Supreme Court of India
Just Rights For Children Alliance vs S. Harish on 23 September, 2024
Author: Dhananjaya Y. Chandrachud
Bench: Dhananjaya Y. Chandrachud
2024 INSC 716 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 2161-2162 OF 2024
(ARISING OUT OF SPECIAL LEAVE PETITION (CRL) NOS. 3665-3666 OF 2024)
JUST RIGHTS FOR CHILDREN ALLIANCE & ANR. ...APPELLANT(S)
VERSUS
S. HARISH & ORS. ...RESPONDENT(S)
JUDGMENT
Signature Not Verified
Digitally signed by
Sanjay Kumar
Date: 2024.09.23
16:48:37 IST
Reason:
J.B. PARDIWALA, J.:
For the convenience of exposition, this judgment is divided into the following
parts: –
INDEX
A. FACTUAL MATRIX …………………………………………………………………….. 4B. IMPUGNED ORDER …………………………………………………………………… 10
C. SUBMISSIONS OF THE PARTIES ……………………………………………… 16
i. Submissions on behalf of the Appellants. ……………………………………………. 16
ii. Submissions on behalf of the National Commission for Protection of Child
Rights (NCPCR). ……………………………………………………………………………… 18
iii. Submissions on behalf of the respondent no. 1 / the Sole Accused. ………… 20
iv. Submissions on behalf of the respondent nos. 2 & 3 / the State. …………….. 22D. ISSUES FOR DETERMINATION ………………………………………………… 24
E. ANALYSIS ………………………………………………………………………………….. 25
i. Relevant Statutory Scheme and Provisions. ………………………………………… 25
a. Legislative History and Scheme of the POCSO. ………………………………………… 25
b. Relevant Provisions of the IT Act. …………………………………………………………… 38
ii. Scope of Section 15 of the POCSO and Section 67B of the IT Act. ………… 40
a. Contradictory Views of different High Courts on the subject. ………………………. 40
b. Three distinct offences punishable under Section 15 of the POCSO. ……………… 55
I. Concept of an Inchoate Crime – The ‘Actus Reus’ and ‘Mens Rea’ required
under Section 15. ……………………………………………………………………………. 60
II. Concept of ‘Possession’, ‘Constructive Possession’ and ‘Immediate Control’
under Section 15 of the POCSO………………………………………………………… 78
c. Pornographic Material must prima facie appear to involve a Child. ………………. 86
d. Scope of Section 67B of the IT Act………………………………………………………….. 95
iii. Presumption of Culpable Mental State under Section 30 of the POCSO. 108
a. Concept of Statutory Presumption and Principle of Foundational Facts. ………. 110
b. Foundational Facts required under Section 15 of the POCSO……………………… 126Criminal Appeal Nos. 2161-2162 of 2024 Page 1 of 199
c. Whether the Presumption under Section 30 of the POCSO can be resorted to in a
Quashing Proceeding? …………………………………………………………………………. 130
iv. Whether the case at hand was one fit for the High Court to quash?…….. 141
a. Plea of Ignorance of Law: Ignorance of Law viz-a-viz Incognizance of Law. . 147
v. Summary of our conclusion……………………………………………………………… 161F. FEW MEANINGFUL SUGGESTIONS. ………………………………………. 167
i. The Lingering Impact of Child Pornography on the Victimization & Abuse
of Children. ……………………………………………………………………………………. 167
a. Obligation to report under Section(s) 19 & 20 respectively of the POCSO and Role
of the Society and all Stakeholders. ……………………………………………………….. 180
ii. Suggestions to the Union of India and to the courts. …………………………… 195G. FINAL ORDER …………………………………………………………………………. 198
Criminal Appeal Nos. 2161-2162 of 2024 Page 2 of 199
1. Since the issues raised in both the captioned appeals are same and the
challenge is also to a self-same judgment and order passed by the High Court
those were taken up for hearing analogously and are being disposed of by
this common judgment and order.
2. The present appeals arise out of the final judgment and order passed by the
High Court of Judicature at Madras dated 11.01.2024 in Criminal Original
Petition (Crl. O.P.) No. 37 of 2024 (“Impugned Order”) filed by the
respondent no. 1 (accused) herein under Section 482 of the Code of Criminal
Procedure, 1973 (for short, the “Cr.P.C.”) by which the High Court allowed
the petition and thereby quashed the chargesheet dated 19.09.2023 filed for
the offences punishable under Section 67B of the Information Technology
Act, 2000 (for short, the “IT Act”) and Section 15(1) of the Protection of
Children from Sexual Offences Act, 2012 (for short, the “POCSO”) arising
out of the FIR No. 03 of 2020, P.S. Ambattur, Chennai. As a consequence,
the criminal proceedings in Special Sessions Case No. 170 of 2023 stood
terminated.
3. It may be necessary to clarify that the appellant no. 1 herein, ‘Just Rights for
Children Alliance’ is a collation comprising of five different NGOs that
work in unison against child trafficking, sexual exploitation and other allied
causes. Whereas the appellant no. 2 is a child rights organization working
Criminal Appeal Nos. 2161-2162 of 2024 Page 3 of 199
towards protecting children from exploitation and one of the partner NGOsto the aforesaid collation. The appellants herein were not a party to the
proceedings before the High Court. However, having regard to the serious
issue of public importance involved in the matter they sought leave of this
Court to challenge the impugned judgment of the High Court. The
respondent nos. 2 & 3 are the State of Tamil Nadu and the Inspector of
Police, All-Women’s Police Station Ambattur, Chennai, respectively.
A. FACTUAL MATRIX
4. On 29.01.2020, the All-Women’s Police Station Ambattur, Chennai, Tamil
Nadu i.e., the respondent no. 3 herein, received a letter from the Additional
Deputy Commissioner of Police (Crime against women and children
Branch) wherein it was mentioned that as per the Cyber Tipline Report of
the National Crimes Record Bureau (NCRB), the respondent no. 1 herein is
an active consumer of pornography and has allegedly downloaded
pornographic material involving children in his mobile phone.
5. Accordingly, in view of the aforesaid letter an FIR was registered against the
respondent no. 1 herein on the very same day i.e., 29.01.2020 at the All-
Women’s Police Station Ambattur, Chennai, Tamil Nadu as Crime No. 03
of 2020 for the offence punishable under Section(s) 67B of the IT Act and
14(1) of the POCSO. The relevant portion of the FIR reads as under: –
Criminal Appeal Nos. 2161-2162 of 2024 Page 4 of 199
“Today on 29.01.2020 at 12.00 noon, I, the Inspector of W28, All
Women Police Station was on duty, received letter RC. No.
03/ADC CWC/West/Camp/2020 dated 28.01.2020 from
Thirumathi S. Megalina, Additional Deputy Commissioner of
Police, Prevention of Crimes against Women and Children
Division, Chennai, West Zone. On perusal of the same, 4
References were mentioned therein viz.
Ref: 1. DO.Lr.No.05/ADGP-CWC/NCMEC/2020
2. C. No.30/COP/CO/2020
3.R.C. No. 228 VIII/DC CWC/Genl/2020 (CTR No.
49303278)
4. RC No. 68 /Japu – ii/NCMEC/2020
As per the notice issued in CTR No. 49303278 by National Crime
Record Bureau, it is seen that Harris, resident of Door No.2, 1st
Main Road, VPC Nagar, Kallikuppam, Ambattur, Mobile No.
99406 87836, has for the past more than two years, been watching
child pornographic films. Details have also been obtained with
regard to child pornographic films which were made by using
children who have been exploited, children who have gone
missing, and by collecting information from centres which deal
with missing children, and details have been provided with regard
to the persons who have downloaded such child pornographic
films. When those notices were perused, it was seen that the above
said person had downloaded those films through Old Site ID-
KALLI/OLD/ Chm ID-CHM2307, with a view to indulge in sexual
activities, and these films were made at the address ‘Gopalsamy,
No.2, Gangai Amman Kovil 3rd Main Road, Kallikuppam,
Ambattur’ by exploiting children in this area. Since this bad
activity is a crime against good social order, it was directed to
take appropriate action against the said person, and therefore,
Crime No. 03/2020 U/S 67B IT ACT r/w 14(1) POCSO Act 2012
was registered, and the original FIR has been sent to the
concerned Court of learned Judicial Magistrate, and copies have
been sent to the concerned superior officers of police without any
delay, and investigation has been taken up.
Criminal Appeal Nos. 2161-2162 of 2024 Page 5 of 199
13. Action Taken: Since the above information reveals commission
of offence(s) u/s as mentioned at Item No. 2, registered the case
and took up the investigation.
FIR read over to the complainant/Informant, admitted to be
correctly recorded and a copy given to the Complainant/Informant
free of cost.”
6. During the course of the investigation, the mobile phone belonging to the
respondent no. 1 was seized and sent to the Forensic Science Laboratory for
analysis. The respondent no. 1 was also questioned whether he had ever
viewed any pornographic content, to which the respondent no. 1 admitted
that he used to regularly view pornography while he was in college.
7. As per the Computer Forensic Analysis Report dated 22.08.2020 it was
found that the mobile phone of the respondent no. 1 contained two video
files relating to child pornography depicting two underage boys involved in
sexual activity with an adult woman. The Computer Forensic Analysis
Report further stated that more than hundred other pornographic video files
were downloaded and stored in the said mobile phone. The relevant portion
of the said Computer Forensic Analysis Report reads as under: –
“COMPUTER FORENSIC ANALYSIS REPORT
Received from : The Sessions Judge, Mahalir
Neethi Mandram, (Fast Track
Mahila Court) Tiruvallur.
Crime No. & P.S. : 03/2020 of Ambattur AWPS
Organization Report No. : CF/52/2020
Case received Date : 28.02.2020
Case received through : WHC 43450, Tmt. Poornima
Seals status : Correct & Intact
Criminal Appeal Nos. 2161-2162 of 2024 Page 6 of 199
Nature of crime : 67(B) IT Act and 14(1) of
POCSO Act 2012
Tools used : UFED 4 PC.
Report date : 22.08.2020
Head of the Division : A. Visalakshi, M.Sc, PGDCA
Examiner : S. Hemalatha, M.Sc., (FS),
M.Sc., (CS)
RECEIVED DEVICE DESCRIPTION
One (1) sealed cloth-lined paper parcel marked, “PI No. 5/2020. Cr.
No. 3/2020, Ambattur AWPS …” containing the following item:
Marked Name of the Details of the Item Packing /
as Item received Labelling details
1 Mobile phone Make: MOTO
Model: XT 1804
IMEI1: 356477088126073 Kept in a plastic
IMEI2: 356477088126081 box marked, “PI
No: 05/2020”.
SIM 1 Airtel 4G 128K
ICCID:
8991000902533662473U
Memory Card Strontium 16 GB
Battery Inbuilt
Objective
The above item was examined with a view to find if there is any
facility of viewing video files using YouTube application and the
details. And also to find if any media files pertaining to pornography
were found accessed/downloaded/saved.
EXAMINATION
Mobile Phone : [MOTO]
The internal memory of the mobile phone was acquired using
file system extraction and examined using the forensic software tool
“UFED 4 PC”. The retrieved details such as contacts, call logs, SMS
messages and media files are generated as a report and the report (in
pdf) is copied on to a Compact Disc marked as “CF 52/20”. Selected
pages from the report are given as Annexure-I. Some of the findings
from the report are as follows: – […][…] Above findings indicated that the mobile phone was found to be
equipped with the facility of viewing videos through YouTube
Application.
