Author: Pushpa Prasad, Student of Faculty of Law, Delhi University
The case is arising out of the special leave petition CRL NOs. 3665-3666 of 2024
FACTS OF THE CASE
The All- Women’s Police Station Ambattur, Chennai ,Tamil Nadu is respondent no. 3 a letter was received from the Additional Deputy Commissioner of Police where it was mentioned that as per the CyberTipline Report of National Crimes Record Bureau ( NCRB) the respondent as an individual was involved in consuming child sexual abuse material. At the time of investigation, the mobile phone of the respondent was seized and was sent to the laboratory for the analysis. The report submitted that two video files relating to child pornography which showed two minor boys involved in sexual activity with an adult woman, the report further stated more than hundred other porngraphic video files were downloaded and stored in the mobile phone.
After completion of the investigation the respondent was charged with offence punishable under Section 67B of the IT Act and 15 (1) of the POCSO , though earlier FIR was registered for the offence punishable under Section 14 (1) of the POCSO after the material collected during investigation it was most appropriate to charge under above Section mentioned.
JUDGEMENT OF THE HIGH COURT OF MADRAS
The High Court quashed the criminal proceeding on the following grounds
The High Court viewed that the offence to fall under Section 14 (1) of POCSO a child must be used for the pornographic purposes mere downloading and viewing the children pornography would not fall in this Section 14(1) of POCSO ( Protection of Child from Sexual Offence Act ,2012)
The High Court held that for the offence to fall in the ambit of Section 67B of the IT Act, the accused must have published, transmitted or created material using children for sexual activity. The respondent did not constitute this act only watching pornography would not fall in Section 67B of the IT Act.
The High Court taking the view of Section 292 of Indian Penal Code 1860 as there was no material to show that the respondent had transmitted or published no offence is created as the respondent act does not fall in any of the mentioned law and thus High Court quashed the criminal proceeding.
The appellant no.1 Just Rights for Child Alliance in collation with five different NGOs aggrieved with the decision of the High Court came up before the Supreme Court with the Special Leave Petition.
On behalf of the Appellants
Mr H.S. Phoolka the learned Senior Counsel appearing for the appellant submitted before the Honourable Court that the High Court erroneously proceeded with Section 14 (1) of POCSO without giving consideration to Section 15 (1) of the Act, Section 15 penalises the downloading and failure to delete child pornography , the NC-MEC report denies the
respondent contention that the two videos were received through whatsapp. He further held that the High Court failed to distinguish between Section 67 and Section 67A of the IT Act. He further submitted that Section 30 of POCSO the High Court was legally obliged to presume the accused to have the existence of a culpable mental state if any offence was committed in this act.This impugned judgement put a threat on children welfare.
On behalf of the National Commision for Protection of Child Rights (NCPCR).
Ms Swarupama Chaturvedi, the Senior Counsel submitted that there was a serious lapse the State has failed to register the FIR for the offence punishable under Section 15 of POCSO 2012 and further the State Prosecuting agency failed to bring notice to the High Court that charge sheet was ultimately filed under Section 15(1) and not Section 14.
The download of the pornographic material involving child and retain for two years without deletion this act of accused falls under Section 19 of the POCSO, 2012.
The High Court failed to mandate Section 30 which presumes of culpable mental state on the part of the accused which shifts the burden of proving the absence of the culpable mental state onto the accused.
The failure of compliance of Section 19 itself is punishable under Section 21 of POCSO, therefore, reporting to an NGO cannot absolve the social media platforms of its liability under Section 21 of the POCSO.
She also submitted that the issue of minors is of serious concern, she pointed out that in the age of gaining education through the internet it is imperative to provide a safe online environment in accordance with the United Nations Convention on the Rights of the Child (UNCRC).
LEGAL ISSUES RAISED
What is the scope of Section 15 of the POCSO?
Whether mere viewing, possessing or storing of any child pornographic material is punishable under the POCS?
What is the true scope of 67 B of the IT Act?
What of the fundamental facts necessary for invoking the statutory presumption of the culpable mental state in respect of Section 15 of the POCSO Act?
The scope of Section 30 of the POCSO Act?
JUDGMENTS AND ANALYSIS OF THE LAW
Scope of Section 15 of the POCSO and Section 67B of IT Act
The Supreme Court made interpretations of the Section 15 of POCSO and Section 67B of IT Act taking in view of various High Court Judgments.
