Just Rights for Children Alliance v. S. Harish

Supreme Court of India · 23 September 2024 · 2 judges · 2024 INSC 716

Storing or possessing child sexual exploitative material with the intent specified in Section 15 of the POCSO Act is an offence even without transmission; the High Court's quashing of the prosecution was set aside and the case restored to trial.

Facts

On an NCRB Cyber Tipline report, police in Chennai registered an FIR in 2020 against S. Harish under Section 67B of the IT Act and Section 14(1) of the POCSO Act for downloading child pornographic material. The forensic report found two videos on his mobile phone depicting children in sexual activity. The chargesheet was filed under Section 67B of the IT Act and Section 15(1) of the POCSO Act. The Madras High Court quashed the proceedings under Section 482 CrPC, holding that merely downloading or watching such material without using a child or publishing or transmitting it was not an offence under Section 14(1) POCSO or Section 67B IT Act. Two child rights organisations, not parties before the High Court, appealed with leave of this Court.

Questions before the Court

What is the scope of Section 15 of the POCSO Act, and is mere viewing, possession or storage of child pornographic material punishable?
What is the scope of Section 67B of the IT Act?
What foundational facts must be proved to invoke the presumption of culpable mental state under Section 30 of the POCSO Act, and can it be applied in a quashing proceeding under Section 482 CrPC?
Was the High Court right to quash the proceedings?

What the Court held

Section 15 creates three distinct inchoate offences of storage or possession of child pornographic material with a specified intent: failing to delete, destroy or report it with intent to share or transmit (sub-section (1)); transmitting, displaying or distributing it, or facilitating that (sub-section (2)); and storing it for commercial purpose (sub-section (3)). Actual transmission is not required.
Viewing or displaying such material over the internet without downloading it amounts to possession under Section 15 if the person exercises control over it, by the doctrine of constructive possession. Material that an ordinary prudent person would believe prima facie depicts a child is treated as child pornography.
Section 67B of the IT Act punishes not only electronic dissemination but also the creation, possession, propagation and consumption of such material, and is to be read purposively.
The presumption of culpable mental state under Section 30 arises once the prosecution proves the foundational facts of the offence, is rebuttable, and can be applied in a quashing proceeding under Section 482 CrPC.
The High Court erred by relying on the FIR and Section 14 when the chargesheet alleged Section 15(1). Storage is a continuing state, so videos still on the phone after the 2019 amendment and at the FIR attracted Section 15(1) prima facie; ignorance of law was no defence. The proceedings were restored.

Why it matters

The judgment sets out the elements of each offence under Section 15 of the POCSO Act, extends possession to online viewing through constructive possession, explains the foundational facts needed for the Section 30 presumption and allows its use at the quashing stage. It also asks Parliament to replace the term "child pornography" with "child sexual exploitation and abuse material" (CSEAM) and directs courts to use the latter term in orders and judgments.

In the Court's words

Copied from the official judgment; each passage links to its page.

“It is in the nature and form of an inchoate offence which penalizes 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.”

J.B. Pardiwala, J.Page 162 of the judgment

“Thus, we are of the considered view that any form of intangible or constructive possession of any child pornographic material will also amount to “possession” under Section 15 of the POCSO in terms of the Doctrine of Constructive Possession. There is no requirement of a physical or tangible “storage” or “possession” of such material in Section 15 of the POCSO. We may clarify with a view to obviate any confusion that, where any child pornographic material is in the constructive possession of an accused, there the failure or omission to report the same would constitute the requisite actus-reus for the purposes of Section 15 sub-section (1) of POCSO.”

J.B. Pardiwala, J.Page 85 of the judgment

“The statutory presumption of culpable mental state on the part of the accused as envisaged under Section 30 of the POCSO can be made applicable provided the prosecution is able to establish the foundational facts necessary to constitute a particular offence under the POCSO that may have been alleged against the accused. Such presumption can be rebutted by the accused either by discrediting the prosecution's case or by leading evidence to prove the contrary, beyond a reasonable doubt.”

J.B. Pardiwala, J.Page 166 of the judgment

“What is sought to be punished under Section 15 is not the time when such material was stored or came to be possessed but rather the storage or possession itself, which may be continuous, wherein the relevant point of time of such storage or possession for constituting any offence under the POCSO more particularly Section 15 would be reckoned from the date of registration of the FIR.”

J.B. Pardiwala, J.Page 148 of the judgment

Provisions interpreted

Related judgments

Explains Noor Aga v. State of Punjab (2008)“a close reading of the said decision would reveal that this Court in Noor Aga (supra) only went so far as to say that before a statutory presumption could be invoked, the foundational facts must have been established by the prosecution” (page 138)
Follows Independent Thought v. Union of India (2017)“held that the preamble to the POCSO recognizes and mandates that the Act and its provisions ought to operate and be interpreted in a manner that would be in the best interest and well-being of the child” (page 34)

Case and bench

Parties: Just Rights for Children Alliance v. S. Harish
Case: Criminal Appeal Nos. 2161-2162 of 2024 (arising out of SLP (Crl.) Nos. 3665-3666 of 2024)
Decided: 23 September 2024
Bench: Dr. Dhananjaya Y. Chandrachud, CJI, J.B. Pardiwala
Opinions: Unanimous. Judgment by J.B. Pardiwala, J., signed by both judges.

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