Criminal Appeal Nos. 2161-2162 of 2024 Page 7 of 199
4. (a) Video files pertaining to pornography (more than 100 Nos.)
were found downloaded and stored in different paths, the details of
the same are given as Annexure – II. […]
(b) Some of the vide files pertaining to pornographic nature were
found stored under the path “Motorola GSM_XT1806
MotoG5SPlus.zip/sdcard/ProgramData/Android/Language/.fr/Vid
eos/wat up pono”. […]
(c) Under the same path two video files which could be accounted for
Child Pornography content were found stored. In the videos boys
(under-teen) were found involved in sexual activity with a adult
woman/girl. The details of the same are pasted below: –
S. No. File Info Additional File Info
1. Name: VID-20190614- Size (bytes): 11256288
WA0006.mp4
Modified:
Path: Motorola GSM_XT1806 6/14/2019
MotoG5SPlus.zip/sdcard/Program 15:44 (UTC +5:30)
Data/Android/Language/.fr/Videos/
wat up pono/ VID-20190614-
WA0006.mp4
2. Name: Unmayal sollungal Ennodu Size (bytes): 20467994
sellungal with Vadivel Balaji in AIE
4-8-2012 – Youtube.3GP Modified:
9/5/2016
Path: Media/Internal shared 23:12 (UTC +5:30)
storage/trending/adhu idu/Unmayal
sollungal Ennodu sellungal with
Vadivel Balaji in AIE 4-8-2012 –
Youtube.3GP[…]
Memory Card: [Strontium 16 GB]
The memory card was acquired and examined using the forensic
software tool “UFED 4 PC”. The retrieved details such as document,
image and video files are generated as a report and the report (in pdf)
is copied on to a Compact Disc marked as “CF 52/20”. The full
report is given as Annexure-III.
On perusing the medial files, multiple video snapshot images and
video files were found related to pornography. The representative
samples of the same are copied onto the CD mentioned earlier under
a specified folder. […]”Criminal Appeal Nos. 2161-2162 of 2024 Page 8 of 199
8. Upon completion of the investigation, chargesheet dated 19.09.2023 was
filed against the respondent no. 1 for the offences punishable under
Section(s) 67B of the IT Act and 15(1) of the POCSO respectively. It may
not be out of place to state at this stage, that although the FIR was registered
for the offence punishable under Section 14(1) of the POCSO yet in light of
the materials collected in the course of the investigation and the findings
recorded in the Computer Forensic Analysis Report, the chargesheet was
ultimately filed for the offence punishable under Section 15(1) of the
POCSO. The relevant portion reads as under: –
“Final Report
Before the Hon’ble Mahila Fast Track Mahila Court, Tiruvallur
Police Final Report under 173(i) W28 Ambattur All Women Police
Station Crim no- 3/2020 U/s 67(B) IT ACT & 14 (1) of POCSO ACT
2012 @67 (B) IT ACT 15(1) of POCSO ACT 2012. […]Nature of the case
Mrs. Megallina, Additional Deputy Commissioner of Police, Women
and Child Crime Branch, Chennai, West Zone LETTER RC.NO.
03/ADC CWC/West/Camp/2020 Dated: 28.01.2020 in that mentioned
Ref: 1. Do. Lr. No. 05/ ADGP- CWC/ camp/ NCMEC/ 2020, 2.
C.No.30/ COP/ CO/ 2020, 3. R.CNO. 228 VIII/ DC CWC/ Genl/ 2020
(CTR No. 49303278), 4. RC.No. 68/ japu- ii/ NCMEC/ 2020 as per
the detail, Haris residing at 1st Main Road, Door No.03, VPC Nagar,
Kallikuppam, Ambattur has reported to NCRB (National Crime
Record Bureau) that he had seen child pornography on his mobile
phone number 99406 87836 for more than two years at CTR No.
49303278 has been obtained and a report on child exploitation and
missing persons and details of those who have downloaded child
pornography against children banned by the data collection system
has been obtained. Aforesaid person OLD Size ID- KALLI 4/OLD
Chm Id- CHM2307 Downloaded from the address No.2 Gopalsamy,
3rd Main Road, Gangaiyamman Temple, Ampathur, Kallikuppam,
with the malicious intention of viewing children’s pornographic films
for sexual purposes. As this evil act is considered to be a crime ofCriminal Appeal Nos. 2161-2162 of 2024 Page 9 of 199
disturbance of social morals, after being instructed to take
appropriate action against the said person, the All Women Police
Station registered a case in CRIME NO. 03/20 U/ S 67B IT ACT r/ w
14(1) POCSO Act 2012 and the copy of the same was sent to the
concerned court and the copies to the higher police officers without
delay for investigation. […]In the investigation conducted so far, crime scene no. 2, VPC
Nagar to Main Road Kallikuppam Ambattur, Chennai is within the
jurisdiction of Ambattur All Women Police Station.
On 28.01.2000 Additional Deputy Commissioner, Women and
Child Prevention Division, Chennai West Zone gone through the case
received from (NCMEC) According to the National Center for
Exploited Children in this case accused Harish AGE 24/S/o.
Santhanam No. 2 VPC Nagar First Main Road Kallikuppam
Ampathur Chennai has been using his phone number ( 99406 87836)
for more than two years from his mobile phone number OLD Size ID-
KALLI 4/OLD Chm Id- CHM2307 Downloaded from the address
No.2 Gopalsamy, 3rd Main Road, Gangaiyamman Temple,
Ampathur, Kallikuppam, with the malicious intention of viewing
children’s pornographic films for sexual purposes As this evil act is
considered to be a crime of disturbance of social morals, as per CTR
NO 49303278 a report of the crime has been received by NCRB.
Therefore, the accused in this case is considered to have
committed an offense of disturbing public morals and therefore has
committed a cognizable offense under Section 67 (B) IT ACT & 15 (1)
of the POCSO Act 2012. […]”B. IMPUGNED ORDER
9. Aggrieved by the aforesaid, the respondent no. 1 went before the High Court
of Judicature at Madras by way of a quashing petition being the Criminal
Original Petition (Crl. O.P.) No. 37 of 2024 for the purposes of getting the
aforesaid chargesheet and the criminal proceedings arising therefrom
quashed.
Criminal Appeal Nos. 2161-2162 of 2024 Page 10 of 199
10. The impugned judgment of the High Court is in three-parts. In other words,
the High Court quashed the criminal proceedings essentially on three
grounds: –
(i) First, the High Court was of the view that to constitute an offence
under Section 14(1) of POCSO, a child must have been used by the
person accused for pornographic purposes. It observed that although
the two videos depicting children engaged in a sexual activity were
found to have been downloaded and stored in the mobile phone
belonging to the respondent no. 1, and assuming that the accused had
watched the same yet the same would not constitute an offence under
Section 14(1) of the POCSO. The relevant observations read as under:
–
“9. To make out an offence under Section 14(1) of
Protection of Child from Sexual Offences Act, 2012, a
child or children must have been used for pornography
purposes. This would mean that the accused person
should have used the child for pornographic purposes.
Even assuming that the accused person had watched child
pornography video, that strictly will not fall within the
scope of Section 14(1) of Protection of Child from Sexual
Offences Act, 2012. Since he has not used a child or
children for pornographic purposes, at the best, it can
only be construed as a moral decay on the part of the
accused person.”
(ii) Secondly, the High Court held that, to constitute an offence under
Section 67B of the IT Act, the person accused must have published,
transmitted or created material depicting children in sexually explicit
Criminal Appeal Nos. 2161-2162 of 2024 Page 11 of 199
act or conduct. It held that although the respondent no. 1 had admittedthat he was addicted to watching pornography, yet mere watching or
downloading of child pornography without any transmission or
publication of the same does not fall within the purview of Section
67B of the IT Act. The relevant portion reads as under: –
“6. This Court enquired the petitioner and he stated that
his date of birth is 13.11.1995 and that he has an elder
brother. After a lot of persuasion, the petitioner admitted
that during his teens, he had the habit of watching
pornography. However, the petitioner made it clear that
he had never watched child pornography. That apart, he
also stated that he had never attempted to publish or
transmit any of the pornographic materials to others. He
had merely downloaded the same and he had watched
pornography in privacy.
xxx xxx xxx
10. In order to constitute an offence under Section 67-B of
Information Technology Act, 2000, the accused person
must have published, transmitted, created material
depicting children in sexual explicit act or conduct. A
careful reading of this provision does not make watching
a child pornography, per se, an offence under Section 67-
B of Information Technology Act, 2000. Even though
Section 67-B of Information Technology Act, 2000, has
been widely worded, it does not cover a case where a
person has merely downloaded in his electronic gadget, a
child pornography and he has watched the same without
doing anything more.”
(iii) Lastly, the High Court in light of its aforesaid discussion and by
placing reliance on Section 292 of the Indian Penal Code, 1860 (for
short, the “IPC”) took the view that although the pornographic content
was found to have been downloaded and stored in the mobile phone
Criminal Appeal Nos. 2161-2162 of 2024 Page 12 of 199
of the respondent no. 1 yet in the absence of any material to show that
the respondent no. 1 had transmitted or published the same, no offence
whatsoever could be said to have been made out either under the
POCSO, IT Act or the IPC and thus quashed the criminal proceedings.
The relevant observations read as under: –
“8. This Court had the advantage of going through the
entire CD file. The mobile phone that was seized from the
petitioner did contain pornographic materials. However,
for the purposes of this case, only two videos were
identified as child pornography. Those two videos contain
boys (under teen) involved in sexual activity with an adult
woman/girl. Admittedly, those two videos were
downloaded and available in the mobile phone belonging
to the petitioner and it was neither published nor
transmitted to others and it was within the private domain
of the petitioner.
xxx xxx xxx
11. The Kerala High Court had an occasion to deal with
the scope of Section 292 IPC. That was a case where a
person was caught watching porn videos and a First
Information Report came to be registered against him.
While dealing with this issue, the Kerala High Court held
that, watching an obscene photo or obscene video by a
person by itself will not constitute an offence under
Section 292 IPC. This is in view of the fact that this act is
done by the concerned person in privacy without affecting
or influencing anyone else. The moment the accused
person tries to circulate or distribute or publicly exhibits
obscene photos or videos, then the ingredients of the
offence starts kicking in.
11. Thus, the High Court vide its impugned judgment and order dated
11.01.2024 allowed the petition and thereby quashed the criminal
Criminal Appeal Nos. 2161-2162 of 2024 Page 13 of 199
proceedings in Spl. S.C. No. 170 of 2023 on the ground that no offence could
be said to have been made out against the respondent no. 1 either under
Section 14(1) of the POCSO or Section 67B of the IT Act. The operative
portion of the Impugned Order reads as under: –
“12. In the considered view of this Court, the materials that have been
placed before this Court does not make out an offence against the
petitioner under Section 67-B of Information Technology Act, 2000
and Section 14(1) of Protection of Child from Sexual Offences Act,
2012.
xxx xxx xxx
18. In the light of the above discussion, the continuation of the
proceedings against the petitioner will amount to abuse of process of
Court. That apart, it will be a stumbling block for the petitioner’s
career in future. Therefore, this Court is inclined to quash the
proceedings in Spl.S.C.No.170 of 2023 on the file of the Sessions
Judge, Mahila Neethi Mandram (Fast Track Court), Tiruvallur
District.
Accordingly, this Criminal Original Petition stands allowed
and the proceedings in Spl.S.C.No.170 of 2023 on the file of the
Sessions Judge, Mahila Neethi Mandram (Fast Track Court),
Tiruvallur District, is hereby quashed. Consequently, connected
criminal miscellaneous petition is closed.”
