motilal Padampat
Sugar Mills Co. Ltd. v. State of U.P., reported in (1979) 2 SCC 409.
iv. Submissions on behalf of the respondent nos. 2 & 3 / the
State.
32. Mr. D. Kumanan, the learned Counsel appearing for the State,
submitted that the High Court, whilst passing the Impugned Order
proceeded on an erroneous footing that an offence under Section
14 of the POCSO had been alleged against the accused, even-
though both the chargesheet as-well as the quashing petition clearly
mentioned that the indictment against the accused was under Section
15(1) of the POCSO.
33. He further submitted that the High Court in its Impugned Order
failed to look into Section 67B of the IT Act. The High Court whilst
quashing the criminal proceedings neither discussed nor gave any
due consideration to Section 67B, eventhough chargesheet had
been filed for an offence under it.
34. It was submitted that both Section 15 of the POCSO and Section 67B
of the IT Act had been enacted with the salutary object of curtailing
child abuse by penalizing any form of use of child pornography,
including watching of such pornographic content in order to tackle
the larger problem of creation and dissemination of such material
by the perpetrators.
35. He submitted that more than hundred pornographic videos were
found stored in the mobile phone of the respondent no. 1 / accused
herein. Furthermore, the accused had himself admitted before the
High Court that he along with his friends would regularly watch such
pornographic material. In such circumstances it was argued that the
accused had stored such material in his phone with the intention of
sharing it with his friends.
36. It was further submitted that the marginal note of Section 15 of
the POCSO i.e. “Punishment for storage of pornographic material
involving child” is self-explanatory and that sub-section (1) of the
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said provision punishes the storage or possession of any such
pornographic material when done with an intention to share or transmit
it. Reliance was placed on Section 30 of the POCSO to argue that
the said provision specifically provides for presumption of a culpable
mental state on part of the accused for any offence under the Act
which requires such mental state, and as such the onus was on
the accused to prove that he had no intention to share the material
that was found stored in his phone, which was also overlooked by
the High Court.
37. In the last, it was submitted that once the chargesheet and the other
materials on record prima-facie disclosed the commission of an
offence, more particularly the pornographic videos that were found
stored in the mobile phone of the accused, it was not proper for the
High Court to exercise its inherent powers under Section 482 of the
Cr.P.C to quash the criminal proceedings.
D. ISSUES FOR DETERMINATION
38. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the following questions
of law fall for our consideration: -
I. What is the scope of Section 15 of the POCSO? In other words,
what is the underlying distinction between sub-section(s) (1),
(2) and (3) respectively of the POCSO?
II. Whether, mere viewing, possessing or storing of any child
pornographic material is punishable under the POCSO?
III. What is the true scope of Section 67B of the IT Act?
IV. What is the scope of Section 30 of the POCSO? In, other
words, what are the foundational facts necessary for invoking
the statutory presumption of culpable mental state in respect
of Section 15 of the POCSO?
V. Whether, the statutory presumption contained in Section 30 of
the POCSO can be invoked only at the stage of trial by the
Special Court alone established under the POCSO? In other
words, whether it is permissible for the High Court in a quashing
petition filed under Section 482 of the Cr.P.C. to resort to the
statutory presumption of culpable mental state contained in
Section 30 of the POCSO?
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E. ANALYSIS
i. Relevant Statutory Scheme and Provisions.
a. Legislative History and Scheme of the POCSO.
39. Before adverting to the rival submissions canvassed on either side,
it would be apposite to first look into the statutory scheme and refer
to the relevant provisions of the POCSO.
40. As the long title, ‘Protection of Children from Sexual Offences Act,
2012’ suggests, the POCSO was enacted by the Parliament to
address the urgent need for a comprehensive law to protect children
from sexual abuse and exploitation.
41. Sexual exploitation of children is a pervasive and deeply rooted issue
that has plagued the societies worldwide and has been a matter of
serious concern in India. Prior to the enactment of the POCSO, India
lacked a specific legal framework dedicated to dealing with sexual
offenses against children. While the provisions related to sexual
offenses existed in the IPC, they were not adequately tailored to
address the unique vulnerabilities and the needs of children.
42. The inadequacy of the existing laws to effectively deal and combat
with the sexual abuse of children was starkly evident. The IPC, though
equipped to handle sexual offences, did not explicitly recognize the
various forms of sexual abuse that children might face. Under the
IPC there was no distinction between an adult and a child victim
for the purposes of the offences punishable under the Code nor did
it account for the specific psychological and developmental needs
of such child victims. Moreover, the procedural laws were not child-
friendly, often resulting in secondary victimization during the legal
process. The increasing incidence of child sexual abuse in India and
the growing awareness of the long-term psychological impact on the
victims underscored the need for a dedicated law. The POCSO was
introduced to fill this gap and provide a robust legal mechanism to
safeguard children from sexual crimes and protect them from offences
of sexual assault, sexual harassment and pornography.
43. The Statement of Objects and Reasons for the enactment of the
POCSO makes it abundantly clear that since the sexual offences
against children were not adequately addressed by the existing
laws and a large number of such offences were neither specifically
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provided for nor were they adequately penalized, the POCSO has
been enacted to protect the children from the offences of sexual
assault, sexual harassment and pornography and to provide for
establishment of Special Courts for trial of such offences and for
matters connected therewith and incidental thereto.
44. It further states that the POCSO is a ‘self-contained comprehensive
legislation’ for the purpose of enforcing the rights of all children to
safety, security and protection from sexual abuse and exploitation
countered through commensurate penalties as an effective deterrence
for sexual offences and pornography and has been enacted keeping
in mind Articles 15 and 39 of the Constitution respectively and
the United Nations Convention on the Rights of the Children. The
Statement of Objects and Reasons of the POCSO reads as under: -
“STATEMENT OF OBJECTS AND REASONS
Article 15 of the Constitution, inter alia, confers upon
the State powers to make special provision for children.
Further, Article 39, inter alia, provides that the State shall in
particular direct its policy towards securing that the tender
age of children are not abused and their childhood and
youth are protected against exploitation and they are given
facilities to develop in a healthy manner and in conditions
of freedom and dignity.
The United Nations Convention on Rights of Children,
ratified by India on 11th December,1992, requires the State
Parties to undertake all appropriate National, By-lateral
and Multi lateral measures to prevent (a) the inducement
or coercion of a child to engage in any unlawful sexual
activity; (b) the exploitative use of children in prostitution or
other unlawful sexual practices; and (c) the exploitative use
of children in pornographic performances and materials.
The data collected by the National Crime Records Bureau
shows that there has been increase in cases of sexual
offences against children. This is corroborated by the ‘study
on child abuse: India 2007’ conducted by the Ministry of
Women and Child Department. Moreover, sexual offences
against children are not adequately addressed by the
extent laws. A large number of such offences are neither
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specifically provided for nor are they adequately penalized.
The interests of the child, both as a victim as well as a
witness, need to be protected. It is felt that offences against
children need to be defined explicitly and countered through
commensurate penalties as an effective deterrence.
It is, therefore, proposed to enact a self-contained
comprehensive legislation inter-alia to provide for protection
of children from the sexual offences and pornography
with due regard for safeguarding the interest and well
being of the child at every stage of the Judicial process,
incorporating child friendly procedures for reporting,
recording of evidence, investigation and trial of offences
and provision for establishment of Special Courts for
speedy trial of such offences.
(Emphasis supplied)
45. The primary legislative intent behind the enactment of the POCSO
was to create a comprehensive legal framework that would not
only punish offenders but also provide a child-friendly system for
the recording of evidence, investigation, and trial of offenses. The
POCSO was designed to cover all forms of sexual abuse against
children, including sexual harassment, child pornography, and
aggravated sexual assault, among others. It aimed to ensure the
safety and dignity of child victims during the legal process, with
specific provisions that mandate in-camera trials, the presence of a
trusted adult during the proceedings, and the prohibition of aggressive
questioning of child victims.
46. The POCSO is a manifestation of the unique scheme formed by
Article(s) 15 and 39 respectively of the Constitution and the obligation
cast by the United Nations Convention on Rights of Children that
was ratified by India. Article 15 more particularly sub-article (3) read
with Article 39(f) of the Constitution i) enables the State to make
special provisions for children AND ii) at the same time obligates
the State to direct its policy towards ensuring that the tender and
vulnerable age of children is not exploited or abused and to secure
a dignified and healthy childhood and youth, free from any moral or
material abandonment or exploitation. The UN Convention on Rights
of Children prescribes a set of standards that have to be ensured
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by all State parties including India to secure the best interest of the
child and to specifically undertake preventive measures against any
form of exploitation of children such as prostitution, unlawful sexual
activity or pornographic performances and depictions. The POCSO is
a legislative manifestation towards realization of these constitutional
provisions, by providing a specialized framework to combat and
prevent any and all forms of sexual abuse and exploitation as stated
in its long Preamble. The relevant portion of the long Preamble of
the POCSO reads as under: -
“An Act to protect children from offences of sexual assault,
sexual harassment and pornography and provide for
establishment of Special Courts for trial of such offences
and for matters connected therewith or incidental thereto.
Whereas clause (3) of article 15 of the Constitution, inter
alia, empowers the State to make special provisions for
children;
And whereas, the Government of India has acceded on
the 11th December, 1992 to the Convention on the Rights
of the Child, adopted by the General Assembly of the
United Nations, which has prescribed a set of standards
to be followed by all State parties in securing the best
interests of the child;
And whereas it is necessary for the proper development of
the child that his or her right to privacy and confidentiality
be protected and respected by every person by all means
and through all stages of a judicial process involving the
child;
And whereas it is imperative that the law operates in a
manner that the best interest and well being of the child
are regarded as being of paramount importance at every
stage, to ensure the healthy physical, emotional, intellectual
and social development of the child;
And whereas the State parties to the Convention on
the Rights of the Child are required to undertake all
appropriate national, bilateral and multilateral measures
to prevent –
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(a) the inducement or coercion of a child to engage in
any unlawful sexual activity;
(b) the exploitative use of children in prostitution or other
unlawful sexual practices;
(c) the exploitative use of children in pornographic
performances and materials;
And whereas sexual exploitation and sexual abuse of
children are heinous crimes and need to be effectively
addressed.”
47. Section 2(1) sub-clause (d) of the POCSO defines the term “child”
to mean any person below the age of eighteen years. Thus, the
definition of the term “child” used under the POCSO is denuded of
any gender i.e., the term is both gender neutral and gender fluid and
as such will include any person who is below the age of 18-years.
The relevant provision reads as under: -
“2. Definitions. –
(1) In this Act, unless the context otherwise requires, –
(d) “child” means any person below the age of eighteen
years;”
48. Section 2(1)(da) defines the term “child pornography” to mean and
include any visual depiction of a child involved in any sexually explicit
conduct such as photograph, video, image generated digitally or by
a computer which is indistinguishable from an actual child i.e., any
self-generated image of an actual child or any other image that has
been created, adapted or modified, that appears to depict a child.
The relevant provision reads as under: -
“2. Definitions. –
(1) In this Act, unless the context otherwise requires, –
(da) “child pornography” means any visual depiction of
sexually explicit conduct involving a child which include
photograph, video, digital or computer generated image
indistinguishable from an actual child and image created,
adapted, or modified, but appear to depict a child;”
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49. Section 15 of the POCSO delineates and provides when the storage
or possession of pornographic material involving a child shall be a
punishable offence under the POCSO and further prescribes the
punishment for such storage or possession of pornographic material
involving a child. The relevant provision reads as under: -
“15. Punishment for storage of pornographic material
involving child. –
(1) Any person, who stores or possesses pornographic
material in any form involving a child, but fails to delete
or destroy or report the same to the designated authority,
as may be prescribed, with an intention to share or
transmit child pornography, shall be liable to fine not less
than five thousand rupees and in the event of second or
subsequent offence, with fine which shall not be less than
ten thousand rupees.
(2) Any person, who stores or possesses pornographic
material in any form involving a child for transmitting or
propagating or displaying or distributing in any manner
at any time except for the purpose of reporting, as may
be prescribed, or for use as evidence in court, shall be
punished with imprisonment of either description which
may extend to three years, or with fine, or with both.
(3) Any person, who stores or possesses pornographic
material in any form involving a child for commercial
purpose shall be punished on the first conviction with
imprisonment of either description which shall not be less
than three years which may extend to five years, or with
fine, or with both and in the event of second or subsequent
conviction, with imprisonment of either description which
shall not be less than five years which may extend to
seven years and shall also be liable to fine.”
50. It would be worthwhile to note that Section 15 of the POCSO had
undergone a significant change by virtue of the Protection of Children
from Sexual Offences (Amendment) Act, 2019 (for short, the “2019
Amendment Act”), whereby several key changes were introduced.
We shall discuss the said provision viz-à-viz the unamended provision
of Section 15 along with the object and purpose behind the 2019
Amendment Act in more detail in the latter part of this judgment.
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51. Section 30 of the POCSO provides for the presumption of culpable
mental state and provides that where any offence under the POCSO
requires a culpable mental state on the part of the accused, the
existence of such mental state on the part of the accused shall be
presumed by the Special Court, and that it shall be open for the
accused to rebut this presumption. In other words, the accused can
prove that he had no such mental state with respect to any offence
under the Act. The relevant provision reads as under: -
“30. Presumption of culpable mental state. –
(1) In any prosecution for any offence under this Act
which requires a culpable mental state on the part of the
accused, the Special Court shall presume the existence
of such mental state but it shall be a defence for the
accused to prove the fact that he had no such mental
state with respect to the act charged as an offence in
that prosecution.
(2) For the purposes of this section, a fact is said to
be proved only when the Special Court believes it to
exist beyond reasonable doubt and not merely when its
existence is established by a preponderance of probability.
Explanation. – In this section, “culpable mental state”
includes intention, motive, knowledge of a fact and the
belief in, or reason to believe, a fact.”
52. This Court in its decision in Independent Thought v. Union of India
& Anr. reported in 2017 INSC 1030 held that the preamble to the
POCSO recognizes and mandates that the Act and its provisions
ought to operate and be interpreted in a manner that would be in the
best interest and well-being of the child. It should i) ensure that the
sexual exploitation and abuse of children are addressed effectively
and ii) induce a healthy physical, emotional, intellectual and social
development of the child. The relevant observations read as under: -
“42. [...] The Preamble to the POCSO Act also recognizes
that it is imperative that the law should operate “in a
manner that the best interest and well being of the
child are regarded as being of paramount importance at
every stage, to ensure the healthy, physical, emotional,
intellectual and social development of the child”. Finally,
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the Preamble also provides that “sexual exploitation and
sexual abuse of children are heinous crimes and need to
be effectively addressed”. [...]”
(Emphasis supplied)
53. In Attorney General for India v. Satish reported in 2021 INSC 762
this Court had the occasion to examine the entire legislative scheme
of the POCSO. It held that each provision of the POCSO should be
construed viz-a-viz the other provisions of the Act and with reference to
the context or background with which the legislation was enacted, so
as to make the Act and its provisions more meaningful and effective.
This Court further emphasized that, while construing the provisions
of the POCSO, the impact of sexual assault and exploitation on the
children should not be ignored and further the courts should avoid
a narrow or pedantic interpretation that would the defeat the statute;
rather, where the intention of the legislature cannot be given effect
to or cannot be realized, a meaningful construction of the statute
should be adopted to bring about a more effective result. The relevant
observations read as under: -
“33. [...] As per the rule of construction contained in
the maxim “Ut Res Magis Valeat Quam Pereat”, the
construction of a rule should give effect to the rule rather
than destroying it. Any narrow and pedantic interpretation
of the provision which would defeat the object of the
provision, cannot be accepted. It is also needless to say
that where the intention of the Legislature cannot be given
effect to, the courts would accept the bolder construction
for the purpose of bringing about an effective result. [...]
xxx xxx xxx
37. [...] However, it is equally settled legal position that the
clauses of a statute should be construed with reference to
the context vis-a-vis the other provisions so as to make a
consistent enactment of the whole Statute relating to the
subject matter. The Court can not be oblivious to the fact
that the impact of traumatic sexual assault committed on
children of tender age could endure during their whole
life, and may also have an adverse effect on their mental
state. The suffering of the victims in certain cases may be
immeasurable. Therefore, considering the objects of the
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POCSO Act, its provisions, more particularly pertaining
to the sexual assault, sexual harassment etc. have to be
construed vis-a-vis the other provisions, so as to make the
objects of the Act more meaningful and effective.”
(Emphasis supplied)
54. Justice S. Ravindra Bhat in his concurring opinion in Attorney General
for India (supra) further observed that the POCSO and its nuanced
provisions were designed keeping in mind the need to protect the
autonomy and dignity of children. It was enacted to criminalize those
acts and behaviour that have the propensity to harass, discomfit or
demean minors, and as such it is the duty of the courts to ensure
that the provisions of the POCSO are not interpreted in a manner
that would undermine its purpose or the pressing needs of the times.
The relevant observations read as under: -
“11. The limitations in law in dealing with acts that undermined
the dignity and autonomy of women and children, ranging
from behaviour that is now termed “stalking” to pornography,
or physical contact, and associated acts, which were not
the subject matter of any penal law, were recognized
and appropriate legislative measures adopted, in other
countries. These have been alluded to in Trivedi, J’s
judgment, in detail. These laws contain nuanced provisions
criminalizing behaviour that involve unwanted physical
contact of different types and hues, have the propensity to
harass and discomfit women and minors (including minors
of either sex), or demean them.
xxx xxx xxx
33. In the end, I cannot resist quoting Benjamin Cardozo
that “the great tides and currents which engulf the rest of
men do not turn aside in their course and pass the judges
by.” It is, therefore, no part of any judge’s duty to strain
the plain words of a statute, beyond recognition and to
the point of its destruction, thereby denying the cry of the
times that children desperately need the assurance of a
law designed to protect their autonomy and dignity, as
POCSO does.”
(Emphasis supplied)
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55. Similarly in Eera through Dr. Manjula Krippendorf v. State (Govt. of
NCT of Delhi) & Anr. reported in 2017 INSC 658, this Court observed
that the POCSO had been brought with the purpose of protecting
the children from sexual exploitation and harassment. It had been
designed to secure the well-being and the best interests of the child
with the protection of the child’s dignity being the backbone of the
legislation. The dignity, protection and interest form the bedrock of
the POCSO. The relevant observations read as under: -
“18. The purpose of referring to the Statement of Objects
and Reasons and the Preamble of the POCSO Act is to
appreciate that the very purpose of bringing a legislation
of the present nature is to protect the children from the
sexual assault, harassment and exploitation, and to
secure the best interest of the child. On an avid and
diligent discernment of the preamble, it is manifest that
it recognizes the necessity of the right to privacy and
confidentiality of a child to be protected and respected
by every person by all means and through all stages of a
judicial process involving the child. Best interest and well
being are regarded as being of paramount importance at
every stage to ensure the healthy physical, emotional,
intellectual and social development of the child. There
is also a stipulation that sexual exploitation and sexual
abuse are heinous offences and need to be effectively
addressed. The statement of objects and reasons provides
regard being had to the constitutional mandate, to direct
its policy towards securing that the tender age of children
is not abused and their childhood is protected against
exploitation and they are given facilities to develop in
a healthy manner and in conditions of freedom and
dignity. There is also a mention which is quite significant
that interest of the child, both as a victim as well as a
witness, needs to be protected. The stress is on providing
child-friendly procedure. Dignity of the child has been
laid immense emphasis in the scheme of legislation.
Protection and interest occupy the seminal place in the
text of the POCSO Act.
xxx xxx xxx
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63. [...] The POCSO Act, as I have indicated earlier,
comprehensively deals with various facets that are likely
to offend the physical identity and mental condition of a
child. The legislature has dealt with sexual assault, sexual
harassment and abuse with due regard to safeguard the
interest and well being of the children at every stage
of judicial proceeding in an extremely detailed manner.
The procedure is child friendly and the atmosphere as
commanded by the provisions of the POSCO Act has to
be congenial. The protection of the dignity of the child is
the spine of the legislation. [...]”
(Emphasis supplied)
56. In Nawabuddin v. State of Uttarakhand reported in 2022 INSC
162 this Court held that any act of sexual assault, exploitation or
harassment of the children should be dealt with in a stringent manner
and that no leniency should be shown when dealing with an offence
under the POCSO in view of the object that is sought to be achieved
by the Act. The relevant observations read as under: -
“10. Keeping in mind the aforesaid objects and to achieve
what has been provided under Article 15 and 39 of the
Constitution to protect children from the offences of
sexual assault, sexual harassment, the POCSO Act, 2012
has been enacted. Any act of sexual assault or sexual
harassment to the children should be viewed very seriously
and all such offences of sexual assault, sexual harassment
on the children have to be dealt with in a stringent manner
and no leniency should be shown to a person who has
committed the offence under the POCSO Act. By awarding
a suitable punishment commensurate with the act of sexual
assault, sexual harassment, a message must be conveyed
to the society at large that, if anybody commits any offence
under the POCSO Act of sexual assault, sexual harassment
or use of children for pornographic purposes they shall
be punished suitably and no leniency shall be shown to
them. Cases of sexual assault or sexual harassment on
the children are instances of perverse lust for sex where
even innocent children are not spared in pursuit of such
debased sexual pleasure.”
(Emphasis supplied)
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b. Relevant Provisions of the IT Act.
57. For better and effective adjudication of the issues involved in the
case at hand, it would be apposite to refer to the IT Act which also
contains several provisions, more particularly Section(s) 67, 67A and
67B respectively, that penalize the use, transmission and publication
of obscene materials including child pornography. These provisions
together encompass and collectively form the umbrella scheme of
comprehensive penal provisions contained in the IT Act in this regard.
58. Section 67 of the IT Act is the principal provision that criminalizes the
publication or transmission of “obscene material” in any electronic
form and constitutes an offence. Section 67A of the IT Act, is a
more aggravated offence, prescribing enhanced punishment than
the preceding provision. It does so by further amplifying the scope
of ‘obscene material’ by stipulating that any obscene material that
contains or depicts any sexually explicit act or conduct, when
published or transmitted shall be punishable under the said provision.
59. Section 67B of the IT Act specifically deals with child pornographic
materials. It provides for an even more severe form of offence by
bringing within its ambit those obscene materials in any electronic
form that depict a child in any sexually explicit act or conduct and
by further expanding the scope of ‘actus reus’ which is punishable
under the provision to include not just publication or transmission
but also the browsing, creation, collection, online facilitation or
enticement of children into any sexual act or conduct etc. The said
provision reads as under: -
“67B. Punishment for publishing or transmitting of
material depicting children in sexually explicit act,
etc., in electronic form. — Whoever —
(a) publishes or transmits or causes to be published or
transmitted material in any electronic form which depicts
children engaged in sexually explicit act or conduct; or
(b) 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; or
(c) cultivates, entices or induces children to online
relationship with one or more children for and on sexually
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explicit act or in a manner that may offend a reasonable
adult on the computer resources; or
(d) facilitates abusing children online; or
(e) records in any electronic form own abuse or that of
others pertaining to sexually explicit act with children,
shall be punished on first conviction with imprisonment
of either description for a term which may extend to five
years and with a fine which may extend to ten lakh rupees
and in the event of second or subsequent conviction with
imprisonment of either description for a term which may
extend to seven years and also with fine which may extend
to ten lakh rupees:
Provided that provisions of Section 67, Section 67-A
and this section does not extend to any book, pamphlet,
paper, writing, drawing, painting, representation or figure
in electronic form—
(i) the publication of which is proved to be justified as being
for the public good on the ground that such book, pamphlet,
paper, writing, drawing, painting, representation or figure
is in the interest of science, literature, art or learning or
other objects of general concern; or
(ii) which is kept or used for bona fide heritage or religious
purposes.
Explanation. — For the purpose of this section, “children”
means a person who has not completed the age of 18
years.”
ii. Scope of Section 15 of the POCSO and Section 67B of
the IT Act.
60. In the case at hand, we are concerned with the interpretation of Section
15 of the POCSO and Section 67B of the IT Act, more particularly
the scope of these two provisions and what would constitute an
offence under each of them. In other words, what exactly has been
made punishable under Section(s) 15 of the POCSO and 67B of
the IT Act respectively and what are the necessary ingredients or
elements to establish or make out an offence under it.
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a. Contradictory Views of different High Courts on the subject.
61. Before proceeding with the analysis of the aforesaid two provisions, it
would be appropriate to refer to the decisions of various High Courts
and the cleavage of opinion that have been expressed as regards the
scope of Section 15 of the POCSO and Section 67B of the IT Act.
62. In Nupur Ghatge v. State of Madhya Pradesh (MCRC No. 52596
of 2020), the accused therein was alleged to have uploaded child
pornographic videos and photographs on his social media account,
and thus, a case was registered against him under Section 67B of
the IT Act. The Gwalior Bench of the Madhya Pradesh High Court
held that Section 67B penalizes various forms of acts including the
act of watching or transmitting any child pornographic material in
electronic form. It further held that any defence of the accused as to
the absence of any involvement in transmission or sharing of such
material or the mental state of the accused cannot be looked into at
the stage of quashing under Section 482 of the Cr.P.C. The relevant
observations read as under: -
“From the whats-app chats filed by the applicant, it appears
that the applicant himself was involved in porn activities,
therefore, the provision of Section 67B of the Act, 2000
would be applicable as Section 67-B of the Act, 2000 also
includes records in any electronic form own abuse or that
of others pertaining to sexually explicit act with children.
xxx xxx xxx
The burden is on the applicant to prove his defence which
cannot be decided by this Court in exercise of powers
under Section 482 of CrPC.”
63. In P.G. Sam Infant Jones v. State represented by Inspector
of Police reported in 2021 SCC OnLine Mad 2241 the accused
therein was alleged to have browsed, downloaded and transmitted
child pornographic material through his e-mail and social media
account. Accordingly, a case was registered against him for the
offences under Section 15(1) of POCSO and Section 67B of the IT
Act, whereupon the accused therein preferred an anticipatory bail
application before the Madurai Bench of the Madras High Court.
The Madras High Court observed that while viewing of pornography
in private domain may not be an offence in view of an individual’s
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right to expression and privacy, child pornography falls outside the
ambit of such individual rights and stands on a different footing. It
held that Section 67B penalizes various kinds of acts pertaining to
child pornography including the act of viewing such material. The
relevant observations read as under: -
3.The case of the prosecution is that on 27.06.2020 at
17.38:51 hours, the petitioner browsed, downloaded and
transmitted child pornographic material by using Airtel Sim
bearing No.9787973370 through his e-mail and Facebook
Account.
xxx xxx xxx
5. Viewing pornography privately will not constitute an
offence. Offence is an act that is forbidden by law and
made punishable. That is the definition found in Section
40 of IPC. As on date, there is no provision prohibiting
such private acts. There are some who even elevate it as
falling within one’s right to free expression and privacy.
But child pornography falls outside this circle of freedom.
Section 67-B of the Information Technology Act, 2000
penalises every kind of act pertaining to child pornography.
[...] Therefore, even viewing child pornography constitutes
an offence.
(Emphasis supplied)
64. In Ajin Surendran v. State of Kerala & Anr. reported in 2022 KER
7207 child pornographic videos were found stored in the mobile
phone of the accused therein. The High Court of Kerala at Ernakulam
observed that Section 15 of POCSO gets attracted when any person
stores or possesses pornographic material in any form involving a
child, with an intention to share or transmit it, whereas Section 67B
of the IT Act gets attracted when a person browses or downloads
any such material in any electronic form. Accordingly, it held that in
view of the videos that were found stored in the accused’s mobile
phone, prima-facie both of the aforesaid provisions are said to be
squarely attracted, and thus the power under Section 482 cannot
be invoked for quashing the criminal proceedings. The relevant
observations read as under: -
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“3. I have gone through the first information statement as
well as the final report. It would show that the mobile phone
belongs to the petitioner and the sim card was examined
and it was found that in the memory card, pornographic
video of children were stored. Section 15 of POCSO Act
gets attracted when any person stores or possesses
pornographic material in any form involving a child,
with an intention to share or transmit child pornography.
