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The Supreme Court on Monday used the legal term 'inchoate crime' to refer to mere possession of any child pornographic material that it said would constitute offences under the POCSO even if not disseminated further.
"Inchoate crimes are defined as criminal acts that are committed in preparation for a further offence. The term 'inchoate' itself means 'undeveloped' or 'incomplete'," a bench of Chief Justice D Y Chandrachud and Justice JB Pardiwala said.
In criminal jurisprudence, usually, mens-rea (criminal intention) to commit a crime is a prerequisite for commission of an offence.
"The Doctrine of Inchoate Crimes is a cornerstone of criminal jurisprudence. It is aimed at addressing the legal culpability of those who engage in a conduct that is preparatory to the commission of any substantive offence," the bench noted.
"Inchoate crimes, are often referred to and described as an incomplete or preliminary offence, that capture the essence of criminal intent and the preparatory actions that precede the commission of a criminal act," the top court said in the judgment while holding that mere possession of any child pornographic material, sans further distribution, will constitute an offence.
The legal principle underscored that the law does not merely respond to offences already committed but also intervenes when a crime is in the process of being committed.
"Inchoate crimes represent a critical aspect of criminal law, embodying the legal system's proactive and deterrent approach to crime itself," it elaborated further.
There is no requirement whatsoever for an actual transmission of any child pornographic material in order to fall within the ambit of Section 15 of the Protection of Children from Sexual Offences Act , it said.
"What is sought to be penalised under Section 15 of the POCSO is the storage or possession of any child pornographic material when done with a particular intention or purpose as stipulated in sub-section(s) (1), (2) or (3), as the case may be. Thus, the bare textual reading of the said provision makes it clear that it is the intention which is being punished and not the commission of any criminal act in the traditional sense. This in the criminal jurisprudence is known as an ‘inchoate crime' or ‘inchoate offence'," Justice Pardiwala, who penned the 200-page judgment, said.
It also dealt with the concept of 'possession' and ‘constructive possession' of such material to constitute an offence under Section 15 of the POCSO.
"The doctrine of constructive possession, is a crucial development in the criminal jurisprudence, especially pertaining to inchoate crimes where possession is sought to be punished, as it ensures that no person can evade liability by simply distancing themselves from the physical possession of contraband while retaining the ability to control it," it said.
"We are of the considered view, that wherever a person indulges in any activity such as viewing, distributing or displaying etc. pertaining to any child pornographic material without actually possessing or storing it in any device or in any form or manner, such act would still tantamount to 'possession' in terms of Section 15 of the POCSO, if he exercised an invariable degree of control over such material, applying the aforesaid doctrine of constructive possession," it said.
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 jail term of up to three years or fine or both.
Section 15 (3), which deals with use of such materials for commercial gains, provides for three years to five years of jail term for first-time offenders or with fine or both.
Repeat offenders can be awarded jail terms ranging from five years to seven years along with a fine.