(Emphasis supplied)
12. From the aforesaid it could be said that the High Court laid down three
propositions of law which are as follows: –
i. Mere possession or storage of any pornographic material is not an
offence under the POCSO. We are mindful of the fact that, whilst
endorsing the aforesaid proposition of law, the High Court in its
impugned Order either consciously did not deem it necessary to refer
to Section 15 of the POCSO or inadvertently failed to refer to Section
Criminal Appeal Nos. 2161-2162 of 2024 Page 14 of 199
15 of the POCSO. Nevertheless, in either case that may be, theaforesaid proposition of law found favour with the High Court.
ii. Section 67B of the IT Act only makes the act of transmission,
publication or creation of material depicting children in sexually
explicit manner an offence. Mere watching or downloading of child
pornography in private domain is not punishable under the same.
iii. In the absence of any material to indicate any transmission or
publication of pornographic content involving child, no offence could
be said to have been committed under the POCSO or the IT Act, and
the criminal proceedings would be liable to be quashed. In other
words, to attract the provisions of the POCSO or the IT Act it is not
sufficient to merely establish storage or possession of child
pornography and that transmission or publication of the same is also
required to be established. In the absence of the same the criminal
proceedings are liable to be quashed.
13. In such circumstances referred to above, the appellants being aggrieved with
the Impugned Order passed by the High Court have come up before this
Court with the present appeal.
Criminal Appeal Nos. 2161-2162 of 2024 Page 15 of 199
C. SUBMISSIONS OF THE PARTIES i. Submissions on behalf of the Appellants.
14. Mr. H.S. Phoolka, the learned Senior Counsel appearing for the appellants
submitted that the interpretation of the relevant provisions of POCSO by the
High Court for the purpose of holding that mere storage or possession of any
child pornographic material does not amount to an offence, poses a
significant threat to the well-being of children and may result in proliferation
of child pornography, posing a significant threat to the very social fabric of
the society at large. In support of his submissions, Mr. Phoolka relied on the
Convention on Cybercrime and the United Nations Convention on the Rights
of the Child, 1989.
15. He further submitted that the chargesheet filed by the investigating agency
specifically records that, as per the information received from the National
Commission for Missing and Exploited Children, USA (NC-MEC), the
accused had been watching child pornographic videos for the past two years.
16. He further contended that the High Court erroneously proceeded under
Section 14(1) of the POCSO, which deals with the use of children for
pornographic purposes, without giving due consideration to Section 15(1) of
the Act.
Criminal Appeal Nos. 2161-2162 of 2024 Page 16 of 199
17. He further submitted that Section 15(1) explicitly penalizes the downloading
and failure to delete child pornography. In the present case, the respondent’s
stance that he had received two files containing child pornography via
WhatsApp is falsified by the NC-MEC report. Furthermore, there is nothing
on record to substantiate that the videos were received on WhatsApp.
18. It was further argued that the High Court committed a serious error in
quashing the criminal proceedings without addressing itself on Section 15 of
the POCSO. He submitted that the impugned judgment poses a significant
threat to child welfare and is contrary to several national and international
commitments.
19. He further submitted that the High Court also failed to distinguish between
adult pornography and child pornography, as Sections 67 and 67A of the IT
Act deal with adult pornography, while Section 67B was specifically
introduced in 2009 to provide more stringent punishment for collecting,
downloading, or watching child pornographic material.
20. He further submitted that in view of Section 30 of the POCSO the High Court
was legally obliged to presume the existence of a culpable mental state on
the part of the accused for having committed any offence under the Act that
requires such a mental state.
Criminal Appeal Nos. 2161-2162 of 2024 Page 17 of 199
21. In the last, Mr. Phoolka submitted that a conjoint reading of Section 67B of
the IT Act, Section 15, and Section 30 of the POCSO leaves no manner of
doubt as regards the culpability of persons in possession of child
pornography.
ii. Submissions on behalf of the National Commission for Protection of
Child Rights (NCPCR).
22. Ms. Swarupama Chaturvedi, the learned Senior Counsel appearing for the
National Commission for Protection of Child Rights (NCPCR), submitted
that there was a serious lapse on the part of the State in failing to register the
FIR for the offence punishable under Section 15 of the POCSO, 2012, as the
possession of pornographic material involving a child in any form by itself
is an offence under Section 15(1) of the Act. It was also argued that the State
as a Prosecuting agency failed in its duty to bring it to the notice of the High
Court that chargesheet was ultimately filed for the offence under Section
15(1) of the POCSO & not Section 14.
23. She further submitted that the accused had downloaded pornographic
material involving a child onto his mobile phone, retained possession of it,
and failed to take any steps to delete the same for two years, as mandated
under Section 19 of the POCSO, 2012.
Criminal Appeal Nos. 2161-2162 of 2024 Page 18 of 199
24. She contended that the High Court failed to appreciate the mandate of
Section 30, which raises a presumption of a culpable mental state on the part
of the accused for any offence under the Act that necessitates such a mental
state. The provision, therefore, shifts the burden of proving the absence of a
culpable mental state onto the accused.
25. She would further submit that Section 19 of the POCSO imposes mandatory
reporting of an offence under the Act if there was an apprehension that such
offence is likely to be committed or knowledge that such an offence has been
committed. It was pointed out that the failure to discharge this obligation by
itself is punishable under Section 21 of the POCSO. She pointed out that the
social media platforms claim to report such instances to the National Center
for Missing and Exploited Children (NCMEC), a US-based NGO, which
then reports them to the National Crime Records Bureau (NCRB). However,
Section 19 mandates reporting such cases to the Special Juvenile Police Unit
(SJPU) or the Special Police. Therefore, reporting to an NGO cannot absolve
the social media platforms of its liability under Section 21 of the POCSO.
26. In the last, it was submitted that the issue as regards the plight of minors
involved or used in child pornography is a matter of serious concern for one
and all. She prayed for issuance of appropriate directions. She submitted that
in an age when children require internet access for educational purposes, it
Criminal Appeal Nos. 2161-2162 of 2024 Page 19 of 199
has become imperative to provide them with a safe online environment in
accordance with Article 12 of the United Nations Convention on the Rights
of the Child (UNCRC).
iii. Submissions on behalf of the respondent no. 1 / the Sole Accused.
27. Mr. Prashant S. Kenjale, the learned Counsel appearing for the respondent
no. 1 / the accused, submitted that the FIR was lodged for the offence under
Section 14(1) of the POCSO and Section 67B of the IT Act, and thus, no
error not to speak of any error of law could be said to have been committed
by the High Court in passing the impugned order.
28. He further submitted that the date of the receipt of the videos recovered from
the mobile phone of the respondent no. 1 phone is 14.06.2019, at which point
the 2019 amendment to Section 15 was not yet in force.
29. He further contended that the two files found from the Respondent’s phone
were named (a.) VID-20190614-WA005.mp4 and (b.) VID-20190823-
WA0020.mp4. The use of “WA” in the file names indicates that they were
automatically downloaded by WhatsApp, which has an auto-download
feature, as shown in a research study. He would submit that in such
circumstances, the said videos had been automatically downloaded onto his
Criminal Appeal Nos. 2161-2162 of 2024 Page 20 of 199
phone and that the respondent no. 1 was unaware of their existence. He
argued that the forensic evidence clearly indicates both the creation and
modification date as 14.06.2019, thereby indicating that the files were never
accessed.
30. He further submitted that the mere possession of the aforesaid videos does
not constitute an offence under Section 15(1) of the POCSO, as the
respondent never had any intention to share or distribute them. He also
argued that even if it is assumed that the respondent no. 1 had watched the
said videos once and then failed to delete it, he cannot be charged under
Section 15(1) of the POCSO, as he was unaware of its presence due to the
government’s failure to publicize the law.
31. He submitted that ignorance of law on the part of the respondent no. 1 was
accompanied by a bona fide belief, and as such it would not constitute an
offence under Section(s) 15 of the POCSO and 67B of the IT Act. In support
of this argument, he placed reliance on the decisions of this Court in Chandi
Kumar Das Karmarkar v. Abanidhar Roy, reported in AIR 1965 SC 585,
and Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., reported in
(1979) 2 SCC 409.
Criminal Appeal Nos. 2161-2162 of 2024 Page 21 of 199
iv. Submissions on behalf of the respondent nos. 2 & 3 / the State.
32. Mr. D. Kumanan, the learned Counsel appearing for the State, submitted that
the High Court, whilst passing the Impugned Order proceeded on an
erroneous footing that an offence under Section 14 of the POCSO had been
alleged against the accused, even-though both the chargesheet as-well as the
quashing petition clearly mentioned that the indictment against the accused
was under Section 15(1) of the POCSO.
33. He further submitted that the High Court in its Impugned Order failed to look
into Section 67B of the IT Act. The High Court whilst quashing the criminal
proceedings neither discussed nor gave any due consideration to Section
67B, eventhough chargesheet had been filed for an offence under it.
34. It was submitted that both Section 15 of the POCSO and Section 67B of the
IT Act had been enacted with the salutary object of curtailing child abuse by
penalizing any form of use of child pornography, including watching of such
pornographic content in order to tackle the larger problem of creation and
dissemination of such material by the perpetrators.
35. He submitted that more than hundred pornographic videos were found stored
in the mobile phone of the respondent no. 1 / accused herein. Furthermore,
the accused had himself admitted before the High Court that he along with
Criminal Appeal Nos. 2161-2162 of 2024 Page 22 of 199
his friends would regularly watch such pornographic material. In such
circumstances it was argued that the accused had stored such material in his
phone with the intention of sharing it with his friends.
36. It was further submitted that the marginal note of Section 15 of the POCSO
i.e. “Punishment for storage of pornographic material involving child” is
self-explanatory and that sub-section (1) of the said provision punishes the
storage or possession of any such pornographic material when done with an
intention to share or transmit it. Reliance was placed on Section 30 of the
POCSO to argue that the said provision specifically provides for
presumption of a culpable mental state on part of the accused for any offence
under the Act which requires such mental state, and as such the onus was on
the accused to prove that he had no intention to share the material that was
found stored in his phone, which was also overlooked by the High Court.
37. In the last, it was submitted that once the chargesheet and the other materials
on record prima-facie disclosed the commission of an offence, more
particularly the pornographic videos that were found stored in the mobile
phone of the accused, it was not proper for the High Court to exercise its
inherent powers under Section 482 of the Cr.P.C to quash the criminal
proceedings.
Criminal Appeal Nos. 2161-2162 of 2024 Page 23 of 199
D. ISSUES FOR DETERMINATION
38. Having heard the learned counsel appearing for the parties and having gone
through the materials on record, the following questions of law fall for our
consideration: –
I. 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?
II. Whether, mere viewing, possessing or storing of any child
pornographic material is punishable under the POCSO?
III. What is the true scope of Section 67B of the IT Act?
IV. What is the scope of Section 30 of the POCSO? In, other words, what
are the foundational facts necessary for invoking the statutory
presumption of culpable mental state in respect of Section 15 of the
POCSO?
V. 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, whether it is
permissible for the High Court in a quashing petition filed under
Section 482 of the Cr.P.C. to resort to the statutory presumption of
culpable mental state contained in Section 30 of the POCSO?
Criminal Appeal Nos. 2161-2162 of 2024 Page 24 of 199
E. ANALYSIS i. Relevant Statutory Scheme and Provisions. a. Legislative History and Scheme of the POCSO.
39. Before adverting to the rival submissions canvassed on either side, it would
be apposite to first look into the statutory scheme and refer to the relevant
provisions of the POCSO.
40. As the long title, ‘Protection of Children from Sexual Offences Act, 2012’
suggests, the POCSO was enacted by the Parliament to address the urgent
need for a comprehensive law to protect children from sexual abuse and
exploitation.