Section 67B(b) of the IT Act gets attracted when a person
among other things, browses or downloads material in any
electronic form depicting children in obscene or indecent
or sexually explicit manner. Thus, both the sections are
squarely attracted. When prima facie case is made out,
power under Section 482 cannot be invoked.”
(Emphasis supplied)
65. In Manuel Benny v. State of Kerala reported in 2022 KER 9730 it
was found that the accused person therein had downloaded and stored
pornographic videos depicting children in a sexually explicit manner
in his mobile phone from a messaging app; ‘Telegram’ for private
viewing. Accordingly, a case was registered against the accused
therein under Section 15 of the POCSO and Section 67B of the IT
Act. When the final report came to be filed, the offence under Section
15 of the POCSO was dropped, and chargesheet was filed only for
the offence under Section 67B of the IT Act. The accused preferred
a quashing petition before the High Court of Kerala at Ernakulam on
the ground that even if the materials in the chargesheet were taken
at their face value, no ingredients were made out to constitute the
offence under Section 67B of the IT Act. A learned Single Judge of
the High Court whilst quashing the criminal proceedings held that
in order to attract the offence under Section 67B of the IT Act, the
pornographic material in question must be voluntarily downloaded.
It held that there should be an intention on the part of the accused
to download any pornographic content in order to view it so as to
constitute an offence under Section 67B of the IT Act. The learned
Single Judge further observed that as per the FSL report, the child
pornographic videos had been accessed through the messaging app
‘Telegram’ wherein there is a possibility of automatic download of
videos. Since there was no material to show that the accused therein
had voluntarily downloaded or browsed the pornographic material in
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question, no prima facie offence had been made out under Section
67B of the IT Act, and thus the High Court quashed the criminal
proceedings. The relevant observations read as under: -
“5. A perusal of the final report would show that the only
allegation against the petitioner is that he downloaded and
enjoyed material depicting children in obscene, indecent
and sexually explicit manner from the application called
‘Telegram’. In order to attract the offence under Section 67B
of the IT Act, the videos or material has to be voluntarily
downloaded into any device. In other words, there should
be intention on the part of the petitioner to download the
material in order to view it. The definite case of the petitioner
is that he did not download any offensive material. Even in
Annexure A3 FSL report it is seen that the path of those
images is from Android backup and the child pornographic
videos were accessed through ‘Telegram’. The learned
Additional DGP submitted that the contents transmitted
in the ‘Telegram’ can be automatically downloaded in the
mobile phone by default. Hence, it cannot be said that
the petitioner has intentionally downloaded the material,
considering the features of the ‘Telegram’ App.
Since there is no material to show that the petitioner has
browsed or downloaded child pornographic material, the
offence under Section 67B of the IT Act is not attracted.
Hence, no purpose will be served in proceedings with
the matter further. Accordingly, the Crl.M.C is allowed. All
further proceedings pursuant to Annexure A2 final report
in Crime No.531/2020 of Melukavu Police Station now
pending as C.C.No.257/2021 on the files of the Judicial
Magistrate of the First Class, Erattupetta stands hereby
quashed.”
(Emphasis supplied)
66. In Lakshya v. State of Maharashtra & Anr. (Criminal Writ Petition
No. 479 of 2022), the accused therein had viewed and stored a child
pornographic video in his mobile, which he subsequently showed
to his other friends and co-accused therein. On the basis of the
aforesaid, a case was registered against the accused persons under
Section(s) 15(1) and (3) of the POCSO along with Section 67B of the
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IT Act. The accused preferred a discharge application which came to
be rejected by the Trial Court whereafter the accused therein went
in appeal before the High Court of Judicature at Bombay, Nagpur
Bench. The learned Single Judge of the High Court dismissed the
appeal and upheld the rejection of the discharge application by the
Trial Court. The High Court held that merely because the accused
therein was not the creator of the pornographic material in question
it cannot be said that no offence had been made out. It held that the
act of the accused to store and forward the pornographic material and
the failure on his part to delete or report the same would squarely
fall within the ambit of Section(s) 15(1) and (2) of the POCSO and
Section 67B of the IT Act. However, the High Court chose not to
advert to the offence under Section 15(3) of the POCSO that was
contained in the chargesheet as a prima facie case had already been
established against the accused therein for the other offences with
which they were charged. The relevant observation reads as under: -
“8. With the assistance of the learned Advocate for the
accused and the learned APP for the State, I have gone
through the provisions of Section 67-B of the I. T. Act
and Section 15 of the POCSO Act. The main allegation
against the accused is that they stored, forwarded and
shared with each other porn video. Even if it is assumed
for the sake of argument that they are not creators of the
porn video, in my view, the benefit of discharge cannot
be granted to them. [...]
9. In my view, perusal of Section 15 of the POCSO Act in
entirety would show that the act of the accused persons to
store, forward and possess pornographic material involving
a child is squarely covered under Section 15(1) and (2) of
the POCSO Act. They failed to delete or destroy or report
the same to the designated authority. As per the case of
the prosecution, they stored, possessed and circulated the
said porn video. Therefore, in my view, at this stage, it is
very difficult for the accused to come out of the tentacles
of Section 15(1) and (2) of the POCSO Act.
10. Section 67-B of the I.T. Act provides a punishment for
publishing or transmitting the material depicting children
in Sexually explicit act, etc., in an electronic form. If the
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basic ingredient of Section 67-B, prima facie, are applied
to the facts of the case on hand, it would show beyond
doubt that the act of the accused is squarely covered within
the ambit of Section 67-B of the I. T. Act. In my view, in
the teeth of the allegations against the accused and the
material collected during the course of investigation and
compiled in the charge-sheet, it would be very difficult to
accept the contention of the accused persons. It is true
that the applicants are young. They are students. They
are from reputed family. However, while deciding the
discharge application this could not be the consideration. If
this submission is accepted on this ground then this would
be nothing short of showing misplaced sympathy to the
persons who are prima facie accused of the commission
of offence.”
(Emphasis supplied)
67. In Shantheeshlal T. v. State of Kerala reported in 2024 KER 35968,
during investigation certain pornographic videos involving a child
had been recovered from the device of the accused thereunder.
Accordingly, chargesheet was submitted against the accused therein
for the offences punishable under Section(s) 15(1) of the POCSO
and 67B of the IT Act. The accused thereunder preferred a quashing
petition before the High Court of Kerala at Ernakulam, wherein the
learned Single Judge quashed the aforesaid chargesheet and the
criminal proceedings taking the view as under: -
(i) First, the learned Single Judge held that in order to attract
the provision of Section 15(1) of the POCSO there must be
a storage or possession of child pornographic material and
further such material should be shown to have been shared
or transmitted by the person accused. Mere possession or
storage of pornographic material by itself is not an offence
under Section 15(1) of the POCSO unless it is shown that the
accused person had indeed shared or transmitted such material.
In other words, to constitute an offence under Section 15(1)
there must be an actual act of transmission or sharing of the
pornographic material depicting a child in a sexually explicit act
or conduct that was found to be stored or in possession of the
accused. The relevant observation reads as under: -
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“9. Reading the provision, it is emphatically clear that storing
or possessing pornographic materials in any form involving
a child and failure to delete or destroy or report the same
to the designated authority, as may be prescribed, with an
intention to share or transmit child pornography, shall be
an offence. So mere storing or possessing pornographic
material is not an offence under Section 15(1) of POCSO
Act, if the said storing or possession is without any
intention to share or transmit the same. Therefore, mere
storing or possessing pornographic materials by itself is
not an offence. Thus, in order to attract an offence under
Section 15(1) of the POCSO Act, the stored or possessed
pornographic materials should be shared or transmitted.
In the instant case, there is no material available to hold
that the accused either shared or transmitted pornographic
materials, though storing of the same was detected.
Therefore, the offence under Section 15(1) of the POCSO
Act is not made out in the instant case.”
(Emphasis supplied)
(ii) Secondly, it observed that, even for the purposes of Section
67B of the IT Act there must be some material to show that the
accused person had either browsed, downloaded, published,
transmitted or created any material in electronic form depicting
a child in a sexually explicit act or conduct. To constitute an
offence under Section 67B of the IT Act the accused person
must have intentionally either downloaded, browsed, recorded
or transmitted a pornographic material involving a child. In the
absence of any material to show or establish specific intention
on the part of the accused to share or transmit the pornographic
material found, no offence could be said to have been made out
under Section 67B of the IT Act. Any accidental or automatic
download of such material will not fall within the purview of
the said provision. The relevant observations read as under: -
“11. Publishing, transmitting or causing any material in
electronic form which depicts children engaged in sexually
explicit act or conduct or creation of text or digital images
etc. are the ingredients under Section 67B of the IT Act also.
xxx xxx xxx
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13. Therefore, going by the decision, automatic or
accidental downloading of children engaged in sexually
explicit act or conduct is not an offence under Section 67B,
once the specific intention to do so is not established, by
the materials which form part of the prosecution records.
14. In the present case, the materials collected during
investigation would show that some pornographic
messages, which would depict children engaged in
sexually explicit act or conduct were found in the devise
of the accused. But there are no materials to show that
the petitioner intentionally downloaded or browsed or
recorded the same. More particularly there are no materials
to show that the petitioner had either shared, transmitted
or published the same in any manner.
15. Thus, the materials available do not suggest the
ingredients to find prima facie, commission of offence
under Section 67B of the IT Act.”
(Emphasis supplied)
As besides the recovery of the pornographic material from the device
of the accused there was nothing to show that he had either shared
or transmitted or intentionally downloaded the same in the first place.
In such circumstances, the learned Single Judge held that no prima
facie offence had been made out either under Section(s) 15(1) of
the POCSO or 67B of the IT Act and thus, proceeded to quash the
criminal proceedings.
68. Similarly, in Akash Vijay v. State of Kerala reported in 2024 KER
42626, the Kerala High Court placing reliance on the decision of
Shantheeshlal T (supra) held that mere storage or possession of
any pornographic material involving a child will not constitute an
offence under Section(s) 15 of the POCSO or 67B of the IT Act in
the absence of any material to show that the accused person either
intentionally downloaded or browsed the said material or that he
shared or transmitted the same. The relevant observations read as
under: -
“6. On perusal of the prosecution records, no materials
collected during investigation to show that the petitioner
intentionally downloaded or browsed or recorded the
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same and there are no materials available to show that
the petitioner had either shared, transmitted or published
the video, in any manner. The allegation is confined to
that of presence of porn video in the mobile phone of the
accused alone.
xxx xxx xxx
8. Reading the facts of this case, the same is similar
to the facts dealt in Shantheeshlal T.’s case (supra).
Therefore, applying the same ratio, this Crl.M.C. is liable
to be allowed.”
(Emphasis supplied)
69. In Akhil Johny v. State of Kerala reported in 2024 KER 53767,
the learned Single Judge of the Kerala High Court held that where
the allegations are limited only to the presence of pornographic
material involving a child in the mobile phone or hard disk of the
accused, no offence could be said to have been made out under
Section(s) 15 of the POCSO or 67B of the IT Act and as such the
criminal proceedings would be liable to be quashed. The relevant
observations read as under: -
“6. On perusal of the prosecution records, no materials collected during
investigation to show that the petitioner intentionally downloaded or
browsed or recorded the same and there are no materials available
to show that the petitioner had either shared, transmitted or published
the video, in any manner. The allegation is confined to that of presence
of porn video in the mobile phone of the accused alone.
xxx xxx xxx
8. Reading the facts of this case, the same is similar to the facts
dealt in Shantheeshlal T.’s case (supra). Therefore, applying the
same ratio, this Crl.M.C. is liable to be allowed.”
(Emphasis supplied)
70. In Inayathulla N (1) v. State reported in 2024 KHC 26513, the
accused therein was charged for browsing a website and viewing
pornographic materials involving a child. Accordingly, a case was
registered against him under Section(s) 67B of the IT Act. A learned
Single Judge of the High Court of Karnataka held that the soul and
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essence of Section 67B lies in the act of publication or transmission
of any material depicting a child in any sexually explicit conduct,
and that mere browsing or watching of such material would not
attract the aforesaid provision. It further held that in such cases
even investigation should not be permitted to be continued and
thus, proceeded to quash the criminal proceedings. The relevant
observations read as under: -
“7. [...] Section 67B of the IT Act punishes those persons
who would publish, transmit the material depicting children
in sexually explicit acts in electronic form. The soul of the
provision is publishing or transmitting of material depicting
children in sexually explicit act.
8. The allegation against the petitioner is that he has
watched a pornographic website. This, in the considered
view of the Court, would not become publishing or
transmitting of material, as is necessary under Section 67B
of the IT Act. At best, as contended, the petitioner could
be a porn addict, who has watched pornographic material.
Nothing beyond this, is alleged against the petitioner. If the
facts are pitted against the ingredients necessary to drive
home Section 67B of the IT Act, what would unmistakably
emerge is, further proceedings cannot be permitted to
be continued, as it would become an abuse of process
of law. [...]
9. The Apex Court in the afore laid postulates holds that
even if the facts that forms the complaint is accepted as
true, it would not make out any offence. In such cases,
even investigation should not be permitted to be continued.
Therefore, the impugned proceedings cannot be permitted
to be continued, as it does not make out an offence under
Section 67B of the IT Act.”
(Emphasis supplied)
71. We are conscious of the fact that the aforesaid decision of Inayathulla
N (1) (supra) was subsequently taken in review by the learned Single
Judge of the Karnataka High Court under the nomenclature “recall”
upon realising that Section 67B of the IT Act had been misinterpreted
more particularly the failure to advert to sub-section (b) of the said
provision which criminalizes the browsing of child pornographic sites.
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Consequently, in Inayathulla N (2) v. State reported in 2024 KHC
28204 the learned Single Judge set aside its earlier order in Inayathulla
N (1) (supra) by observing that although Section 67B sub-section (a)
of the IT Act may not apply in the absence of any transmission or
publication of any child pornography, yet sub-section (b) of the said
provision would indeed be applicable where the allegations involve
browsing or viewing of any child pornographic material. It is relevant
to note that although the court was apprised of the fact that even
Section 15 of the POCSO was being contemplated to be added in
the chargesheet, yet the High Court in view of the limited question
before it did not deem it necessary to go into the applicability of the
said provision at that stage. The relevant observations read as under: -
“5. This Court accepting the facts had allowed the petition
in terms of its order dated 10-07-2024. [...] After release
of the order, the State appears to have noticed the short
assistance rendered by it, as also the fact that the cyber
tipline/2nd respondent was not heard in the matter. The
further fact is that the State has filed an application before
the Court to bring in Section 15 of the Protection of Children
from Sexual Offices Act, 2012 (‘POCSO Act’ for short). [...]
By a separate order passed on 19-07-2024, the I.A. filed
by the State stood answered and the order dated 10-07-
2024, by accepting the reasons indicated in the affidavit
was recalled and the matter was restored to file.
xxx xxx xxx
8. [...] The reliance placed by the petitioner is on Section
67B(a) of the Act which was relied on and proceedings
quashed. What becomes applicable to the case at hand
is Section 67B(b). Section 67B(b) open up prosecution
against a person who 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. It is not in dispute that the petitioner, in the case
at hand, has browsed child pornographic material for about
50 minutes. Browsing child pornographic material makes
it an offence under Section 67B(b) of the Act.”
(Emphasis supplied)
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72. Thus, it appears from the aforesaid that there are divergent views
expressed by different High Courts of the country as regards the
ingredients necessary to constitute an offence under Section 15 of
the POCSO and Section 67B of the IT Act. The Kerala High Court
has taken the view that mere possession or viewing of pornographic
material involving a child will not fall within the ambit of Section 15 of
the POCSO, rather what the provision criminalizes is the actual act
of transmission or sharing of the said material. It has held that where
the allegations are confined only to the possession of pornographic
material and there is nothing to indicate the actual transmission of
the same, the criminal proceedings shall be liable to be quashed.
Whereas, the Bombay High Court appears to have taken the view
that under Section 15(1) of the POCSO, what is penalized is the
storage of child pornography and resultant failure to delete or report
the same while under Section 15(2), it is the storage and consequent
transmission of child pornography. Similarly, with respect to Section
67B, both the Karnataka High Court and the Kerala High Court
have held that what is criminalized is the intentional browsing or
transmission of child pornography, and not the mere possession of
such material.
b. Three distinct offences punishable under Section 15 of
the POCSO.
73. Prior to the 2019 Amendment Act, Section 15 of the POCSO as
originally enacted, stipulated that any person who stores any
pornographic material involving a child for commercial purposes shall
be punishable under the said provision. Thus, under the erstwhile
Section 15 of the POCSO only one act was criminalized; in other
words, only the storage of child pornography for a commercial
purpose was made a punishable offence. Storage of such material
for any other purpose was outside the scope and purview of the
said provision. The said provision as it then stood, reads as under: -
“15. Punishment for storage of pornographic material
involving child. –
Any person, who stores, for commercial purposes any
pornographic material in any form involving a child shall
be punished with imprisonment of either description which
may extent to three years or with fine or with both.”
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74. Over a period of time, the legislature realized that despite the
enactment of POCSO, there had been an increase rather than a
decline in the number of cases pertaining to child sexual abuse.
The legislature noted that some of the provisions of the POCSO
were not proving to be effective in addressing the various forms of
sexual degradation, abuse and exploitation of children in the country.
The Protection of Children from Sexual Offences (Amendment) Act,
2019 earmarked a significant step by the legislature in response
to the aforesaid problem, by introducing several new offences and
further making the existing offences more stringent with enhanced
punishments, as a form of deterrence to sexual predators and to
combat the sexual exploitation of children in order to safeguard a
secure and dignified environment for them. The Statement of Objects
and Reasons of the 2019 Amendment Act read as under: -
“STATEMENT OF OBJECTS AND REASONS
“1. The Protection of Children from Sexual Offences Act,
2012 (the said Act) has been enacted to protect children
from offences of sexual assault, sexual harassment and
pornography and provide for establishment of Special
Courts for trial of such offences and for matters connected
therewith or incidental thereto.
2. The said Act is gender neutral and regards the best
interests and welfare of the child as a matter of paramount
importance at every stage so as to ensure the healthy
physical, emotional, intellectual and social development
of the child.
3. However, in the recent past incidences of child sexual
abuse cases demonstrating the inhumane mind-set of
the abusers, who have been barbaric in their approach
towards young victims, is rising in the country. Children are
becoming easy prey because of their tender age, physical
vulnerabilities and inexperience of life and society. The
unequal balance of power leading to the gruesome act
may also detriment the mind of the child to believe that
might is right and reported studies establish that children
who have been victims of sexual violence in their childhood
become more abusive later in their life. The report of the
National Crime Records Bureau for the year 2016 indicate
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increase in the number of cases registered under the said
Act from 44.7 per cent. in 2013 over 2012 and 178.6 per
cent. in 2014 over 2013 and no decline in the number of
cases thereafter.
4. The Supreme Court, in the matter of Machhi Singh vs.
State of Punjab [1983 (3) SCC 470], held that when the
community feels that for the sake of self-preservation the
killer has to be killed, the community may well withdraw
the protection by sanctioning the death penalty. But the
community will not do so in every case. It may do so in
rarest of rare cases when its collective conscience is so
shocked that it will expect the holders of the judicial power
centre to inflict death penalty irrespective of their personal
opinion as regards desirability or otherwise of retaining
death penalty. The same analogy has been reiterated by
the Supreme Court in the matter of Devender Pal Singh
vs. State (NCT of Delhi)[AIR 2002 SC 1661] wherein it was
held that when the collective conscience of the community
is so shocked, the court must award death sentence.
5. In the above backdrop, as there is a strong need to take
stringent measures to deter the rising trend of child sex
abuse in the country, the proposed amendments to the
said Act make provisions for enhancement of punishments
for various offences so as to deter the perpetrators and
ensure safety, security and dignified childhood for a child.
It also empowers the Central Government to make rules
for the manner of deleting or destroying or reporting about
pornographic material in any form involving a child to the
designated authority.
6. The Protection of Children from Sexual Offences
(Amendment) Bill, 2019, for the aforementioned purpose,
which was introduced and pending consideration and
passing in the Lok Sabha, lapsed on the dissolution of the
Sixteenth Lok Sabha. Hence, the present Bill.
7. The Bill seeks to achieve the above objectives. NEW
DELHI; The 12th July, 2019.”
(Emphasis supplied)
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75. Pursuant to the aforesaid 2019 Amendment Act, a slew of amendments
were brought within the POCSO, which inter alia included i) the
insertion of Section 2(da) by which “child pornography” came to be
defined under the Act AND ii) the amendment of Section 15 of the
Act whereby now three distinct offences are made punishable under
the said provision. Again, at the cost of repetition, the amended
Section 15 of the POCSO is reproduced hereunder: -
“15. Punishment for storage of pornographic material
involving child. –
(1) Any person, who stores or possesses pornographic
material in any form involving a child, but fails to delete
or destroy or report the same to the designated authority,
as may be prescribed, with an intention to share or
transmit child pornography, shall be liable to fine not less
than five thousand rupees and in the event of second or
subsequent offence, with fine which shall not be less than
ten thousand rupees.
(2) Any person, who stores or possesses pornographic
material in any form involving a child for transmitting or
propagating or displaying or distributing in any manner
at any time except for the purpose of reporting, as may
be prescribed, or for use as evidence in court, shall be
punished with imprisonment of either description which
may extend to three years, or with fine, or with both.
(3) Any person, who stores or possesses pornographic
material in any form involving a child for commercial
purpose shall be punished on the first conviction with
imprisonment of either description which shall not be less
than three years which may extend to five years, or with
fine, or with both and in the event of second or subsequent
conviction, with imprisonment of either description which
shall not be less than five years which may extend to
seven years and shall also be liable to fine.”
(Emphasis supplied)
76. A bare perusal of the aforesaid provision makes it abundantly clear
that Section 15 of the POCSO is in three parts. The legislature by
virtue of the 2019 Amendment Act has now made three different forms
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of storage or possession of child pornography a punishable offence
under the said provision, unlike the erstwhile provision, which had
criminalized only one form of storage of child pornography.
77. Section 15 sub-section (1) of the POCSO now provides that any
person who either stores or possesses any pornographic material
involving a child and fails to either delete, destroy or report the same
with the intention to share or transmit such material, shall be liable to
fine of not less than rupees five thousand for the first offence, and a
fine of not less than rupees ten thousand for any subsequent offence.
78. On the other hand, Section 15 sub-section (2) of the POCSO provides
that any person who either stores or possesses any pornographic
material involving a child for transmitting, displaying, propagating, or
distributing the same in any manner except for either reporting it or
for using it as evidence shall be punishable with either imprisonment
extending upto three-years or with fine or both.
79. Whereas, Section 15 sub-section (3) of the POCSO stipulates that
any person who either stores or possesses any pornographic material
involving a child for commercial purpose shall be punishable with
imprisonment of not less than three-years, which may extend upto
five-years, or with fine, or both for the first offence, and for any
subsequent offence, he shall be punishable with imprisonment not
less than five-years, that may extend upto seven-years and along
with fine.
I. Concept of an Inchoate Crime – The ‘Actus Reus’ and ‘Mens
Rea’ required under Section 15.
80. Before proceeding further to discuss the scope of Section 15 of
the POCSO and the ingredients necessary to constitute an offence
thereunder, it would be apposite to first understand the true purpose
and the nature of the said penal provision.
81. A plain reading of Section 15 of the POCSO and the marginal note
appended thereto would reveal that the common theme permeating
across sub-section(s) (1), (2) and (3) respectively is that there is
no requirement whatsoever for an actual transmission of any child
pornographic material in order to fall within the ambit of the said
provision. What is sought to be penalized under Section 15 of the
POCSO is the storage or possession of any child pornographic
material when done with a particular intention or purpose as stipulated
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in sub-section(s) (1), (2) or (3), as the case may be. Thus, the bare
textual reading of the said provision makes it clear that it is the
intention which is being punished and not the commission of any
criminal act in the traditional sense. This in the criminal jurisprudence
is known as an ‘Inchoate Crime’ or ‘Inchoate Offence’.
82. Inchoate crimes are defined as criminal acts that are committed in
preparation for a further offence. The term “inchoate” itself means
“undeveloped” or “incomplete.”
83. The Doctrine of Inchoate Crimes is a cornerstone of criminal
jurisprudence. It is aimed at addressing the legal culpability of those
who engage in a conduct that is preparatory to the commission of
any substantive offence. Inchoate crimes, are often referred to and
described as an incomplete or preliminary offence, that capture the
essence of criminal intent and the preparatory actions that precede
the commission of a criminal act. It underscores the principle that
the law does not merely respond to offences already committed but
also intervenes when a crime is in the process of being committed,
thus thereby protecting public order and safety. Inchoate crimes
represent a critical aspect of criminal law, embodying the legal
system’s proactive and deterrent approach to crime itself.
84. The primary rationale for the existence of inchoate crimes within
the legal framework is the prevention of harm by intervening at an
early stage i.e before the potential damage is caused. It recognizes
that though certain actions do not result in an offence, nonetheless
those actions pose a sufficient threat to society to warrant legal
intervention. The jurisprudence surrounding inchoate crimes has
evolved as a balance struck between i) the need for early intervention
on the one hand with ii) the cardinal principle of criminal law that
no one should be punished merely for their thoughts or intentions
on the other, by criminalizing only those actions of an individual
that demonstrate a clear movement towards the commission of a
criminal offense. It is deeply rooted in the preventive or deterrent
nature or approach of a particular law by criminalizing those conduct,
actions or intentions that pose a significant risk of harm. An inchoate
offence requires towing a delicate balance between the need for
prevention of potential threat to the society and the risk of undoing
the sacrosanct fundamental principle of ‘actus non facit reum nisi
mens sit rea’ in order to ensure that the law remains a powerful tool
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in the maintenance of public order. This inherent tension between
respecting the autonomy of an individual’s thought and state of
mind with the societal interest and safety is often balanced and
resolved by carefully shaping and defining the point at which any
particular action or preparatory step becomes sufficiently proximate
to the commission of an offence. In other words, the law would only
intervene at the point where an individual has acquired the means
to commit a further offence, and will not punish the mere thought of
committing an offence in the absence of any overt steps towards the
same. Thus, the critical or central component of any inchoate crime
is the preliminary or preparatory actus reus that sufficiently reflects
the essence or existence of a criminal intent.
85. Offence pertaining to the possession of any contraband is a prime
example and one of the facets of an inchoate crime, as they involve
the possession of items that are prohibited by law due to their
inherent dangerousness or their use in the commission of further
criminal offences. The criminalization of possession as an inchoate
crime is predicated on the idea that possession is not an innocuous
act but a preparatory step towards more significant criminal conduct.
This is because, first, it allows intervention at an early stage, before
the contraband can be used to cause harm. Secondly, it acts as
a deterrent by penalizing individuals who engage in activities that
are likely to lead to more serious offenses. Thirdly, it reflects the
societal interest in preventing the accumulation and availability of
dangerous items that have no legitimate purpose except for the further
perpetuation of a more severe offence and harm to society at large.
86. The POCSO as outlined in its Statement of Object and Reasons was
specifically designed to provide commensurate penalties to serve
as a deterrent against the sexual abuse and exploitation of children.
