Authored by: Piyush Rajpurohit
Jai Narain Vyas University
COURT: SUPREME COURT OF INDIA
CITATION: 2024 INSC 716/ APPEAL NO 2161-2162 OF 2024
SITTING BENCH: CJI Y. CHADRACHUD, J.B PARDIWALA, J.J.B. PARDIWALA
ACT INVOLVED: POCSO ACT,2012, IT ACT,2000,CRPC,1973
PDF: https://api.sci.gov.in/supremecourt/2024/8562/8562_2024_1_1501_56073_Judgement_23-Sep-2024.pdf
Introduction
This case stands as a landmark in Indian criminal jurisprudence concerning child protection in the digital age. In an era where the internet has rendered the creation, storage, and dissemination of harmful content deceptively easy, the Supreme Court of India was called upon to address a critical question: does the mere downloading, viewing, or possession of child sexual abuse material without proof of its further transmission or distribution constitute a cognizable criminal offence under Indian law? The case arose when the High Court of Judicature at Madras, exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 (CrPC), quashed the charge sheet filed against the respondent a 24-year-old Chennai resident who had been found in possession of child pornographic content on his mobile phone. The High Court’s controversial judgment held, that the storage or watching of child pornographic material in the private domain did not constitute an offence under either the Protection of Children from Sexual Offences Act, 2012 (POCSO) or Section 67B of the Information Technology Act, 2000 (IT Act).
Facts
On 29th January 2020, the Women’s Police Station, Ambattur, Chennai, Tamil Nadu received a letter from the Additional Deputy Commissioner of Police (Crime against Women and Children Branch). The letter made reference to a Cyber Tipline Report received from the National Crimes Record Bureau (NCRB), which disclosed that one S. Harish (respondent no. 1), aged 24 years, a resident of, Kallikuppam, Ambattur, Chennai, had allegedly been an active consumer of child pornography for more than two years and had downloaded child pornographic material on his mobile phone.
Based on the said letter, FIR was registered against the respondent at the – Women’s Police Station, Ambattur on the very same day – 29th January 2020 – for offences punishable under Section 67B of the IT Act and Section 14(1) of the POCSO Act, 2012. The FIR that intelligence received from the National Center for Missing and Exploited Children (NCMEC), USA, which had flagged the accused’s digital activity.
In the course of investigation, the mobile phone of the respondent was seized and forwarded to the Forensic Science Laboratory. The respondent admitted to police questioning that he used to regularly view pornography during his college years.
The Computer Forensic Analysis Report revealed the critical findings of More than 100 pornographic video files were found downloaded and stored in different paths on the mobile phone. Two video files constituting child pornographic content were specifically identified and 16 gb of pornographic video and images evidence.
Madras high court order
The Madras High Court, while passing its controversial order, laid down propositions of law that became the central subject of challenge before the Supreme Court:
Possession or storage of any pornographic material is not an offence under the POCSO Act. The High Court conspicuously failed to refer to or consider Section 15 of the POCSO while arriving at this conclusion.
Section 67B of the IT Act only criminalizes transmission, publication, or creation of material depicting children in sexually explicit acts. Mere watching or downloading of child pornography in the private domain is non punishable under this provision.
In the absence of any material indicating transmission or publication of child pornographic content, no offence is made out under the POCSO or the IT Act, and the criminal proceedings are liable to be quashed.
Arguments of the Petitioner
Just rights for children alliance and anr challenge and argue The High Court’s interpretation of the POCSO holding that the storage or possession of child pornographic material does not constitute an offence a grave threat to child welfare and may lead to exploitation of child sexual abuse material, undermining the social thoughts. The charge sheet specifically records that issued by the NCMEC intelligence, the accused had been watching child pornographic videos for over two years – a fact that the High Court altogether ignored.
The High Court committed a critical error in proceeding on the basis of Section 14(1) of the POCSO (which deals with the use of a child for pornographic purposes) without considering Section 15(1), which specifically penalizes the downloading and failure to delete child pornographic material.
Section 15(1) of the POCSO explicitly penalizes a person who stores or possesses child pornographic material and fails to delete, destroy, or report it making the offence one of failure to act upon possession.
Section 30 of the POCSO creates a statutory presumption of culpable mental state for any accused who is found to have committed an offence under the Act requiring such mental state. The High Court was legally obliged to apply this presumption.