41. Sexual exploitation of children is a pervasive and deeply rooted issue that
has plagued the societies worldwide and has been a matter of serious concern
in India. Prior to the enactment of the POCSO, India lacked a specific legal
framework dedicated to dealing with sexual offenses against children. While
the provisions related to sexual offenses existed in the IPC, they were not
adequately tailored to address the unique vulnerabilities and the needs of
children.
42. The inadequacy of the existing laws to effectively deal and combat with the
sexual abuse of children was starkly evident. The IPC, though equipped to
Criminal Appeal Nos. 2161-2162 of 2024 Page 25 of 199
handle sexual offences, did not explicitly recognize the various forms ofsexual abuse that children might face. Under the IPC there was no distinction
between an adult and a child victim for the purposes of the offences
punishable under the Code nor did it account for the specific psychological
and developmental needs of such child victims. Moreover, the procedural
laws were not child-friendly, often resulting in secondary victimization
during the legal process. The increasing incidence of child sexual abuse in
India and the growing awareness of the long-term psychological impact on
the victims underscored the need for a dedicated law. The POCSO was
introduced to fill this gap and provide a robust legal mechanism to safeguard
children from sexual crimes and protect them from offences of sexual
assault, sexual harassment and pornography.
43. The Statement of Objects and Reasons for the enactment of the POCSO
makes it abundantly clear that since the sexual offences against children
were not adequately addressed by the existing laws and a large number of
such offences were neither specifically provided for nor were they
adequately penalized, the POCSO has been enacted to protect the children
from the offences of sexual assault, sexual harassment and pornography and
to provide for establishment of Special Courts for trial of such offences and
for matters connected therewith and incidental thereto.
Criminal Appeal Nos. 2161-2162 of 2024 Page 26 of 199
44. It further states that the POCSO is a ‘self-contained comprehensive
legislation’ for the purpose of enforcing the rights of all children to safety,
security and protection from sexual abuse and exploitation countered
through commensurate penalties as an effective deterrence for sexual
offences and pornography and has been enacted keeping in mind Articles 15
and 39 of the Constitution respectively and the United Nations Convention
on the Rights of the Children. The Statement of Objects and Reasons of the
POCSO reads as under: –
“STATEMENT OF OBJECTS AND REASONS
Article 15 of the Constitution, inter alia, confers upon the State
powers to make special provision for children. Further, Article 39,
inter alia, provides that the State shall in particular direct its policy
towards securing that the tender age of children are not abused and
their childhood and youth are protected against exploitation and they
are given facilities to develop in a healthy manner and in conditions
of freedom and dignity.
The United Nations Convention on Rights of Children, ratified
by India on 11th December,1992, requires the State Parties to
undertake all appropriate National, By-lateral and Multi lateral
measures to prevent (a) the inducement or coercion of a child to
engage in any unlawful sexual activity; (b) the exploitative use of
children in prostitution or other unlawful sexual practices; and (c)
the exploitative use of children in pornographic performances and
materials.
The data collected by the National Crime Records Bureau
shows that there has been increase in cases of sexual offences against
children. This is corroborated by the ‘study on child abuse: India
2007’ conducted by the Ministry of Women and Child Department.
Moreover, sexual offences against children are not adequately
addressed by the extent laws. A large number of such offences are
neither specifically provided for nor are they adequately penalized.
The interests of the child, both as a victim as well as a witness, need
to be protected. It is felt that offences against children need to beCriminal Appeal Nos. 2161-2162 of 2024 Page 27 of 199
defined explicitly and countered through commensurate penalties as
an effective deterrence.
It is, therefore, proposed to enact a self-contained
comprehensive legislation inter-alia to provide for protection of
children from the sexual offences and pornography with due regard
for safeguarding the interest and well being of the child at every stage
of the Judicial process, incorporating child friendly procedures for
reporting, recording of evidence, investigation and trial of offences
and provision for establishment of Special Courts for speedy trial of
such offences.
(Emphasis supplied)
45. The primary legislative intent behind the enactment of the POCSO was to
create a comprehensive legal framework that would not only punish
offenders but also provide a child-friendly system for the recording of
evidence, investigation, and trial of offenses. The POCSO was designed to
cover all forms of sexual abuse against children, including sexual
harassment, child pornography, and aggravated sexual assault, among
others. It aimed to ensure the safety and dignity of child victims during the
legal process, with specific provisions that mandate in-camera trials, the
presence of a trusted adult during the proceedings, and the prohibition of
aggressive questioning of child victims.
46. The POCSO is a manifestation of the unique scheme formed by Article(s)
15 and 39 respectively of the Constitution and the obligation cast by the
United Nations Convention on Rights of Children that was ratified by India.
Article 15 more particularly sub-article (3) read with Article 39(f) of the
Constitution i) enables the State to make special provisions for children
Criminal Appeal Nos. 2161-2162 of 2024 Page 28 of 199
AND ii) at the same time obligates the State to direct its policy towards
ensuring that the tender and vulnerable age of children is not exploited or
abused and to secure a dignified and healthy childhood and youth, free from
any moral or material abandonment or exploitation. The UN Convention on
Rights of Children prescribes a set of standards that have to be ensured by
all State parties including India to secure the best interest of the child and to
specifically undertake preventive measures against any form of exploitation
of children such as prostitution, unlawful sexual activity or pornographic
performances and depictions. The POCSO is a legislative manifestation
towards realization of these constitutional provisions, by providing a
specialized framework to combat and prevent any and all forms of sexual
abuse and exploitation as stated in its long Preamble. The relevant portion of
the long Preamble of the POCSO reads as under: –
“An Act to protect children from offences of sexual
assault, sexual harassment and pornography and provide for
establishment of Special Courts for trial of such offences and for
matters connected therewith or incidental thereto.
Whereas clause (3) of article 15 of the Constitution, inter
alia, empowers the State to make special provisions for children;
And whereas, the Government of India has acceded on the
11th December, 1992 to the Convention on the Rights of the
Child, adopted by the General Assembly of the United Nations,
which has prescribed a set of standards to be followed by all
State parties in securing the best interests of the child;
And whereas it is necessary for the proper development of
the child that his or her right to privacy and confidentiality beCriminal Appeal Nos. 2161-2162 of 2024 Page 29 of 199
protected and respected by every person by all means and
through all stages of a judicial process involving the child;
And whereas it is imperative that the law operates in a
manner that the best interest and well being of the child are
regarded as being of paramount importance at every stage, to
ensure the healthy physical, emotional, intellectual and social
development of the child;
And whereas the State parties to the Convention on the
Rights of the Child are required to undertake all appropriate
national, bilateral and multilateral measures to prevent –
(a) the inducement or coercion of a child to engage in
any unlawful sexual activity;
(b) the exploitative use of children in prostitution or
other unlawful sexual practices;
(c) the exploitative use of children in pornographic
performances and materials;
And whereas sexual exploitation and sexual abuse of
children are heinous crimes and need to be effectively
addressed.”
47. Section 2(1) sub-clause (d) of the POCSO defines the term “child” to mean
any person below the age of eighteen years. Thus, the definition of the term
“child” used under the POCSO is denuded of any gender i.e., the term is both
gender neutral and gender fluid and as such will include any person who is
below the age of 18-years. The relevant provision reads as under: –
“2. Definitions. –
(1) In this Act, unless the context otherwise requires, –
(d) “child” means any person below the age of eighteen years;”
48. Section 2(1)(da) defines the term “child pornography” to mean and include
any visual depiction of a child involved in any sexually explicit conduct such
Criminal Appeal Nos. 2161-2162 of 2024 Page 30 of 199
as photograph, video, image generated digitally or by a computer which is
indistinguishable from an actual child i.e., any self-generated image of an
actual child or any other image that has been created, adapted or modified,
that appears to depict a child. The relevant provision reads as under: –
“2. Definitions. –
(1) In this Act, unless the context otherwise requires, –
(da) “child pornography” means any visual depiction of sexually
explicit conduct involving a child which include photograph, video,
digital or computer generated image indistinguishable from an actual
child and image created, adapted, or modified, but appear to depict
a child;”
49. Section 15 of the POCSO delineates and provides when the storage or
possession of pornographic material involving a child shall be a punishable
offence under the POCSO and further prescribes the punishment for such
storage or possession of pornographic material involving a child. The
relevant provision reads as under: –
“15. Punishment for storage of pornographic material
involving child. –
(1) Any person, who stores or possesses pornographic material
in any form involving a child, but fails to delete or destroy or
report the same to the designated authority, as may be
prescribed, with an intention to share or transmit child
pornography, shall be liable to fine not less than five thousand
rupees and in the event of second or subsequent offence, with
fine which shall not be less than ten thousand rupees.
(2) Any person, who stores or possesses pornographic material
in any form involving a child for transmitting or propagating or
displaying or distributing in any manner at any time except for
the purpose of reporting, as may be prescribed, or for use as
evidence in court, shall be punished with imprisonment of eitherCriminal Appeal Nos. 2161-2162 of 2024 Page 31 of 199
description which may extend to three years, or with fine, or with
both.
(3) Any person, who stores or possesses pornographic material
in any form involving a child for commercial purpose shall be
punished on the first conviction with imprisonment of either
description which shall not be less than three years which may
extend to five years, or with fine, or with both and in the event of
second or subsequent conviction, with imprisonment of either
description which shall not be less than five years which may
extend to seven years and shall also be liable to fine.”
50. It would be worthwhile to note that Section 15 of the POCSO had undergone
a significant change by virtue of the Protection of Children from Sexual
Offences (Amendment) Act, 2019 (for short, the “2019 Amendment Act”),
whereby several key changes were introduced. We shall discuss the said
provision viz-à-viz the unamended provision of Section 15 along with the
object and purpose behind the 2019 Amendment Act in more detail in the
latter part of this judgment.
51. Section 30 of the POCSO provides for the presumption of culpable mental
state and provides that where any offence under the POCSO requires a
culpable mental state on the part of the accused, the existence of such mental
state on the part of the accused shall be presumed by the Special Court, and
that it shall be open for the accused to rebut this presumption. In other words,
the accused can prove that he had no such mental state with respect to any
offence under the Act. The relevant provision reads as under: –
“30. Presumption of culpable mental state. –
Criminal Appeal Nos. 2161-2162 of 2024 Page 32 of 199
(1) In any prosecution for any offence under this Act which requires
a culpable mental state on the part of the accused, the Special Court
shall presume the existence of such mental state but it shall be a
defence for the accused to prove the fact that he had no such mental
state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only
when the Special Court believes it to exist beyond reasonable doubt
and not merely when its existence is established by a preponderance
of probability.
Explanation. – In this section, “culpable mental state” includes
intention, motive, knowledge of a fact and the belief in, or reason to
believe, a fact.”