In case of Nupur Ghatge vs State of Madhya Pradesh (2020) the Court held that Section 67B penalises various forms of acts including the act of watching and transmitting any pornographic material in electronic form. As the accused was himself involved and the burden of the accused to prove his defence which cannot be decided by this court in exercise of powers under Section 482 of CrPc. In P.G Sam Infant Jones v. State represented by Inspector of Police 2021 SCC OnLine Mad 2241 it held that Section 67-B of the IT Act, 2000 penalises every kind of the act pertaining to child pornography. Therefore, even viewing child pornography constitutes an offence. In Inayathulla N (2) v. State 2024 KHC 28204 the court held that Section 65B(b) opens up prosecution against a person who creates seeks, browses, downloads, advertises, promotes, exchanges, or distributes material in electronic form involving children in sexual activity. Browsing child pornography makes it an offence under Section 67B(b) of the IT Act.
The Supreme Court held that Section 67B not only punishes the electronic dissemination of CESAM 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.
The three different offences punishable under Section 15 of POCSO
In the 2019 amendment act the legislature made three different forms of storage possession of child pornography a punishable offence.
Section 15 (1) punishes person who either stores or has possession of the pornographic material fails to delete , destroy or report with intention to transmit , Section 15 (2) a person has the possession of the pornographic material involving a child for transmitting, displaying propagating or distributing the same except for either reporting the act is punishable offence and Section 15(2) penalises the act of commercialization of the child pornographic material. The word possession was originally absent in Section 15; it was added through amendment of the 2019 Act. Justice Pardiwala, refers to these as inchoate offences ; offences that are in anticipation or preparation for committing a further criminal act.
In U.S.v. Tucker reported in 150 F. Supp.2d 1263 (D.Utah. 2001), 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 constructive possession.
In Section 15 it penalises the storage of possession of any child pornographic material when done with the particular intention or purpose as mentioned in Section 15 (1), (2),(3) as the case may be. The intention in the act is being punished not the criminal act; this intention constitutes it to be the Inchoate offence.
The Supreme Court cautioned the police and the court to be mindful if one subSection of Section 15 is applied in a case then the other two subSection ceases to apply and all the subSection of Section 15 falls with different degree of culpable mens rea that is in the provision. The other important aspect is that if the Court finds that particular subsection of Section 15 does not apply then the court should not be in a hurry to reach to the conclusion of no offence. They should ascertain the fact that if the act falls in the other two subsections or not.
Presumption of Criminal Mental State under Section 30 of POCSO
Section 30 of the POCSO shifts the burden of proof onto the accused to demonstrate that they did not possess the mental state required for committing the offence.
The Court observed that Section 15 subsection (1) could be the prima facie appeal in this case as the Section 15 will be reckoned from the date of registration of the FIR. The Court held it as constructive possession and held that viewing ,distribution, or displaying such material would still fall in the ambit of actual possession under Section 15 (1).
The Supreme Court held that 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 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.
FAQS
What impact does it create on the children’s welfare?
Child pornography represents violation of children rights. It hampers the overall growth of the child, when a child is exploited in sexual activity if not treated at the right time it leads to higher chances that in further he may get aggressive and indulge in exploitation of other children.Therefore the law must be interpreted in such a way that prioritises the protection of vulnerable children from sexual exploitation.
How will the Supreme Court decision have an impact in the future of India?
It will determine whether the country adopts a more comprehensive approach to combating CSAM or whether possession without transmission continues to fall outside the scope of criminal liability. As the digital landscape evolves, this case serves as a critical moment in the ongoing effort to protect children from sexual exploitation in the online world
CONCLUSION
Section 15 of POCSO provides three distant offences that penalise when done with particular intention,the mens rea or the intention required under this provision is to be gathered from the actus reus itself. To constitute an offence the circumstances must sufficiently indicate the intention on the part of the accused to share or transmit such material.
The Supreme Court held that instead of the expression ‘child pornography’ the expression ‘child sexual exploitation and abuse material’ must be used because it reflects the reality of the crime more accurately and emphasises the exploitation and abuse of the child by highlighting the criminal nature of the act and the need for a serious and robust response.
The Supreme Court suggested the Union Government bring an amendment to the POCSO Act to replace the expression ‘child pornography’ with ‘child sexual exploitation and abuse material’ so that the true nature of the offence can be reflected more accurately. The Court suggested bringing an Ordinance for the change.
The Court also requested the Union Government to amend Section 15 (1) of the POCSO Act to make it convenient for the general public to report by way of online portal any instance of storage or possession of CSEAM to the authorities.