Additionally, the Statement of Objects and Reasons accompanying
the 2019 Amendment Act which inter-alia amended Section 15 of
the Act to provide for three distinct offences punishable under it,
explicitly emphasizes that the said amendments had been introduced
in order to implement stringent measures aimed at addressing and
deterring the alarming increase in child sexual abuse. The plain
reading of sub-section(s) (1), (2) and (3) respectively of Section 15
of the POCSO along with the marginal note appended to it which
reads “Punishment for storage of pornographic material involving
child” indicates, that the said provision punishes only the storage of
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pornographic material involving a child when done with a specific
intent prescribed thereunder and that there is no requirement for
any actual transmission. It is trite to say that, in the absence of any
inherent conflict or contradiction between the marginal note and
the substantive parts of a particular provision, the marginal note
may be used to aid in the interpretation of the provision. Thus, the
aforesaid leaves no manner of doubt in the mind of this Court, that
the provision of Section 15 of the POCSO is in the nature and form of
an inchoate offence which penalizes the mere storage or possession
of any pornographic material involving a child when stored with a
specific intent prescribed thereunder, without requiring any actual
transmission, dissemination etc.
87. Under Section 15 sub-section (1), where a person either stores or
possesses any child pornography and does not delete or report the
same, in order to share or transmit the same, he will be liable under
the said provision. The use of the words “with an intention to share
or transmit child pornography ” in the said provision makes it clear
that no actual sharing or transmission is required to occur, rather
what is required is only the intention to share or transmit because of
which the said material was neither deleted, destroyed, or reported.
In other words, the actus reus that is penalized under Section 15
sub-section (1) is the failure to delete, destroy or report any child
pornography that was stored or in possession of any person with
an intention to share or transmit the same. Had the intent of the
legislature been otherwise, it would have clearly used the words
“transmits” or “shares” instead.
88. Similarly, Section 15 sub-section (2) penalizes the storage or
possession of any child pornographic material when done for the
purpose of either transmitting, propagating, displaying or distributing
the same in any manner. The use of the words “for transmitting or
propagating or displaying or distributing in any manner at any time”
clearly suggests that again no actual act of transmission, propagation,
display or distribution is required to take place. Had the intent of
the legislature been otherwise, it would have explicitly stated “any
person, who stores or possesses pornographic material in any form
involving a child and transmits or propagates or displays or distributes
in any manner at any time”. The use of the words “for transmitting or
propagating or displaying or distributing in any manner” in Section
15 sub-section (2) makes it crystal clear that the said provision
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deals with two kinds of actus reus being (I) first, the storage or
possession of a pornographic material involving a child when done
with an intention to either transmit it or to propagate it or to display
or distribute it though no actual transmission, propagation, display
or distribution might have occurred OR (II) secondly, the storage or
possession of a pornographic material involving a child which was
actually transmitted, propagated, displayed or distributed in any form
or manner. In other words, the actus reus that is required under
Section 15 sub-section (2) is that a pornographic material involving
a child must be found to have been stored or in possession with
an intention to either transmit it or to propagate it or to display or
distribute it or the same must have been transmitted, propagated,
displayed or distributed in any form or manner.
89. The underlying difference in the actus reus under Section 15 sub-
section(s) (1) and (2) is that in the former the storage or possession
of any such material is due to the omission to delete, destroy or report
the same whereas in the latter, the storage or possession of any
such material is in order to facilitate the transmission, propagation,
display or distribution of the same. To further put the distinction into
perspective, the actus reus under sub-section (1) must be such
that indicates that the child pornographic material found in storage
or possession was only due to an omission to delete or destroy.
Whereas under sub-section (2) it must be shown that such material
had been stored or in possession for a reason more than just mere
omission i.e., for the reason of transmitting, propagating, displaying
or distributing the same. The use of the words “any manner ” in sub-
section (2) makes it clear that apart from the storage or possession
of such pornographic material, there must be something more to
show either (I) the actual transmission, propagation, display or
distribution of such material OR (II) the facilitation of any transmission,
propagation, display or distribution of such material, such as any form
of preparation or setup done that would enable that person to transmit
it or to display it. Thus, Section 15 sub-section (2) of the POCSO
would cover both the actual transmission, propagation, display or
distribution of any child pornography as-well as the facilitation of any
of the abovementioned acts.
90. On the other hand, the mens rea which is required to constitute
an offence under Section 15(1) is the intent to share or transmit
a pornographic material involving a child, and the said intention is
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to be gathered or gauged from the actus reus itself i.e., by culling
out the manner in which there was an omission to delete, destroy
or report such a material or the reason behind the same. This is
evinced from the construction of the expression “but fails to delete
or destroy or report the same to the designated authority, as may be
prescribed, with an intention to share or transmit child pornography”
which makes it clear that the scope of discerning the intent to share
or transmit has been both limited AND tied to only the omission to
delete, destroy or report i.e., the actus reus. The expression “with an
intention to share or transmit ” cannot be singled out and construed
devoid of its context. Thus, it is the manner in which along with the
attending circumstances attributable to the failure to delete, destroy
or report that must sufficiently be indicative of the intent to share or
transmit any material.
91. In Section 15 sub-section (1) of the POCSO the legislature by
qualifying and linking the expression “intent to share or transmit ” to
the omission to delete, destroy or report, has in its wisdom made the
intention or mens rea under the said provision a matter of inference,
to be ascertained from the actus reus itself. The degree of probability
for inferring such intention would largely depend upon the manner in
which the actus reus i.e., how the omission took place. It is for the
courts to ascertain whether the manner in which the material was
found in storage or possession, the attending circumstances to the
omission and the conduct of the person accused sufficiently refutes
or displaces the inference of an intention to share or transmit or not.
92. The underlying reason behind tying the inference of intention to the
omission alone is because the legislature was alive to the practical
difficulty that exists in establishing an intention to share or transmit
any child pornographic material from just the mere possession of
such material. In offences pertaining to or involving the possession of
any contraband, it is too uphill a task for the courts to peer through
and look into the mind of the person accused and then cull out the
intention of that person behind possessing or storing such material.
Thus, in such cases instead of directly establishing the intention from
the mental state of the person accused, it is established indirectly by
inferring it from the manner in which the contraband was found to have
been stored or in possession. Here again due to the infeasibility or
difficulty in cogently establishing an inference of intention often due to
the lack of any material and the very private and clandestine nature
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of the offence, the courts instead try to look for some material or
circumstances that might displace the inference of such an intention,
and wherever there is nothing to show the same, the courts may
without hesitation proceed to infer the existence of such an intention.
93. Whereas, under Section 15 sub-section (2) the mens rea is to be
gathered from the manner in which the pornographic material was
found to be stored or in possession and any other material apart from
such possession or storage that would be indicative of any facilitation
or actual transmission, propagation, display or distribution of such
material. Thus, wherever in addition to the storage or possession of
any child pornographic material, there exists any material or attending
circumstances that would either show or indicate the facilitation or
actual commission of any of the acts enumerated in Section 15 sub-
section (2) of the POCSO, the said provision would get attracted in
place of Section 15 sub-section (1). We say so because, the presence
of such additional material may demonstrate that the intention of
the person accused has gone beyond the contours of Section 15
sub-section (1). It evinces a more significant manifestation of the
intention of the person accused, which moved from what is required
in sub-section (1) to a much higher degree of intention that is required
under sub-section (2). In other words, the existence of such additional
material strengthens the inference of that intention which is required
and made punishable under Section 15 sub-section (2).
94. Section 15 sub-section (3) penalizes the storage or possession of any
child pornographic material when done for any commercial purpose.
The term ‘commercial purpose’ refers to and encompasses any
activity or transaction that is carried out or undertaken as a means
of any commercial enterprise i.e., with the object or intention of any
gain, irrespective of whether it was in monetary terms or not. Thus,
to constitute an offence under this provision, the requirement is that
the storage or possession of any child pornography must be in lieu of
any monetary gain or for receiving any other valuable consideration.
Again, the words “any commercial purpose” indicate that the storage
or possession must be with an intention to generate or acquire
any monetary gain or any other form of valuable consideration,
irrespective and regardless of whether such monetary gain or
valuable consideration is actually generated or acquired. Thus, it
is immaterial whether any monetary gain or any other benefit was
actually realized or not. To establish an offence under Section 15 sub-
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section (3), besides the storage or possession of the pornographic
material involving a child, there must be some additional material
or attending circumstances that may sufficiently indicate that the
said storage or possession was done with the intent of any form of
gain or benefit. As soon as there is any material to indicate that the
storage or possession of any child pornographic material was done
in lieu or in expectation of some form of gain or benefit, it would
constitute an offence under Section 15 sub-section (3) of the POCSO
notwithstanding whether such gain was actually realized.
95. Thus, while Section 15 sub-section (1) requires the existence of the
requisite mens rea or intention due to which the child pornographic
material was not deleted, destroyed or reported, Section 15 sub-
section (2) requires the existence of the requisite mens rea or
intention which propelled or led the person accused to not only
store or possess the said material but also to take some additional
steps towards either the actual transmission, propagation, display
or distribution or the facilitation of the same. In contrast, Section
15 sub-section (3) requires the existence of the requisite mens rea
or intention due to which the person accused not only stored or
possessed the child pornographic material but also compelled him
to take some additional steps either for any gain or benefit or in lieu
or expectation of some form of gain or benefit.
96. For the sake of clarity, it would be apposite to give few illustrations
as a guiding example to further demonstrate the fine but pertinent
distinction that exists between sub-section (1), (2) and (3) of Section
15 of the POCSO.
97. For illustration; say certain child pornographic material was found
stored in the personal mobile phone of ‘A’ and the same was neither
deleted, destroyed nor reported. Here though there is possession
or storage of child pornographic material but since there is nothing
to show any facilitation of transmission, propagation, display or
distribution of the said material, this would attract the provision of
Section 15(1). At the same time, since the material in question was
found in the personal mobile of ‘A’ the same is indicative that the
omission to either delete, destroy or report in all likelihood was due
to the intent to share or transmit. Here the manner in which the
omission has occurred is sufficiently indicative of the intent to share
or transmit, as there is nothing apart to show that the omission was
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attributable to any other reason but the intent to share or transmit,
and thus it would constitute an offence under Section 15(1) of the
POCSO.
98. Conversely, say for example certain child pornographic material was
found stored in a broken mobile phone of ‘A’ and the said material had
never been deleted, destroyed or reported. Now again, there is nothing
to show that there was either any actual transmission, propagation,
display or distribution nor anything to show that something apart
from and in addition to the storage or possession had been done
by ‘A’ for facilitation of the transmission, propagation, display or
distribution of such material. This would again attract the provision
of Section 15(1) instead of 15(2) of the POCSO. However, since the
material was found in a broken phone, it is likely that the failure to
delete, destroy or report the same was attributable to the inability
of ‘A’ to operate the broken mobile rather than the intent to share or
transmit, thus, no offence would be made out under Section 15(1)
of the POCSO. This is because, the manner in which the omission
has occurred is not sufficiently indicative of the intent to share or
transmit. Thus, no offence could be said to have been constituted
under Section 15 sub-section (1) of the POCSO.
99. Take for instance, certain child pornographic material was found
stored in the mobile phone of ‘A’ but this time, the said material had
found its way in the device due to an automatic download of media
of which ‘A’ had no knowledge whatsoever. Here although there is
possession or storage of such material, yet the omission to delete,
destroy or report is clearly shown and established by ‘A’ that it was
due to lack of knowledge about the existence of such material on
his parts. Here the manner in which the omission has occurred is
not sufficiently indicative of the intent to share or transmit, thus no
offence could be said to have been made out under Section 15(1)
of the POCSO.
100. Take a case where certain child pornographic material was found
stored in the mobile phone of ‘A’ but this time in addition to the
aforesaid material few chats were also recovered wherein ‘A’ told
his friend ‘B’ that he had some child pornographic material which
he could share with him. Here, since there is additional material to
show that ‘A’ had taken some overt steps in order to propagate the
said material, he would be liable under Section 15(2) of the POCSO.
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101. For another illustration, say for example, again certain child
pornographic material was found stored in the mobile phone of ‘A’
but this time ‘A’ creates a chat group consisting of several of his
friends, and sends a message therein stating that he has some
child pornographic material which he would forward on the group.
Here, since there is additional material to show that ‘A’ had taken
some overt steps in order to distribute the said material, he would
be liable under Section 15(2) of the POCSO.
102. Conversely, say ‘A’ who has certain child pornographic material in
his phone, again creates a group consisting of several of his friends,
but this time he sends a message stating that he has some child
pornographic material which he would send in exchange of some
amount of money. Here, since there is additional material to show
that ‘A’ had taken some overt steps in respect of the said material
for some monetary gain, he would now be liable under Section 15(3)
of the POCSO instead.
103. We may at the cost of repetition clarify that there may be situations
where the possession or storage of the pornographic material is found
to be in a such a manner that the same by itself would be indicative
of an intention to either transmit, display, propagate or distribute such
material or that it was done in lieu or expectation of any gain. In
such cases the storage or possession of child pornographic material
itself would sufficiently be indicative of the requisite intention either
under Section 15 sub-section(s) (2) or (3) as the case may be, and
there would be no requirement to adduce any additional material
as long as the manner of storage or possession of such material or
the attending circumstances itself is sufficiently indicative of such
intention.
104. For illustration; say certain child pornographic material was found
stored in five to six television devices in a hotel run by ‘A’. Here,
because the pornographic material has been found to be stored in
multiple devices that too at a place which has easy access for the
public, the same would be indicative that the ‘A’ was using the hotel
and the television devices therein as a means for facilitating display
of such pornographic material, and thus, would be punishable under
Section 15 sub-section (2) of the POCSO.
105. For another illustration say again certain child pornographic material
were found stored in five to six television devices in a hotel run by
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‘A’, but this time some price was mentioned onto the pornographic
material itself. Here, because some amount of money was found to
be mentioned on the material itself and the said material was stored
in a place with easy public access, the same would be indicative
that the ‘A’ was using the hotel and the television devices therein
as a means for facilitating display of such pornographic material in
lieu of monetary gain, thus, would be punishable under Section 15
sub-section (3) of the POCSO.
106. The aforesaid illustrations have been provided only as a guiding
example to highlight the distinction between sub-section(s) (1), (2)
and (3) of Section 15 of the POCSO. These illustrations should not
be mechanically applied or construed by any court in any proceeding
while dealing with any matter involving Section 15 of the POCSO
devoid of the context in which these illustrations have been given and
without applying its mind as to whether the necessary ingredients
have been established or not in the individual facts and circumstances
of the matter. Any matter involving Section 15 sub-section (1), (2) or
(3) of the POCSO, must be dealt with independent of the illustrations
narrated above and stricto-sensu in accordance with only the ratio
of this decision.
107. Lastly, we must also caution the police and the courts to be
mindful of the fact that wherever in a given case a particular
sub-section of Section 15 is found to be applicable, the other
two remaining sub-sections of the said provision will cease to be
applicable. Section 15 sub-section(s) (1), (2) and (3) respectively
of the POCSO are independent and distinct offences. The three
offences cannot coexist simultaneously in the same set of facts.
They are distinct from each other and are not intertwined that they
cannot survive without each other. This is because, the underlying
distinction between Section 15 sub-section(s) (1), (2) and (3)
respectively lies in the different degree of culpable mens rea that
is required under each of the three provisions. The inception of
the requisite culpable mens rea begins and takes shape from the
intention specified under sub-section (1), then gradually continues
to transform into the intention stipulated under sub-section (2) and
finally culminates into the intention prescribed under sub-section
(3). Under Section 15 sub-section (1) of the POCSO, the requisite
intention therein is still in fieri i.e., in process of developing and
culminating into either the intention under sub-section(s) (2) or
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(3). Whenever, the said intention ultimately crystalizes into the
intention either under sub-section(s) (2) or (3), the other provisions
would automatically become inapplicable.
108. Yet one another important aspect, that the police and the courts
should be mindful of is that while examining any matter involving the
storage or possession of any child pornography, it finds that particular
sub-section of Section 15 is not attracted, it must not jump to the
conclusion that no offence at all is made out under Section 15 of
the POCSO. The police at the time of investigation and the courts
at the time of taking cognizance, should keep this aforesaid aspect
in mind. In other words, both should try to ascertain that if offence
is not made out in one particular sub-section, whether the same is
made out in the other two sub-sections or not.
II. Concept of ‘Possession’, ‘Constructive Possession’ and
‘Immediate Control’ under Section 15 of the POCSO.
109. During the course of hearing, our attention was also drawn to a
recent news article that reported how on social media, links to view
child pornography were being circulated and sold for anywhere
between Rs. 40 to Rs. 5,000. The news report indicates, how social
media platforms are rife with child sexual abuse, and gave certain
insight about the modus operandi of the distribution of such material
on these platforms. It explained how the sellers and distributors of
child pornographic material rather than sharing any downloads to
such material, would ingeniously only share links to such material
instead in lieu of money, so as to circumvent the penal provisions of
the POCSO and IT Act, which criminalized only the storage of such
material. By indefinitely forwarding links, they completely bypass
the requirement of first storing such material onto any device, and
similarly those who view such material also only use the links, without
ever downloading such material onto their device.
110. As earlier mentioned, prior to the 2019 Amendment Act, Section 15 of
the POCSO only criminalized the storage of any child pornographic
material for any commercial purpose. Thereafter, the legislature in
view of the increasing number of child sexual abuse cases, amended
Section 15 of the POCSO, to recognize and criminalize three distinct
forms or manner of storage of child pornographic material, as has
been discussed in the preceding parts of this judgment.
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111. One another subtle but significant change that was made to all three
sub-sections of Section 15 was the inclusion of the word “possession”
in addition to storage, which was earlier not there in the erstwhile
provision of Section 15 of the POCSO.
112. Thus, while the word “possession” was originally absent in the
unamended Section 15 of the POCSO, the legislature in its wisdom,
specifically added the said word in the amended Section 15, whereby
now both the storage or the possession of any child pornographic
material would be liable to be punished when done with any of the
specified intention thereunder.
113. We believe that the change referred to above was not made
inadvertently or lightly, but rather was done specifically with the
intention of making the provisions of Section 15 of the POCSO
more stringent to effectively deter the dissemination and use of
child pornography.
114. An important aspect of the jurisprudence on possession as an
inchoate crime is the doctrine of constructive possession. Constructive
possession extends the concept of possession beyond physical
control to situations where an individual has the power and intention
to control the contraband, even if it is not in their immediate physical
possession. This doctrine is particularly relevant in cases where
contraband is found in a location that is not directly under the physical
control of the accused, but where the accused has access to and
control over the area where the contraband is found.
115. In U.S. v. Tucker reported in 150 F. Supp. 2d 1263 (D. Utah. 2001),
the U.S. District Court, Utah, explained and elaborated on the doctrine
of constructive possession. In the said case, the defendant therein
used to routinely view child pornography, but he never used to keep
it stored in his computer, and would often delete any such material
and its traces from its computer after he was finished viewing them.
When charged with the offence of possession of child pornographic
material, he challenged the same, contending that since no material
had been stored in his disk, he cannot be said to be in possession
of any child pornography. The court held that wherever a person
exercises some form or manner of immediate control over any
particular material, both tangible or intangible, such material would be
said to be in his constructive possession. It observed that the control
of a person over such material can be ascertained by seeing whether
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he could manipulate, alter, modify or destroy such material or not,
if the answer to any of the above is in an affirmative, such material
would be deemed to be in his conscious or constructive possession.
116. Similarly in U.S. v. Romm reported in 455 F. 3d. 990 (9th Cir., 2006),
the defendant therein admitted to viewing images of child pornography
on the Internet. He would save them to disk, view them for about 5
minutes, then delete them. The Court held that a person can be said
to possess child pornography even without downloading or storing
it, if he or she seeks it out and exercises dominion or control over it.
It observed that this dominion or control may be evident by factors
such as when viewing the images on the screen, did the person have
the ability to print them, save them, forward them or delete them.
If he did, then he can be said to have knowingly exercised custody
or control over those images and thus, consequently in possession
of the same.
117. Thus, for establishing constructive possession both the power to
control the material in question and the knowledge of exercise of
such control are required. The doctrine of constructive possession,
is a crucial development in the criminal jurisprudence, especially
pertaining to inchoate crimes where possession is sought to be
punished, as it ensures that no person can evade liability by simply
distancing themselves from the physical possession of contraband
while retaining the ability to control it.
118. We are of the considered view, that wherever a person indulges in
any activity such as viewing, distributing or displaying etc. pertaining
to any child pornographic material without actually possessing or
storing it in any device or in any form or manner, such act would still
tantamount to ‘possession’ in terms of Section 15 of the POCSO,
if he exercised an invariable degree of control over such material,
applying the aforesaid doctrine of constructive possession.
119. Say for instance, ‘A’ routinely watches child pornography over the
internet, but never downloads or stores the same in his mobile. Here
‘A’ would still be said to be in possession of such material, as while
watching he exercises a considerable degree of control over such
material including but not limited to sharing, deleting, enlarging such
material, changing the volume etc. Furthermore, since he himself on
his own volition is viewing such material, he is said to have knowledge
of having control over such material.
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120. Conversely, say ‘A’ is sent an unknown link by ‘B’, which upon
clicking opened a child pornographic video on the phone of ‘A’. Here
although ‘A’ at the time of opening the link had control over the said
link, yet he cannot be said to have a knowledge of that control over
such material as he at that relevant point of time was unaware as
to what would open from the said link; thus ‘A’ cannot be said to
be in possession. We say so, because, ‘A’ had no information as
to what the link pertained to, in order to have knowledge of control
over such material, a person requires reasonable information such
as what is involved in the material in question, what is the purpose
of such material, etc. Without such information no person can decide
whether he wants to view it, or delete it or further forward it i.e., he
cannot effectively exercise the control that he has, without a certain
degree of knowledge.
121. However, in the aforementioned illustration, if ‘A’ rather than closing
the link in a reasonable time, continues to view such material he
would be deemed to be in possession of such material. This is
because, after a reasonable window of time, he would be said to
have sufficient information about such material to have knowledge
for the effective exercise of his control over such material.
122. Thus, we are of the considered view that any form of intangible
or constructive possession of any child pornographic material will
also amount to “possession” under Section 15 of the POCSO in
terms of the Doctrine of Constructive Possession. There is no
requirement of a physical or tangible “storage” or “possession” of
such material in Section 15 of the POCSO. We may clarify with a
view to obviate any confusion that, where any child pornographic
material is in the constructive possession of an accused, there
the failure or omission to report the same would constitute the
requisite actus-reus for the purposes of Section 15 sub-section
(1) of POCSO.
123. For instance, say, ‘A’ is sent an unknown link by ‘B’, which upon
clicking opened a child pornographic video on the phone of ‘A’. Now
if ‘A’ immediately closes the link, although once the link is closed
‘A’ is no longer in constructive possession of the child pornography,
this by itself does not mean that ‘A’ has destroyed or deleted the
said material by merely closing the link. ‘A’ will only be absolved of
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any liability if he after closing the link further reports the same to the
specified authorities. Thus, when it comes to constructive possession
of an accused, it is the failure or omission to report that constitutes
the requisite actus-reus for the purposes of Section 15 sub-section
(1) of POCSO.
124. At this juncture we may also address ourselves on another pertinent
aspect for constituting an offence under Section 15 of the POCSO.
The term ‘storage’ and ‘possession’ that has been used in the said
provision does not require that such ‘storage’ or ‘possession’ must
continue to be there at the time of registration of an FIR or any
criminal proceeding. The provision of Section 15 is not fixated any
particularly time-frame. What is simpliciter required to constitute
an offence under Section 15 of the POCSO is the establishment
of ‘storage’ or ‘possession’ of any child pornographic material with
the specified intention under sub-section(s) (1), (2) or (3), at any
relevant point of time. Even, if the said ‘storage’ or ‘possession’
no longer exists at the time of registration of the FIR, nonetheless
an offence can be made out under Section 15 if it is established
that the person accused had ‘stored’ or ‘possessed’ of any child
pornographic material with the specified intention at any particular
point of time even if it is anterior in time. We say so because, any
other view aside from the above, in our opinion would lead to a
chilling effect with drastic consequences, whereby the provisions of
the POCSO may be defeated by a devious person. If for instance,
a person immediately after storing and watching child pornography
in his mobile phone deletes the same before an FIR could be
registered, could it be said that the said person is not liable under
Section 15, because at the time of registration of the FIR, such
material no longer existed on the device of the person accused?
The answer to the aforesaid, must be an emphatic “no”. Thus, we
clarify that there is no requirement under Section 15 of the POCSO
that ‘storage’ or ‘possession’ must continue to exist at the time of
initiation of the criminal proceeding, and no such requirement can
be read into the said provision. An offence can be made out under
Section 15 if it is established that the person accused had ‘stored’
or ‘possessed’ of any child pornographic material with the specified
intention at any particular point of time even if it was before such
initiation or registration of criminal proceedings.
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c. Pornographic Material must prima facie appear to involve
a Child.
125. At this stage, we may explain one another crucial aspect concerning
Section 15 of the POCSO, more particularly the criteria for determining
whether the material in question involves or depicts a ‘child’, or in other
words whether such material can be considered a ‘child pornography’
or not. The determination of whether the individual involved is a ‘child’
or not, in terms of the POCSO is a crucial foundational element for
constituting various offences under the Act.
126. Section 2(1)(d) of the POCSO stipulates that the term ‘child’ means
and refers to any person who is below the age of eighteen years.
Thus, under the POCSO more particularly Section 2(1)(d) an objective
criterion has been prescribed by the legislature for determining
whether a person is a ‘child’ or not for the purposes of any offence
under the Act. The said criteria is based on the age of the individual
in question, and involves ascertaining and establishing whether he
or she is under eighteen years of age, if so, such person would be
considered a ‘child’ for the purposes of any offence in respect of
such child that is punishable under the POCSO.
127. Earlier under the POCSO, there was no specific definition of ‘child
pornography’. Thus, under the erstwhile Section 15 of the POCSO,
there was only one criteria for ascertaining whether the material in
question can be regarded as ‘child pornography’ or not, which was
by establishing that the material depicts or involves a person who
is under the age of eighteen years.
128. It was only with the enactment of the aforesaid 2019 Amendment
Act, whereby the term “child pornography” was specifically defined
under the POCSO by way of insertion of Section 2(1)(da) in the
Act. At the cost of repetition, Section 2(1)(da) of the POCSO is
reproduced below: -
“2. Definitions. –
(1) In this Act, unless the context otherwise requires, –
(da) “child pornography” means any visual depiction of
sexually explicit conduct involving a child which include
photograph, video, digital or computer generated image
indistinguishable from an actual child and image created,
adapted, or modified, but appear to depict a child;”
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129. A plain reading of the above would indicate that the term “child
pornography” means any visual depiction of a child involved in any
sexually explicit conduct. It further explains that the expression ‘visual
depiction’ means and includes the following: -
i. A photograph or video, which may be either in actual or any
electronic form.
ii. An image generated digitally or by a computer which is
indistinguishable from an actual child i.e., any self-generated
image which appears to depict a lifelike child indistinguishable
from an actual child, and will not include any artistic or cartoon
based depiction.
iii. Any other image (including any video-based imagery) that has
been created, adapted or modified.
The above list of material mentioned is inclusive in nature i.e., the
different types, form and manner of visual depiction that has been
enumerated therein is not exhaustive in any manner. In the last, the
said provision, more particularly the words “but appear to depict a
child ” lays down the test or criteria for ascertaining, whether any of
the above mentioned visual depiction is a ‘child pornography’ or not,
by prescribing a prima facie subjective satisfaction that the material
appears to depict a child.