52. This Court in its decision in Independent Thought v. Union of India & Anr.
reported in 2017 INSC 1030 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. It should i) ensure that the sexual exploitation and abuse of
children are addressed effectively and ii) induce a healthy physical,
emotional, intellectual and social development of the child. The relevant
observations read as under: –
“42. […] The Preamble to the POCSO Act also recognizes that it is
imperative that the law should operate “in a manner that the best
interest and well being of the child are regarded as being of
paramount importance at every stage, to ensure the healthy, physical,
emotional, intellectual and social development of the child”. Finally,
the Preamble also provides that “sexual exploitation and sexual
abuse of children are heinous crimes and need to be effectively
addressed”. […]”
(Emphasis supplied)Criminal Appeal Nos. 2161-2162 of 2024 Page 33 of 199
53. In Attorney General for India v. Satish reported in 2021 INSC 762 this
Court had the occasion to examine the entire legislative scheme of the
POCSO. It held that each provision of the POCSO should be construed viz-
a-viz the other provisions of the Act and with reference to the context or
background with which the legislation was enacted, so as to make the Act
and its provisions more meaningful and effective. This Court further
emphasized that, while construing the provisions of the POCSO, the impact
of sexual assault and exploitation on the children should not be ignored and
further the courts should avoid a narrow or pedantic interpretation that would
the defeat the statute; rather, where the intention of the legislature cannot be
given effect to or cannot be realized, a meaningful construction of the statute
should be adopted to bring about a more effective result. The relevant
observations read as under: –
“33. […] As per the rule of construction contained in the maxim “Ut
Res Magis Valeat Quam Pereat”, the construction of a rule should
give effect to the rule rather than destroying it. Any narrow and
pedantic interpretation of the provision which would defeat the object
of the provision, cannot be accepted. It is also needless to say that
where the intention of the Legislature cannot be given effect to, the
courts would accept the bolder construction for the purpose of
bringing about an effective result. […]xxx xxx xxx
37. […] However, it is equally settled legal position that the clauses
of a statute should be construed with reference to the context vis-a-
vis the other provisions so as to make a consistent enactment of the
whole Statute relating to the subject matter. The Court can not be
oblivious to the fact that the impact of traumatic sexual assault
committed on children of tender age could endure during their whole
life, and may also have an adverse effect on their mental state. The
Criminal Appeal Nos. 2161-2162 of 2024 Page 34 of 199
suffering of the victims in certain cases may be immeasurable.
Therefore, considering the objects of the POCSO Act, its provisions,
more particularly pertaining to the sexual assault, sexual harassment
etc. have to be construed vis-a-vis the other provisions, so as to make
the objects of the Act more meaningful and effective.”
(Emphasis supplied)
54. Justice S. Ravindra Bhat in his concurring opinion in Attorney General for
India (supra) further observed that the POCSO and its nuanced provisions
were designed keeping in mind the need to protect the autonomy and dignity
of children. It was enacted to criminalize those acts and behaviour that have
the propensity to harass, discomfit or demean minors, and as such it is the
duty of the courts to ensure that the provisions of the POCSO are not
interpreted in a manner that would undermine its purpose or the pressing
needs of the times. The relevant observations read as under: –
“11. The limitations in law in dealing with acts that undermined the
dignity and autonomy of women and children, ranging from
behaviour that is now termed “stalking” to pornography, or physical
contact, and associated acts, which were not the subject matter of any
penal law, were recognized and appropriate legislative measures
adopted, in other countries. These have been alluded to in Trivedi, J’s
judgment, in detail. These laws contain nuanced provisions
criminalizing behaviour that involve unwanted physical contact of
different types and hues, have the propensity to harass and discomfit
women and minors (including minors of either sex), or demean them.
xxx xxx xxx
33. In the end, I cannot resist quoting Benjamin Cardozo that “the
great tides and currents which engulf the rest of men do not turn aside
in their course and pass the judges by.” It is, therefore, no part of any
judge’s duty to strain the plain words of a statute, beyond recognition
and to the point of its destruction, thereby denying the cry of the times
that children desperately need the assurance of a law designed to
protect their autonomy and dignity, as POCSO does.”(Emphasis supplied)
Criminal Appeal Nos. 2161-2162 of 2024 Page 35 of 199
55. Similarly in Eera through Dr. Manjula Krippendorf v. State (Govt. of NCT
of Delhi) & Anr. reported in 2017 INSC 658, this Court observed that the
POCSO had been brought with the purpose of protecting the children from
sexual exploitation and harassment. It had been designed to secure the well-
being and the best interests of the child with the protection of the child’s
dignity being the backbone of the legislation. The dignity, protection and
interest form the bedrock of the POCSO. The relevant observations read as
under: –
“18. The purpose of referring to the Statement of Objects and
Reasons and the Preamble of the POCSO Act is to appreciate
that the very purpose of bringing a legislation of the present
nature is to protect the children from the sexual assault,
harassment and exploitation, and to secure the best interest of
the child. On an avid and diligent discernment of the preamble,
it is manifest that it recognizes the necessity of the right to
privacy and confidentiality of a child to be protected and
respected by every person by all means and through all stages
of a judicial process involving the child. Best interest and well
being are regarded as being of paramount importance at every
stage to ensure the healthy physical, emotional, intellectual and
social development of the child. There is also a stipulation that
sexual exploitation and sexual abuse are heinous offences and
need to be effectively addressed. The statement of objects and
reasons provides regard being had to the constitutional
mandate, to direct its policy towards securing that the tender age
of children is not abused and their childhood is protected against
exploitation and they are given facilities to develop in a healthy
manner and in conditions of freedom and dignity. There is also
a mention which is quite significant that interest of the child,
both as a victim as well as a witness, needs to be protected. The
stress is on providing child-friendly procedure. Dignity of the
child has been laid immense emphasis in the scheme of
legislation. Protection and interest occupy the seminal place in
the text of the POCSO Act.
xxx xxx xxx
Criminal Appeal Nos. 2161-2162 of 2024 Page 36 of 199
63. […] The POCSO Act, as I have indicated earlier,
comprehensively deals with various facets that are likely to
offend the physical identity and mental condition of a child. The
legislature has dealt with sexual assault, sexual harassment and
abuse with due regard to safeguard the interest and well being
of the children at every stage of judicial proceeding in an
extremely detailed manner. The procedure is child friendly and
the atmosphere as commanded by the provisions of the POSCO
Act has to be congenial. The protection of the dignity of the child
is the spine of the legislation. […]”
(Emphasis supplied)
56. In Nawabuddin v. State of Uttarakhand reported in 2022 INSC 162 this
Court held that any act of sexual assault, exploitation or harassment of the
children should be dealt with in a stringent manner and that no leniency
should be shown when dealing with an offence under the POCSO in view of
the object that is sought to be achieved by the Act. The relevant observations
read as under: –
“10. Keeping in mind the aforesaid objects and to achieve what has
been provided under Article 15 and 39 of the Constitution to protect
children from the offences of sexual assault, sexual harassment, the
POCSO Act, 2012 has been enacted. Any act of sexual assault or
sexual harassment to the children should be viewed very seriously
and all such offences of sexual assault, sexual harassment on the
children have to be dealt with in a stringent manner and no leniency
should be shown to a person who has committed the offence under the
POCSO Act. By awarding a suitable punishment commensurate with
the act of sexual assault, sexual harassment, a message must be
conveyed to the society at large that, if anybody commits any offence
under the POCSO Act of sexual assault, sexual harassment or use of
children for pornographic purposes they shall be punished suitably
and no leniency shall be shown to them. Cases of sexual assault or
sexual harassment on the children are instances of perverse lust for
sex where even innocent children are not spared in pursuit of such
debased sexual pleasure.”
(Emphasis supplied)Criminal Appeal Nos. 2161-2162 of 2024 Page 37 of 199
b. Relevant Provisions of the IT Act.
57. For better and effective adjudication of the issues involved in the case at
hand, it would be apposite to refer to the IT Act which also contains several
provisions, more particularly Section(s) 67, 67A and 67B respectively, that
penalize the use, transmission and publication of obscene materials
including child pornography. These provisions together encompass and
collectively form the umbrella scheme of comprehensive penal provisions
contained in the IT Act in this regard.
58. Section 67 of the IT Act is the principal provision that criminalizes the
publication or transmission of “obscene material” in any electronic form and
constitutes an offence. Section 67A of the IT Act, is a more aggravated
offence, prescribing enhanced punishment than the preceding provision. It
does so by further amplifying the scope of ‘obscene material’ by stipulating
that any obscene material that contains or depicts any sexually explicit act
or conduct, when published or transmitted shall be punishable under the said
provision.
59. Section 67B of the IT Act specifically deals with child pornographic
materials. It provides for an even more severe form of offence by bringing
within its ambit those obscene materials in any electronic form that depict a
child in any sexually explicit act or conduct and by further expanding the
Criminal Appeal Nos. 2161-2162 of 2024 Page 38 of 199
scope of ‘actus reus’ which is punishable under the provision to include not
just publication or transmission but also the browsing, creation, collection,
online facilitation or enticement of children into any sexual act or conduct
etc. The said provision reads as under: –
“67B. Punishment for publishing or transmitting of material
depicting children in sexually explicit act, etc., in electronic
form. — Whoever —
(a) publishes or transmits or causes to be published or
transmitted material in any electronic form which depicts
children engaged in sexually explicit act or conduct; or
(b) creates text or digital images, collects, seeks, browses,
downloads, advertises, promotes, exchanges or distributes
material in any electronic form depicting children in obscene or
indecent or sexually explicit manner; or
(c) cultivates, entices or induces children to online relationship
with one or more children for and on sexually explicit act or in
a manner that may offend a reasonable adult on the computer
resources; or
(d) facilitates abusing children online; or
(e) records in any electronic form own abuse or that of others
pertaining to sexually explicit act with children,
shall be punished on first conviction with imprisonment of either
description for a term which may extend to five years and with a
fine which may extend to ten lakh rupees and in the event of
second or subsequent conviction with imprisonment of either
description for a term which may extend to seven years and also
with fine which may extend to ten lakh rupees:
Provided that provisions of Section 67, Section 67-A and this
section does not extend to any book, pamphlet, paper, writing,
drawing, painting, representation or figure in electronic form—
(i) the publication of which is proved to be justified as being for
the public good on the ground that such book, pamphlet, paper,
writing, drawing, painting, representation or figure is in theCriminal Appeal Nos. 2161-2162 of 2024 Page 39 of 199
interest of science, literature, art or learning or other objects of
general concern; or
(ii) which is kept or used for bona fide heritage or religious
purposes.
Explanation. — For the purpose of this section, “children”
means a person who has not completed the age of 18 years.”
ii. Scope of Section 15 of the POCSO and Section 67B of the IT Act.
60. In the case at hand, we are concerned with the interpretation of Section 15
of the POCSO and Section 67B of the IT Act, more particularly the scope of
these two provisions and what would constitute an offence under each of
them. In other words, what exactly has been made punishable under
Section(s) 15 of the POCSO and 67B of the IT Act respectively and what
are the necessary ingredients or elements to establish or make out an
offence under it.
a. Contradictory Views of different High Courts on the subject.
61. Before proceeding with the analysis of the aforesaid two provisions, it would
be appropriate to refer to the decisions of various High Courts and the
cleavage of opinion that have been expressed as regards the scope of Section
15 of the POCSO and Section 67B of the IT Act.
62. In Nupur Ghatge v. State of Madhya Pradesh (MCRC No. 52596 of 2020),
the accused therein was alleged to have uploaded child pornographic videos
Criminal Appeal Nos. 2161-2162 of 2024 Page 40 of 199
and photographs on his social media account, and thus, a case was registered
against him under Section 67B of the IT Act. The Gwalior Bench of the
Madhya Pradesh High Court held that Section 67B penalizes various forms
of acts including the act of watching or transmitting any child pornographic
material in electronic form. It further held that any defence of the accused as
to the absence of any involvement in transmission or sharing of such material
or the mental state of the accused cannot be looked into at the stage of
quashing under Section 482 of the Cr.P.C. The relevant observations read as
under: –
“From the whats-app chats filed by the applicant, it appears that
the applicant himself was involved in porn activities, therefore,
the provision of Section 67B of the Act, 2000 would be
applicable as Section 67-B of the Act, 2000 also includes records
in any electronic form own abuse or that of others pertaining to
sexually explicit act with children.
xxx xxx xxx
The burden is on the applicant to prove his defence which cannot
be decided by this Court in exercise of powers under Section 482
of CrPC.”