The High Court failed to distinguish between Section 67 and Section 67A of the IT Act (dealing with adult content) and Section 67B, which was specifically introduced in 2009 to impose stricter punishment for child pornographic material.
Reliance was placed on the Convention on Cybercrime and the United Nations Convention on the Rights of the Child (UNCRC), 1989, as international instruments mandating protection of children from cyber exploitation.
Arguments of the Respondent
THE FIR was originally lodged for the offence under Section 14(1) of the POCSO – not Section 15(1). Therefore, the High Court cannot be faulted for examining the case through the lens of Section 14 rather than Section 15.
The two child pornographic files retrieved from the phone bear creation/modification dates of 14th June 2019 – a date before the 2019 amendment to Section 15 of the POCSO came into force. Therefore, the amended provision cannot be retrospectively applied to the accused.
The pornographic video contain the word WA, which is a standard identifier for the files automatically downloaded by WhatsApp’s feature. This suggests the files were not intentionally downloaded but were automatically saved to the device without the accused’s knowledge.
Ignorance of law, accompanied by genuine belief, should not be equated with criminal intent. Reliance was placed on Chandi Kumar Das Karmarkar v. Abanidhar Roy, AIR 1965 SC 585 and Motilal Padampat Sugar Mills v. State of U.P., (1979) 2 SCC 409.
Legal Question
1. What is the scope of Section 15 of the POCSO Act? What is the core distinction between sub-sections (1), (2) and (3) of Section 15?
2. Whether the viewing, possessing, or storing of any child pornographic material is punishable under the POCSO Act?
3. What is the true scope and limitation of Section 67B of the IT Act?
4. What is the scope of Section 30 of the POCSO Act? What are the foundational facts necessary for invoking the statutory presumption of culpable mental state in respect of Section 15 of the POCSO?
5. Whether the statutory belief under Section 30 of the POCSO can be invoked only at the stage of trial, or whether a High Court can resort to it in a quashing petition under Section 482 CrPC?
Judgment of the Supreme Court
The Supreme Court allowed the appeal and questioned judgment and order of the Madras High Court was set aside as having been passed on an egregious error of law supreme court urged the Parliament to amend the POCSO Act to substitute the term ‘child pornography’ with Child Sexual Exploitation and Abuse Material(CSEAM). Also mention All courts are directed to use the term ‘CSEAM’ in all judicial orders. On the last court, The Union of India was urged to consider constituting an Expert Committee for comprehensive sex education, awareness programs on POCSO, and psychological support infrastructure.
Analysis
POCSO SECTION 15 INTERPRETATION
The supreme court understands and clarifies the section 15 of POCSO ACT.
Section 15(1): Storage or possession of child pornographic material with a failure to delete, destroy or report punishable with fine on first conviction, and imprisonment up to three years, or fine, or both on subsequent conviction.
Section15(2): Storage or possession of child pornographic material for transmission, propagation, display, or distribution punishable with imprisonment up to five years, or fine, or both on first conviction. This requires specific intent to share.
Section 15(3): Storage of child pornographic material for commercial purposes punishable with imprisonment up to seven years, or fine, or both on first conviction, and mandatory imprisonment for subsequent convictions.
SECTION 30 OF POCSO ACT
Section 30 creates a statutory presumption: where any offence under the Act requires the existence of a culpable mental state, the court shall presume the existence of such mental state, and it shall be a defence for the accused to prove, beyond a balance of probabilities that he had no such culpable mental state .The Supreme Court held that this presumption is a foundational facts based presumption: it can only be raised once the prosecution has established the basic foundational facts, Once those facts are established, the burden shifts to the accused to demonstrate absence of culpable mental state.
SCOPE OF SECTION 67B IT ACT
The Supreme Court rejected the High Court’s narrow reading of Section 67B of the IT Act. Section 67B makes it a punishable offence to publish, transmit, create, collect, seek, browse, download, advertise, promote, exchange, or distribute material in any electronic form depicting children in obscene or sexually explicit acts. The word ‘download’ appears expressly within Section 67B’s operative text conclusively establishing that the mere act of downloading child pornographic material is criminally punishable under the IT Act, without requiring proof of further transmission or publication.
