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In a path-breaking judgment, the Supreme Court on Monday held mere possession of any child pornographic material will constitute offences under the POCSO and the IT laws even if they are not disseminated further.
Observing that "sexual exploitation of children is a pervasive and deeply rooted issue that has plagued societies worldwide and has been a matter of serious concern in India", the top court termed as "egregious" the verdict of the Madras High Court on the issue and set it aside.
On January 11, the high court had quashed the criminal proceedings against a 28-year-old man charged with downloading pornographic content involving children on his mobile phone, saying mere possession and downloading of such pornographic materials did not constitute offences under the Protection of Children from Sexual Offences (POCSO) Act and the Information Technology (IT) Act.
"We have reached the conclusion that the high court committed an egregious error in passing the impugned judgment. We are left with no other option but to set aside the impugned judgment... and restore the criminal proceedings... to the court of sessions judge, Mahila Neethi Mandram (Fast Track Court), Tiruvallur district," the top court said.
While passing a slew of directions and suggestions on the sensitive issue, a bench comprising Chief Justice D Y Chandrachud and Justice J B Pardiwala asked Parliament to seriously consider bringing an amendment to the POCSO Act for substituting the term "child pornography" with "child sexual exploitative and abuse material" with a view to reflect more accurately the reality of such offences.
In the meanwhile, the verdict put all the courts "to notice that the term 'child pornography' shall not be used in any judicial order or judgment, and instead the term 'child sexual exploitative and abuse material' (CSEAM) should be endorsed".
"Section 15 of the POCSO Act provides for three distinct offences that penalise either the storage or the possession of any child pornographic material when done with any particular intention specified under subsection(s) (1), (2) or (3) respectively.
"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 a specific intent prescribed thereunder, without requiring any actual transmission, dissemination etc," it said.
It referred to three facets of the crime under section 15 of the POCSO Act.
It said sub-section (1) of section 15 penalises "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".
Referring to mens-rea (criminal motive), an essential ingredient of any ordinary crime, it said the intention required under the POCSO provision is to be gathered from actus reus (actual act) itself.
"That is 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," it elaborated.
Dealing further, it said the other relevant provision penalises both the actual transmission, propagation, display or distribution of any child pornography as well as the facilitation of any of such acts.
"To constitute an offence under Section 15 sub-section (2) apart from the storage or possession of such pornographic material, there must be something more to show, ie, either (I) the actual transmission, propagation, display or distribution of such material OR (II) the facilitation of any transmission, propagation, display or distribution of such material, such as any form of preparation or setup done that would enable that person to transmit it or to display it," it said.
The criminal intention is to be gathered from the manner in which the pornographic material was found to be stored or in possession, it said.
Referring to sub-section 3 of section 15, it said it "penalises the storage or possession of any child pornographic material when done for any commercial purpose. To establish an offence under Section 15 sub-section (3), besides the storage or possession of the pornographic material involving a child, there must be some additional material or attending circumstances that may sufficiently indicate that the said storage or possession was done with the intent to derive any gain or benefit".
Section 15 of the POCSO Act provides different punishments of varying jail terms or fine or both. Section 15(1), which deals with possession of child pornographic material, provides for a minimum fine of Rs 5,000 which may extend to Rs 10,000.
Section 15(2), which deals with possession of child pornographic material for dissemination, entails punishment upto three years jail term or fine or both.
Section 15(3), which deals with use of such materials fort commercial gains, provides for three years to five years jail term for first time offenders or with fine or with both. Repeat offenders can be awarded jail term ranging from five years to seven years along with fine.
The three offences cannot coexist simultaneously in the same set of facts, it said, adding they are distinct from each other and are not intertwined.
"The police as well as the courts while examining any matter involving the storage or possession of any child pornography, finds that a particular subsection 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 subsection of Section 15, then it must try to ascertain whether the same falls within the other subsections or not," it said.
It said any act of viewing, distributing or displaying of child pornographic material on internet without any actual possession or storage in any device or in any form would also amount to "possession" in terms of Section 15 of the POCSO Act if the accused exercised an "invariable degree of control" over it by virtue of the doctrine of "constructive possession".
"Any visual depiction of a sexually explicit act which any ordinary person of a prudent mind would reasonably believe to prima facie depict a child or appear to involve a child, would be deemed as 'child pornography' and the courts are only required to form a prima facie opinion to arrive at the subjective satisfaction...," it said.
The verdict said courts can seek the opinion of a forensic science laboratory to reach a conclusion.
Dealing with the IT law provisions, it said section 67B is a comprehensive one designed to address and penalise various electronic forms of exploitation and abuse of children online.
"It not only punishes the electronic dissemination of child pornographic material, but also the creation, possession, propagation and consumption of such material as well as the different types of direct and indirect acts of online sexual denigration and exploitation of the vulnerable age of children," it said.
It referred to the concept of statutory presumption of culpable mental state on the part of accused under Section 30 of the POCSO Act and said it can be used if the prosecution is able to establish "foundational facts" necessary to constitute a particular offence under the POCSO.
The judgment then referred to what would constitute foundational facts for invoking the statutory presumption of culpable mental state for an offence under Section 15 of POCSO.
"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," it said.
"We direct the registry to send one copy each of this judgment to the principal secretary, ministry of law & justice, Union of India and to the principal secretary, ministry of women and child development, Union of India, for undertaking appropriate course of action," Justice Pardiwala, who penned 200-page judgment, said.
Senior advocate H S Phoolka, who appeared for appellant organisations, hailed the verdict.
"India has once again paved the way globally by laying down the framework for prevention and protection of children from this transnational and organised crime. This judgment will have a long lasting and global impact on society, crime and child rights and will be etched in history...," said Bhuwan Ribhu, petitioner and founder of Just Rights for Children Alliance.
The high court had quashed the criminal case against S Harish under the POCSO Act, 2012 and IT Act, 2000.