63. In P.G. Sam Infant Jones v. State represented by Inspector of Police
reported in 2021 SCC OnLine Mad 2241 the accused therein was alleged
to have browsed, downloaded and transmitted child pornographic material
through his e-mail and social media account. Accordingly, a case was
registered against him for the offences under Section 15(1) of POCSO and
Section 67B of the IT Act, whereupon the accused therein preferred an
Criminal Appeal Nos. 2161-2162 of 2024 Page 41 of 199
anticipatory bail application before the Madurai Bench of the Madras High
Court. The Madras High Court observed that while viewing of pornography
in private domain may not be an offence in view of an individual’s right to
expression and privacy, child pornography falls outside the ambit of such
individual rights and stands on a different footing. It held that Section 67B
penalizes various kinds of acts pertaining to child pornography including the
act of viewing such material. The relevant observations read as under: –
3.The case of the prosecution is that on 27.06.2020 at 17.38:51
hours, the petitioner browsed, downloaded and transmitted child
pornographic material by using Airtel Sim bearing
No.9787973370 through his e-mail and Facebook Account.
xxx xxx xxx
5. Viewing pornography privately will not constitute an offence.
Offence is an act that is forbidden by law and made punishable.
That is the definition found in Section 40 of IPC. As on date,
there is no provision prohibiting such private acts. There are
some who even elevate it as falling within one’s right to free
expression and privacy. But child pornography falls outside this
circle of freedom. Section 67-B of the Information Technology
Act, 2000 penalises every kind of act pertaining to child
pornography. […] Therefore, even viewing child pornography
constitutes an offence.
(Emphasis supplied)
64. In Ajin Surendran v. State of Kerala & Anr. reported in 2022 KER 7207
child pornographic videos were found stored in the mobile phone of the
accused therein. The High Court of Kerala at Ernakulam observed that
Section 15 of POCSO gets attracted when any person stores or possesses
Criminal Appeal Nos. 2161-2162 of 2024 Page 42 of 199
pornographic material in any form involving a child, with an intention to
share or transmit it, whereas Section 67B of the IT Act gets attracted when
a person browses or downloads any such material in any electronic form.
Accordingly, it held that in view of the videos that were found stored in the
accused’s mobile phone, prima-facie both of the aforesaid provisions are
said to be squarely attracted, and thus the power under Section 482 cannot
be invoked for quashing the criminal proceedings. The relevant observations
read as under: –
“3. I have gone through the first information statement as well
as the final report. It would show that the mobile phone belongs
to the petitioner and the sim card was examined and it was found
that in the memory card, pornographic video of children were
stored. Section 15 of POCSO Act gets attracted when any person
stores or possesses pornographic material in any form involving
a child, with an intention to share or transmit child
pornography. Section 67B(b) of the IT Act gets attracted when a
person among other things, browses or downloads material in
any electronic form depicting children in obscene or indecent or
sexually explicit manner. Thus, both the sections are squarely
attracted. When prima facie case is made out, power under
Section 482 cannot be invoked.”
(Emphasis supplied)
65. In Manuel Benny v. State of Kerala reported in 2022 KER 9730 it was
found that the accused person therein had downloaded and stored
pornographic videos depicting children in a sexually explicit manner in his
mobile phone from a messaging app; ‘Telegram’ for private viewing.
Accordingly, a case was registered against the accused therein under Section
15 of the POCSO and Section 67B of the IT Act. When the final report came
Criminal Appeal Nos. 2161-2162 of 2024 Page 43 of 199
to be filed, the offence under Section 15 of the POCSO was dropped, and
chargesheet was filed only for the offence under Section 67B of the IT Act.
The accused preferred a quashing petition before the High Court of Kerala
at Ernakulam on the ground that even if the materials in the chargesheet were
taken at their face value, no ingredients were made out to constitute the
offence under Section 67B of the IT Act. A learned Single Judge of the High
Court whilst quashing the criminal proceedings held that in order to attract
the offence under Section 67B of the IT Act, the pornographic material in
question must be voluntarily downloaded. It held that there should be an
intention on the part of the accused to download any pornographic content
in order to view it so as to constitute an offence under Section 67B of the IT
Act. The learned Single Judge further observed that as per the FSL report,
the child pornographic videos had been accessed through the messaging app
‘Telegram’ wherein there is a possibility of automatic download of videos.
Since there was no material to show that the accused therein had voluntarily
downloaded or browsed the pornographic material in question, no prima
facie offence had been made out under Section 67B of the IT Act, and thus
the High Court quashed the criminal proceedings. The relevant observations
read as under: –
“5. A perusal of the final report would show that the only
allegation against the petitioner is that he downloaded and
enjoyed material depicting children in obscene, indecent and
sexually explicit manner from the application called ‘Telegram’.
In order to attract the offence under Section 67B of the IT Act,Criminal Appeal Nos. 2161-2162 of 2024 Page 44 of 199
the videos or material has to be voluntarily downloaded into any
device. In other words, there should be intention on the part of
the petitioner to download the material in order to view it. The
definite case of the petitioner is that he did not download any
offensive material. Even in Annexure A3 FSL report it is seen
that the path of those images is from Android backup and the
child pornographic videos were accessed through ‘Telegram’.
The learned Additional DGP submitted that the contents
transmitted in the ‘Telegram’ can be automatically downloaded
in the mobile phone by default. Hence, it cannot be said that the
petitioner has intentionally downloaded the material,
considering the features of the ‘Telegram’ App.
Since there is no material to show that the petitioner has
browsed or downloaded child pornographic material, the
offence under Section 67B of the IT Act is not attracted. Hence,
no purpose will be served in proceedings with the matter further.
Accordingly, the Crl.M.C is allowed. All further proceedings
pursuant to Annexure A2 final report in Crime No.531/2020 of
Melukavu Police Station now pending as C.C.No.257/2021 on
the files of the Judicial Magistrate of the First Class, Erattupetta
stands hereby quashed.”
(Emphasis supplied)
66. In Lakshya v. State of Maharashtra & Anr. (Criminal Writ Petition No.
479 of 2022), the accused therein had viewed and stored a child
pornographic video in his mobile, which he subsequently showed to his other
friends and co-accused therein. On the basis of the aforesaid, a case was
registered against the accused persons under Section(s) 15(1) and (3) of the
POCSO along with Section 67B of the IT Act. The accused preferred a
discharge application which came to be rejected by the Trial Court
whereafter the accused therein went in appeal before the High Court of
Judicature at Bombay, Nagpur Bench. The learned Single Judge of the High
Court dismissed the appeal and upheld the rejection of the discharge
Criminal Appeal Nos. 2161-2162 of 2024 Page 45 of 199
application by the Trial Court. The High Court held that merely because theaccused therein was not the creator of the pornographic material in question
it cannot be said that no offence had been made out. It held that the act of the
accused to store and forward the pornographic material and the failure on his
part to delete or report the same would squarely fall within the ambit of
Section(s) 15(1) and (2) of the POCSO and Section 67B of the IT Act.
However, the High Court chose not to advert to the offence under Section
15(3) of the POCSO that was contained in the chargesheet as a prima facie
case had already been established against the accused therein for the other
offences with which they were charged. The relevant observation reads as
under: –
“8. With the assistance of the learned Advocate for the accused
and the learned APP for the State, I have gone through the
provisions of Section 67-B of the I. T. Act and Section 15 of the
POCSO Act. The main allegation against the accused is that they
stored, forwarded and shared with each other porn video. Even
if it is assumed for the sake of argument that they are not
creators of the porn video, in my view, the benefit of discharge
cannot be granted to them. […]
9. In my view, perusal of Section 15 of the POCSO Act in entirety
would show that the act of the accused persons to store, forward
and possess pornographic material involving a child is squarely
covered under Section 15(1) and (2) of the POCSO Act. They
failed to delete or destroy or report the same to the designated
authority. As per the case of the prosecution, they stored,
possessed and circulated the said porn video. Therefore, in my
view, at this stage, it is very difficult for the accused to come out
of the tentacles of Section 15(1) and (2) of the POCSO Act.
10. Section 67-B of the I.T. Act provides a punishment for
publishing or transmitting the material depicting children inCriminal Appeal Nos. 2161-2162 of 2024 Page 46 of 199
Sexually explicit act, etc., in an electronic form. If the basic
ingredient of Section 67-B, prima facie, are applied to the facts
of the case on hand, it would show beyond doubt that the act of
the accused is squarely covered within the ambit of Section 67-
B of the I. T. Act. In my view, in the teeth of the allegations
against the accused and the material collected during the course
of investigation and compiled in the charge-sheet, it would be
very difficult to accept the contention of the accused persons. It
is true that the applicants are young. They are students. They are
from reputed family. However, while deciding the discharge
application this could not be the consideration. If this
submission is accepted on this ground then this would be nothing
short of showing misplaced sympathy to the persons who are
prima facie accused of the commission of offence.”
(Emphasis supplied)
67. In Shantheeshlal T. v. State of Kerala reported in 2024 KER 35968, during
investigation certain pornographic videos involving a child had been
recovered from the device of the accused thereunder. Accordingly,
chargesheet was submitted against the accused therein for the offences
punishable under Section(s) 15(1) of the POCSO and 67B of the IT Act. The
accused thereunder preferred a quashing petition before the High Court of
Kerala at Ernakulam, wherein the learned Single Judge quashed the
aforesaid chargesheet and the criminal proceedings taking the
view as under: –
(i) First, the learned Single Judge held that in order to attract the
provision of Section 15(1) of the POCSO there must be a storage or
possession of child pornographic material and further such material
should be shown to have been shared or transmitted by the person
Criminal Appeal Nos. 2161-2162 of 2024 Page 47 of 199
accused. Mere possession or storage of pornographic material by itselfis not an offence under Section 15(1) of the POCSO unless it is shown
that the accused person had indeed shared or transmitted such
material. In other words, to constitute an offence under Section 15(1)
there must be an actual act of transmission or sharing of the
pornographic material depicting a child in a sexually explicit act or
conduct that was found to be stored or in possession of the accused.
The relevant observation reads as under: –
“9. Reading the provision, it is emphatically clear that
storing or possessing pornographic materials in any form
involving a child and failure to delete or destroy or report
the same to the designated authority, as may be
prescribed, with an intention to share or transmit child
pornography, shall be an offence. So mere storing or
possessing pornographic material is not an offence under
Section 15(1) of POCSO Act, if the said storing or
possession is without any intention to share or transmit
the same. Therefore, mere storing or possessing
pornographic materials by itself is not an offence. Thus,
in order to attract an offence under Section 15(1) of the
POCSO Act, the stored or possessed pornographic
materials should be shared or transmitted. In the instant
case, there is no material available to hold that the
accused either shared or transmitted pornographic
materials, though storing of the same was detected.
Therefore, the offence under Section 15(1) of the POCSO
Act is not made out in the instant case.”(Emphasis supplied)
(ii) Secondly, it observed that, even for the purposes of Section 67B of
the IT Act there must be some material to show that the accused
Criminal Appeal Nos. 2161-2162 of 2024 Page 48 of 199
person had either browsed, downloaded, published, transmitted orcreated any material in electronic form depicting a child in a sexually
explicit act or conduct. To constitute an offence under Section 67B of
the IT Act the accused person must have intentionally either
downloaded, browsed, recorded or transmitted a pornographic
material involving a child. In the absence of any material to show or
establish specific intention on the part of the accused to share or
transmit the pornographic material found, no offence could be said to
have been made out under Section 67B of the IT Act. Any accidental
or automatic download of such material will not fall within the
purview of the said provision. The relevant observations read as
under: –
“11. Publishing, transmitting or causing any material in
electronic form which depicts children engaged in
sexually explicit act or conduct or creation of text or
digital images etc. are the ingredients under Section 67B
of the IT Act also.
xxx xxx xxx
13. Therefore, going by the decision, automatic or
accidental downloading of children engaged in sexually
explicit act or conduct is not an offence under Section
67B, once the specific intention to do so is not established,
by the materials which form part of the prosecution
records.
