The Supreme Court on Monday ruled that the storage of child pornographic material, without deleting or reporting the same, constituted an offence under the Protection of Children from Sexual Offences (POCSO) Act.
The Bench of Chief Justice of India DY Chandrachud and Justice JB Pardiwala set aside a Madras High Court judgment which held that mere storage of child pornographic material without any intention to transmit the same was not an offence under the POCSO Act.
Restoring the criminal prosecution, the Apex Court observed that the High Court committed an ‘egregious’ error in quashing the criminal proceedings.
It said the failure on the part of the accused in the present case to delete, destroy or report the material, has prima facie established the foundational facts necessary to invoke the statutory presumption of culpable mental state.
Reading out the conclusions of the verdict, Justice Pardiwala noted that Section 15 of the POCSO Act provided three distinct offences that penalised either the storage or possession of any child pornographic material when done with any intention to transmit or display, as specified in sub-sections of the Section.
The Act, in the nature and form of an inchoate offence, penalised 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 or dissemination.
Sub-section (1) of Section 15 penalised 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 was to be gathered from the actus reus itself i.e., it must be determined from the manner in which such material was 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, he added.
For the purpose of sub-section (1), the necessary foundational facts that the prosecution may have to first establish was 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 the registration of an FIR, it could not be said that no offence was made out, added the Supreme Court judge.
The Bench clarified that the term ‘storage’ and ‘possession’ used in the said provision did not require that such ‘storage’ or ‘possession’ must continue to be there at the time of registration of an FIR or any criminal proceeding.
To constitute an offence under Section 15 of the POCSO simply required 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 existed at the time of registration of the FIR, an offence could nonetheless be made out under Section 15 if it was established that the accused had ‘stored’ or ‘possessed’ of any child pornographic material with the specified intention at any particular point of time even if it was anterior in time, noted the Bench.
It observed that a contrary interpretation could lead to disastrous consequences.
The top court of the country clarified that there was no requirement under Section 15 of the POCSO Act that ‘storage’ or ‘possession’ must continue to exist at the time of initiation of the criminal proceeding, and no such requirement could be read into the said provision.
An offence could be made out under Section 15 if it was 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, noted the Bench.
As regards sub-section (2) of Section 15, the Court observed that it penalised 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 was 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 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 an 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 actually was realised.
The Court held that sub-sections (1), (2) and (3) of Section 15 were independent of each other. If a case did not fall within one sub-section, it did not mean that the case would not fall within the entire Section 15.
Sub-section(s) (1), (2) and (3) respectively of Section 15 constituted independent and distinct offences. The three offences could not coexist simultaneously in the same set of facts. They were distinct from each other and not intertwined. The underlying distinction between the three sub-sections of Section 15 lies in the varying degree of culpable mens rea required under each of the three provisions.
The police as well as the courts, if while examining any matter involving the storage or possession of any child pornography found that a particular sub-section of Section 15 was not attracted, then they must not jump to the conclusion that no offence at all was made out under Section 15 of the POCSO.
If the offence did not fall within one particular sub- section of Section 15, then it must be tried to ascertain whether the same fell within other sub-sections or not, added the judgment authored by Justice Pardiwala.
The verdict contained various guidelines and suggestions regarding the enforcement of the POCSO Act.
The Apex Court suggested the Parliament to amend the term ‘child pornography’ with the term ‘child sexual exploitative and abusive material’ and requested the Union of India to bring an Ordinance to bring about the amendment. The Bench further directed the Courts not to use the term ‘child pornography’.
The Bench passed the verdict on a petition filed by a coalition of NGOs, Just Rights for Children Alliance. The petitioner raised concerns over the potential impact of such a ruling on child welfare. Senior Advocate HS Phoolka appeared for the petitioner.
As per the FIR, a case was registered against the accused for downloading child pornographic material in his mobile on the basis of a letter received by the Additional Deputy Commissioner of Police (Crime against women and children).
During the investigation, the mobile phone of the accused was seized and a Forensic analysis was conducted which confirmed that the mobile phone had two files containing child pornography content involving teen boys.
The trial court took cognizance of the offence under Section 67B of the Information Technology Act 2000 and Section 14(1) of the POCSO Act. The accused then approached the High Court seeking to quash the criminal proceedings.
The single-judge Bench of the High Court observed that the accused had only downloaded the material for private viewing, and the same was not published or transmitted. The High Court ruled that mere downloading or watching child pornography was not an offence under Section 67-B of the IT Act, 2000.
In order to attract the offences under the POCSO Act, a child or children must have been used for pornography purposes. In the present case, the accused had watched pornography videos but had not used a child or children for pornographic purposes. This could only be construed as a moral decay on the part of the accused, noted the High Court.
The petitioner moved the Apex Court contending that the order might encourage child pornography by giving the impression that individuals downloading and possessing such material would not face prosecution. The plea stressed on the potential harm to innocent children and the negative impact on child welfare.
It contended that the High Court order, covered extensively in newspapers, gave the impression that individuals who downloaded and possessed child pornography would not face prosecution.
This would encourage child pornography and act against the well-being of children. An impression was given to the general public that downloading and possessing child pornography was not an offence, which would increase the demand for child pornography and encourage people to involve innocent children in pornography.
Senior Advocate Swarupama Chaturvedi represented NCPCR, an intervenor supporting the petitioner. Advocate Prashant S. Kenjale represented the accused, while Advocate D Kumanam appeared for the State of Tamil Nadu, supporting the petitioner.