130. The use of the comma before the words “but appear to depict a child ”
is significant. The legislature has used the aforesaid comma both
as a disjunctive and a conjunctive to the words preceding it. It has
been used as a disjunctive to stress, that the subjective criteria that
the material in question appears to depict a child is not inextricably
linked or limited to just one category of visual depictions i.e., the
last category being “image created, adapted, or modified ”. At the
same time, it has been used as a conjunctive in relation to all types
of visual depictions that have been illustrated in the said provision,
to clearly indicate, that this subjective criterion applies to the entire
provision i.e., to all types of visual depictions mentioned therein or
in other words to ‘child pornography’.
131. Thus, any visual depiction of a sexually explicit act which any
ordinary person of a prudent mind would reasonably believe to
prima facie depict a child or appear to involve a child, would be
deemed as ‘child pornography’ for the purposes of the POCSO.
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Therefore, for any offence under the POCSO that relates to child
pornographic material, such as Section 15, the courts would only
be required to form a prima facie subjective satisfaction that the
material appears to depict a child from the perspective of any
ordinary prudent person. Such satisfaction may be arrived at from
any authoritative and definitive opinion such as through a forensic
science laboratory (FSL) report of such material or from any expert
opinion on the material in question, or by the assessment of such
material by the courts themselves, depending on the peculiar facts
and circumstances of each case.
132. This aforesaid test or criteria of ‘subjective satisfaction’ is not a
superfluous or imaginary creation of the legislature, but a well-founded
test, that exists in various other countries. In this regard, reference
may be made to the decision of the Court of Appeal of England &
Wales in Regina v. Michael Land reported in [1997] EWCA Crim
J1010-15 wherein the court was dealing with an offence of possession
of indecent photographs of children for the purpose of distribution
under Section 1(1)(c) of the Protection of Children Act 1978. There
the question arose whether the individual in the aforesaid photographs
was under sixteen years of age or not. The court observed that often
there lies an inherent difficulty in making any positive identification of
the person in question, so as to establish their age conclusively. It
held that, thus in such situations, the question whether such person is
a child or not would have to be ascertained as a matter of inference
from the facts and the material in question, without any need for a
formal proof of the same. The court further rejected the contention
that in the absence of any paediatric or other expert evidence, no
such inference can be drawn. It observed that such fact-based
questions of age can be assessed by the judge or the jury as the
case may be by use of their critical faculties and senses such as
their eyes, supplemented with their own judgement and experience.
133. In John Leadbetter v. Her Majesty’s Advocate reported in [2020]
HCJAC 51, the High Court of Justiciary, Scottland held that no expert
witness is required for proof of age of any person depicted in an
obscene material in question. It further held that, such proof of age
may be established by any witness or a person who demonstrates
a certain extent of skill or knowledge in determination of the age on
the basis of a wide range of evidence that may be available.
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134. In United States v. Katz reported in 178 F.3rd 368 (5th Cir. 1999),
it was held by the U.S. Court of Appeals, Fifth Circuit, Louisiana,
that the threshold question whether the age of any person in a child
pornography may be determined by a ‘lay’ jury without the assistance
of expert testimony where there is no conflict of opinion as to the age.
However, it observed that where the individual in question appears
to have reached puberty, there expert testimony or opinion as to
proof of age would be necessary.
135. In Commonwealth v. Robert reported in (829 A.2d. 127), the Superior
Court of Pennsylvania observed that proof of age, like proof of any
material fact, can be accomplished by the use of either direct or
circumstantial evidence, or both. It held that the proof necessary to
satisfy the element of age in a dissemination or possession of child
pornography case is not limited to expert opinion testimony.
136. What is discernible from the aforesaid is that, although, in the few
decisions referred to by us, there is a difference of opinion as to
whether an expert’s testimony or determination is necessary or not
for the proof of age of an individual depicted in any pornographic
material, yet in all of the aforementioned decisions it has been
consistently held that the criteria for such determination is only the
subjective satisfaction.
137. The test or criteria of ‘subjective satisfaction’ is in view of the
practical difficulty that exists in conclusively establishing the age
of an individual in any pornographic material through any objective
means or criteria. This is owed to the fact that often, it is next to
impossible to establish the identity of the victim, then to trace the
whereabouts of such person, and then objectively determine their
age. If such a criterion is adopted, then most of the cases pertaining
to the possession of any child pornographic material would fail at the
threshold, due to want of any means or information for conclusively
proving the age of the victim.
138. The aforesaid aspect may be looked at from one another angle.
Any mandate of an objective determination of the age by conclusive
means, could possibly result in absurd consequences. For instance,
say a pornographic material involves an under-teen child who by
virtue of his built on the face of it appears to be a child, yet such
material will not be considered child pornographic material in the eyes
of law, unless an objective determination of the exact age of such
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child is carried out in a conclusive manner. In the absence of any
such determination, the prosecution of possession of such material
would have to fail, merely due to technicalities and the inflexible
character of the criteria or test for determining the age.
139. The aforesaid provision of Section 2(1)(da) of the POCSO holds
significant importance, as the legislature whilst giving teeth to the
existing provision of Section 15 of the Act, and making three distinct
offences punishable under it through the 2019 Amendment Act, also
consciously defined the term ‘child pornography’ under the POCSO
through the very same amendment. It indicates the legislature’s
intention of construing both these provisions together as a whole;
neither Section 15 of the POCSO nor Section 2(1)(da) can be
interpreted or invoked in isolation from the other.
140. The legislature through Section 2(1)(da) of the POCSO, made a
conscious departure from the already existing objective criterion of
determination of age in terms of Section 2(1)(d) which is generally
applicable to the POCSO, as it was alive to aforementioned inherent
difficulty that is posed by such criteria. The legislature was well aware,
that if the proof of age in offences pertaining to child pornography
such as under Section 15 of the POCSO would also have to be
assessed by the existing objective test, it would lead to a very
chilling effect, whereby the entire Section 15 of the POCSO could
be rendered unworkable merely on account of a hyper-technical
approach as to determination of age, thereby defeating the very
object of the POCSO.
141. The aforesaid aspect may also be looked at from one more angle.
Section 2(1)(da) of the POCSO was inserted by the legislature with
two-fold purpose in mind. While one of the purpose of Section 2(1)
(da) of the POCSO, was to explicitly define and delineate what
type of visual depictions would be considered ‘child pornography’ to
remove any ambiguity that existed earlier, the real purpose behind
insertion of the said provision was to mitigate the tendency of the
courts to refer and apply the objective criteria of age determination
prescribed under Section 2(1)(d) of the POCSO, even when dealing
with matters involving child pornography. Which is why the legislature
in addition to explaining the contour of visual depiction in Section 2(1)
(da) of the POCSO, also specifically added the words “but appear
to depict a child ” in the end.
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142. If the courts while dealing with any matter involving child pornography,
continue to refer and rely on Section 2(1)(d) of the POCSO, then
the same will frustrate the intention behind Section 2(1)(da) more
particularly the words “but appear to depict a child ” in the statute
book, thereby render that portion of the aforesaid provision otiose
and nugatory.
143. The true purport of Section 2(1)(da) of the POCSO, is to ensure
that for offences pertaining to child pornography, it is Section 2(1)
(da) that is given due regard and not Section 2(1)(d). Thus, in any
offence pertaining to child pornography the definition of ‘child’ in
Section 2(1)(d) would pale in comparison to the definition of ‘child
pornography’ under Section 2(1)(da) of the POCSO. As such, the
court while dealing with an offence under Section 15 of the POCSO,
must be mindful of the fact, that it is Section 2(1)(da) of the POCSO,
which has to be referred to and relied upon and not Section 2(1)(d).
In other words, it is the definition of ‘child pornography’ which is of
relevance while considering whether Section 15 of the POCSO can
be invoked or not.
d. Scope of Section 67B of the IT Act.
144. The IT Act was originally enacted with the object of providing a
legal framework for inter-alia recognizing electronic records &
digital signatures, facilitating electronic commerce, and providing
a legal sanctity to e-contracts. While the IT Act did include certain
provisions to penalize cybercrimes, they were rudimentary and did
not comprehensively address issues like creation and facilitation of
sexual abuse of children, the online publication, transmission and
distribution of child pornography or the sexual inducement, enticement
and exploitation of children over the internet.
145. The aforesaid was due to the fact that, the IT Act prior to the
Information Technology (Amendment) Act, 2008 (for short, the ‘2008
Amendment Act’), criminalized only one act being the publication or
transmission of obscene material, under Section 67. The IT Act made
no distinction between the publication or transmission of an ‘obscene
material’ from the publication or transmission of an obscene material
involving any sexually explicit act or conduct i.e., pornographic
material or for that matter child pornographic material. More glaringly,
there was no difference in either publication or transmission of such
material from the distribution, facilitation and consumption of such
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material over the internet. The IT Act also did not recognize other
forms of sexual abuse and exploitation of children over the internet
as a punishable offence such as enticement of children into any
sexual act.
146. Over a period of time, as the age of internet evolved, the inadequacies
of the IT Act became apparent, primarily due to more and more
children using the internet and a corresponding increase in number
of cyber-crimes being committed against them. Thus, there was a
need for a more robust legal framework particularly for the protection
of vulnerable population like children over the internet.
147. The 50th Report of the Standing Committee on Information Technology
on the ‘Information Technology (Amendment) Bill, 2007’ noted that
although a new provision in the form of Section 67A had been
proposed for specifically criminalizing publication or transmission
of pornographic material with enhanced punishment, yet there was
no specific provision pertaining to child pornography. The Standing
Committee, rejected the response of the Department of Information
Technology that the provision of Section 67A in general would also
include child pornography, and instead recommended that a specific
provision for child pornography be incorporated, in order to not just
criminalize the publication and transmission of child pornography with
an enhanced punishment but also to tackle and criminalize other
related forms of child sexual abuse such as, online enticement of
children into sexual acts, distribution of child pornography and the
facilitation or creation of such material. The relevant recommendations
read as under: -
“6. The Information Technology Act, 2000 was enacted
keeping in view technology directions and scenario as
it existed at that point of time. As the technology has a
habit of reinventing itself into cheaper and more cost-
effective options, it becomes imperative to give a fresh
look to any technology driven law from time to time.
Moreover, due to overall increase in e-commerce, growth
in outsourcing business, new forms of transactions, new
means of identification, consumers concern, promotion
of e-governance and other information technology
applications, technology neutrality from its present
‘technology specific’ form in consonance with development
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all over the world, security practices and procedures for
protection of Critical Information infrastructure, emergence
of new forms of computer misuse like child pornography,
video voyeurism, identity theft and e-commerce frauds like
phishing and online theft, rationalization of punishment
in respect of offences with reference to the Indian Penal
code, a need was felt to review the Indian Information
Technology Act, 2000”
xxx xxx xxx
(iii) Child Pornography
118. Clause 31 proposes to insert Section 67 A whereby
punishment has been provided for publishing or
transmitting of material containing sexually explicit act in
electronic form.
119. In the above context, a non-official witness as well as
the CBI have been of the view that the proposed Section
should be recast to include ‘child pornography’ also and
specific provisions should be incorporated in this Section
to criminalize child pornography in tune with the laws
prevailing in advanced democracies of the world as well
as Article 9 of the Council of Europe Convention on Cyber
Crimes which states as under: -
“Each Party shall adopt such legislative and
other measures as may be necessary to
establish as criminal offences under its domestic
law, when committed intentionally and without
right, the following conduct: (a) producing child
pornography for the purpose of its distribution
through a computer system; (b) offering or
making available child pornography through a
computer system; (c) distributing or transmitting
child pornography through a computer system;
(d) procuring child pornography through a
computer system for oneself or for another
person; (e) possessing child pornography in a
computer system or on a computer-data storage
medium.
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2. For the purpose of paragraph 1 above,
the term “child pornography” shall include
pornographic material that visually depicts:
(a) a minor engaged in sexually explicit
conduct;
(b) a person appearing to be a minor engaged
in sexually explicit conduct;
(c) realistic images representing a minor
engaged in sexually explicit conduct.
3. For the purpose of paragraph 2 above, the
term “minor” shall include all persons under 18
years of age. A Party may, however, require a
lower age-limit, which shall be not less than
16 years.
4. Each Party may reserve the right not to
apply, in whole or in part, paragraphs 1, sub-
paragraphs d. and e, and 2, sub-paragraphs
b. and c
120. When the Committee desired to hear the views of
the Department of Information Technology in incorporating
an express provision on defining child pornography as
suggested by the Expert Committee, it was replied that a
new Section 67A related to punishment for publishing or
transmitting of material containing sexually explicit acts
has been proposed as per which stringent provision has
been made relating to pornography in general and would
also automatically cover child pornography.
121. On the issue of criminalising child pornography and
making penal provision towards that, the Department
stated that, the advice/ assistance in the Commission of
Crime (Pornography) through offering advice on information
regarding the websites for facilitating any possession or
downloading illegal content might be considered an offence.
122. The Department of Information Technology also
agreed to a suggestion that the pre-offence grooming
i.e. the initial actions taken by the offender to prepare the
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child for sexual relationships through online enticement
and distributing or showing pornography to a child should
also be made a criminal offence.
RECOMMENDATIONS / OBSERVATIONS
xxx xxx xxx
Child Pornography
24. The Committee note that Clause 31 of the Bill intends
to insert a new Section 67A which provides for stringent
punishment for publishing or transmitting of material
containing sexually explicit acts in electronic form. But
the Committee are concerned to find that the term ‘child
pornography’ has nowhere been mentioned in the proposed
Section. The Department’s argument that the Section
while covering ‘pornography’ will automatically cover child
pornography does not convince the Committee as there
should be no scope for assumption or presumption when
fresh amendments are being proposed. The Committee,
therefore, impress upon the Department to include the
term ‘child pornography’ in the proposed Section 67A
in view of its growing menace. They also desire that
specific provisions should be incorporated in this Section
to criminalise child pornography in tune with the laws
prevailing in the advanced Countries and Article 9 of the
Council of Europe Convention on Cyber Crimes. In view of
the several manifestations of sexual abuse of the children
and its loathsome ramifications, the Committee desire that
the act of grooming the child for sexual relationship through
online enticement or distributing/showing pornography or
through any other online means should also be made a
criminal offence and a suitable provision be made in this
regard in the proposed Section 67A.”
(Emphasis supplied)
148. From the aforesaid, it can be seen that the Standing Committee
whilst making its recommendation, underscored that no useful
purpose would be served if the publication or transmission of any
child pornography is punished all the same as any other pornographic
material. It highlighted, that while the IT Act had originally been
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enacted keeping in mind the requirements that existed then, yet now
with the march of the age of internet, it has become imperative to
undertake a fresh approach to the provisions of the IT Act particularly
those relating to cyber-crime in light of the new emerging forms
of misuse of the internet. It opined that, merely criminalizing the
publication or transmission of child pornography will not be sufficient,
and that other various forms of online sexual abuse and exploitation
also need to be recognized and adequately punished, on par with
the laws prevailing in various other countries.
149. It was in the aforesaid backdrop that the legislature by virtue of the
Information Technology (Amendment) Act, 2008 inter-alia amended
Section 67 of the IT Act and introduced Section 67A along with Section
67B. This was for the first time, that a specific provision had been
made, to recognize and protect the vulnerable and tender age of
children by criminalizing various forms of online sexual degradation,
abuse and exploitation with enhanced punishment. At the cost of
repetition, Section 67B of the IT Act is being reproduced below: -
“67-B. Punishment for publishing or transmitting of
material depicting children in sexually explicit act,
etc., in electronic form. — Whoever —
(a) publishes or transmits or causes to be published or
transmitted material in any electronic form which depicts
children engaged in sexually explicit act or conduct; or
(b) 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; or
(c) cultivates, entices or induces children to online
relationship with one or more children for and on sexually
explicit act or in a manner that may offend a reasonable
adult on the computer resources; or
(d) facilitates abusing children online; or
(e) records in any electronic form own abuse or that of
others pertaining to sexually explicit act with children,
shall be punished on first conviction with imprisonment
of either description for a term which may extend to five
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years and with a fine which may extend to ten lakh rupees
and in the event of second or subsequent conviction with
imprisonment of either description for a term which may
extend to seven years and also with fine which may extend
to ten lakh rupees:
Provided that provisions of Section 67, Section 67-A
and this section does not extend to any book, pamphlet,
paper, writing, drawing, painting, representation or figure
in electronic form—
(i) the publication of which is proved to be justified as being
for the public good on the ground that such book, pamphlet,
paper, writing, drawing, painting, representation or figure
is in the interest of science, literature, art or learning or
other objects of general concern; or
(ii) which is kept or used for bona fide heritage or religious
purposes.
Explanation. — For the purpose of this section, “children”
means a person who has not completed the age of 18
years.”
150. A conjoint reading of Section(s) 67 and 67A viz-a-viz 67B would
reveal that unlike the former which penalizes only the publication
or transmission of any obscene material or pornographic material,
the scope and ambit of Section 67B is much wider inasmuch as it
recognizes and penalizes five different forms / categories of actus
reus, being: -
(i) Section 67B sub-section (a): -
a. Section 67B sub-section (a) of the IT Act pertains to
the dissemination of child pornography and penalizes
the publication or transmission of any material involving
a child in any sexually explicit act or conduct, and the
direct or indirect involvement in aiding or facilitating the
dissemination of such material.
b. In order, to constitute an offence under this provision,
there must be an actual publication or transmission of any
child pornographic material, though the said publication or
transmission may be done either by the accused himself or
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be caused through someone else at the instance or behest
of the accused. In other, words Section 67B sub-section
(a) punishes any person who is involved in a process, in
any manner that leads to the publication or transmission
of any child pornographic material.
c. Thus, twin-conditions as prescribed under Section 67B(a)
of the IT Act, need to be satisfied in order to constitute an
offence: - (I) the actual publication or transmission of any
child pornographic material AND (II) the involvement of
the accused in such publication or transmission process
in any manner.
(ii) Section 67B sub-section (b): -
a. It penalizes the creation of any text or image-based
content in any electronic form, that depict children in any
obscene or indecent or sexually explicit manner. It further
penalizes the collection, solicitation, browsing i.e., online
viewing, or downloading of such material. Thus, even the
mere viewing of any child pornographic material that is
stored in a mobile phone would tantamount to ‘browsing’
of such material in electronic form. Lastly, it also penalizes
the advertising, promotion, exchange or distribution of any
such material. Here again, what is punishable is only the
actual commission of any of the above-mentioned acts.
b. The scope of Section 67B sub-section (b), is more
expansive than the preceding sub-section because, (i)
first, the term ‘material’ here includes any electronic
content depicting children in sexually explicit acts as well
as in obscene or indecent contexts, and (ii) secondly, the
actus reus encompasses not just the act of disseminating
but also the acts of creating, propagating, or engaging
with or using such material.
c. In other words, Section 67B sub-section (b) penalizes the
actual commission of any of the following: -
i. the act of producing or creating any text or digital
image based electronic material (incl. videos) that
depict children in any obscene, indecent or sexually
explicit manner;
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ii. the act of engaging or using such material by way of
collecting, browsing, accessing, downloading, saving,
seeking, actively searching such material from any
computer resource, and;
iii. the act of facilitating or propagating the circulation
or dissemination of such material by advertising,
promoting, exchanging or sharing, distributing or
offering for sale such material from any computer
resource on the internet.
(iii) Section 67B sub-section (c): -
a. Section 67B sub-section (c) of the IT Act penalizes the act
of any person to induce or entice a child to participate or
indulge in any sexually explicit act or any other act that
would offend any adult of reasonable mind, using any
computer resource.
b. In order to constitute an offence under the said provision,
what is required is only the actual commission of an act of
inducement or enticement in any manner by the accused
alone, and there is no requirement that such enticement
or inducement must have resulted in the child indulging
in any sexually explicit or any other offensive act.
c. Thus, even where the accused merely attempts to entice
a child to indulge in any such act, through a computer
resource, he would be liable under this provision,
irrespective of whether the child also indulges in such act
or not. Furthermore, such enticement or inducement may
be for having the child either indulge in any sexually or
offensive act with the accused himself or with any other
person at the instance or persuasion of the accused.
d. In other words, what is penalized under Section 67B
sub-section (c) is the act of enticing or inducing a child to
indulge in any sexually explicit offensive act or behaviour.
(iv) Section 67B sub-section (d): -
a. Section 67B sub-section (d) penalizes any form or manner
of facilitation of abuse of children, online i.e., it penalizes
any form of degradation, exploitation, or abuse of children
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on any online platform. The actus reus punishable under
the said provision is the doing, aiding or abetting of any act,
either directly or indirectly that would facilitate or enable
the abuse of children online in any indecent, lascivious
or prurient manner.
b. It is pertinent to note, that under Section 67B sub-section
(d) there is no requirement that the act in question must
have been done only with an intention to facilitate the abuse
of children online. What is rather required to constitute an
offence under the said provision is that the act must be such
which likely would facilitate the abuse of children online.
c. In other words, what is penalized is any act that has the
propensity or likelihood to aid, enable or support the online
abuse of children in any obscene, indecent, or lewd fashion.
(v) Section 67B sub-section (e): -
a. Section 67B sub-section (e) of the IT Act penalizes the act
of recording through video or any other electronic means,
the participation of any sexually explicit act with or in the
presence of any child. The actus reus required is the use
of any video or any other electronic means to record any
sexually explicit act being done either by the accused
himself or by anyone else in the presence of a child.
b. It must be borne in mind, that the sexually explicit act itself
need not be done in the actual presence of the child, rather
what is required is that the child was made privy to such
sexually explicit act, and the same was recorded by the
accused in any electronic form. Say for instance, that in
the presence of a child, a pornographic video is played,
and the same is then recorded by the accused. Here since,
the recording includes a child being subjected to a sexually
explicit act in the form a pornographic video, an offence
would be constituted under the said provision, even though
no such act was done in the actual presence of the child.
c. In other words, what is penalized under Section 67B sub-
section (e) is the act of exposing or subjecting a child to
any sexually explicit act by anyone, and recording the
same in any electronic form.
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151. From the aforesaid, it is clear that Section 67B of the IT Act is a
comprehensive provision designed to address and penalize the
various electronic forms of exploitation and abuse of children
online. It not only punishes the electronic dissemination of child
pornographic material, but also the creation, possession, propagation
and consumption of such material as-well as the different types of
direct and indirect acts of online sexual denigration and exploitation
of the vulnerable age of children.
152. This Court in Sharat Babu Digumarti v. Govt. of NCT of Delhi
reported in (2017) 2 SCC 18 held that Chapter XI of the IT Act, more
particularly Section(s) 67 through 67B are a complete code in itself
when it comes to offences relating to electronic forms of obscene and
pornographic material. The relevant observations read as under: -
“31. Having noted the provisions, it has to be recapitulated
that Section 67 clearly stipulates punishment for publishing,
transmitting obscene materials in electronic form. The said
provision read with Sections 67-A and 67-B is a complete
code relating to the offences that are covered under the
IT Act. [...]”
(Emphasis supplied)
153. Thus, Section(s) 67, 67A and 67B of the IT Act being a complete code,
ought to be interpreted in a purposive manner that suppresses the
mischief and advances the remedy and ensures that the legislative
intent of penalizing the various forms of cyber-offences relating to
children and the use of obscene / pornographic material through
electronic means is not defeated by a narrow construction of these
provisions.
iii. The Presumption of Culpable Mental State under Section
30 of the POCSO.
154. As discussed earlier, the POCSO is a special legislation that was
specifically enacted to punish aggravated forms of offences related
to sexual abuse and exploitation of children as well as including
the well-being of the children. Its nuanced provisions have been
deliberately designed to provide stringent measures in order to
secure the dignity protection and interest of children. It was in this
backdrop, that the legislature in its wisdom specifically provided for
certain statutory presumptions as regards commission of certain
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specified offences as-well as presumption of the existence of a
culpable mental state on the part of the person accused so as to
ensure that the legislation is effective in addressing the increasing
number of child sexual abuse cases.
155. The provisions pertaining to statutory presumptions under the POCSO
are contained in Section(s) 29 and 30 which provide for presumption
as to certain offences and presumption of culpable mental state
respectively. In the case at hand we are concerned with Section 30
of the POCSO which at the cost of repetition is being reproduced
hereunder: -
“30. Presumption of culpable mental state. –
(1) In any prosecution for any offence under this Act
which requires a culpable mental state on the part of the
accused, the Special Court shall presume the existence of
such mental state but it shall be a defence for the accused
to prove the fact that he had no such mental state with
respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to
be proved only when the Special Court believes it to
exist beyond reasonable doubt and not merely when its
existence is established by a preponderance of probability.
Explanation. – In this section, “culpable mental state”
includes intention, motive, knowledge of a fact and the
belief in, or reason to believe, a fact.”
156. Section 30, sub-section (1) provides that where any offence under the
POCSO requires a culpable mental state on the part of the accused,
the Special Court shall presume the existence of such mental state.
It further provides that the accused may as a defence prove that
he had no such mental state with respect to any act being sought
to be punished under the Act. Thus, Section 30(1), makes it clear
that the presumption of culpable mental state applies to any offence
under the said Act that requires such mental state, and the use of
the word “shall” makes it mandatory for the Special Court to presume
the existence of such mental state. However, the said provision also
clarifies that, although the said presumption is mandatory yet it is
rebuttable inasmuch as the person accused is permitted to prove any
fact to establish the contrary i.e., to show that no such mental state
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existed on his part. Section 30 sub-section (2) further explains the
manner and the circumstances under which the said presumption
can be rebutted, insofar as it stipulates that in order to prove any
fact to show that no such mental state existed, the person accused
has to prove the same beyond a reasonable doubt and not on a
mere preponderance of probability. Thus, the standard prescribed
for rebutting the said statutory presumption of culpable mental state
is beyond a reasonable doubt. Lastly, the Explanation appended to
the said provision provides that ‘culpable mental state’ shall include
intention, motive, knowledge of a fact and the belief in, or the reason
to believe a fact.
a. Concept of Statutory Presumption and Principle of
Foundational Facts.
157. In Attorney General (supra) this Court while considering the aforesaid
Section(s) 29 and 30 of the POCSO observed that the same had
been specifically incorporated by the legislature in view of the serious
nature of the offences punishable under the POCSO and the object
behind the enactment of the said legislation. Furthermore, this Court
in view of the importance of the aforesaid provisions, held that any
offence under the Act pertaining to sexual, assault, harassment etc.,
ought to be construed viz-a-viz the other provision (sic Section(s) 29
and 30) of the POCSO. The relevant observations read as under: -
“36. It may also be pertinent to note that having regard to
the seriousness of the offences under the POCSO Act, the
Legislature has incorporated certain statutory presumptions.
Section 29 permits the Special Court to presume, when
a person is prosecuted for committing or abetting or
attempting to commit any offence under Section 3, 5, 7
and Section 9 of the Act, that such person has committed
or abetted or attempted to commit the offence, as the case
may be, unless the contrary is proved. Similarly, Section
30 thereof permits the Special Court to presume for any
offence under the Act which requires a culpable mental
state on the part of the accused, the existence of such
mental state. Of course, the accused can take a defence
and prove the fact that he had no such mental state with
respect to the act charged as an offence in that prosecution.
It may further be noted that though as per sub section (2)
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of Section 30, for the purposes of the said section, a fact is
said to be proved only when the Special Court believes it
to exist beyond reasonable doubt and not merely when its
existence is established by a preponderance of probability,
the Explanation to Section 30 clarifies that “culpable mental
state” includes intention, motive, knowledge of a fact and
the belief in, or reason to believe, a fact. Thus, on the
conjoint reading of Section 7, 11, 29 and 30, there remains
no shadow of doubt that though as per the Explanation
to Section 11, “sexual intent” would be a question of fact,
the Special Court, when it believes the existence of a fact
beyond reasonable doubt, can raise a presumption under
Section 30 as regards the existence of “culpable mental
state” on the part of the accused.