14. In the present case, the materials collected during
investigation would show that some pornographic
messages, which would depict children engaged in
sexually explicit act or conduct were found in the deviseCriminal Appeal Nos. 2161-2162 of 2024 Page 49 of 199
of the accused. But there are no materials to show that the
petitioner intentionally downloaded or browsed or
recorded the same. More particularly there are no
materials to show that the petitioner had either shared,
transmitted or published the same in any manner.
15. Thus, the materials available do not suggest the
ingredients to find prima facie, commission of offence
under Section 67B of the IT Act.”
(Emphasis supplied)As besides the recovery of the pornographic material from the device
of the accused there was nothing to show that he had either shared or
transmitted or intentionally downloaded the same in the first place. In such
circumstances, the learned Single Judge held that no prima facie offence had
been made out either under Section(s) 15(1) of the POCSO or 67B of the IT
Act and thus, proceeded to quash the criminal proceedings.
68. Similarly, in Akash Vijay v. State of Kerala reported in 2024 KER 42626,
the Kerala High Court placing reliance on the decision of Shantheeshlal T
(supra) held that mere storage or possession of any pornographic material
involving a child will not constitute an offence under Section(s) 15 of the
POCSO or 67B of the IT Act in the absence of any material to show that the
accused person either intentionally downloaded or browsed the said material
or that he shared or transmitted the same. The relevant observations read as
under: –
Criminal Appeal Nos. 2161-2162 of 2024 Page 50 of 199
“6. On perusal of the prosecution records, no materials
collected during investigation to show that the petitioner
intentionally downloaded or browsed or recorded the same and
there are no materials available to show that the petitioner had
either shared, transmitted or published the video, in any manner.
The allegation is confined to that of presence of porn video in
the mobile phone of the accused alone.
xxx xxx xxx
8. Reading the facts of this case, the same is similar to the facts
dealt in Shantheeshlal T.’s case (supra). Therefore, applying the
same ratio, this Crl.M.C. is liable to be allowed.”(Emphasis supplied)
69. In Akhil Johny v. State of Kerala reported in 2024 KER 53767, the learned
Single Judge of the Kerala High Court held that where the allegations are
limited only to the presence of pornographic material involving a child in the
mobile phone or hard disk of the accused, no offence could be said to have
been made out under Section(s) 15 of the POCSO or 67B of the IT Act and
as such the criminal proceedings would be liable to be quashed. The relevant
observations read as under: –
“6. On perusal of the prosecution records, no materials
collected during investigation to show that the petitioner
intentionally downloaded or browsed or recorded the same and
there are no materials available to show that the petitioner had
either shared, transmitted or published the video, in any manner.
The allegation is confined to that of presence of porn video in
the mobile phone of the accused alone.
xxx xxx xxx
Criminal Appeal Nos. 2161-2162 of 2024 Page 51 of 199
8. Reading the facts of this case, the same is similar to the facts
dealt in Shantheeshlal T.’s case (supra). Therefore, applying the
same ratio, this Crl.M.C. is liable to be allowed.”(Emphasis supplied)
70. In Inayathulla N (1) v. State reported in 2024 KHC 26513, the accused
therein was charged for browsing a website and viewing pornographic
materials involving a child. Accordingly, a case was registered against him
under Section(s) 67B of the IT Act. A learned Single Judge of the High Court
of Karnataka held that the soul and essence of Section 67B lies in the act of
publication or transmission of any material depicting a child in any sexually
explicit conduct, and that mere browsing or watching of such material would
not attract the aforesaid provision. It further held that in such cases even
investigation should not be permitted to be continued and thus, proceeded to
quash the criminal proceedings. The relevant observations read as under: –
“7. […] Section 67B of the IT Act punishes those persons who
would publish, transmit the material depicting children in
sexually explicit acts in electronic form. The soul of the provision
is publishing or transmitting of material depicting children in
sexually explicit act.
8. The allegation against the petitioner is that he has watched a
pornographic website. This, in the considered view of the Court,
would not become publishing or transmitting of material, as is
necessary under Section 67B of the IT Act. At best, as contended,
the petitioner could be a porn addict, who has watched
pornographic material. Nothing beyond this, is alleged against
the petitioner. If the facts are pitted against the ingredients
necessary to drive home Section 67B of the IT Act, what would
unmistakably emerge is, further proceedings cannot beCriminal Appeal Nos. 2161-2162 of 2024 Page 52 of 199
permitted to be continued, as it would become an abuse of
process of law. […]
9. The Apex Court in the afore laid postulates holds that even if
the facts that forms the complaint is accepted as true, it would
not make out any offence. In such cases, even investigation
should not be permitted to be continued. Therefore, the
impugned proceedings cannot be permitted to be continued, as
it does not make out an offence under Section 67B of the IT Act.”(Emphasis supplied)
71. We are conscious of the fact that the aforesaid decision of Inayathulla N (1)
(supra) was subsequently taken in review by the learned Single Judge of the
Karnataka High Court under the nomenclature “recall” upon realising that
Section 67B of the IT Act had been misinterpreted more particularly the
failure to advert to sub-section (b) of the said provision which criminalizes
the browsing of child pornographic sites. Consequently, in Inayathulla N
(2) v. State reported in 2024 KHC 28204 the learned Single Judge set aside
its earlier order in Inayathulla N (1) (supra) by observing that although
Section 67B sub-section (a) of the IT Act may not apply in the absence of
any transmission or publication of any child pornography, yet sub-section
(b) of the said provision would indeed be applicable where the allegations
involve browsing or viewing of any child pornographic material. It is
relevant to note that although the court was apprised of the fact that even
Section 15 of the POCSO was being contemplated to be added in the
chargesheet, yet the High Court in view of the limited question before it did
Criminal Appeal Nos. 2161-2162 of 2024 Page 53 of 199
not deem it necessary to go into the applicability of the said provision at that
stage. The relevant observations read as under: –
“5. This Court accepting the facts had allowed the petition in
terms of its order dated 10-07-2024. […] After release of the
order, the State appears to have noticed the short assistance
rendered by it, as also the fact that the cyber tipline/2nd
respondent was not heard in the matter. The further fact is that
the State has filed an application before the Court to bring in
Section 15 of the Protection of Children from Sexual Offices Act,
2012 (‘POCSO Act’ for short). […] By a separate order passed
on 19-07-2024, the I.A. filed by the State stood answered and the
order dated 10-07-2024, by accepting the reasons indicated in
the affidavit was recalled and the matter was restored to file.
xxx xxx xxx
8. […] The reliance placed by the petitioner is on Section 67B(a)
of the Act which was relied on and proceedings quashed. What
becomes applicable to the case at hand is Section 67B(b).
Section 67B(b) open up prosecution against a person who
creates text or digital images, collects, seeks, browses,
downloads, advertises, promotes, exchanges or distributes
material in any electronic form depicting children in obscene or
indecent or sexually explicit manner. It is not in dispute that the
petitioner, in the case at hand, has browsed child pornographic
material for about 50 minutes. Browsing child pornographic
material makes it an offence under Section 67B(b) of the Act.”
(Emphasis supplied)
72. Thus, it appears from the aforesaid that there are divergent views expressed
by different High Courts of the country as regards the ingredients necessary
to constitute an offence under Section 15 of the POCSO and Section 67B of
the IT Act. The Kerala High Court has taken the view that mere possession
or viewing of pornographic material involving a child will not fall within the
Criminal Appeal Nos. 2161-2162 of 2024 Page 54 of 199
ambit of Section 15 of the POCSO, rather what the provision criminalizes is
the actual act of transmission or sharing of the said material. It has held that
where the allegations are confined only to the possession of pornographic
material and there is nothing to indicate the actual transmission of the same,
the criminal proceedings shall be liable to be quashed. Whereas, the Bombay
High Court appears to have taken the view that under Section 15(1) of the
POCSO, what is penalized is the storage of child pornography and resultant
failure to delete or report the same while under Section 15(2), it is the storage
and consequent transmission of child pornography. Similarly, with respect
to Section 67B, both the Karnataka High Court and the Kerala High Court
have held that what is criminalized is the intentional browsing or
transmission of child pornography, and not the mere possession of such
material.
b. Three distinct offences punishable under Section 15 of the POCSO .
73. Prior to the 2019 Amendment Act, Section 15 of the POCSO as originally
enacted, stipulated that any person who stores any pornographic material
involving a child for commercial purposes shall be punishable under the said
provision. Thus, under the erstwhile Section 15 of the POCSO only one act
was criminalized; in other words, only the storage of child pornography for
a commercial purpose was made a punishable offence. Storage of such
Criminal Appeal Nos. 2161-2162 of 2024 Page 55 of 199
material for any other purpose was outside the scope and purview of the said
provision. The said provision as it then stood, reads as under: –
“15. Punishment for storage of pornographic material
involving child. –
Any person, who stores, for commercial purposes any
pornographic material in any form involving a child shall be
punished with imprisonment of either description which may
extent to three years or with fine or with both.”
74. Over a period of time, the legislature realized that despite the enactment of
POCSO, there had been an increase rather than a decline in the number of
cases pertaining to child sexual abuse. The legislature noted that some of the
provisions of the POCSO were not proving to be effective in addressing the
various forms of sexual degradation, abuse and exploitation of children in
the country. The Protection of Children from Sexual Offences (Amendment)
Act, 2019 earmarked a significant step by the legislature in response to the
aforesaid problem, by introducing several new offences and further making
the existing offences more stringent with enhanced punishments, as a form
of deterrence to sexual predators and to combat the sexual exploitation of
children in order to safeguard a secure and dignified environment for them.
The Statement of Objects and Reasons of the 2019 Amendment Act read as
under: –
“STATEMENT OF OBJECTS AND REASONS
“1. The Protection of Children from Sexual Offences Act,
2012 (the said Act) has been enacted to protect children from
offences of sexual assault, sexual harassment and pornographyCriminal Appeal Nos. 2161-2162 of 2024 Page 56 of 199
and provide for establishment of Special Courts for trial of such
offences and for matters connected therewith or incidental
thereto.
2. The said Act is gender neutral and regards the best
interests and welfare of the child as a matter of paramount
importance at every stage so as to ensure the healthy physical,
emotional, intellectual and social development of the child.
3. However, in the recent past incidences of child sexual
abuse cases demonstrating the inhumane mind-set of the
abusers, who have been barbaric in their approach towards
young victims, is rising in the country. Children are becoming
easy prey because of their tender age, physical vulnerabilities
and inexperience of life and society. The unequal balance of
power leading to the gruesome act may also detriment the mind
of the child to believe that might is right and reported studies
establish that children who have been victims of sexual violence
in their childhood become more abusive later in their life. The
report of the National Crime Records Bureau for the year 2016
indicate increase in the number of cases registered under the
said Act from 44.7 per cent. in 2013 over 2012 and 178.6 per
cent. in 2014 over 2013 and no decline in the number of cases
thereafter.
4. The Supreme Court, in the matter of Machhi Singh vs.
State of Punjab [1983 (3) SCC 470], held that when the
community feels that for the sake of self-preservation the killer
has to be killed, the community may well withdraw the protection
by sanctioning the death penalty. But the community will not do
so in every case. It may do so in rarest of rare cases when its
collective conscience is so shocked that it will expect the holders
of the judicial power centre to inflict death penalty irrespective
of their personal opinion as regards desirability or otherwise of
retaining death penalty. The same analogy has been reiterated
by the Supreme Court in the matter of Devender Pal Singh vs.
