Trial Court Discharges Two Men Accused Of Storing Child Pornographic Material, Delhi High Court Registers Suo Moto Case

Exercising its suo moto revisional jurisdiction, the Delhi High Court registered a suo moto revision petition from a public interest litigation which challenged a trial court order discharging two men accused of circulating and storing child pornographic material.

A division bench comprising of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora observed that the findings of the trial court prima facie suffered from “manifest illegalities” and had caused “miscarriage of justice.”

On September 01 last year, the trial court discharged the accused persons for the offence punishable under Section 15(2) of the Protection of Children from Sexual Offences Act, 2012.

The trial court had held that Section 15(2) of the POCSO Act cannot be invoked against the accused in absence of the criteria to determine the age of the children in the pornographic videos or photos. It further held that for invoking the said provision, the first and foremost requirement is to determine whether the victim is a 'child' or not.

The PIL was filed by Tulir Charitable Trust, a charitable trust engaged in combating child sexual abuse, challenging the trial court order. It further sought guidelines for the trial courts hearing cases involving Child Sexual Abuse Material (CSAM) of unidentified child or children online or offline.

The court said that the prayer to frame guidelines for the benefit of POCSO Courts was not called for in the matter as there are sufficient legal provisions to deal with it.

However, it added the trial court failed to consider the definition of 'child pornography' provided under Section 2(da) of the POCSO Act.

“In the opinion of this Court, it is the definition of 'child pornography' which is of relevance while considering whether Section 15 of the POCSO Act has to be invoked or not,” the court said.

The bench observed that only a prima facie inference of involvement of a child is sufficient for any sexually explicitly material to be considered as child pornography.

“This is in contrast with the definition of 'child' under Section 2(d) of the POCSO Act, inasmuch as, the determination of a child will be dependent upon the objective criterion of whether a person is above the age of eighteen (18) years. Such objective criterion has to be satisfied as per the procedure set out in the JJ Act,” the court said.

It added: “However, for the purpose of Section 2(da) of the POCSO Act, a subjective satisfaction/inference as regards the appearance of persons in the sexually explicit material is sufficient for it to be considered child pornography.”

The bench also concluded that the trial court ignored the principle that at the stage of framing of charge, the only requirement is whether there is sufficient material on record to presume that the accused persons have committed the crime.

It noted that it is patently impossible to follow the steps under Section 34 of the POCSO Act read with Section 94 of the Juvenile Justice Act in a situation where the victims are untraceable and unidentifiable.

The procedure set out in Section 34 of the POCSO Act read with Section 94 of the JJ Act, if applied in offences under Section 15 of the POCSO Act, will render the provision otiose and redundant,” the court said.

While registering the suo moto revision petition, the court appointed Advocate Aashaa Tiwari as the amicus curiae. The bench issued notice to the two accused as to why the impugned order should not be set aside.

The matter will now be heard by the single judge on May 21.

Counsel for Petitioner: Mr.Vakul Sharma, Advocate

Counsel for Respondents: Mr.Sanjay Lau, standing counsel with Ms.Nandita Rao, ASC for GNCTD; Ms.Anubha Bhardwaj, SPP for CBI; Mr.Ravi Prakash, CGSC, Mr.Ali Khan, Mr.Taha Yasin, Mr.Astu, Advocates for UOI

Title: TULIR CHARITABLE TRUST v. UNION OF INDIA & ORS.

Citation: 2024 LiveLaw (Del) 576

Click here to read order