37. This takes the Court to the next argument of Mr. Luthra
that there being an ambiguity, due to lack of definition of
the expressions - “sexual intent”, “any other act”, “touching”
and “physical contact”, used in Section 7, coupled with
the presumptions under Sections 29 and 30 of the Act,
the reverse burden of proof on the accused would make
it difficult for him to prove his innocence and, therefore,
the POCSO Act must be strictly interpreted. In the opinion
of the Court, there cannot be any disagreement with the
said submission of Mr. Luthra. In fact it has been laid
down by this Court in catena of decisions that the Penal
Statute enacting an offence or imposing a penalty has to
be strictly construed. A beneficial reference of the decisions
in the case of Sakshi v. Union of India reported in (2004)
5 SCC 518, in the case of R. Kalyani v. Janak C. Mehta
reported in (2009) 1 SCC 516 and in the case of State of
Punjab v. Gurmeet Singh, (2014) 9 SCC 632 be made in
this regard. However, it is equally settled legal position that
the clauses of a statute should be construed with reference
to the context vis-a-vis the other provisions so as to make
a consistent enactment of the whole Statute relating to
the subject matter. The Court can not be oblivious to the
fact that the impact of traumatic sexual assault committed
on children of tender age could endure during their whole
life, and may also have an adverse effect on their mental
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state. The suffering of the victims in certain cases may be
immeasurable. Therefore, considering the objects of the
POCSO Act, its provisions, more particularly pertaining
to the sexual assault, sexual harassment etc. have to be
construed vis-a-vis the other provisions, so as to make the
objects of the Act more meaningful and effective.”
(Emphasis supplied)
158. The statutory presumption of culpable mental state is neither a concept
which is alien to the law nor is it something which is exclusive to the
POCSO alone. In fact, there are several legislations which also contain
similar provisions relating to the statutory presumption of culpable
mental state, such as Section 35 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short, the “NDPS Act”), Section 138A of the
Customs Act, 1962 (for short, the “Customs Act”), Section 278E of
the Income Tax Act, 1961 (for short, the “Act, 1961”) to name a few.
Since all of the aforesaid provisions are pari materia with Section 30
of the POCSO, it would be apposite to refer to the various decisions
of this Court interpreting these analogous provisions.
159. In Bhanabhai Khalpabhai v. Collector of Customs reported in
1994 Supp. (2) SCC 143, this Court whilst examining the scope of
Section 138A of the Customs Act which relates to presumption of
culpable mental state observed that the said statutory presumption
had been incorporated by the legislature in view of the difficulty
that the prosecution often faces in proving every link in respect of
commission of certain offences by way of direct evidence. It further
observed that such statutory presumption is an exception to the
general criminal jurisprudence that the onus never shifts on the
accused and he has only to raise a doubt in the mind of the court,
in respect of the correctness of the prosecution version. The relevant
observation reads as under: -
“9. In the facts and circumstances of the case, it can also
be held that the appellant was concerned with the specified
goods in connection with ‘fraudulent evasion or attempt
at evasion’ of duty chargeable on the specified goods. It
is well known, that it is very difficult for the prosecution,
to prove every link, in respect of the commission of the
offence under the Act by direct evidence. The whole
process of smuggling, for evading payment of custom duty
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consists of different links. The links aid and abate each
other, sometimes through a remote control. That is why,
Parliament has introduced Section 138-A in the Act. [...]
The provision relates only to burden and nature of proof
at the trial, as such it was applicable in the present case.
In view of the aforesaid section, a presumption has to be
drawn, in respect of existence of the alleged mental state.
An option has been given to the accused to prove by way
of defence the fact, that he did not have any such mental
state with respect to the act charged which is an offence.
It can be said that the provision aforesaid is an exception
to the general criminal jurisprudence that onus never
shifts on the accused and he has only to raise a doubt
in the mind of the court, in respect of the correctness of
the prosecution version. It is different from Sections 106
and 114 of the Evidence Act. In view of Section 138-A,
once a presumption is raised about a culpable mental
state on the part of the accused, that he had stored the
silver ingots, to export them outside the country evading
payment of custom duties, the accused has to prove as
a defence that no such mental state with respect to the
act charged, did exist. [...]”
(Emphasis supplied)
160. In another decision of this Court in Devchand Kalyan Tandel v.
State of Gujarat reported in (1996) 6 SCC 255, it was reiterated
that the statutory presumption engrafted in Section 138A of the
Customs Act was out of necessity in view of the growing number
of cases pertaining to evasion of duty or prohibitions or other alike
economic offences and the inherent difficulty of the prosecution
in establishing ingredients of such offences. It held that, once the
recovery of prohibited goods from the accused person has been duly
established by the prosecution, the statutory presumption would arise.
It further held, that the question in such cases would be whether in the
proved facts and circumstances, could the recourse of the statutory
presumption be taken. The relevant observations read as under: -
“10. [...] It is no doubt true that in a charge for violation of
the provisions of Section 135(1)(a) it is required for the
prosecution to establish that the accused have fraudulently
evaded or attempted to evade any duty chargeable on
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the goods or have violated the prohibition imposed under
the Act in respect of the goods. But if the prosecution
establishes the aforesaid facts then there is no necessity
of attracting the statutory presumption under Section 138-A
and without such presumption an accused can be convicted
under Section 135(1)(a). But the legislature having found
it difficult to establish the necessary ingredients of such
evasion of duty or prohibitions and the economic offences
having grown in proportion beyond the control, came
forward with the presumption available under Section 138-A
of the Act. The main object of Section 138 A is to raise a
presumption as to the culpable mental state on the part
of the accused when he is prosecuted in a court of law.
In other words, if a recovery is made from the accused
of any prohibited goods within the notified area then the
statutory presumption would arise that he was knowingly
concerned in the fraudulent evasion or attempted evasion of
any duty chargeable on the goods in question. In the case
of Bhanabhai Khalpabhai v. Collector of Customs [1994
Supp (2) SCC 143 : 1994 SCC (Cri) 882] this Court has
held that in view of Section 138-A a presumption has to
be drawn in respect of the existence of the alleged mental
state. An option has been given to the accused to prove
by way of defence the fact, that he did not have any such
mental state with respect to the act charged which is an
offence. The question, therefore, arises as to whether in
the proved facts and circumstances the courts below were
justified in taking recourse to the statutory presumption
under Section 138-A of the Act. [...]
(Emphasis supplied)
161. In State of Punjab v. Baldev Singh reported in (1999) 6 SCC 172
a Constitution Bench of this Court held that a presumption is an
inference of fact drawn from the facts which are known as proved
and as such the statutory presumption under Section 54 of NPDS Act
that an accused has committed an offence under the Act will only get
attracted once the prosecution has established that the accused was
found to be in possession of the contraband in a search conducted
in accordance with the procedure laid down in the Act. The relevant
observations read as under: -
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“54. Thus, even if it be assumed for the sake of argument
that all the material seized during an illegal search may
be admissible as relevant evidence in other proceedings,
the illicit drug or psychotropic substance seized in an
illegal search cannot by itself be used as proof of unlawful
conscious possession of the contraband by the accused.
An illegal search cannot also entitle the prosecution to
raise a presumption under Section 54 of the Act because
presumption is an inference of fact drawn from the facts
which are known as proved. A presumption under Section
54 of the Act can only be raised after the prosecution has
established that the accused was found to be in possession
of the contraband in a search conducted in accordance
with the mandate of Section 50.”
(Emphasis supplied)
162. In Seema Silk Sarees v. Directorate of Enforcement reported in
(2008) 5 SCC 580, although the provision involved therein is not
pari materia with Section 30 of the POCSO, yet the observations
made by this Court are relevant to the issue involved in the case at
hand. Therein this Court whilst upholding the constitutional validity
of Section 18 of the Foreign Exchange Regulation Act, 1973 which
inter-alia provided for a statutory presumption of contravening the
provisions of the said Act, held that such a statutory presumption
would stand attracted once certain foundational facts are established
by the prosecution. The relevant observation read as under: -
“19. A legal provision does not become unconstitutional
only because it provides for a reverse burden. The question
as regards burden of proof is procedural in nature. [...]
20. The presumption raised against the trader is a rebuttable
one. Reverse burden as also statutory presumptions can be
raised in several statutes as, for example, the Negotiable
Instruments Act, Prevention of Corruption Act, TADA, etc.
Presumption is raised only when certain foundational facts
are established by the prosecution. The accused in such
an event would be entitled to show that he has not violated
the provisions of the Act. [...]
(Emphasis supplied)
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163. Similarly in Noor Aga v. State of Punjab & Anr. reported in (2008)
16 SCC 417, the constitutional validity of Section 35 of the NDPS Act
was challenged which as aforestated provided for the presumption
of culpable mental state. This Court speaking through Justice S.B.
Sinha (as he then was) whilst upholding the validity of the aforesaid
provision observed that although the presumption of innocence being
a human right cannot be thrown aside, yet the same would still be
subject to exceptions. The court held that where a statute raises a
presumption with regard to the culpable mental state on the part of
the accused and also places the burden of proof on the accused to
prove the contrary, the said presumption would be constitutionally
valid and can be raised provided that the foundational facts pertaining
to the establishing the actus reus of the requisite offence has been
proved. It further held that despite such statutory presumption, the
initial burden would always lie upon the prosecution to prove certain
foundational facts clearly establishing the actus reus in respect of the
offence that is sought to be punished. It is only after the prosecution
has proved the foundational facts, that the statutory presumption
gets attracted, whereafter the burden would shift onto the accused
to prove otherwise. In the last it also held that the extent of burden
to prove the foundational facts pertaining to the actus reus by the
prosecution would depend upon the seriousness of the offence. The
relevant observations read as under: -
“35. A right to be presumed innocent, subject to the
establishment of certain foundational facts and burden of
proof, to a certain extent, can be placed on an accused. It
must be construed having regard to the other international
conventions and having regard to the fact that it has
been held to be constitutional. Thus, a statute may be
constitutional but a prosecution thereunder may not be
held to be one. Indisputably, civil liberties and rights of
citizens must be upheld.
xxx xxx xxx
51. The Act specifically provides for the exceptions. It is
a trite law that presumption of innocence being a human
right cannot be thrown aside, but it has to be applied
subject to exceptions.
xxx xxx xxx
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56. The provisions of the Act and the punishment prescribed
therein being indisputably stringent flowing from elements
such as a heightened standard for bail, absence of any
provision for remissions, specific provisions for grant of
minimum sentence, enabling provisions granting power to
the court to impose fine of more than maximum punishment
of Rs 2,00,000 as also the presumption of guilt emerging
from possession of narcotic drugs and psychotropic
substances, the extent of burden to prove the foundational
facts on the prosecution i.e. “proof beyond all reasonable
doubt” would be more onerous. A heightened scrutiny
test would be necessary to be invoked. It is so because
whereas, on the one hand, the court must strive towards
giving effect to the parliamentary object and intent in the
light of the international conventions, but, on the other, it
is also necessary to uphold the individual human rights
and dignity as provided for under the UN Declaration of
Human Rights by insisting upon scrupulous compliance
with the provisions of the Act for the purpose of upholding
the democratic values. It is necessary for giving effect to
the concept of “wider civilisation”. The court must always
remind itself that it is a well-settled principle of criminal
jurisprudence that more serious the offence, the stricter is
the degree of proof. A higher degree of assurance, thus,
would be necessary to convict an accused. [...]
xxx xxx xxx
58. Sections 35 and 54 of the Act, no doubt, raise
presumptions with regard to the culpable mental state on
the part of the accused as also place the burden of proof
in this behalf on the accused; but a bare perusal of the
said provision would clearly show that presumption would
operate in the trial of the accused only in the event the
circumstances contained therein are fully satisfied. An
initial burden exists upon the prosecution and only when
it stands satisfied, would the legal burden shift. Even then,
the standard of proof required for the accused to prove
his innocence is not as high as that of the prosecution.
Whereas the standard of proof required to prove the guilt of
the accused on the prosecution is “beyond all reasonable
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doubt” but it is “preponderance of probability” on the
accused. If the prosecution fails to prove the foundational
facts so as to attract the rigours of Section 35 of the Act,
the actus reus which is possession of contraband by the
accused cannot be said to have been established.
(Emphasis supplied)
164. In Bhola Singh v. State of Punjab reported in (2011) 11 SCC 653
this Court while placing reliance on the decision in Noor Aga (supra)
reiterated that the statutory presumption envisaged in Section 35
of the NDPS Act will only come into play after the prosecution had
discharged its initial burden to prove certain foundational facts.
It observed that the applicability of such statutory presumption is
dependent upon the facts as spelt out by the prosecution, after which
the burden would shift onto the accused to establish otherwise.
It held that in the absence of any foundational facts pertaining to
the alleged offence, no presumption can be drawn. The relevant
observations read as under: -
“10. While dealing with the question of possession in terms
of Section 54 of the Act and the presumption raised under
Section 35, this Court in Noor Aga v. State of Punjab while
upholding the constitutional validity of Section 35 observed
that as this section imposed a heavy reverse burden on
an accused, the condition for the applicability of this and
other related sections would have to be spelt out on facts
and it was only after the prosecution had discharged the
initial burden to prove the foundational facts that Section
35 would come into play.
11. Applying the facts of the present case to the cited
one, it is apparent that the initial burden to prove that
the appellant had the knowledge that the vehicle he
owned was being used for transporting narcotics still
lay on the prosecution, as would be clear from the word
“knowingly”, and it was only after the evidence proved
beyond reasonable doubt that he had the knowledge
would the presumption under Section 35 arise. Section
35 also presupposes that the culpable mental state of an
accused has to be proved as a fact beyond reasonable
doubt and not merely when its existence is established by
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a preponderance of probabilities. We are of the opinion that
in the absence of any evidence with regard to the mental
state of the appellant no presumption under Section 35
can be drawn. [...]”
(Emphasis supplied)
165. In Baldev Singh v. State of Haryana reported in (2015) 7 SCC
554 this Court held that the presumption of culpable mental state
contained in Section 35 of the NDPS Act would come into play once
the possession of the contraband in question by the accused has
been established by the prosecution, whereafter, the onus would be
on the accused to rebut the said presumption. It further held, that
such presumption may be rebutted by the accused by either raising
doubts in the prosecution’s case and the material relied upon it for
establishing the possession or that it may adduce any other evidence
to rebut the same. In the last, it also held that where the prosecution
is unable to establish the possession or where the court has doubts
over the prosecution’s case, the said presumption would automatically
be discharged. The relevant observations read as under: -
“12. [...] Once the physical possession of the contraband
by the accused has been proved, Section 35 of the NDPS
Act comes into play and the burden shifts on the appellant-
accused to prove that he was not in conscious possession
of the contraband. [...]The Explanation to sub-section (1)
of Section 35 expanding the meaning of “culpable mental
state” provides that “culpable mental state” includes
intention, knowledge of a fact and believing or reason
to believe a fact. Sub-section (2) of Section 35 provides
that for the purpose of Section 35, a fact is said to be
proved only when the court believes it to exist beyond a
reasonable doubt and not merely when its existence is
established by a preponderance of the probability. Once
the possession of the contraband by the accused has been
established, it is for the accused to discharge the onus of
proof that he was not in conscious possession. Burden of
proof cast on the accused under Section 35 of the NDPS
Act can be discharged through different modes. One of
such modes is that the accused can rely on the materials
available in the prosecution case raising doubts about the
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prosecution case. The accused may also adduce other
evidence when he is called upon to enter on his defence.
If the circumstances appearing in the prosecution case
give reasonable assurance to the court that the accused
could not have had the knowledge of the required intention,
the burden cast on him under Section 35 of the NDPS
Act would stand discharged even if the accused had not
adduced any other evidence of his own when he is called
upon to enter on his defence.”
(Emphasis supplied)
166. What can be discerned from the above is that the idea behind
providing for a statutory presumption of culpable mental state is
in view of the exigency posed by the difficulty that often exists in
establishing certain types of offences such as inchoate offences
due to its clandestine nature. Such presumptions are in essence
an exception to the cardinal principle of criminal jurisprudence that
the act does not make a person guilty unless the mind is also guilty.
167. Traditionally, it is the prosecution who bears the burden of proving
every element in a particular offence, including the accused’s mental
state, beyond a reasonable doubt. In order to establish the commission
of any offence, the prosecution must stand on its own legs i.e., the
onus lies on the prosecution to prove beyond reasonable doubt not
just the wrongful act but also the wrongful intention of the person in
doing such an act. However, in certain offences particularly economic
offences or inchoate offences like possession of child pornography
where apart from the actus reus there exists no other material to depict
or demonstrate the mens rea, it is too difficult for the prosecution to
look into the mind of the accused to cull out with certainty what his
intention was or could have been for doing a particular act let alone
cogently establish the same beyond a reasonable doubt. Due to the
elusive and concealed nature of such offences there is often little
to no direct evidence available to establish what was in fact in the
mind of the accused at the time when the particular act in question
occurred or that the said act was done only with a particular intention.
168. It is in such scenarios, the legislature consciously provides for a
statutory presumption of a culpable mental state to overcome the
aforesaid hurdles and assist the prosecution to prove its case. This
presumption of a culpable mental state is neither a conclusive proof
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of guilt for any particular offence nor does it completely replace
or absolve the prosecution of its burden of proof and should not
be understood as such, but rather it is a potent tool to assist the
prosecution in discharging its initial burden and establishing its
case. It seeks to bridge the evidentiary gap that exists between the
actus reus and the mens rea in complex clandestine offences which
otherwise cannot be proved through conventional means.
169. One good reason for providing such statutory presumptions in
different legislations is owed to the fact that at times having regard
to the peculiar case the prosecution may find it extremely difficult to
know the mind of the accused so as to establish his intention and
mental state. In contrast, the accused may not have to face the same
degree of difficulty because he is fully aware of his mental state and
can explain his intentions on the basis of his conduct or actions.
170. However, since the courts were in seisin of the harshness of such
presumptions and the inherent danger they pose – particularly in
blurring the line between the presumption of a culpable mental
state and the presumption of the guilt itself and thereby undoing or
compromising the fairness of such criminal proceeding, this Court
for the first time in Baldev Singh (supra) sowed the seeds for a test
to ascertain as to when such presumption can be safely attracted
which was later more fully evolved in Noor Aga (supra) wherein a
brightline test was laid down in the form of the ‘Rule or Principle of
Foundational Facts’.
171. This ‘Rule or Principle of Foundational Facts’ simpliciter lays down that
before the statutory presumption of culpable mental state could be
validly invoked, the prosecution must first establish certain foundational
facts. These foundational facts typically involve or correspond to
proving those facts or elements that cogently establish the actus reus
required for the offence alleged by the prosecution. It is only after
such foundational facts have been proved beyond a reasonable doubt
that the prosecution may take recourse of the statutory presumption
provided by the legislature. The rationale behind the same is two-fold.
First, in the absence of any actus reus there is no possible way to
ascertain the corresponding mens rea that is required to be established.
This is because it is the actus reus which demarcates or delineates
the mens rea which is to be looked for and established. Without an
actus reus of any form there arises no question of establishing and
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consequently presuming the mens rea, in view of the fundamental
principle of criminal jurisprudence, that no one should be punished for
their thoughts or intention alone unless accompanied by some form
of act. Secondly, and more importantly it ensures that the statutory
presumption does not overreach or take the place of proof of guilt
under the guise of ‘presumption of culpable mental state’.
172. It would be too much to shift the entire onus onto the accused and to
then ask him to prove a negative fact. Thus, any statutory presumption
would operate only after the prosecution first lays the foundational
facts necessary for the offences that have been alleged beyond a
reasonable doubt. This is because a negative cannot be proved in
the initial threshold, in order to prove a contrary fact, the fact whose
opposite is sought to be established must be proposed first. Thus,
in law it is trite that the initial burden always lies on the prosecution.
This why, the establishment of foundational facts by the prosecution
is a prerequisite for triggering the statutory presumption for shifting
the onus on the accused to prove the contrary. It is a delicate
balance struck between the practical need for such presumption in
law and the cardinal principles of criminal jurisprudence to ensure
that the presumption does not cross or transgress the fine line
that demarcates presumption of ‘culpable mental state’ from the
‘presumption of guilt’ itself.
173. Since a negative cannot be proved, an accused cannot be asked
to disprove his guilt even before the foundational allegations with
supporting material thereof are placed and duly established by the
prosecution before the court. Unless the prosecution is able to prove
foundational facts in the context of the allegations made against the
accused under any specific provision of the POCSO as the case
may be, the statutory presumption of culpable mental state under
Section 30 of the POCSO will not come into the picture.
174. Even if the prosecution establishes such foundational facts and the
presumption is raised against the accused, he can rebut the same
either by discrediting prosecution’s case as improbable or absurd or
the accused could lead evidence to prove his defence, in order to
rebut the presumption, however the said presumption under Section
30 of the POCSO will be said to have been rebutted only where
the accused by way of his defence establishes a fact contrary to
the presumption and proves the same beyond a reasonable doubt.
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b. Foundational Facts required under Section 15 of the POCSO.
175. Now coming to Section 15 of the POCSO, as discussed earlier, the
foundational facts ordinarily pertain to the actus reus required under a
particular offence. However, given the fact that Section 15 penalizes
three distinct and varying degrees of intention and having regard to
the mutually exclusive nature of each of the three offences provided
thereunder, the mere storage or possession of a child pornographic
material cannot become the foundational facts or basis for attracting
all three of the said offences all the same.
176. As discussed by us in the foregoing parts of this judgment, while on a
plain reading Section 15 sub-section(s) (1), (2) and (3) it might appear
that all require the same actus reus i.e., the storage or possession
of the child pornographic material, however, such an interpretation
is flawed as a closer examination of each of the sub-section would
reveal that there exists a very fine but pertinent distinction in the
actus reus which is required to constitute an offence under Section
15 sub-section(s) (1), (2) or (3) of the POCSO.
177. Thus, for the purpose of Section 15 sub-section (1), the necessary
foundational facts which the prosecution would first have to establish
before it can be allowed to validly raise the statutory presumption of
culpable mental state would simpliciter be the storage or possession
of any child pornographic material and that the person accused had
failed to delete, destroy or report the same. Once, the aforesaid is
clearly established by the prosecution, a presumption would be raised
in terms of Section 30 of the POCSO that the person accused had
the knowledge of the child pornographic material that was found to
be stored or possessed by him and that he had the intent to share
or transmit the same due to which he failed to delete, destroy or
report it.
178. Whereas when it comes to Section 15 sub-section (2), since the
actus reus required to constitute an offence thereunder requires
the storage or possession of any pornographic material involving
a child along with any additional mater to show either the actual
transmission, propagation, display or distribution of any such material
or the facilitation of any of the abovementioned acts. Thus, in order
to invoke the statutory presumption of culpable mental state as
contained in Section 30 of the POCSO, the prosecution would be
required to first establish not just the storage or possession of any
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child pornographic material, but also any other material to indicate
any actual transmission, propagation, display or distribution of any
such material or any form of an overt act such as preparation or
setup done for the facilitation of the transmission, propagation,
display or distribution of such material, whereafter, the statutory
presumption would stand attracted, and it shall be presumed by
the courts that the said act was done with the intent of transmitting,
displaying, propagating or distributing such material and that the
said act(s) had not been done for the purpose of either reporting
or for use as evidence. We clarify that, though wherever any actual
transmission, propagation, display or distribution of such material
takes place, the offence under Section 15 sub-section (2) would be
constituted, thereby seemingly not requiring any further to be proved.
However, due to the two exceptions carved out in sub-section (2)
namely that transmission, propagation, display or distribution of child
pornographic material when done for either reporting the same or
for use as evidence, the statutory presumption in such scenario will
still continue to serve a useful purpose by aiding the prosecution
in reinforcing that any of the abovementioned acts had not been
done with the intention of either reporting the same or for using it
as evidence, unless the contrary is proven.
179. Lastly, for the purpose of Section 15 sub-section (3) of the POCSO,
the actus reus required therein is the storage or possession of any
child pornographic material and any other material to indicate that
such storage or possession was done in lieu or in expectation of some
form of gain or benefit. Thus, where the prosecution established the
storage or possession of such material and further shows anything
else that might indicate that the same had been done for some
form of gain or benefit or the expectation of some gain or benefit,
the foundational facts would be said to have been proved, and the
statutory presumption envisaged under Section 30 of the POCSO
can be validly raised. Then the onus would lie on the accused to
prove that the storage or possession of such material had not been
done with intention of any commercial purpose.
c. Whether the Presumption under Section 30 of the POCSO
can be resorted to in a Quashing Proceeding?
180. The last aspect which remains to be examined is whether the said
statutory presumption of culpable mental state provided in Section
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30 of the POCSO can be resorted to in a quashing proceeding by
the High Courts in exercise of their inherent powers under Section
482 of the Cr.P.C. (corresponding Section 530 of the Bhartiya Nagrik
Suraksha Sanhita, 2023, for short, the “BNSS”). In other words, at
what stage can the aforesaid said statutory presumption be invoked
at. Before proceeding with the analysis of the said aspect, it would
be appropriate to refer to a few decisions of this Court on this issue.
181. In State of M.P. v. Harsh Gupta reported in (1998) 8 SCC 630, this
Court held that the statutory presumption contained in Section 69
of the Indian Forest Act, 1927 could not have been ignored by the
High Court in deciding the quashing petition under Section 482 of
the Cr.P.C. The relevant observations read as under: -
“3. It is rather surprising that at a stage when the only
question to be considered was whether the complaint and
its accompaniments disclosed any or all of the offences
alleged against the respondent, the learned Judge not
only went into a detailed discussion about his defence but
recorded a conclusive finding that he was not guilty of the
offences alleged against him. More surprising is that the
learned Judge ignored the provisions of Section 69 of the
Act which expressly raises a statutory presumption against
a person arraigned that the forest produce recovered from
him was a property of the Government, until the contrary
is proved; and needless to say, the question of proof of
the contrary can be answered after evidence is led.
4. For the foregoing discussion, we allow this appeal, set
aside the impugned judgment and direct the Magistrate
to proceed with the case in accordance with law, without
in any way being influenced by any of the observations
made by the High Court in the impugned order.”
(Emphasis supplied)
182. This Court in Prakash Nath Khanna v. CIT reported in (2004) 9
SCC 686 examined the scope of Section 278E of the Act, 1961.
It held that where there is a statutory presumption as regards the
existence of a culpable mental state on the part of the accused in
respect of any offence alleged, any defence in respect of the absence
of such mental state can only be pleaded in the trial. It further held
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that in such scenario, it will not be open for the High Court to delve
into the aspect of the absence of such mental state in a quashing
proceeding. The relevant observations read as under: -
“23. There is a statutory presumption prescribed in Section
278-E. The court has to presume the existence of culpable
mental state, and absence of such mental state can be
pleaded by an accused as a defence in respect to the act
charged as an offence in the prosecution. Therefore, the
factual aspects highlighted by the appellants were rightly
not dealt with by the High Court. This is a matter for trial.
It is certainly open to the appellants to plead absence of
culpable mental state when the matter is taken up for trial.”
(Emphasis supplied)
183. In another decision of this Court in R. Kalyani v. Janak C. Mehta
& Ors. reported in (2009) 1 SCC 516 although the issue therein did
not pertain to the applicability of any statutory presumption, yet the
observations made therein are significant. This Court held that the
High Court in a quashing petition in exercise of its inherent jurisdiction
cannot go into the aspect of either the existence or absence of any
mens rea or actus reus for a particular offence to pass an order in
favour of the accused. The relevant observations read as under: -
“15. Propositions of law which emerge from the said
decisions are:
(1) The High Court ordinarily would not exercise its inherent
jurisdiction to quash a criminal proceeding and, in particular,
a first information report unless the allegations contained
therein, even if given face value and taken to be correct
in their entirety, disclosed no cognizable offence.
