Knowingly Watching Child Pornography Over Internet Without Downloading Amounts To 'Possession' Under POCSO Act : Supreme Court

The Supreme Court held that watching child pornography over the internet without downloading would also amount to "possession" of such material in terms of Section 15 of the Protection of Children from Sexual Offences Act (POCSO).

Section 15 deals with the offence of storage or possession of child pornographic material with an intention to transmit the same. The judgment also held that the intention to transmit can be gauged from the failure of a person to delete and report the material.

The bench comprising Chief Justice of India and Justice JB Pardiwala explained the conclusion with an illustration. 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.

However, if 'A' was sent an unknown link by 'B', which upon clicking opened a child pornographic video on the phone of 'A', he cannot be held to be in control of the material. Because, he was unaware as to what would open from the said link; thus 'A' cannot be said to be in possession.  However, 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.

Person who opened the child pornographic link without knowledge liable on failure to report

Also, when an unknown link containing child pornographic video is sent, the person who unknowingly opened it would be absolved of the liability only if he reports the same to the authorities.

The judgment explained as follows :

"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 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."

Doctrine of constructive possession applied

The judgment applied 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

Applying this doctrine, the judgment authored by Justice Pardiwala held :

"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."

Conclusion of the judgment 

The judgment in conclusion held :

"Any act of viewing, distributing or displaying etc., of any child pornographic material by a person over the internet without any actual r 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."

Appearances: Senior Advocate HS Phoolka (for petitioner), Senior Advocate Swarupama Chaturvedi (for NCPCR, intervenor supporting petitioner), Prashant S. Kenjale (for accused), D Kumanam (for the State of TN, supporting petitioner)

 Also from the judgment -Storage Of Child Pornography Without Deletion Or Reporting Indicates Intention To Transmit, Constitutes POCSO Act Offence :Supreme Court

Other reports about the judgment can be read here.