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

Observing that the High Court committed an "egregious error" in quashing the criminal proceedings, the bench comprising CJI DY Chandrachud and Justice JB Pardiwala set aside the decision set it aside and restored the criminal prosecution.

The Court held that from the failure on the part of accused in the present case in deleting, destroying or reporting the material, the foundational facts necessary to invoke the statutory presumption of culpable mental state could be said to have been prima facie established.

Intention must be gathered from the circumstances

Justice Pardiwala read out the conclusions of the judgment as follows :

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.

Regarding Section 15(1) of POCSO - Failure to delete, destroy or report indicates intention to transmit

The judgment held :

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.

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.

Just because material was deleted before FIR registration, it cannot be said that no offence is made out

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' 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."

Regarding Section 15(2) 

As regards sub-section (2) of Section 15, the Court note that it penalizes 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)

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.

Sub-sections (1), (2) and (3) are distinct offences

The Court held that sub-sections (1), (2) and (3) of Section 15 are independent of each other. If a case is not falling within one sub-section, that does not mean that 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 authored by Justice Pardiwala contains various guidelines and suggestions regarding the enforcement of the POCSO Act.

The Court also suggested the Parliament to 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 decision comes in a plea filed by Just Rights for Children Alliance. The coalition of NGOs has raised concerns over the potential impact of such a ruling on child welfare. Senior Advocate HS Phoolka appeared for the petitioner.

It may be noted that the Supreme Court is considering a petition challenging a similar judgment passed by the Kerala High Court as well.

In the present case, based on a letter received by the Additional Deputy Commissioner of Police (Crime against women and children), a case was registered against the accused for downloading child pornographic material in his mobile.

During the investigation, the mobile phone was seized and a Forensic analysis was conducted which confirmed that the mobile phone had two files which contained child pornography content involving teen boys. The 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 had approached the High Court seeking to quash the criminal proceedings.

Madras High Court's Reasoning

The Madras High Court's decision was grounded in several key points: the accused had only downloaded the material for private viewing, it was not published or transmitted, and it was argued that merely downloading and watching child pornography is not an offence under Section 67-B of the Information Technology Act, 2000.

The single bench noted that to attract the offences under the POCSO Act, a child or children must have been used for pornography purposes. In the present case, the court noted that the accused had watched pornography videos but had not used a child or children for pornographic purposes. This, in the opinion of the court, could only be construed as a moral decay on the part of the accused person.

Petitioner's Concern About The Social Impact Of Normalizing Child Pornography

The Just Rights for Children alliance expressed concerns that the order might encourage child pornography by giving the impression that individuals downloading and possessing such material will not face prosecution. They emphasized the potential harm to innocent children and the negative impact on child welfare.

As per their petition, it is contended - " The impugned order, extensively covered in newspapers, gives the impression that individuals who download and possess child pornography will not face prosecution. This will encourage child pornography and would act against the well-being of children. The impression is given to the general public that downloading and possessing child pornography is not an offence and it would increase the demand for Child pornography and encourage people to involve innocent children in pornography."

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)

Other reports about the judgment can be read here.

Case Details : JUST RIGHTS FOR CHILDREN ALLIANCE vs. S. HARISH Diary No.- 8562 - 2024

Citation : 2024 LiveLaw (SC) 728

Click here to read the judgment