(2) For the said purpose the Court, save and except in
very exceptional circumstances, would not look to any
document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If
the allegations made in the FIR disclose commission of
an offence, the Court shall not go beyond the same and
pass an order in favour of the accused to hold absence
of any mens rea or actus reus.
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(4) If the allegation discloses a civil dispute, the same
by itself may not be a ground to hold that the criminal
proceedings should not be allowed to continue.”
(Emphasis supplied)
184. In a recent decision of this Court in Rathis Babu Unnikrishnan v.
The State (Govt. of NCT of Delhi) & Anr. reported in 2022 INSC
480 it was held that when there is a statutory presumption, it would
not be judicious of the quashing court to carry out a detailed enquiry
on the facts alleged before first permitting the trial court to evaluate
the evidence. It further observed that where a accused moves the
court for quashing even before the commencement of trial, the High
Courts in such cases should be slow and circumspect in prematurely
extinguishing by discarding the legal presumption all together. The
relevant observation reads as under: -
“11. The legal presumption of the cheque having been
issued in the discharge of liability must also receive due
weightage. In a situation where the accused moves Court
for quashing even before trial has commenced, the Court’s
approach should be careful enough to not to prematurely
extinguish the case by disregarding the legal presumption
which supports the complaint.
xxx xxx xxx
13. Bearing in mind the principles for exercise of jurisdiction
in a proceeding for quashing, let us now turn to the materials
in this case. On careful reading of the complaint and the
order passed by the Magistrate, what is discernible is that
a possible view is taken that the cheques drawn were, in
discharge of a debt for purchase of shares. In any case,
when there is legal presumption, it would not be judicious
for the quashing Court to carry out a detailed enquiry on
the facts alleged, without first permitting the trial Court to
evaluate the evidence of the parties. The quashing Court
should not take upon itself, the burden of separating the
wheat from the chaff where facts are contested. To say
it differently, the quashing proceedings must not become
an expedition into the merits of factual dispute, so as to
conclusively vindicate either the complainant or the defence.
xxx xxx xxx
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16. The proposition of law as set out above makes it
abundantly clear that the Court should be slow to grant
the relief of quashing a complaint at a pre-trial stage,
when the factual controversy is in the realm of possibility
particularly because of the legal presumption, as in this
matter. What is also of note is that the factual defence
without having to adduce any evidence need to be of an
unimpeachable quality, so as to altogether disprove the
allegations made in the complaint.
17. The consequences of scuttling the criminal process at
a pre-trial stage can be grave and irreparable. Quashing
proceedings at preliminary stages will result in finality
without the parties having had an opportunity to adduce
evidence and the consequence then is that the proper
forum i.e., the trial Court is ousted from weighing the
material evidence. If this is allowed, the accused may be
given an un-merited advantage in the criminal process.
Also because of the legal presumption, when the cheque
and the signature are not disputed by the appellant, the
balance of convenience at this stage is in favour of the
complainant/prosecution, as the accused will have due
opportunity to adduce defence evidence during the trial,
to rebut the presumption.”
(Emphasis supplied)
185. From the above exposition of law, it is clear that there is no bar for
the High Court to invoke the statutory presumption at the stage of
deciding the quashing petition in respect to any offence to which such
a presumption is applicable. Rather, any failure to give due weightage
to the same, may result in dire consequences such as premature
quashing of the criminal proceeding or allowing the accused to
completely bypass the statutory presumption which otherwise would
have been applicable in the trial. In light of our earlier discussion
and without again referring to a plethora of decisions in this regard,
it is clear how the statutory presumption plays a vital role when it
comes to offences such as those under the POCSO.
186. This Court in Attorney General (supra) specifically held that
considering the objects of POCSO, its provisions, more particularly,
pertaining to sexual assault etc should be construed viz-a-viz the other
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provisions of the Act more meaningful and effective. Any selective
reference to a particular provision in complete ignorance of the
other provision would result in a mutilation of the entire scheme and
purport of the legislation and thereby defeat the purpose with which
it was enacted. The High Courts as a matter of choice should not
shy away from referring to the statutory presumption that has been
incorporated in the Act, whilst deciding a quashing petition. The High
Courts must not deal with a particular offence under any enactment
devoid or in disregard of the rest of the statutory framework, it must
recognize and refer to the legislation in toto.
187. Otherwise, it would give an undue advantage to an accused by
allowing him to mischievously prefer a quashing petition before the
trial commences and completely bypass the statutory presumption
provided by the legislature and walk right away from the criminal
proceedings, thereby setting the entire legislation at naught. It is
imperative for the courts to discourage any such attempts on part of
the accused to short circuit the statutory provisions and procedure
laid in a particular Act and evade trial entirely. In such situations, the
statutory presumption becomes all the more important to effectively
ensure that criminal process is not manipulated by any devious
accused.
188. As has been held in Prakash Nath Khanna (supra) and Rathis
Babu Unnikrishnan (supra), any defence of the accused for the
purpose of rebutting the said statutory presumption should ordinarily
be left to the trial court to be looked into at-least when it comes to
quashing petitions. Though, in certain exceptional circumstances,
the High Court may entertain such defence to quash the criminal
proceedings where it appears from the facts itself that the allegations
themselves are completely false and bogus and by no stretch of
imagination said to be established. But in doing so, the High Court
must be slow and circumspect & must exercise some restraint. The
statutory presumption may be ignored only where no foundational
facts have been established from the material on record.
189. Once the foundational facts are prima facie established from the
materials on record, it would be improper for the High Court in a
quashing petition to conduct an intricate evidentiary inquiry into the
facts and ascertain whether the requisite mental elements are present
or not. All these aspects should be left to be decided by the trial
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court which is the appropriate forum for the evaluation of the same,
especially where the statutory presumption has been attracted prima
facie from the material on record.
190. When the High Court quashes any criminal proceedings without
considering the legal effect of the statutory presumption, it effectively
scuttles the process of trial and thereby denies the parties the
opportunity to adduce appropriate evidence and the right to a fair
trial. This would not only defeat the very case of the prosecution
but would also thwart the very object of a particular legislation and
thereby undermine the public confidence in the criminal justice system.
191. We are conscious of the fact that in Noor Aga (supra) this Court had
held that the statutory presumption under Section 35 of the NDPS
Act would only operate in the trial of the accused. However, a close
reading of the said decision would reveal that this Court in Noor Aga
(supra) only went so far as to say that before a statutory presumption
could be invoked, the foundational facts must have been established
by the prosecution. We may at the cost of repetition again reproduce
the relevant observations of Noor Aga (supra) in this regard: -
“58. Sections 35 and 54 of the Act, no doubt, raise
presumptions with regard to the culpable mental state on
the part of the accused as also place the burden of proof
in this behalf on the accused; but a bare perusal of the
said provision would clearly show that presumption would
operate in the trial of the accused only in the event the
circumstances contained therein are fully satisfied. An
initial burden exists upon the prosecution and only when
it stands satisfied, would the legal burden shift. Even then,
the standard of proof required for the accused to prove
his innocence is not as high as that of the prosecution.
Whereas the standard of proof required to prove the guilt of
the accused on the prosecution is “beyond all reasonable
doubt” but it is “preponderance of probability” on the
accused. If the prosecution fails to prove the foundational
facts so as to attract the rigours of Section 35 of the Act,
the actus reus which is possession of contraband by the
accused cannot be said to have been established.
(Emphasis supplied)
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192. What has been conveyed by this Court in so many words in
the aforesaid paragraph of Noor Aga (supra) is that despite the
statutory presumption of culpable mental state, the initial burden
to establish the foundational facts will still lie on the prosecution.
This Court by no stretch of imagination could be said to have held
that the statutory presumption of culpable mental state would only
be applicable in trial. Even otherwise, since the decision of Noor
Aga (supra) arose from a criminal appeal against conviction, this
Court by no extent had the occasion to examine the applicability
of the statutory presumption to proceedings other than the trial and
appeal thereof.
193. We are also in seisin of the fact that Section 30 sub-section (1)
specifically provides that “the Special Court shall presume the
existence of such mental state”. Similarly, Section 30 sub-section
(2) also uses the words “Special Court”. However, this in no manner
can be construed to hold that it is the Special Court alone which has
been vested with the power to raise the presumption under Section
30 of the POCSO. We say so, because: -
(i) First, the use of the words “the Special Court shall presume
the existence of such mental state” in sub-section (1) and other
mention of Special Courts in the provision is only explanatory
in nature inasmuch as the legislature has used the said word
to only explain how such presumption would ordinarily operate
in a trial. It by no stretch can be understood as a bar on the
applicability of such presumption to other proceedings, as the
said provision does not in any manner delineate or lay down
the scope of such presumption and rather only elucidates the
nature of the presumption (i.e., presumption of culpable mental
state), the manner in which it would operate (i.e., applicable
to any offence under the POCSO which requires any culpable
mental state) and the standard of proof required to prove
anything contrary (i.e., beyond a reasonable doubt). By no
means it could be said that the legislature by the use of the
words “Special Court” in Section 30 of the POCSO intended
to curtail the application of the said statutory provision only in
trial. Any such interpretation would completely render the other
penal provisions meaningless, wherever the accused at the
earlier stages moves for a quashing petition.
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(ii) Secondly, the statutory presumption under Section 30 of the
POCSO operates or gets attracted not by virtue of the court
before which the matter happens to be at, but by the offence
itself, for which the legislature specifically provides such
presumption in the first place. Since, the presumption in essence
is in respect of mens rea required for any offence under the
POCSO, this presumption is inextricably linked to the offence
alone and not the power conferred upon a particular court.
This is evinced by Section 30 sub-section (1), more particularly
the expression “In any prosecution for any offence under this
Act which requires a culpable mental state on the part of the
accused”. Furthermore, the aforesaid expression is of wide
import and the words “prosecution for any offence under this Act”
occurring therein would subsume and include any proceeding
in respect of an offence under the POCSO would.
(iii) Thirdly, even otherwise, the mere usage of words “Special
Court” in the said provision can by no extent defeat or override
the inherent powers that have been vested in the High Court
by virtue of Section(s) 482 and 530 of the Cr.P.C. and BNSS,
respectively.
As such, the statutory presumption envisaged under Section 30 of
the POCSO is applicable and can be invoked in any proceeding
which involves an offence under the said Act that requires a culpable
mental state, irrespective of the court where such proceeding is
taking place.
194. It is a settled position of law that a statute is an edict of the legislature,
the elementary principle of interpreting or construing a statute is
to gather the mens or sententia legis i.e., the true intention of the
legislature. It is trite saying that while interpreting a statute, the
courts should strive to ascertain the intention of the Legislature
enacting it, and it is the duty of the Courts to accept an interpretation
or construction which promotes the object of the legislation and
prevents its possible abuse. Thus, we are of the considered view
that any other interpretation of the provisions of the POCSO and of
the various issues that have been discussed by us in the foregoing
paragraphs, would frustrate the very avowed and salutary object of
the POCSO and its provisions.
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iv. Whether the case at hand was one fit for the High Court
to quash?
195. The undisputed facts are that, during investigation two videos
depicting children involved in a sexual activity were recovered from
the mobile phone of the respondent no. 1. As per the FSL Report,
the aforesaid two videos were last modified in the memory of the
accused person’s phone on 05.09.2016 and 14.06.2019 respectively.
The respondent no. 1 himself admitted before the High Court as
recorded in the impugned order that he was addicted to watching
pornography. In what circumstances such statement come to be
recorded by the High court is a mystery. Although, the FIR dated
29.01.2020 alleged offences under Section(s) 14(1) of the POCSO
and 67B of the IT Act, yet in the chargesheet, the aforesaid offence
under Section 14(1) of the POCSO was substituted and instead
offence under Section 15(1) of the POCSO was alleged to have
been committed.
196. The High Court in its Impugned Order whilst quashing the criminal
proceedings arising out of the aforesaid chargesheet dated
19.09.2023 completely failed to advert to the actual charge that was
alleged therein more particularly Section 15 sub-section (1) of the
POCSO. Instead, the High Court appears to have just relied upon
the FIR and premised its findings on Section 14 of the POCSO,
even though the said offence had been dropped in the chargesheet.
Thus, there appears to be a serious lapse on part of the High Court
in failing to advert to Section 15 of the POCSO especially when the
chargesheet had already been filed at the time of passing of the
Impugned Order. It is no longer res-integra that once the investigation
is over and chargesheet is filed, the FIR pales into insignificance. The
court, thereafter, owes a duty to look into all the materials collected
by the investigating agency in the form of chargesheet.
197. It is no longer res-integra, that the High Court in exercise of its inherent
powers under Section(s) 482 of the Cr.P.C. or 530 of the BNSS as
the case must not conduct a mini trial or go into the truthfulness
of the allegations while dealing with a quashing petition. The High
Court may be justified in quashing the chargesheet if it appears to it
that continuance of criminal proceedings would be nothing but gross
abuse of the process of law.
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198. In R.P. Kapur v. State of Punjab reported in AIR 1960 SC 866, this
Court summarised some categories of cases where inherent power
can, and should be exercised to quash the proceedings: -
(i) where it manifestly appears that there is a legal bar
against the institution or continuance e.g. want of
sanction;
(ii) where the allegations in the first information report
or complaint taken at its face value and accepted in
their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there
is no legal evidence adduced or the evidence adduced
clearly or manifestly fails to prove the charge.
199. This Court in State of Haryana v. Bhajan Lal reported in 1992 AIR
SC 604 held that the power of quashing must be used very sparingly
and with circumspection. It must only be used in the rarest of the
rare cases. While laying down the principles relating to quashing of
criminal proceedings, this Court held that while examining a complaint
or FIR, the quashing of which is sought, the Court cannot embark
upon an enquiry as to the reliability or genuineness or otherwise of
the allegations made in the FIR or in the complaint. The relevant
observations read as under: -
“102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of
the principles of law enunciated by this Court in a series
of decisions relating to the exercise of the extraordinary
power under Article 226 or the inherent powers under
Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of
cases by way of illustration wherein such power could be
exercised either to prevent abuse of the process of any
court or otherwise to secure the ends of justice, though it
may not be possible to lay down any precise, clearly defined
and sufficiently channelised and inflexible guidelines or
rigid formulae and to give an exhaustive list of myriad
kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their
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face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of the
same do not disclose the commission of any offence and
make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the institution
and continuance of the proceedings and/or where there
is a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to private
and personal grudge.”
200. In S.M. Datta v. State of Gujarat reported in (2001) 7 SCC 659
this Court again cautioned that criminal proceedings ought not to be
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scuttled at the initial stage. Quashing of a complaint or FIR should
rather be an exception and a rarity than an ordinary rule. This Court
also held that if a perusal of the first information report leads to
disclosure of an offence even broadly, law courts are barred from
usurping the jurisdiction of the police, since the two organs of the
State operate in two specific spheres of activities and one ought not
to tread over the other sphere.
201. In view of the aforesaid consistent line of decisions of this Court, the
High Court in our considered view could be said to have committed
an egregious error by quashing the criminal proceedings without even
properly perusing the chargesheet and the other material on record.
202. The High Court should neither be picky nor remain oblivious in
deciding which provision to advert to while considering a quashing
petition. When dealing with a quashing petition, there lies a duty
on the High Court to properly apply its mind to all the material on
record. The least which is expected of High Court in such situation
is to carefully go through the allegations contained in the FIR and
the charge-sheet, and to ascertain (i) whether, the offences alleged
therein could be said to have been prima facie established from the
material on record? or (ii) whether, apart from the offences alleged in
the FIR or the charge-sheet, there is possibility of any other offence
prima facie being made out? The High Court in exercise of its inherent
powers, may be justified in quashing the criminal proceedings only
where, neither any offence as alleged in the FIR or charge-sheet
is disclosed nor any other offence is prima facie made out, and the
continuance of the proceedings may be found to amount to abuse
of process of law.
203. In the case at hand, there is no dispute by either side that, the two
videos infact depicted children in a sexual activity. It is also not the
case of the respondent no. 1 that the said videos were not recovered
from his mobile phone. In such circumstances, the child pornographic
material that was recovered from the personal mobile phone of the
accused which was regularly in use by him, prima facie establishes
the storage or possession of child pornographic material at his hand.
Further, since the aforesaid child pornographic material was found
to have been stored in the said personal mobile phone since 2016
and 2019, prima facie it could be said there was a failure on the part
of the respondent no.1 to delete, destroy or report such material.
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204. It was also sought to be contended on behalf of the respondent
no. 1 that the 2019 Amendment Act whereby and whereunder, the
three distinct offences pertaining to the storage or possession of
child pornography were made punishable under Section 15 of the
POCSO came into force with effect from 16.09.2019. Whereas the
both the videos in question had been allegedly stored in the device
before the 2019 Amendment Act came into force. Since, the present
Section 15(1) of the POCSO was not in operation at the relevant
time when the videos were allegedly stored, the respondent no. 1
cannot be punished under the said provision which did not exist at
the time of storage of such video.
205. However, we are not impressed with the aforesaid submission. What
is sought to be punished under Section 15 is not the time when such
material was stored or came to be possessed but rather the storage
or possession itself, which may be continuous, wherein the relevant
point of time of such storage or possession for constituting any offence
under the POCSO more particularly Section 15 would be reckoned
from the date of registration of the FIR. In the present case, it is not
in dispute that when 2019 Amendment came into force and later when
the FIR was registered, the aforesaid two videos were still stored in
the mobile phone of the respondent no. 1. In such circumstances,
Section 15 sub-section (1) could be said to be prima facie attracted.
a. Plea of Ignorance of Law: Ignorance of Law viz-a-viz
Incognizance of Law.
206. At this juncture, we may address yet another submission that was
canvassed on behalf of the accused as regards the plea of bona-
fide ignorance of law. It was contended that the accused was not
aware of the fact that storing of child-pornography was a punishable
offence under Section 15 of POCSO and that the child pornographic
material which was found stored in his mobile phone was due to his
unawareness of the law accompanied by a bona-fide belief that such
storage was not an offence, and as such he ought not to be held
liable. In this regard, reliance has been placed on two decisions of
this Court in Chandi Kumar Das Karmarkar (supra) and Motilal
Padampat Sugar Mills (supra).
207. In Chandi Kumar Das Karmarkar (supra), the facts of the case are
as follows; there was a civil dispute inter-alia between the accused
persons therein and the complainant as regards the ownership of a
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water tank where fishes had been reared. The complainant therein
had acquired possession of the said tank on the strength of an ex-
parte decree against the accused persons. Eventually, that ex-parte
decree was set-aside, however the final decision on the title was
still pending. Although no application for restitution was preferred yet
the accused, due to a bona-fide ignorance of law, was under the
impression that he had regained possession of the said tank and
again started catching fishes in the tank. The complainant lodged an
FIR against the accused persons inter-alia alleging theft of fish from
his tank. The accused therein in his defence pleaded ignorance of
law stating that he was unaware that, the said tank and the fishes in
that expanse of water under the law continued to be deemed to be
the property of the complainant in the absence of any restitution or
that the possession of the water reservoir had not reverted back to
him. He further pleaded that; he was under a bona-fide belief that he
had a right of possession of the said tank by virtue of the ex-parte
decree being set-aside. This Court held that any claim of right due
to a bona-fide ignorance of law, if reasonable will not constitute an
act of theft. It further explained that a claim to such right means one
which is not a false pretence but a fair pretence, and not a complete
absence of claim but a bona-fide claim, however weak. The relevant
observations read as under: -
“6. The offence of theft consists in the dishonest taking of
any moveable property out of the possession of another
with his consent. Dishonest intention exists when the
person so taking the property intends to cause wrongful
gain to himself or wrongful loss to the other. This intention
is known as animus furandi and without it the offence of
theft is not complete. Fish in their free state are regarded
as ferae naturae but they are said to be in the possession
of a person who has possession of any expanse of water
such as a tank, where they live but from where they
cannot escape. Fishes are also regarded as being in the
possession of a person who owns an exclusive right to
catch them in a particular spot known as a fishery but only
within that spot. There can thus be theft of fish from a tank
which belongs to another and is in his possession, if the
offender catches them without the consent of the owner
and without any bona fide claim of right.
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7. Now the ordinary rule that mens rea may exist even with an
honest ignorance of law is sometimes not sufficient for theft.
A claim of right in good faith, if reasonable saves the act of
taking from being theft and where such a plea is raised by
the accused it is mainly a question of fact whether such belief
exists or not. This court in Criminal Appeal No. 31 of 1961
(Suvvari Sanyasi Apparao v. Boddepalli Lakhminarayana
decided on October 5, 1961 observed as follows:
“It is settled law that where a bona fide claim
of right exists, it can be a good defence to a
prosecution for theft. An act does not amount
to theft, unless there be not only no legal right
but no appearance or colour of a legal right.”
8. By the expression “colour of a legal right” is meant
not a false pretence but a fair pretence, not a complete
absence of claim put a bona-fide claim, however weak.
This Court observed in the same case that the law was
stated in 2 East P.C. 659 to be:
“If there be in the prisoner any fair pretence of
property or right, or if it be brought into doubt
at all, the court will direct an acquittal.”
and reffered to 1 Hale P.C. 509 that “the best evidence is
that the goods were taken quite openly”. The law stated by
East and Hale has always been the law on the subject of
theft in India and numerous cases decided by Indian Courts
are to be found in which these principles have been applied.
Niyogi, J. in his judgment also referred to some of the
decisions of the Calcutta High Court and we find ourselves
in particular agreement with the following statement of the
law in Hamid Ali Bepari v. Emperor :
“It is not theft if a person, acting under a
mistaken notion of law and; believing that certain
property is his and that he has the right to take
the same … removes such property from the
possession of another.”
(Emphasis supplied)
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208. In Motilal Padampat Sugar Mills (supra) the State Government
therein had framed a policy for grant of sales tax exemption to new
industrial units in the State. On the basis of the said policy, the
appellant therein set-up an industrial unit and approached the State
Government for claiming the exemption. The State Government
informed him that he would be granted only partial concession in sales
tax, to which the appellant was agreeable. However, subsequently,
the State having second thoughts, rescinded the concession which
was being granted to the appellant. Aggrieved by which the appellant
preferred a writ petition claiming exemption from sale tax as per the
policy. However, the State Government in response submitted that
the appellant therein by accepting a partial concession on sales tax
had waived its right to claim full exemption. This Court rejecting the
said plea of waiver and estoppel held that, the appellant therein
was unaware about the policy and the extent of the exemption in
sales tax under the law. Thus, the appellant due to the ignorance
of law had a bona-fide belief that the policy only provided for a
partial concession rather than a complete exemption. This Court
observed that it cannot be presumed that the appellant was fully
informed about the policy and that he had waived or abandoned his
right with full knowledge of the said policy. It further observed that
often the maxim “ignorantia juris non excusat” i.e., “ignorance of the
law is no excuse” is often misconstrued to mean that everyone is
presumed to know the law. Accordingly, this Court rejecting the plea
of promissory estoppel held that due to the ignorance of law on the
part of the appellant, it cannot be said that he had full knowledge
of its right to exemption so as to waive or abandon the same. The
relevant observations read as under: -
“6. [...] The claim of the appellant to exemption could be
sustained only on the doctrine of promissory estoppel
and this doctrine could not be said to be so well defined
in its scope and ambit and so free from uncertainty in
its application that we should be compelled to hold that
the appellant must have had knowledge of its right to
exemption on the basis of promissory estoppel at the time
when it addressed the letter dated June 25, 1970. In fact,
in the petition as originally filed, the right to claim total
exemption from Sales Tax was not based on the plea of
promissory estoppel which was introduced only by way of
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amendment. Moreover, it must be remembered that there
is no presumption that every person knows the law. It is
often said that everyone is presumed to know the law, but
that is not a correct statement : there is no such maxim
known to the law. Over a hundred and thirty years ago,
Maule, J., pointed out in Martindale v. Falkner:
“There is no presumption in this country that
every person knows the law : it would be contrary
to common sense and reason if it were so.”
Scrutton, L.J., also once said:
“It is impossible to know all the statutory law, and
not very possible to know all the common law.”
But it was Lord Atkin who, as in so many other spheres,
put the point in its proper context when he said
in Evans v. Bartlam
“… the fact is that there is not and never has
been a presumption that every one knows the
law. There is the rule that ignorance of the law
does not excuse, a maxim of very different scope
and application.”
It is, therefore, not possible to presume, in the absence of
any material placed before the Court, that the. appellant had
full knowledge of its right to exemption so as to warrant an
inference that the appellant waived such right by addressing
the letter dated June 25, 1970. We accordingly reject the
plea of waiver raised on behalf of the State Government.
(Emphasis supplied)
209. Thus, from the aforesaid, we are of the considered view that the
reliance on the part of the accused on the two decisions of this Court
in Chandi Kumar Das Karmarkar (supra) and Motilal Padampat
Sugar Mills (supra) is completely misplaced. In Chandi Kumar Das
Karmarkar (supra) the question before this Court was whether the
accused therein due to the ignorance of law could be said to have
a bona-fide belief of a right or claim to possession of the fish tank
or in other words whether a plea of ignorance is a valid defence to
any acts done pursuant to a bona-fide belief of existence of a right
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under the mistaken notion of law. Whereas in Motilal Padampat
Sugar Mills (supra) the issue for consideration before this Court
was whether the appellant therein due to the ignorance of law could
be said to have wilfully waived his right, or in other words whether
a plea of ignorance is a valid defence to any promissory estoppel
to a right.
210. Thus, both the aforesaid decisions in Chandi Kumar Das Karmarkar
(supra) Motilal Padampat Sugar Mills (supra) are not applicable.
We say so, because this Court in the aforesaid decisions has only
gone so far as to say that a plea of ignorance of law can be used as
a valid defence for either showing that the purported act was done or
not done (as the case may be) due to a consequent bona-fide belief
as to the existence of such a right or claim. In other words, a plea
of ignorance of law can be a valid defence if it consequently gives
rise to a legitimate and bona-fide mistake of fact as to the existence
(or non-existence) of a particular right or claim.
211. This may be better understood through a four-prong test wherein for
a valid defence, there must exist (1) an ignorance or unawareness
of any law and (2) such ignorance or unawareness must give rise
to a corresponding reasonable and legitimate right or claim (3) the
existence of such right or claim must be believed bonafide and (4)
the purported act sought to be punished must take place on the
strength of such right or claim. It is only when all the four of the above
conditions are fulfilled, that the person would be entitled to take a
plea of ignorance of law as a defence from incurring any liability.
212. As held in Chandi Kumar Das Karmarkar (supra) a plea of ignorance
of law is a valid defence only to the acts said to have been done on
the basis of a right or a claim, the existence of which was bona-fidely
believed or entertained on the basis of ignorance of law or mistaken
notion of law. Thus, for a plea of ignorance of law, the ignorance
or mistake of law must be such which legitimately gives rise to a
bona-fide belief of the existence of a right or a claim, and the said
person commits any act on the strength of such right or claim. This
is fortified from the following observation “A claim of right in good
faith, if reasonable saves the act [...] where such a plea is raised”
in paragraph 7 of Chandi Kumar Das Karmarkar (supra). Thus, a
plea of ignorance of law is only valid for the defence of a bona-fide
claim of right and any acts done thereunder. As such, where a person
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commits any act on the assertion of a right, the existence of which
was bona-fidely believed due to a mistaken notion of law, such person
will not be liable due to the honest but mistaken factum of such right
or claim stemming from or accompanied by ignorance of law.
