Strict Proof For Determining Age Not Required In Every Case Of Child Pornography: Kerala High Court Lays Down Guidelines

Justice K Babu held that it was not required to give evidence regarding strict proof of age for every model in child porn and stated that the Court could proceed based on the appearance of the model. The Court further held that in required cases, the expert opinion of a paediatrician or an expert in the field could be used to ascertain the age of the model.

“1. Child Pornography is punishable under Section 15 POCSO Act, Offence of Transmission or Publication of child pornography punishable under Section 67 -B Information Technology Act. These provisions to be interpreted emphasizing the viewpoint of the audience and society at large.
2. No need of strict proof of age regarding model in every case of child pornography. Relevance should be given if model appears as child.
3. Image of infant or toddler used, Court can take judicial notice and proceed by framing charges.
4. Age of child to be analysed on a case to case basis. If model appears like a child below 18 years, fact finder can conclude age without expert testimony. No need of strict proof regarding age.
5. If model appears closer to 18 years, expert opinion of paediatrician or an expert in the field to be used. If model depicts a boy or girl below 16 years, fact finder can decide based on his experience using his/her critical faculties in deciding the issue.
6. In cases of marginal nature, opinion of experts including paediatrician and forensic experts necessary to conclude on age.
7. When a party pleads special circumstances regarding age of model, the party who pleads it has the burden to prove the existence of special circumstances.
8. Prosecution need not always establish identity of model in child pornography. Insisting on identification of child and strict age proof is practically impossible to provide in all cases unlike other POCSO cases since it would defeat the intention of statute. The fact-finding on the age, being an integral part of the offence, the prosecution has to place the material before framing of charge.”

The Court was considering criminal miscellaneous cases where persons accused for offence committing child pornography had approached the Court seeking to quash the final report against them. The criminal revision petitions were filed challenging orders rejecting their applications seeking discharge. The petitioners in all these cases were allegedly accused of committing an offence under Section 15 (punishment for storage of pornographic material involving child) of the POCSO Act and Section 67 B (punishment for publishing or transmitting of material depicting children in sexually explicit act, etc in electronic form) of the Information Technology Act.

The Counsel for the petitioners argued that the POCSCO case cannot be attracted until the prosecution establishes the victim's age. It was contended that the victim's age could not assessed based on a photograph or video. It was thus stated that the prosecution has failed to establish a prime facie case that the petitioners have downloaded pornographic material involving child.

Amicus Curiae Renjith B Marar submitted that strict proof of age of the model was not required and it was only required that the model appear to depict the child. It was contended that in many cases the model used might be outside the court's jurisdiction thus making it difficult to establish the age of every model. It was also stated that it would be impossible to establish the identity of children depicted in pornographic material due to the anonymity of the internet. It was stated that when courts have doubts, they can take assistance from experts to ascertain the age of the model used in pornographic material.

Amicus Curiae John S Ralph submitted that age could not be established since virtual images would not contain a date of birth of the model. It was also stated objective test has to be applied to identify the intention of the accused to possess/store child porn.

On analysing Section 15 of the POCSO Act and Section 67B of the IT Act, the Court stated that the intent of the legislature is to prevent child porn since it is an offence against society. Referring to Apex Court decisions, the Court stated that obscenity has to be determined from an average person's viewpoint by applying contemporary community standards.

Further, referring to foreign decisions, the Court stated that the standard of proof necessary to identify age in cases of dissemination or possession of child pornography was not limited to expert opinion testimony alone.

It also stated that the identity or whereabouts of the model remains unknown due to the anonymity of the internet. The court stated that conventional measures to prove age such as birth certificates or testimony of relatives would also be unavailable on the internet. It stated that insistence on tracking down the identity or age of the child would defeat the purpose of the enactment.

It further stated that in required cases, the Court can take expert evidence under Section 45 of the Evidence Act to determine the age of the model. “…I hold that giving an opinion on the age of a model in a visual by a pediatrician is `science' occurring in Section 45 of the Act”, added the Court.

Accordingly, the Court laid down guidelines regarding the identity and age of the model in pornographic material to determine whether it was child porn or not.

As such, the Court disposed of the petitions upon laying down the guidelines without considering the merits of allegations raised in each petition.

Counsel for Petitioners: Advocates Sarath Babu Kottakkal, Mahesh V.Ramakrishnan, Sarun, M.K.Sumod, S Rajeev

Counsel for Respondents: Public Prosecutor Pushpalatha

Citation: 2024 LiveLaw (Ker) 240

Case title: Parthasarathi M v State of Kerala & Connected Cases

Case number: CRL.MC NO. 1736 OF 2021 & Connected Cases

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