23 September, 2024 CRIMINAL APPEAL NO. 2161-2162 OF 2024
(ARISING OUT OF SPECIAL LEAVE PETITION (CRL) NOS. 3665-3666 OF 2024)
Supreme Court of India: [2024] 10 S.C.R. 154 : 2024 INSC 716
Name of Parties : Appellant- Just Rights For Children Alliance
Respondents – S. Harish
Nature of Case : Criminal Appeal
Case Number : Criminal Appeal No. 23 September, 2024 CRIMINAL APPEAL NO. 2161-2162 OF 2024
Bench : Hon’ble chief justice D. Y. Chandrachud
Hon’ble Justice Justice J. B. Pardiwala
Judgement Dated : 23 September, 2024
Legal Counsel : For Appellant – Mr. H. S. Phoolka Senior Counsel
For Respondent- Mr. Prashant S. Kenjale,
FACTS:
On January 29, 2020, National Crime Record Bureau reported that Harris, residing in Ambattur, TN, has been watching child pornographic videos for more than two years. Data have also been collected concerning child pornographic videos produced by exploited children and missing persons.
- Upon examining the notices, it was apparent that the aforementioned individual had downloaded those films from websites to engage in sexual activities, and these films were produced at the address ‘Gopalsamy, No. 2, Gangai Amman Kovil 3rd Main Road, Kallikuppam, Ambattur’ by exploiting local children. Since this abhorrent behavior is an offense against the order of society, Crime No. 03/2020 under Section 67B of the IT Act read with Section 14(1) of the POCSO Act 2012 was registered, and the original FIR was sent to the concerned Court of the learned Judicial Magistrate, with copies being sent to the concerned higher-authority police officials without delay, resulting in the opening of an investigation.
- Throughout the investigation, respondent no. 1’s mobile phone was seized and sent to the Forensic Science Laboratory for analysis. Respondent no. 1 was also questioned whether he had ever watched any pornographic content, to which he admitted having watched pornography regularly while he was in college.
- It was found that the mobile phone of respondent no. 1 had two video files of child pornography involving two young boys having sex with an adult female, as per the Computer Forensic Analysis Report on 22. 08. 2020. The Computer Forensic Analysis Report also revealed that more than a hundred other pornographic video files were downloaded and stored in the aforementioned mobile phone. In September 2023, a charge sheet was filed against Harish under Section 15(1) of the POCSO Act and Section 67B of the IT Act.
Being unsatisfied with the order, S. Harish went to the High Court of Judicature at Madras by way of a quashing petition, entitled Criminal Original Petition (Crl. O. P.) No. 37 of 2024, praying for the quashing of the criminal proceedings against him. First, the impugned judgment of the High Court revoked the criminal proceedings on virtually three grounds:
(i) The HC opined that for an offence to be made out under Section 14(1) of POCSO, a child should have been used by the accused for pornographic purposes. It observed that the children involved in sexual activity were discovered to have been downloaded and saved in the mobile phone, and even if it were presumed that the accused had seen them, this would not be an offence under Section 14(1) of the POCSO.
(ii) The HC held that, to constitute an offence under Section 67B of the IT Act, the accused should have transmitted, published, or created the material showing children in a sexually explicit form. Merely downloading or viewing child pornography without either transmission or publication does not fall within the purview of Section 67B of the IT Act.
(iii) The High Court, based on its earlier deliberation and drawing inspiration from Section 292 of the Indian Penal Code, 1860 (hereinafter “IPC”), held that although pornographic content had been downloaded and saved on the mobile phone, in the absence of any proof to the effect that respondent no. 1 had shared or disseminated it, no offence could be proved under the POCSO, IT Act, or IPC, and hence rejected criminal proceedings.
(iv) In dealing with this issue, the Kerala High Court held that simply looking at an obscene photograph or at an obscene film by a person is not by itself an offence under Section 292 IPC.
ISSUES
- What is the scope of Section 15 of the POCSO? In other words, what is the underlying distinction between sub-section(s) (1), (2) and (3) respectively of the POCSO?
- Whether mere viewing, possessing or storing of any child pornographic material is punishable under the POCSO?