213. Similarly, in Motilal Padampat Sugar Mills (supra) this Court only
held that a plea of ignorance of law may be a valid defence for bona-
fidely believing the existence of a wrong or incorrect right i.e., the
right to only a partial concession of sale tax exemption. Accordingly,
this Court held that where a person due to ignorance of law was
not fully informed about a particular right, there can be no waiver
of such right unless it is shown that such person was indeed aware
of the said right.
214. Thus, the aforesaid decisions of this Court in Chandi Kumar Das
Karmarkar (supra) Motilal Padampat Sugar Mills (supra) are
distinguishable for the simple reason that storage or possession of
child pornographic material cannot be equated or traced to any right or
assertion even if it was a mistaken one. Even if a person is unaware
that the possession or storage of such material is punishable, it by
no stretch can be considered to give rise to any right or assertion as
there exists no such right to either store or possess such material,
and thus it is not a valid defence. We say so because, no person
of an ordinary prudent mind with the same degree of oblivion or
unawareness as to the law, more particularly Section 15 of POCSO
could as a natural corollary be led to a belief of existence of a right
to store or possess any child pornographic material. The ignorance
or unawareness must have a reasonable nexus with the right or
assertion claimed i.e., the ignorance or unawareness must be such
which could legitimately and reasonably give rise to a corresponding
right or claim the and the existence of which must be bona-fidely
believed. Otherwise, anyone could make a bald or blanket claim of
having a bonafide belief of any right to wriggle out of any liability
arising out of its actions on the touchstone of unawareness of any
particular law. Thus, even if the accused was unaware about Section
15 of POCSO, this by itself does not give rise to a corresponding
legitimate or reasonable ground to believe that there was any right
to store or possess child pornographic material. As such the four-
prong test is not fulfilled and the defence of ignorance of law by the
accused must fail.
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215. Even otherwise, one must be mindful to the fact that such a plea
is not a statutory defence with any legal backing, but rather a by-
product of the doctrine of equity. Whether such a defence is to be
accepted or not, largely depends upon the extant of equity in the
peculiar facts and circumstances of each individual cases. It is an
equally settled cannon of law that equity cannot supplant the law,
equity has to follow the law if the law is clear and unambiguous.
216. This Court in National Spot Exchange Ltd. v. Anil Kohli,
Resolution Professional for Dunar Foods Ltd. reported in (2022)
11 SCC 761 after referring to a catena of its other judgments, had
held that where the law is clear the consequence thereof must follow.
The High Court has no option but to implement the law. The relevant
observations made in it are being reproduced below: -
“15.1. In Mishri Lal [BSNL v. Mishri Lal, (2011) 14 SCC
739 : (2014) 1 SCC (L&S) 387], it is observed that the
law prevails over equity if there is a conflict. It is observed
further that equity can only supplement the law and not
supplant it.
15.2. In Raghunath Rai Bareja [Raghunath Rai Bareja v.
Punjab National Bank, (2007) 2 SCC 230] , in paras 30
to 37, this Court observed and held as under : (SCC pp.
242-43)
“30. Thus, in Madamanchi Ramappa v. Muthaluru
Bojjappa [AIR 1963 SC 1633] (vide para 12) this
Court observed: (AIR p. 1637)
‘12. … [W]hat is administered in Courts is justice
according to law, and considerations of fair
play and equity however important they may
be, must yield to clear and express provisions
of the law.’
31. In Council for Indian School Certificate Examination
v. Isha Mittal [(2000) 7 SCC 521] (vide para 4) this
Court observed: (SCC p. 522)
‘4. … Considerations of equity cannot prevail
and do not permit a High Court to pass an order
contrary to the law.’
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32. Similarly, in P.M. Latha v. State of Kerala [(2003)
3 SCC 541 : 2003 SCC (L&S) 339] (vide para 13)
this Court observed: (SCC p. 546)
‘13. Equity and law are twin brothers and law
should be applied and interpreted equitably but
equity cannot override written or settled law.’
33. In Laxminarayan R. Bhattad v. State of
Maharashtra [(2003) 5 SCC 413] (vide para 73) this
Court observed: (SCC p. 436)
‘73. It is now well settled that when there is
a conflict between law and equity the former
shall prevail.’
34. Similarly, in Nasiruddin v. Sita Ram Agarwal
[(2003) 2 SCC 577] (vide para 35) this Court observed:
(SCC p. 588)
‘35. In a case where the statutory provision
is plain and unambiguous, the court shall
not interpret the same in a different manner,
only because of harsh consequences arising
therefrom.’
35. Similarly, in E. Palanisamy v. Palanisamy [(2003)
1 SCC 123] (vide para 5) this Court observed: (SCC
p. 127)
‘5. Equitable considerations have no place where
the statute contained express provisions.’
36. In India House v. Kishan N. Lalwani [(2003) 9 SCC
393] (vide para 7) this Court held that: (SCC p. 398)
‘7. … The period of limitation statutorily
prescribed has to be strictly adhered to and
cannot be relaxed or departed from for equitable
considerations.’…”
(Emphasis supplied)
217. Unawareness or incognizance of law should not be conflated with
ignorance of law. This Court in Motilal Padampat Sugar Mills
(supra) duly acknowledged that a plea of unawareness of law is
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fundamentally different in scope and application from the rule that
ignorance of the law does not excuse anyone. The former as explained
above, is a byproduct of the doctrine of equity whereas the latter is
a cardinal rule of criminal jurisprudence and no person can claim to
be absolved of any criminal offence or liability on a plea of ignorance
of law. Thus, where something is specifically made punishable under
the law, then in such cases the law would prevail over equity, and
no plea of ignorance of law can be taken as a defence to absolve
or dilute any liability arising out of such punishable offences. Thus,
even if all four preconditions are satisfied, the courts are not bound
to accept such a plea, if it is in negation or derogation of any law
or the idea of justice.
218. Equity modifies the applicable law or ensures its suitability to address
the particular circumstances before a court to produce justice. The
modification of general rules to the circumstances of the case is
guided by equity, not in derogation or negation of positive law, but
in addition to it. It supplements positive law but does not supplant
it. In a second sense however, where positive law is silent as to
the applicable legal principles, equity assumes a primary role as
the source of law itself. Equity steps in to fill the gaps that exist in
positive law. Thus, where no positive law is discernible, courts turn
to equity as a source of the applicable law. However, where positive
law exists, equity will always yield to it. [See M. Siddiq v. Mahant
Suresh Das, reported in 2020 1 SCC 1]
219. It was further contended by the respondent no. 1 that although the
said child pornographic material was found stored in his mobile phone,
yet he had no knowledge of the same. He would submit that, the
aforesaid videos that were found stored in his mobile as revealed by
the FSL Report had been automatically downloaded into his mobile
phone without his knowledge or volition.
220. Even, assuming that the respondent no. 1 did not actually store
the aforesaid two videos in his mobile phone, and that he had no
knowledge of the existence of those videos, nonetheless, the aforesaid
aspect cannot be looked into by us at the stage of quashing, more
particularly while deciding whether a prima-facie case is said to be
made out. Even otherwise, since the material on record adduced by
the prosecution clearly establishes the possession or storage of child
pornographic material and the failure on the part of the respondent
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no. 1 in deleting, destroying or reporting the same, the foundational
facts necessary to invoke the statutory presumption of culpable
mental state could be said to have been prima facie established.
221. In view of the statutory presumption of culpable mental state being
attracted, any defence of the respondent no. 1 such as the absence
of knowledge or intention would be a matter of trial. Absence of
culpable mental state has to be established before the trial court by
leading cogent evidence in that regard. Such defences should not
be looked into by us at this stage. All that should be ascertained is
whether a prima facie case is said to have been made out.
v. Summary of our conclusion
222. We summarize our final conclusion as under: -
(I) Section 15 of the POCSO provides for three distinct offences
that penalize either the storage or the possession of any child
pornographic material when done with any particular intention
specified under sub-section(s) (1), (2) or (3) respectively. It is
in the nature and form of an inchoate offence which penalizes
the mere storage or possession of any pornographic material
involving a child when done with a specific intent prescribed
thereunder, without requiring any actual transmission,
dissemination etc.
(II) Sub-section (1) of Section 15 penalizes the failure to delete,
destroy or report any child pornographic material that has
been found to be stored or in possession of any person with
an intention to share or transmit the same. The mens-rea or
the intention required under this provision is to be gathered
from the actus reus itself i.e., it must be determined from the
manner in which such material is stored or possessed and the
circumstances in which the same was not deleted, destroyed
or reported. To constitute an offence under this provision the
circumstances must sufficiently indicate the intention on the
part of the accused to share or transmit such material.
(III) Section 15 sub-section (2) penalizes both the actual
transmission, propagation, display or distribution of any
child pornography as-well as the facilitation of any of the
abovementioned acts. To constitute an offence under Section
15 sub-section (2) apart from the storage or possession of
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such pornographic material, there must be something more
to show i.e., either (I) the actual transmission, propagation,
display or distribution of such material OR (II) the facilitation
of any transmission, propagation, display or distribution of
such material, such as any form of preparation or setup done
that would enable that person to transmit it or to display it.
The mens rea is to be gathered from the manner in which the
pornographic material was found to be stored or in possession
and any other material apart from such possession or storage
that is indicative of any facilitation or actual transmission,
propagation, display or distribution of such material.
(IV) Section 15 sub-section (3) penalizes the storage or possession
of any child pornographic material when done for any
commercial purpose. To establish an offence under Section
15 sub-section (3), besides the storage or possession of the
pornographic material involving a child, there must be some
additional material or attending circumstances that may
sufficiently indicate that the said storage or possession was
done with the intent to derive any gain or benefit. To constitute
an offence under sub-section (3) there is no requirement to
establish that such gain or benefit had been actually realized.
(V) Sub-section(s) (1), (2) and (3) respectively of Section 15
constitute independent and distinct offences. The three offences
cannot coexist simultaneously in the same set of facts. They
are distinct from each other and are not intertwined. This is
because, the underlying distinction between the three sub-
sections of Section 15 lies in the varying degree of culpable
mens rea that is required under each of the three provisions.
(VI) The police as well as the courts while examining any matter
involving the storage or possession of any child pornography,
finds that a particular sub-section of Section 15 is not attracted,
then it must not jump to the conclusion that no offence at all
is made out under Section 15 of the POCSO. If the offence
does not fall within one particular sub-section of Section 15,
then it must try to ascertain whether the same falls within the
other sub-sections or not.
(VII) Any act of viewing, distributing or displaying etc., of any child
pornographic material by a person over the internet without
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any actual or physical possession or storage of such material
in any device or in any form or manner would also amount to
‘possession’ in terms of Section 15 of the POCSO, provided the
said person exercised an invariable degree of control over such
material, by virtue of the doctrine of constructive possession.
(VIII) Any visual depiction of a sexually explicit act which any
ordinary person of a prudent mind would reasonably believe
to prima facie depict a child or appear to involve a child, would
be deemed as ‘child pornography’ and the courts are only
required to form a prima facie opinion to arrive at the subjective
satisfaction that the material appears to depict a child from
the perspective of any ordinary prudent person for any offence
under the POCSO that relates to child pornographic material,
such as Section 15. Such satisfaction may be arrived at from
any authoritative opinion like a forensic science laboratory
(FSL) report of such material or opinion of any expert on the
material in question, or by the assessment of such material
by the courts themselves.
(IX) Section 67B of the IT Act is a comprehensive provision
designed to address and penalize the various electronic forms
of exploitation and abuse of children online. It not only punishes
the electronic dissemination of child pornographic material, but
also the creation, possession, propagation and consumption
of such material as-well as the different types of direct and
indirect acts of online sexual denigration and exploitation of
the vulnerable age of children. Section(s) 67, 67A and 67B
respectively of the IT Act being a complete code, ought to be
interpreted in a purposive manner that suppresses the mischief
and advances the remedy and ensures that the legislative intent
of penalizing the various forms of cyber-offences relating to
children and the use of obscene / pornographic material through
electronic means is not defeated by a narrow construction of
these provisions.
(X) The statutory presumption of culpable mental state on the
part of the accused as envisaged under Section 30 of the
POCSO can be made applicable provided the prosecution is
able to establish the foundational facts necessary to constitute
a particular offence under the POCSO that may have been
alleged against the accused. Such presumption can be
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rebutted by the accused either by discrediting the prosecution’s
case or by leading evidence to prove the contrary, beyond a
reasonable doubt.
(XI) The foundational facts necessary for the purpose of invoking the
statutory presumption of culpable mental state for an offence
under Section 15 of POCSO are as follows: -
(a) For the purpose of sub-section (1), the necessary
foundational facts that the prosecution may have to
first establish is the storage or possession of any child
pornographic material and that the person accused had
failed to delete, destroy or report the same.
(b) In order to invoke the statutory presumption of culpable
mental state for an offence under sub-section (2) the
prosecution would be required to first establish the storage
or possession of any child pornographic material, and also
any other fact to indicate either the actual transmission,
propagation, display or distribution of any such material
or any form of an overt act such as preparation or setup
done for the facilitation of the transmission, propagation,
display or distribution of such material, whereafter it shall
be presumed by the court that the said act was done
with the intent of transmitting, displaying, propagating
or distributing such material and that the said act(s) had
not been done for the purpose of either reporting or for
use as evidence.
(c) For the purpose of sub-section (3) the prosecution must
establish the storage or possession of such material and
further prove any fact that might indicate that the same
had been done to derive some form of gain or benefit or
the expectation of some gain or benefit.
(XII) The statutory presumption of culpable mental under Section 30
of POCSO can be made applicable in a quashing proceeding
pertaining to any offence under the POCSO.
F. FEW MEANINGFUL SUGGESTIONS.
223. Before, we close this matter, we must address ourselves on a very
important aspect, as regards the need to effectively address the
growing number of dissemination and use of child pornography.
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i. The Lingering Impact of Child Pornography on the
Victimization & Abuse of Children.
224. A child’s victimization begins with the sexual act, continues through
its recording, and perpetuates as photographs and videos that float
through cyberspace, freely accessible to anyone who has the ability
to surf the internet.1 Child sexual exploitation is one of the most
heinous crimes imaginable, and the offence of Child Pornography is
equally as heinous, if not more, as in the latter the victimization and
exploitation of the child does not end with the initial act of abuse.2
The creation or dissemination of such pornographic material further
extends and compounds the harm infinitely and at a far larger scale.3
It in essence turns the singular incident of an abuse into a ripple
of trauma inducing acts where the rights and dignity of the child is
continuously violated each time such material is viewed or shared.
This is why it is imperative that we collectively as a society address
this issue with the utmost seriousness.
225. The impact of such continuous victimization is profound. Any act
of sexual abuse inherently inflicts lasting physical and emotional
trauma on the child. However, the dissemination of this act of abuse
through pornographic material further accentuates and deepens the
trauma into a psychological scar. The knowledge that their abuse is
being watched by countless strangers, sometimes years after the
actual event, exacerbates the psychological wounds on top of the
trauma that was already induced by the act in the first place.4 This
perpetuating violation deprives the victim of any remaining hope or
chance to heal, recover from the abuse and find closure. 5
226. One must also be mindful of the fact that the term “child pornography”
is a misnomer that fails to capture the full extent of the crime. It is
important to recognize that each case of what is traditionally termed

1 Eva J. Klain, Heather J Davies, Molly A. Hicks Et. Al., Child Pornography: The Criminal Justice-System
Response, 8 (Penn State University Press, 2001).
2 Philip Jenkins, Beyond Tolerance: Child Pornography on the Internet (New York University Press, 2003)
3 Burgess, Ann W. & C.R. Hartman, Child Abuse Aspects of Child Pornography, 7 Psychiatric Annals, 248
(1987).
4 Audrey Rogers, The Dignity Harm of Child Pornography – From Producers to Possessors, in Carissa
Byrne Hessick (Eds.), Refining Child Pornography Law – Crime, Language and Social Consequences
(University of Michigan Press, 2016).
5 Tali Gal, Child Victims and Restorative Justice – A Needs Rights Model, 17 (Oxford University Press,
2011)
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“child pornography” involves the actual abuse of a child. The use
of the term “child pornography” can lead to a trivialization of the
crime, as pornography is often seen as a consensual act between
adults. It undermines the victimization because the term suggests
a correlation to pornography — conduct that may be legal, whose
subject is voluntarily participating in, and whose subject is capable
of consenting to the conduct.6
227. The term “child sexual exploitation and abuse material” or “CSEAM”
more accurately reflects the reality that these images and videos
are not merely pornographic but are records of incidents, where a
child has either been sexually exploited and abused or where any
abuse of children has been portrayed through any self-generated
visual depiction.7
228. The term “child sexual exploitation and abuse material” (CSEAM)
rightly places the emphasis on the exploitation and abuse of the
child, highlighting the criminal nature of the act and the need for a
serious and robust response. We are conscious that in the preceding
parts of this judgment, we have used the term “child pornography”,
however the same has been done only for the purposes of giving a
better understanding of the nuances involved in the present matter.
We further forbid the courts from using the term “child pornography”
and instead the term “child sexual exploitation and abuse material”
(CSEAM) should be used in judicial orders and judgements of all
courts across the country.
229. Although, there exists a tangible difference between the act of viewing
CSEAM and the act of engaging in sexual abuse of children, yet the
latter desire is always inherent in the former.8 Both the use of CSEAM
and the act of child sexual abuse share a common, malevolent intent:

6 Jonah R. Rimmer, Child Sexual Exploitation, (Oxford Research Encyclopaedia Criminology, 2024).
7 Mary Graw Leary, The Language of Child Sexual Abuse and Exploitation, in Carissa Byrne Hessick
(Eds.), Refining Child Pornography Law – Crime, Language and Social Consequences (University of
Michigan Press, 2016); see also, Danijela Frangež, Anton Toni Klančnik, Mojca Žagar Karer Et. Al.,
The Importance of Terminology Related to Child Sexual Exploitation, 66(4) Rev. za. Krim. Kriminol. 291
(2015); see also, Kathryn C. Seigfried Spellar & Virginia Soldino, Child Sexual Exploitation: Introduction to
a Global Problem, in Thomas J. Holt & Adam M. Bossler (Eds.), The Palgrave Handbook of International
Cybercrime and Cyberdeviance, (Palgrave Macmillian, Cham, 2020)
8 Vaughn I. Rickert & Owen Ryan, Is the Internet the Source?, 40 J. Adolesc. Health 104 (2007); see also,
Dr. Ethel Quayle, Assessment issues with young people who engage in problematic sexual behaviour
through the Internet, in M.C. Calder (Ed.), New Developments with young people who sexually abuse
(Russel House Publishing, Lyme Regis, UK, 2007).
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the exploitation and degradation of a child for the sexual gratification
of the abuser. The production of child sexual exploitative material
is inherently linked to the act of sexual abuse. In both cases, the
intent is clear: to sexually exploit and harm a child. The creation of
such material is not a passive act but a deliberate one, where the
abuser intentionally engages in the exploitation of a child, knowing
full well the harm it causes.9
230. This intent is what makes these crimes particularly heinous. The abuser
is not only violating the child’s body but is also reducing them to an
object for their own gratification, with little regard for the child’s dignity
or well-being. This dehumanization is evident in the production and
distribution of CSEAM, where the child is treated not as a person but
as a commodity to be consumed. Those who consume such material
may develop an increased desire to engage in further acts of child
exploitation. The viewing of CSEAM can desensitize individuals to
the horrors of child abuse, leading them to seek out more extreme
forms of exploitation or even to commit acts of abuse themselves.10
231. Moreover, the demand for such material will always incubate a
corresponding production and distribution of CSEAM.11 Abusers may
be motivated to create and distribute these materials to satisfy the
demand, leading to the abuse of more children.12 This cycle of abuse
and exploitation underscores the need for stringent measures to
not only punish those who create and distribute CSEAM but also to
deter potential consumers and reduce the demand for such material.
232. Child sexual exploitative material is deeply degrading to the dignity of
children. It reduces them to objects of sexual gratification, stripping
them of their humanity and violating their fundamental rights. Children
are entitled to grow up in an environment that respects their dignity
and protects them from harm. However, CSEAM violates this right
in the most egregious manner possible.

9 Matthew L Long, Laurence A. Alison & Michelle A McManus, Child pornography and likelihood of contact
abuse: a comparison between contact child sexual offenders and noncontact offenders, 25(4) Sex Abuse,
370 (2013).
10 Dr. Ethel Quayle Et. Al., The role of sexual images in online and offline sexual behaviour with minors,
17(6) Curr. Psychiatry Rep. 1 (2019).
11 Melissa Hamilton, The Child Pornography Crusade and Its Net- Widening Effect, 33 Cardozo L. Rev.
1694 (2012).
12 Esposito & Lesli C., Regulating the Internet: The Battle Against Child Pornography, 30 Casew. Res. J.
Int’l. L. 5 (1998).
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233. The existence and circulation of CSEAM are affronts to the dignity of
all children, not just the victims depicted in the material. It perpetuates
a culture in which children are seen as objects to be exploited,
rather than as individuals with their own rights and agency. This
dehumanization is particularly dangerous because it can lead to a
broader societal acceptance of child exploitation, further endangering
the safety and well-being of children.13
234. Given the severity and far-reaching consequences of child sexual
exploitation, there is a clear legal and moral imperative to take
strong action against those who produce, distribute, and consume
CSEAM. This includes not only criminal penalties for those involved
in CSEAM but also preventative measures, such as education and
awareness campaigns. Laws must be robust and strictly enforced
to ensure that perpetrators are brought to justice and that children
are protected from further harm. The courts ought to be loathe in
showing any form of leniency in such matters.14
235. The impact of CSEAM on its victims is devastating and far-reaching,
affecting their mental, emotional, and social well-being. Victims of
such heinous exploitation often endure profound psychological trauma
that can manifest as depression, anxiety, and post-traumatic stress
disorder (PTSD).15 The relentless reminder that images and videos
of their abuse are circulating online can lead to a persistent sense
of victimization and helplessness, further exacerbating feelings
of shame, guilt, and worthlessness. This awareness can make it
highly challenging for victims to move forward, as the fear of being
recognized and judged by others remains ever-present.16
236. In our society, where social stigma and notions of honour and shame
are deeply entrenched, the social repercussions for victims are
particularly severe. Many victims face intense social stigmatization
and isolation, finding it difficult to form and maintain healthy

13 Jason S. Carrol Et Al., Generation XXX, Pornography Acceptance and Use Among Emerging Adults, 23
J. Adolescent Res. 6 (2008).
14 Clare McGlynn & Dr. Hannah Bows, Possessing Extreme Pornography: policing, prosecutions and the
need for reform, 83(6) J. Crim. Law., 473 (2019).
15 Dr. Ethel Quayle, Lars Loof and Tink Palmer, Child Pornography and Sexual Exploitation of Children
Online, 64 (ECPAT International, 2008).
16 See, Michael C. Seto, Kailey Roche, Nicole C Rodrigues Et. Al., Evaluating Child Sexual Abuse
Perpetration Prevention Efforts: A Systematic Review, 33 J. Child Sex. Abus. 22 (2024).
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relationships due to trust issues and trauma-related challenges. The
stigma attached to being a victim of CSEAM can create significant
barriers in social interactions, causing victims to withdraw and feel
alienated from their communities. The continuous re-victimization
through the sharing and viewing of these materials perpetuates the
victims’ suffering. Each instance of someone viewing or distributing
the material represents a new violation, making it harder for victims
to heal. This ongoing trauma can severely impact their self-esteem
and self-worth, leading to long-term emotional and psychological
damage. Furthermore, the impact extends to their education and
employment opportunities. Many victims struggle to concentrate
on their studies or work due to the overwhelming emotional burden
they carry. This can lead to academic underachievement, difficulty in
securing employment, and economic hardships, compounding their
sense of insecurity and instability.17
237. Providing compassionate and comprehensive support is crucial to
help victims heal and reclaim their lives. Therapeutic interventions,
including trauma-informed counselling and support groups, can offer a
safe space for victims to process their experiences and begin to heal.
Legal and social support services are also essential to help victims
navigate the complexities of their situation and rebuild their lives.
238. In India, the misconceptions about sex education are widespread
and contribute to its limited implementation and effectiveness. Many
people, including parents and educators, hold conservative views
that discussing sex is inappropriate, immoral, or embarrassing. This
societal stigma creates a reluctance to talk openly about sexual
health, leading to a significant knowledge gap among adolescents.
239. One prevalent misconception is that sex education encourages
promiscuity and irresponsible behaviour among youth. Critics often
argue that providing information about sexual health and contraception
will lead to increased sexual activity among teenagers. However,
research has shown that comprehensive sex education actually
delays the onset of sexual activity and promotes safer practices
among those who are sexually active.18

17 Paul G. Cassel, James Marsh & Jeremy M. Christiansen, The Case for Full Restitution for Child
Pornography Victims, 82 Geo. Wash. L. Rev. 61 (2013).
18 Padminin Iyer & Peter Aggleton, Seventy years of sex education – A Critical Review, 74(1) Health Educ.
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240. Another common belief is that sex education is a Western concept
that does not align with traditional Indian values. This view has led to
resistance from various state governments, resulting in bans on sex
education in schools in some states. This type of opposition hinders
the implementation of comprehensive and effective sexual health
programs, leaving many adolescents without accurate information.
This is what causes teenagers and young adults to turn to the
internet, where they have access to unmonitored and unfiltered
information, which is often misleading and can plant the seed for
unhealthy sexual behaviours.
241. Additionally, there is a misconception that sex education only
covers biological aspects of reproduction. Effective sex education
encompasses a wide range of topics, including consent, healthy
relationships, gender equality, and respect for diversity. Addressing
these topics is crucial for reducing sexual violence and promoting
gender equity.
242. Despite some of these challenges, there are successful sex education
programs in India, such as the Udaan program in Jharkhand.
This program’s success highlights the importance of community
involvement, transparency, and government support in overcoming
resistance and creating a supportive environment for sex education.19
243. Positive age-appropriate sex education plays a critical role in
preventing youth from engaging in harmful sexual behaviours,
including the distribution, and viewing of CSEAM.20 Positive sex
education focuses on providing accurate, age-appropriate information
about sexuality, consent, and respectful relationships. Research
indicates that comprehensive sex education can significantly reduce
risky sexual behaviours, increase knowledge, enable healthy decision-
making, reduce misinformation, delay sexual debut, decrease the
number of sexual partners, and increase contraceptive use. The
research done in India has shown the need for comprehensive sex
education programs. A study of over 900 adolescents in Maharashtra

J. 3 (2015).
19 See, the Udaan Adolescent Education Program by the Centre for Catalyzing Change in Jharkhand in
India.
20 Cortney Lollar, Child Pornography and the Restitution Revolution, 103 J. Crim. L. & Criminology 343
(2013).
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found that students not exposed to scientific literature on reproductive
and sexual health were more likely to initiate sex early.21
244. Furthermore, positive sex education promotes healthy attitudes
towards sexuality and relationships, which can counteract the
distorted perceptions often associated with the consumption of child
pornography. It can also help foster greater empathy and respect for
others, reducing the likelihood of engaging in exploitative behaviours.
Comprehensive sex education programs also teach youth about the
importance of consent and the legal implications of sexual activities,
helping them understand the severe consequences of viewing and
distributing child pornography.
245. It is of paramount importance that we begin to address misconceptions
around sexual health, and promoting a comprehensive understanding
of sex education’s benefits is essential for improving sexual health
outcomes and reducing the incidence of sexual crimes in India. This
is especially crucial given India’s growing population.
