The court said the storage of such material, without deleting or without reporting the same, would indicate an intention to transmit, while overturning the Madras High Court judgement which held that mere storage without any intention to transmit the same was not an offence.
Published Sep 23, 2024 | 12:57 PM ⚊ Updated Sep 23, 2024 | 12:57 PM
Supreme Court of India. (iStock)
The Supreme Court on Monday, 23 September, said the storage and watching of child sexual exploitative and abusive material on digital devices is an offence under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
The court said the storage of such material, without deleting or without reporting the same, would indicate an intention to transmit, while overturning the Madras High Court judgement which held that mere storage without any intention to transmit the same was not an offence.
Observing that the high court committed an “egregious error” in quashing the criminal proceedings, the bench comprising Chief Justice DY Chandrachud and Justice JB Pardiwala set aside the decision set it aside and restored the criminal prosecution.
Justice Pardiwala read out the conclusions of the judgment: “Section 15 of the POCSO provides for three distinct offences that penalise either the storage or possession of any child pornographic material when done with any intention to transmit, display etc as specified in sub-sections of the Section. It is in the nature and form of an inchoate offence, which penalises the mere storage or possession of any pornographic material involving a child when done with the specific intent prescribed thereunder without requiring any actual transmission, dissemination etc,” reported LiveLaw.
The judgment held that sub-section (1) of Section 15 penalises the failure to delete, destroy or report any child pornographic material that is stored or in possession of any person 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,” said the court in the judgement.
For subsection (1), the necessary foundational facts that the prosecution may have to first establish are the storage or possession of any child pornographic material and that the person accused had failed to delete, destroy or report the same.
Just because the material was deleted before FIR registration, it cannot be said that no offence is made out, the court said.
The court clarified that 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.
“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”
The court observed that a contrary interpretation can lead to disastrous consequences.
“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’ 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.”
As regards sub-section (2) of Section 15, the court noted that it penalises both the actual transmission, propagation, display or distribution of any child pornography as well as the facilitation of any of the abovementioned 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 that is indicative of any facilitation or actual transmission, propagation, display or distribution of such material.”
Regarding Section 15(3), the Court noted that it penalised the storage of child pornographic material for commercial purposes. To establish an offence under this provision, besides the storage, there must be some additional material to indicate that such storage was done with the intent to derive an economic gain or benefit. To constitute an offence under this Section, there is no requirement to establish that such gain or benefit was realised.
The court held that sub-sections (1), (2) and (3) of Section 15 are independent of each other. If a case does not fall within one sub-section, that does not mean it does not fall within the entire Section 15.
“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.
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.”
The judgment also contains various guidelines and suggestions regarding enforcing the POCSO Act.
The court suggested the Parliament amend the term “child pornography” with the term “child sexual exploitative and abusive material” and requested the Union to bring an Ordinance to bring about the amendment. The court has directed the courts to not use the term ‘child pornography’.
The order was passed in an appeal filed by the NGO Just Right for Children Alliance against the high court ruling which held that watching child pornography in private does not constitute an offence
Justice N Anand Venkatesh had held that merely downloading or watching child pornography on one’s personal electronic device does not constitute an offence under the POCSO Act and the IT Act.
The high court had made the observations while quashing proceedings initiated against one S Harish, who had been booked under the POCSO Act and the IT Act for having downloaded and viewed two child pornography videos on his mobile phone.
The high court had highlighted the rise in porn addiction among the youth and called for a measured approach to deal with the issue.
While hearing the case in March, the Supreme Court had said the observation by the high court was “atrocious”.
The Kerala high court recently held that accidental or automatic downloading of child pornographic material does not constitute an offence under the Information Technology Act.
In 2022, the Supreme Court refused to entertain a petition seeking directions to the Bureau of Police Research and Development (BPRD) to collect data for revealing a link between the viewing of pornographic material and the commission of sexual offences.