- What is the true scope of Section 67B of the IT Act?
- What is the scope of Section 30 of the POCSO? In other words, what are the facts that are necessary to invoke the statutory presumption of a guilty mind under Section 15 of the POCSO?
- Whether the statutory presumption contained in Section 30 of the POCSO can be invoked only at the stage of trial by the Special Court alone established under the POCSO? In other words, is it permissible for the High Court in a petition for quashing filed under Section 482 of the Cr. P. C. to invoke the statutory presumption of culpable mental state under Section 30 of the POCSO?
CONTENTION
Petitioners Contention:
- Mr. H. S. Phoolka, the Senior Counsel for the appellants, had argued that Section 15(1) directly criminalizes downloading and failure to delete child pornography, and that the High Court erred seriously in rejecting criminal proceedings without looking at Section 15 of the POCSO.
- He had argued that the impugned order poses serious risk to child welfare and violates many national and international commitments. He further noted that the High Court did not distinguish between adult pornography and child pornography, as Sections 67 and 67A of the IT Act specifically deal with adult pornography, whereas Section 67B was brought in 2009 to make stricter provisions for collecting, downloading, or accessing child pornographic material.
- In addition, he stated that under Section 30 of the POCSO, the High Court was statutorily obligated to presume the presence of a culpable mental state on the part of the accused for committing any offence under the Act requiring such a mental state. Finally, it was contended that after the chargesheet and other evidence on record established conclusively the commission of an offence, particularly the pornographic videos discovered on the mobile phone of the accused, it was not correct for the High Court to exercise its inherent powers under Section 482 of the Cr. P. C to quash the criminal proceedings.
Respondents Contention:
- He stated that the date when the videos downloaded from the mobile phone of respondent no. 1 were received is 14. 06. 2019, when the 2019 amendment to Section 15 of the Protection of Children from Sexual Offences (Amendment) Act, 2019 (referred to as the “2019 Amendment Act”), which made several important changes, was not yet in force.
- He further contended that mere ownership of the said videos does not constitute an offence under Section 15(1) of the POCSO, as the respondent did not intend to disseminate or distribute them. He further argued that even assuming respondent no. 1 had watched the aforementioned videos once and then did not erase them, he cannot be held liable under Section 15(1) of the POCSO, since he was not aware of their existence as a result of the government’s inability to effectively enlighten the masses regarding the law. It was also asserted in favour of respondent no. 1 that the 2019 Amendment Act that added the three said offences related to the storage or possession of child pornography penalized under Section 15 of the POCSO came into force from 16. 09. 2019. Nevertheless, the two said videos were purportedly stored on the device before the coming into force of the 2019 Amendment Act.
- As the existing Section 15(1) of the POCSO did not exist at the relevant time when the videos were said to be stored, respondent no. 1 cannot be held to account under the aforesaid provision which did not even exist then. He maintained that respondent no. 1’s ignorance of law was accompanied by an honest belief, and thus would not amount to an offence under Section(s) 15 of the POCSO and Section 67B of the IT Act. To advance this reasoning, he drew a reference to the decisions of this Court in Chandi Kumar Das Karmarkar v. Abanidhar Roy, and Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh.
RATIONALE:
An NGO called Just Rights for Children Alliance challenged this order in February 2024. The judgment of the High Court and the interpretation given to the concerned provisions of POCSO are a significant danger to the welfare of children and may result in an increase in child pornography, jeopardizing the very foundations of society at large. They insisted that it would create the perception among the public that possession and downloading of child pornography is not illegal. This, they said, would increase the demand for child pornography and encourage individuals to engage innocent children in it.
The order was passed on September 23rd by a division bench of Chief Justice D. Y. Chandrachud and Justice J. B. Pardiwala, who overruled the Madras High Court’s order in S. Harish v. Inspector of Police and Another, which had rejected criminal proceedings against a POCSO accused.
Justice Pardiwala, who authored the judgment, clearly defined the scope of Section 15 of the POCSO Act. He stated that Section 15 defines three distinct offenses that punish either the possession or storage of child pornographic content, depending on three different intentions.
As he explained, each intention was dealt with in each subsection of Section 15.