246. Section 43 of the POCSO obligates the Central Government and
the State Government to undertake measures and ensure that the
provisions of the said Act are given wide publicity through media
including the television, radio and the print media at regular intervals
to make the general public, children as well as their parents and
guardians aware of the legislation. It further requires the appropriate
government to also impart proper training at tegular intervals to all
government offices such as police on the implementation of the
provisions of this Act. The relevant provision reads as under: -
“43. Public awareness about Act.—
The Central Government and every State Government,
shall take all measures to ensure that—
(a) the provisions of this Act are given wide publicity
through media including the television, radio and the
print media at regular intervals to make the general
public, children as well as their parents and guardians
aware of the provisions of this Act;

21 Jagdish Khubchandani, Jeffrey Clark & Raman Kumar, Beyond Controversies: Sexuality Education for
Adolescents in India, 3(3) J. Family Med. Prim. Care. 175 (2014).
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(b) the officers of the Central Government and the State
Governments and other concerned persons (including
the police officers) are imparted periodic training on
the matters relating to the implementation of the
provisions of the Act.”
247. Section 44 of the POCSO on the other hand obligates the National
Commission for Protection of Child Rights and the State Commission
for Protection of Child Rights constituted under the Act to regularly
monitor and assist in the implementation of the provisions of this
Act. The relevant provision reads as under: -
“44. Monitoring of implementation of Act.—
(1) The National Commission for Protection of Child Rights
constituted under section 3, or as the case may be, the
State Commission for Protection of Child Rights constituted
under section 17, of the Commissions for Protection of
Child Rights Act, 2005 (4 of 2006) shall, in addition to the
functions assigned to them under that Act, also monitor
the implementation of the provisions of this Act in such
manner as may be prescribed.
(2) The National Commission or, as the case may be, the
State Commission, referred to in sub-section (1), shall,
while inquiring into any matter relating to any offence
under this Act, have the same powers as are vested in
it under the Commissions for Protection of Child Rights
Act, 2005 (4 of 2006).
(3) The National Commission or, as the case may be, the
State Commission, referred to in sub-section (1), shall,
also include, its activities under this section, in the annual
report referred to in section 16 of the Commissions for
Protection of Child Rights Act, 2005 (4 of 2006).”
248. We are of the considered view that the obligation of the appropriate
government and the commission under Section(s) 43 and 44 of the
POCSO respectively, does not end at just spreading awareness
about the provisions of the POCSO. Since, one of the salutary and
avowed object of the POCSO was the deterrence of offences of
child sexual abuse and exploitation, thus, as a natural corollary, the
obligation of the appropriate government and the commission under
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the aforesaid provisions will also entail imparting of sex education
and awareness amongst the general public, children as well as
their parents and guardians, particularly in schools and places of
education. The steps and efforts of the appropriate government and
the commission towards the compliance of Section(s) 43 and 44 must
go beyond just the textual wording of the said provisions and ought
to earnestly take into account the pragmatic necessities for curtailing
the issue of child abuse, exploitation and addiction to pornography.
249. Ultimately, it is our collective responsibility to ensure that victims of
child pornography receive the care, support, and justice they deserve.
By fostering a compassionate and understanding society, we can
help them find their path to recovery and regain a sense of safety,
dignity, and hope. This includes changing societal attitudes towards
victims, improving legal frameworks to protect them, and ensuring
that perpetrators are held accountable.
a. Obligation to report under Section(s) 19 & 20 respectively
of the POCSO and Role of the Society and all Stakeholders.
250. Section 19 read with 20 & 21 of the POCSO is one such step towards
recognizing this collective responsibility of the society in curtailing
the issue of abuse and exploitation of children. Section 19 places an
obligation on any person who has an apprehension that an offence
under POCSO is likely to be committed or has knowledge that such
an offence has been committed, to report and provide information
about the same to the Special Juvenile Police Unit or the local police.
Section 19 further delineates the process and procedure in which
such information or report has to be recorded by the authorities,
and the course of action to be adopted. Section 20 extends such
obligation to any and all personnel of media, hotels, hospitals, clubs or
studios etc., to mandatorily report and provide information about any
material or object which is sexually exploitative of a child (including
pornographic, sexually-related or making obscene representation of
a child or children) through the use of any medium to the authorities
mentioned above. Any failure to do so, either in terms of Section 19
or 21 of POCSO shall be liable to be punished with imprisonment
upto 6-months or fine or both. Further, any failure on the part of any
employer or supervisor in reporting the commission of any offence
or its apprehension in respect of a subordinate under his control, will
also be liable to be punished with imprisonment which may extend
to 1-year and also fine. The relevant provisions read as under: -
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“19. Reporting of offences.—
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of1974) any person (including
the child), who has apprehension that an offence under
this Act is likely to be committed or has knowledge that
such an offence has been committed, he shall provide
such information to,—
(a) the Special Juvenile Police Unit; or
(b) the local police.
(2) Every report given under sub-section (1) shall be —
(a) ascribed an entry number and recorded in writing;
(b) be read over to the informant;
(c) shall be entered in a book to be kept by the Police Unit.
(3) Where the report under sub-section (1) is given by a
child, the same shall be recorded under sub-section (2) in
a simple language so that the child understands contents
being recorded.
(4) In case contents are being recorded in the language
not understood by the child or wherever it is deemed
necessary, a translator or an interpreter, having such
qualifications, experience and on payment of such fees
as may be prescribed, shall be provided to the child if he
fails to understand the same.
(5) Where the Special Juvenile Police Unit or local police is
satisfied that the child against whom an offence has been
committed is in need of care and protection, then, it shall,
after recording the reasons in writing, make immediate
arrangement to give him such care and protection including
admitting the child into shelter home or to the nearest
hospital within twenty-four hours of the report, as may
be prescribed.
(6) The Special Juvenile Police Unit or local police shall,
without unnecessary delay but within a period of twenty-four
hours, report the matter to the Child Welfare Committee
and the Special Court or where no Special Court has been
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designated, to the Court of Session, including need of the
child for care and protection and steps taken in this regard.
(7) No person shall incur any liability, whether civil or
criminal, for giving the information in good faith for the
purpose of sub-section (1).
20. Obligation of media, studio and photographic
facilities to report cases.—
Any personnel of the media or hotel or lodge or hospital or
club or studio or photographic facilities, by whatever name
called, irrespective of the number of persons employed
therein, shall, on coming across any material or object which
is sexually exploitative of the child (including pornographic,
sexually-related or making obscene representation of a
child or children) through the use of any medium, shall
provide such information to the Special Juvenile Police
Unit, or to the local police, as the case may be.
21. Punishment for failure to report or record a case.—
(1) Any person, who fails to report the commission of an
offence under sub-section (1) of section 19 or section
20 or who fails to record such offence under sub-section
(2) of section 19 shall be punished with imprisonment of
either description which may extend to six months or with
fine or with both.
(2) Any person, being in-charge of any company or an
institution (by whatever name called) who fails to report
the commission of an offence under sub-section (1) of
section 19 in respect of a subordinate under his control,
shall be punished with imprisonment for a term which may
extend to one year and with fine.
(3) The provisions of sub-section (1) shall not apply to a
child under this Act.”
251. Thus, it is evident that, to achieve the avowed purpose, a legal
obligation has been imposed under the POCSO Act on any person
to report an offence to the relevant authorities specified therein if they
have knowledge that an offence under the Act has been committed.
This obligation also extends to individuals who have reason to believe
that an offence under the Act is likely to be committed. In addition
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to imposing this legal duty under Section 19, the legislature being
in seisin of the paramount importance in collectively addressing the
problems of child abuse and exploitation, deemed it expedient to make
the failure to discharge this obligation punishable under Section 21
of the Act. Such provisions have been inserted with a view to ensure
strict compliance of the provisions under the POCSO and thereby to
ensure that the tender age of children is not being abused and their
childhood and youth is protected against exploitation.
252. In Shankar Kisanrao Khade v. State of Maharashtra, reported in
(2013) 5 SCC 546, this Court expressing its anguish over the large
number of cases of abuse and exploitation of children, held that such
issues must be collectively dealt by all stakeholders in a child-centric
manner by applying the best interest of child standard, since best
interest of the child is paramount and not the interest of perpetrator
of the crime. It further inter-alia laid down the manner in which all
persons in charge of the schools/educational institutions, special
homes, children homes, shelter homes, hostels, remand homes,
jails, etc. or wherever children are housed have to comply with the
obligation(s) envisaged under Section(s) 19 & 21 of the POCSO.
The relevant observations read as under: -
“72. I may also point out that, in large numbers of cases,
children are abused by persons known to them or who
have influence over them. Criminal courts in this country
are galore with cases where children are abused by
adults addicted to alcohol, drugs, depression, marital
discord, etc. Preventive aspects have seldom been given
importance or taken care of. Penal laws focus more on
situations after commission of offences like violence,
abuse, exploitation of the children. Witnesses of many such
heinous crimes often keep mum taking shelter on factors
like social stigma, community pressure, and difficulties of
navigating the criminal justice system, total dependency on
the perpetrator emotionally and economically and so on.
Some adult members of family including parents choose
not to report such crimes to the police on the plea that it
was for the sake of protecting the child from social stigma
and it would also do more harm to the victim. Further,
they also take shelter pointing out that in such situations
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some of the close family members having known such
incidents would not extend medical help to the child to
keep the same confidential and so on, least bothered about
the emotional, psychological and physical harm done to
the child. Sexual abuse can be in any form like sexually
molesting or assaulting a child or allowing a child to be
sexually molested or assaulted or encouraging, inducing
or forcing the child to be used for the sexual gratification
of another person, using a child or deliberately exposing
a child to sexual activities or pornography or procuring or
allowing a child to be procured for commercial exploitation
and so on.
73. In my view, whenever we deal with an issue of child
abuse, we must apply the best interest of child standard,
since best interest of the child is paramount and not the
interest of perpetrator of the crime. Our approach must
be child-centric. Complaints received from any quarter, of
course, have to be kept confidential without casting any
stigma on the child and the family members. But, if the
tormentor is the family member himself, he shall not go
scot-free. Proper and sufficient safeguards also have to
be given to the persons who come forward to report such
incidents to the police or to the Juvenile Justice Board.
74. The conduct of the police for not registering a case
under Section 377 IPC against the accused, the agony
undergone by a child of 11 years with moderate intellectual
disability, non-reporting of offence of rape committed on her,
after having witnessed the incident either to the local police
or to the Juvenile Justice Board compel us to give certain
directions for compliance in future which, in my view, are
necessary to protect our children from such sexual abuses.
This Court as parens patriae has a duty to do so because
the Court has guardianship over minor children, especially
with regard to the children having intellectual disability, since
they are suffering from legal disability. Prompt reporting of
the crime in this case could have perhaps, saved the life
of a minor child of moderate intellectual disability.
xxx xxx xxx
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76. Considering the entire facts and circumstances of the
case, I am inclined to convert death sentence awarded to
the accused to rigorous imprisonment for life and that all
the sentences awarded will run consecutively.
77. In my opinion, the case in hand calls for issuing
the following directions to various stakeholders for due
compliance:
77.1. The persons in charge of the schools/educational
institutions, special homes, children homes, shelter homes,
hostels, remand homes, jails, etc. or wherever children are
housed, if they come across instances of sexual abuse or
assault on a minor child which they believe to have been
committed or come to know that they are being sexually
molested or assaulted are directed to report those facts
keeping upmost secrecy to the nearest Special Juvenile
Police Unit (SJPU) or local police, and they, depending
upon the gravity of the complaint and its genuineness,
take appropriate follow-up action casting no stigma to the
child or to the family members.
77.2. Media personnel, persons in charge of hotels,
lodges, hospitals, clubs, studios and photograph facilities
have to duly comply with the provision of Section 20 of
Act 32 of 2012 and provide information to the SJPU, or
local police. Media has to strictly comply with Section 23
of the Act as well.
77.3. Children with intellectual disability are more vulnerable
to physical, sexual and emotional abuse. Institutions which
house them or persons in care and protection, if come
across any act of sexual abuse, have a duty to bring to the
notice of the Juvenile Justice Board/SJPU or local police
and they in turn be in touch with the competent authority
and take appropriate action.
77.4. Further, it is made clear that if the perpetrator of the
crime is a family member himself, then utmost care be
taken and further action be taken in consultation with the
mother or other female members of the family of the child,
bearing in mind the fact that best interest of the child is
of paramount consideration.
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77.5. If hospitals, whether government or privately-owned
or medical institutions where children are being treated
come to know that children admitted are subjected to
sexual abuse, the same will immediately be reported to
the nearest Juvenile Justice Board/SJPU and the Juvenile
Justice Board, in consultation with SJPU, should take
appropriate steps in accordance with the law safeguarding
the interest of the child.
77.6. The non-reporting of the crime by anybody, after
having come to know that a minor child below the age of
18 years was subjected to any sexual assault, is a serious
crime and by not reporting they are screening the offenders
from legal punishment and hence be held liable under the
ordinary criminal law and prompt action be taken against
them, in accordance with law.
77.7. Complaints, if any, received by Ncpcr, Scpcr, Child
Welfare Committee (CWC) and Child Helpline, NGOs or
women’s organisations, etc., they may take further follow-
up action in consultation with the nearest Juvenile Justice
Board, SJPU or local police in accordance with law.
77.8. The Central Government and the State Governments
are directed to constitute SJPUs in all the districts, if not
already constituted and they have to take prompt and
effective action in consultation with the Juvenile Justice
Board to take care of the child and protect the child and
also take appropriate steps against the perpetrator of the
crime.
77.9. The Central Government and every State Government
should take all measures as provided under Section 43 of
Act 32 of 2012 to give wide publicity to the provisions of
the Act through media including television, radio and print
media, at regular intervals, to make the general public,
children as well as their parents and guardians, aware of
the provisions of the Act.”
253. This Court in its decision in State of Maharashtra & Anr. v. Maroti
reported in (2023) 4 SCC 298 examined and explained the true
purport of the obligations envisaged under Section(s) 19 & 21 of
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the POCSO. It held that prompt and proper reporting of offences
under the POCSO is the bedrock of the obligations that have been
cast under the said provisions, and any other view would defeat the
very purpose and object of the Act. It further observed that merely
because the failure to discharge the obligation under Section(s) 19
& 21 is punishable with imprisonment for a short duration, does not
mean that such an offence is not to be taken seriously. Accordingly,
it held that strict compliance of such provisions must be ensured to
protect the tender age and youth of children against exploitation.
The relevant observations read as under: -
“11. To achieve the avowed purpose, a legal obligation for
reporting of offence under the POCSO Act is cast upon
on a person to inform the relevant authorities specified
thereunder when he/she has knowledge that an offence
under the Act had been committed. Such obligation is also
bestowed on person who has apprehension that an offence
under this Act is likely to be committed. Besides casting
such a legal obligation under Section 19, the Legislature
thought it expedient to make failure to discharge the
obligation thereunder as punishable, under Section 21
thereof. True that under Section 21 (1), failure to report the
commission of an offence under Sub Section 1 of Section
19 or Section 20 or failure to report such offence under
Sub Section 2 of Section 19 has been made punishable
with imprisonment of either description which may extend
to six months or with fine or with both. Sub section 2 of
Section 21 provides that any person who being in-charge
of any company or an institution (by whatever name called)
who fails to report the commission of an offence under
Sub-Section 1 of Section 19 in respect of a subordinate
under his control, shall be punishable with imprisonment
with a term which may extend to one year or with fine.
Certainly, such provisions are included in with a view
to ensure strict compliance of the provisions under the
POCSO Act and thereby to ensure that the tender age
of children is not being abused and their childhood and
youth is protected against exploitation.
12. Looking at the penal provisions referred above, making
failure to discharge the obligation under Section 19 (1)
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punishable only with imprisonment for a short duration
viz., six months, one may think that it is not an offence to
be taken seriously. However, according to us that by itself
is not the test of seriousness or otherwise of an offence
of failure to discharge the legal obligation under Section
19, punishable under Section 21 of POCSO Act. We are
fortified in our view, by the decisions of a three Judge
Bench of this Court in Vijay Madanlal Choudhary & Ors. v.
Union of India & Ors. and a two Judge-Bench in Shankar
Kisanrao Khade v. State of Maharashtra.
xxx xxx xxx
14. [...] the length of punishment is not only the indicator
of the gravity of offence and it is to be judged by a totality
of factors, especially keeping in mind the background in
which the offence came to be recognized by the Legislature
in the specific international context. In this context, it is
also relevant to note that the United Nations Convention
on Rights of Children, which was ratified by India on
11.12.1992, requires the State parties to undertake all
appropriate national, bilateral and multilateral measures
to prevent the inducement or coercion of child to engage
in any unlawful sexual activity, the exploitative use of
children in prostitution or other unlawful sexual practices
etc. Articles 3 (2) and 34 of the Convention have placed
a specific duty on the State to protect the child from all
forms of sexual exploitation and abuse.
15. Prompt and proper reporting of the commission of
offence under the POCSO Act is of utmost importance and
we have no hesitation to state that its failure on coming
to know about the commission of any offence thereunder
would defeat the very purpose and object of the Act. We say
so taking into account the various provisions thereunder.
Medical examination of the victim as also the accused
would give many important clues in a case that falls under
the POCSO Act. [...] We refer to the aforesaid provisions
only to stress upon the fact that a prompt reporting of the
commission of an offence under POCSO Act would enable
immediate examination of the victim concerned and at the
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same time, if it was committed by an unknown person, it
would also enable the investigating agency to commence
investigation without wasting time and ultimately to secure
the arrest and medical examination of the culprit. There
can be no two views that in relation to sexual offences
medical evidence has much corroborative value.”
(Emphasis supplied)
254. The role of “intermediaries” as defined under Section 2(w) of the IT
Act in checking the proliferation of child pornography is significant.
Section 79 of the IT Act, 2000 which relates to due diligence that is to
be observed by an intermediary, provides an exemption from liability
to such intermediaries in certain cases if they are in compliance with
the due-diligence requirements prescribed under the said provision,
more particularly sub-section (3)(b), this is known as the “safe harbour”
protection or provision. “Safe Harbour” protection means that an
intermediary will not be held liable for any third-party information,
data, or communication link made available or hosted by him. As per
sub-section (2), in order to avail such protection, the intermediary
foremost must not in any manner be involved in either initiating the
transmission, or the receipt or the modification of the third-party
data or information in question, and further is required to observe
due diligence while discharging his duties under the IT Act and to
also observe such other guidelines as the Central Government may
prescribe in his behalf. Sub-section (3) (b) of the above-mentioned
provision stipulates that if an intermediary receives actual knowledge
or is notified by the appropriate government or its agency that any
information, data, or communication link residing in or connected to
a computer resource controlled by the intermediary is being used
to commit an unlawful act, the intermediary must expeditiously
remove or disable access to that material on that resource without
compromising the evidence in any manner. It further states that
the protection under Section 79 lapses and does not apply if the
intermediary has conspired or abetted or aided or induced, whether
by threats or promise or otherwise in the commission of the unlawful
act, or if upon receiving “actual knowledge”, or if the intermediary
fails to expeditiously remove or disable access to that material on
that resource without vitiating the evidence in any manner on being
notified by the appropriate Government or its agency that any
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information, data or communication link residing in or connected to
a computer resource controlled by the intermediary is being used
to commit the unlawful act. The relevant provision reads as under: -
“79. Exemption from liability of intermediary in certain
cases.—
(1) Notwithstanding anything contained in any law for the
time being in force but subject to the provisions of sub-
sections (2) and (3), an intermediary shall not be liable
for any third-party information, data, or communication link
made available or hosted by him.
(2) The provisions of sub-section (1) shall apply if—
(a) the function of the intermediary is limited to
providing access to a communication system over
which information made available by third parties
is transmitted or temporarily stored or hosted; or
(b) the intermediary does not—
(i) initiate the transmission;
(ii) select the receiver of the transmission; and
(iii) select or modify the information contained
in the transmission;
(c) the intermediary observes due diligence while
discharging his duties under this Act and also
observes such other guidelines as the Central
Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if—
(a) the intermediary has conspired or abetted or
aided or induced, whether by threats or promise
or otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being
notified by the appropriate Government or its
agency that any information, data or communication
link residing in or connected to a computer
resource controlled by the intermediary is being
used to commit the unlawful act, the intermediary
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fails to expeditiously remove or disable access to
that material on that resource without vitiating the
evidence in any manner.
Explanation.—For the purposes of this section, the
expression ‘third-party information’ means any information
dealt with by an intermediary in his capacity as an
intermediary.”
255. Rule 11 of the Protection of Children from Sexual Offences Rules,
2020 (for short, the “POCSO Rules”), places an obligation on the
intermediaries to not only report offences under POCSO but also to
hand over the necessary material including the source from which
such material may have originated to the Special Juvenile Police Unit
or the local police, or the cyber-crime portal. As per a MOU between
the National Crime Records Bureau (NCRB) under the Ministry of
Home Affairs (MHA) and the National Centre for Missing & Exploited
Children (NCMEC), a US based NGO, all social media intermediaries
are required to report cases of child abuse and exploitation to the
NCMEC, which in turn reports these cases to the NCRB and the
NCRB forwards this to the concerned State authorities in India
through the national cybercrime reporting portal.
256. It has been brought to the notice of this Court that social media
intermediaries do not report such cases of child abuse and exploitation
to the local authorities specified under POCSO and rather only comply
with the requirements stipulated in the MOU. In view of the salutary
object and the mandatory character of the provisions of Sections 19
and 20 of the POCSO read with Rule 11 of the POCSO Rules, we are
of the considered view, that an intermediary cannot claim exemption
from the liability under Section 79 of the IT Act for any third-party
information, data, or communication link made available or hosted by
it, unless due diligence is conducted by it and compliance is made
of these provisions of the POCSO. We are also of the view that
such due diligence includes not only removal of child pornographic
content but also making an immediate report of such content to the
concerned police units in the manner specified under the POCSO
Act and the Rules thereunder.
257. Section 42A of the POCSO provides that the Act shall be in addition
to and not in derogation of the provisions of any other law and further
provides that it shall have overriding effect on the provisions of any
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such law to the extent of the inconsistency. The relevant provision
reads as under: -
“42A. Act not in derogation of any other law.—
The provisions of this Act shall be in addition to and not
in derogation of the provisions of any other law for the
time being in force and, in case of any inconsistency,
the provisions of this Act shall have overriding effect
on the provisions of any such law to the extent of the
inconsistency.”
258. In view of the overriding effect of the POCSO Act and the rules
thereunder, merely because an intermediary is in compliance of
the requirements specified under Section 79 of the IT Act, will not
absolve it of any liability under the POCSO, unless it duly complies
with the requirements and procedure set out under it, particularly
Section 20 of POCSO Act and Rule 11 of the POCSO Rules. It is
a settled position of law, that when a statute describes or requires
a thing to be done in a particular manner; it should be done in that
manner or not at all. Thus, social media intermediaries in addition to
reporting the commission or the likely apprehension of commission
of any offence under POCSO to the National Centre for Missing &
Exploited Children (NCMEC) is also obligated to report the same to
authorities specified under Section 19 of POCSO i.e., the Special
Juvenile Police Unit (SJPU) or the local police.
259. We endorse the view and the directions issued by this Court in
Shankar Kisanrao Khade (supra) and are of the considered view
that a meaningful effect to the provisions of the POCSO can only
be given if such directions are complied with to the letter and spirit.
We further caution the courts to refrain from showing any form of
leniency or leeway in offences under Section 21 of the POCSO,
particularly to schools/educational institutions, special homes,
children’s homes, shelter homes, hostels, remand homes, jails, etc.
who failed to discharge their obligation of reporting the commission
or the apprehension of commission of any offence or instance of
child abuse or exploitation under the POCSO. Section(s) 19, 20 and
21 of the POCSO are mandatory in nature, and there can be no
dilution of the salutary object and purport of these provisions. Merely
because Section 21 prescribes a lesser threshold of punishment,
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the same in no way derogates or detracts from the gravity or
severity of the offence which has been sought to be punished as
held in Maroti (supra). It is a settled position of law that the length
of punishment is not the only indicator of the gravity of the offence
and it is to be judged by a totality of factors, especially keeping in
mind the background in which the offence came to be recognized
by the legislature in the specific international context i.e., the United
Nations Convention on Rights of Children, particularly Article(s) 3(2)
and 34 of the said Convention.
ii. Suggestions to the Union of India and to the courts.
260. We propose to suggest the following to the Union of India in its
Ministry of Women and Child Development: -
(i) The Parliament should seriously consider to bring about an
amendment to the POCSO for the purpose of substituting the
term “child pornography” that with “child sexual exploitation
and abuse material” (CSEAM) with a view to reflect more
accurately on the reality of such offences. The Union of India,
in the meantime may consider to bring about the suggested
amendment to the POCSO by way of an ordinance.
(ii) We put the courts to notice that the term “child pornography”
shall not be used in any judicial order or judgment, and instead
the term “child sexual exploitation and abuse material” (CSEAM)
should be endorsed.
(iii) Implementing comprehensive sex education programs that
include information about the legal and ethical ramifications of
child pornography can help deter potential offenders. These
programs should address common misconceptions and provide
young people with a clear understanding of consent and the
impact of exploitation.
(iv) Providing support services to the victims and rehabilitation
programs for the offenders is essential. These services should
include psychological counselling, therapeutic interventions,
and educational support to address the underlying issues and
promote healthy development. For those already involved in
viewing or distributing child pornography, CBT has proven
effective in addressing the cognitive distortions that fuel such
behaviour. Therapy programs should focus on developing
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empathy, understanding the harm caused to victims, and altering
problematic thought patterns.
(v) Raising awareness about the realities of child sexual exploitative
material and its consequences through public campaigns can
help reduce its prevalence. These campaigns should aim to
destigmatize reporting and encourage community vigilance.
(vi) Identifying at-risk individuals early and implementing intervention
strategies for youth with problematic sexual behaviours (PSB)
involves several steps and requires a coordinated effort among
various stakeholders, including educators, healthcare providers,
law enforcement, and child welfare services. Educators,
healthcare professionals, and law enforcement officers should be
imparted training to identify signs of PSB. Awareness programs
can help these professionals recognize early warning signs and
understand how to respond appropriately.
(vii) Schools can also play a crucial role in early identification and
intervention. Implementing school-based programs that educate
students about healthy relationships, consent, and appropriate
behaviour can help prevent PSB.
(viii) To give meaningful effect to the above suggestions and work
out the necessary modalities, the Union of India may consider
constituting an Expert Committee tasked with devising a
comprehensive program or mechanism for health and sex
education, as well as raising awareness about the POCSO
among children across the country from an early age, for
ensuring a robust and well-informed approach to child protection,
education, and sexual well-being.
(ix) We urge the Parliament to consider amending Section 15
sub-section (1) of POCSO so as to make it more convenient
for the general public to report by way of an online portal, any
instance of storage or possession of CSEAM to the specified
authorities for the purpose of the said provision.
G. FINAL ORDER
261. For all the foregoing reasons, we have reached the conclusion
that the High Court committed an egregious error in passing the
impugned judgment. We are left with no other option but to set aside
the impugned judgment and order passed by the High Court, and
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restore the criminal proceedings in Spl. S.C. No. 170 of 2023 to the
court of Sessions Judge, Mahila Neethi Mandram (Fast Track Court),
Tiruvallur District. We accordingly pass such order.
262. We direct the Registry to send one copy each of this judgment to the
Principal Secretary, Ministry of Law & Justice, Union of India and to
the Principal Secretary, Ministry of Women and Child Development,
Union of India, for undertaking appropriate course of action.
263. Pending application(s) if any, also stand disposed of.

Result of the Case: Appeals disposed of.

†
Headnotes prepared by: Divya Pandey