- Section 15(1) sanctions the omission to delete, destroy, or disclose child pornography in possession of an accused person.
- Clause 2 sanctions the distribution, transmission, display, or dissemination of such material in fact.
- Clause 3 sanctions the possession or storage of child pornographic material when done for commercial purposes.
- By this reading, mere possession of child pornography, except in cases where it has been deleted, destroyed, or reported by the accused, is an offense under the POCSO Act.
- Section 67B of the IT Act does not require that transmission or publication be made; even storage and possession are enough to make it an offense under this section. Furthermore, possession would also cover constructive possession.
- In this Court’s judgment in Independent Thought v. Union of India and Anr., reported as 2017 INSC 1030, the Court claimed that the preamble of the POCSO recognizes and enjoins the Act and provisions thereof must be implemented and construed so as to serve in an implementation consonant with the welfare and best interests of the child.
- It must i) ensure effective action against the sexual exploitation and abuse of children and ii) promote healthy physical, emotional, intellectual, and social development of the child.
DEFECTS OF LAW:
1. Owing to vagueness over possession and intent in Section 15 of the POCSO Act, the High Court has understood this to mean that the intent to distribute or commercially exploit such content was required for storage and possession to be considered an offense.
2. Section 67B of the Information Technology Act 2000 does not state precisely what is to be considered possession of CSEM.
3. The assumption granted under Section 30 of the Act would apply in ascertaining an offense under Section 15.
4. There is no stringent enforcement of Sections 19 and 20 of the POCSO Act, which put a duty upon persons, media, hotel staff, hospital staff, clubs, and studios to report any child pornographic material.
5. While exercising the inherent powers of the High Court under Section 482 of the Cr. P. C to quash criminal proceedings, it has to move slowly, carefully, and with restraint in determining whether a POCSO case can be dismissed.
INFERENCE:
The inference made from the above case, the Supreme Court and the Court, keeping in view the aims of both the POCSO and IT Acts, has attempted to enhance the quality of child rights through its judgment. In addition to this, the Supreme Court has also given some guidelines on how the dissemination of child pornographic material can be prevented.
The ruling invites Parliament to consider amending the POCSO Act to substitute the term child pornography with CSEAM (child sexual exploitative and abuse material). It also directed that all courts stop using the term child pornography in court orders and judgments.
It advised that awareness programs on sexually exploitative content be undertaken and at-risk youth showing problematic sexual behavior (PSBs) be targeted and helped by teachers, health workers, and police.
CONCLUSION:
For all the afore-stated reasons, we have held that the High Court has erred seriously in passing the challenged judgment. Further, it is not possible other than to set aside the challenged judgment and order passed by the High Court, and send back the criminal proceeding to the court of Sessions Judge, Mahila Neethi Mandram (Fast Track Court), Tiruvallur District. Along with that, the Supreme Court also issued explicit guidelines. The judgment upheld Sections 19 and 20 of the POCSO Act, mandating persons, media, hotel staff, hospital staff, clubs, and studios to report child pornographic material. Section 21 states that failure to do so could result in a jail term for a period not exceeding six months. In addition, the court directed the Ministry of Women and Child Development to introduce extensive sex education programs to increase awareness of the legal and ethical concerns of child pornography. It also directed that victims of child pornography be provided with psychological counseling, therapeutic interventions, and educational support. The court directed the Union Government to constitute an expert committee that would develop a holistic program for health, sex education, and POCSO awareness among children.
REFERENCES:
- Protection of Children from Sexual Offences Act, No. 32 of 2012, §§ 14, 15, 19, 20, 30
- Information Technology Act, No. 21 of 2000, § 67B
- Indian Penal Code, 1908 § 292,
- Code of Criminal Procedure § 482
- Protection of Children from Sexual Offences (Amendment) Act, No. 25 of 2019, § 15
- Chandi Kumar Das Karmarkar v. Abanidhar Roy, A.I.R. 1965 S.C. 585
- Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh, (1979) 2 S.C.C. 409
- Independent Thought v. Union of India and Anr., 2017 INSC 1030
Harshitha S
JSS Law College (Autonomous)
Mysuru