State (NCT of Delhi)[AIR 2002 SC 1661] wherein it was held
that when the collective conscience of the community is so
shocked, the court must award death sentence.
5. In the above backdrop, as there is a strong need to take
stringent measures to deter the rising trend of child sex abuse in
the country, the proposed amendments to the said Act makeCriminal Appeal Nos. 2161-2162 of 2024 Page 57 of 199
provisions for enhancement of punishments for various offences
so as to deter the perpetrators and ensure safety, security and
dignified childhood for a child. It also empowers the Central
Government to make rules for the manner of deleting or
destroying or reporting about pornographic material in any
form involving a child to the designated authority.
6. The Protection of Children from Sexual Offences
(Amendment) Bill, 2019, for the aforementioned purpose, which
was introduced and pending consideration and passing in the
Lok Sabha, lapsed on the dissolution of the Sixteenth Lok Sabha.
Hence, the present Bill.
7. The Bill seeks to achieve the above objectives. NEW
DELHI; The 12th July, 2019.”
(Emphasis supplied)
75. Pursuant to the aforesaid 2019 Amendment Act, a slew of amendments were
brought within the POCSO, which inter alia included i) the insertion of
Section 2(da) by which “child pornography” came to be defined under the
Act AND ii) the amendment of Section 15 of the Act whereby now three
distinct offences are made punishable under the said provision. Again, at the
cost of repetition, the amended Section 15 of the POCSO is reproduced
hereunder: –
“15. Punishment for storage of pornographic material
involving child. –
(1) Any person, who stores or possesses pornographic material
in any form involving a child, but fails to delete or destroy or
report the same to the designated authority, as may be
prescribed, with an intention to share or transmit child
pornography, shall be liable to fine not less than five thousand
rupees and in the event of second or subsequent offence, with
fine which shall not be less than ten thousand rupees.
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(2) Any person, who stores or possesses pornographic material
in any form involving a child for transmitting or propagating or
displaying or distributing in any manner at any time except for
the purpose of reporting, as may be prescribed, or for use as
evidence in court, shall be punished with imprisonment of either
description which may extend to three years, or with fine, or with
both.
(3) Any person, who stores or possesses pornographic material
in any form involving a child for commercial purpose shall be
punished on the first conviction with imprisonment of either
description which shall not be less than three years which may
extend to five years, or with fine, or with both and in the event of
second or subsequent conviction, with imprisonment of either
description which shall not be less than five years which may
extend to seven years and shall also be liable to fine.”
(Emphasis supplied)
76. A bare perusal of the aforesaid provision makes it abundantly clear that
Section 15 of the POCSO is in three parts. The legislature by virtue of the
2019 Amendment Act has now made three different forms of storage or
possession of child pornography a punishable offence under the said
provision, unlike the erstwhile provision, which had criminalized only one
form of storage of child pornography.
77. Section 15 sub-section (1) of the POCSO now provides that any person who
either stores or possesses any pornographic material involving a child and
fails to either delete, destroy or report the same with the intention to share or
transmit such material, shall be liable to fine of not less than rupees five
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thousand for the first offence, and a fine of not less than rupees ten thousand
for any subsequent offence.
78. On the other hand, Section 15 sub-section (2) of the POCSO provides that
any person who either stores or possesses any pornographic material
involving a child for transmitting, displaying, propagating, or distributing
the same in any manner except for either reporting it or for using it as
evidence shall be punishable with either imprisonment extending upto three-
years or with fine or both.
79. Whereas, Section 15 sub-section (3) of the POCSO stipulates that any person
who either stores or possesses any pornographic material involving a child
for commercial purpose shall be punishable with imprisonment of not less
than three-years, which may extend upto five-years, or with fine, or both for
the first offence, and for any subsequent offence, he shall be punishable with
imprisonment not less than five-years, that may extend upto seven-years and
along with fine.
I. Concept of an Inchoate Crime – The ‘Actus Reus’ and ‘Mens Rea’
required under Section 15.
80. Before proceeding further to discuss the scope of Section 15 of the POCSO
and the ingredients necessary to constitute an offence thereunder, it would
be apposite to first understand the true purpose and the nature of the said
penal provision.
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81. A plain reading of Section 15 of the POCSO and the marginal note appended
thereto would reveal that the common theme permeating across sub-
section(s) (1), (2) and (3) respectively is that there is no requirement
whatsoever for an actual transmission of any child pornographic material in
order to fall within the ambit of the said provision. What is sought to be
penalized 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’.
82. Inchoate crimes are defined as criminal acts that are committed in
preparation for a further offence. The term “inchoate” itself means
“undeveloped” or “incomplete.”
83. 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.
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. It
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underscores the principle that the law does not merely respond to offences
already committed but also intervenes when a crime is in the process of being
committed, thus thereby protecting public order and safety. Inchoate crimes
represent a critical aspect of criminal law, embodying the legal system’s
proactive and deterrent approach to crime itself.
84. The primary rationale for the existence of inchoate crimes within the legal
framework is the prevention of harm by intervening at an early stage i.e
before the potential damage is caused. It recognizes that though certain
actions do not result in an offence, nonetheless those actions pose a sufficient
threat to society to warrant legal intervention. The jurisprudence surrounding
inchoate crimes has evolved as a balance struck between i) the need for early
intervention on the one hand with ii) the cardinal principle of criminal law
that no one should be punished merely for their thoughts or intentions on the
other, by criminalizing only those actions of an individual that demonstrate
a clear movement towards the commission of a criminal offense. It is deeply
rooted in the preventive or deterrent nature or approach of a particular law
by criminalizing those conduct, actions or intentions that pose a significant
risk of harm. An inchoate offence requires towing a delicate balance between
the need for prevention of potential threat to the society and the risk of
undoing the sacrosanct fundamental principle of ‘actus non facit reum nisi
mens sit rea’ in order to ensure that the law remains a powerful tool in the
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maintenance of public order. This inherent tension between respecting the
autonomy of an individual’s thought and state of mind with the societal
interest and safety is often balanced and resolved by carefully shaping and
defining the point at which any particular action or preparatory step becomes
sufficiently proximate to the commission of an offence. In other words, the
law would only intervene at the point where an individual has acquired the
means to commit a further offence, and will not punish the mere thought of
committing an offence in the absence of any overt steps towards the same.
Thus, the critical or central component of any inchoate crime is the
preliminary or preparatory actus reus that sufficiently reflects the essence or
existence of a criminal intent.
85. Offence pertaining to the possession of any contraband is a prime example
and one of the facets of an inchoate crime, as they involve the possession of
items that are prohibited by law due to their inherent dangerousness or their
use in the commission of further criminal offences. The criminalization of
possession as an inchoate crime is predicated on the idea that possession is
not an innocuous act but a preparatory step towards more significant criminal
conduct. This is because, first, it allows intervention at an early stage, before
the contraband can be used to cause harm. Secondly, it acts as a deterrent by
penalizing individuals who engage in activities that are likely to lead to more
serious offenses. Thirdly, it reflects the societal interest in preventing the
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accumulation and availability of dangerous items that have no legitimate
purpose except for the further perpetuation of a more severe offence and
harm to society at large.
86. The POCSO as outlined in its Statement of Object and Reasons was
specifically designed to provide commensurate penalties to serve as a
deterrent against the sexual abuse and exploitation of children. Additionally,
the Statement of Objects and Reasons accompanying the 2019 Amendment
Act which inter-alia amended Section 15 of the Act to provide for three
distinct offences punishable under it, explicitly emphasizes that the said
amendments had been introduced in order to implement stringent measures
aimed at addressing and deterring the alarming increase in child sexual
abuse. The plain reading of sub-section(s) (1), (2) and (3) respectively of
Section 15 of the POCSO along with the marginal note appended to it which
reads “Punishment for storage of pornographic material involving child”
indicates, that the said provision punishes only the storage of pornographic
material involving a child when done with a specific intent prescribed
thereunder and that there is no requirement for any actual transmission. It is
trite to say that, in the absence of any inherent conflict or contradiction
between the marginal note and the substantive parts of a particular provision,
the marginal note may be used to aid in the interpretation of the provision.
Thus, the aforesaid leaves no manner of doubt in the mind of this Court, that
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the provision of Section 15 of the POCSO 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 stored with a specific intent
prescribed thereunder, without requiring any actual transmission,
dissemination etc.
87. Under Section 15 sub-section (1), where a person either stores or possesses
any child pornography and does not delete or report the same, in order to
share or transmit the same, he will be liable under the said provision. The
use of the words “with an intention to share or transmit child pornography”
in the said provision makes it clear that no actual sharing or transmission is
required to occur, rather what is required is only the intention to share or
transmit because of which the said material was neither deleted, destroyed,
or reported. In other words, the actus reus that is penalized under Section 15
sub-section (1) is the failure to delete, destroy or report any child
pornography that was stored or in possession of any person with an intention
to share or transmit the same. Had the intent of the legislature been
otherwise, it would have clearly used the words “transmits” or “shares”
instead.
88. Similarly, Section 15 sub-section (2) penalizes the storage or possession of
any child pornographic material when done for the purpose of either
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transmitting, propagating, displaying or distributing the same in any manner.
The use of the words “for transmitting or propagating or displaying or
distributing in any manner at any time” clearly suggests that again no actual
act of transmission, propagation, display or distribution is required to take
place. Had the intent of the legislature been otherwise, it would have
explicitly stated “any person, who stores or possesses pornographic
material in any form involving a child and transmits or propagates or
displays or distributes in any manner at any time”. The use of the words “for
transmitting or propagating or displaying or distributing in any manner” in
Section 15 sub-section (2) makes it crystal clear that the said provision deals
with two kinds of actus reus being (I) first, the storage or possession of a
pornographic material involving a child when done with an intention to
either transmit it or to propagate it or to display or distribute it though no
actual transmission, propagation, display or distribution might have occurred
OR (II) secondly, the storage or possession of a pornographic material
involving a child which was actually transmitted, propagated, displayed or
distributed in any form or manner. In other words, the actus reus that is
required under Section 15 sub-section (2) is that a pornographic material
involving a child must be found to have been stored or in possession with an
intention to either transmit it or to propagate it or to display or distribute it
or the same must have been transmitted, propagated, displayed or distributed
in any form or manner.
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89. The underlying difference in the actus reus under Section 15 sub-section(s)
(1) and (2) is that in the former the storage or possession of any such material
is due to the omission to delete, destroy or report the same whereas in the
latter, the storage or possession of any such material is in order to facilitate
the transmission, propagation, display or distribution of the same. To further
put the distinction into perspective, the actus reus under sub-section (1) must
be such that indicates that the child pornographic material found in storage
or possession was only due to an omission to delete or destroy. Whereas
under sub-section (2) it must be shown that such material had been stored or
in possession for a reason more than just mere omission i.e., for the reason
of transmitting, propagating, displaying or distributing the same. The use of
the words “any manner” in sub-section (2) makes it clear that apart from the
storage or possession of such pornographic material, there must be
something more to show 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. Thus, Section 15 sub-section (2) of the POCSO
would cover both the actual transmission, propagation, display or
distribution of any child pornography as-well as the facilitation of any of the
abovementioned acts.
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90. On the other hand, the mens rea which is required to constitute an offence
under Section 15(1) is the intent to share or transmit a pornographic material
involving a child, and the said intention is to be gathered or gauged from the
actus reus itself i.e., by culling out the manner in which there was an
omission to delete, destroy or report such a material or the reason behind the
same. This is evinced from the construction of the expression “but fails to
delete or destroy or report the same to the designated authority, as may be
prescribed, with an intention to share or transmit child pornography” which
makes it clear that the scope of discerning the intent to share or transmit has
been both limited AND tied to only the omission to delete, destroy or report
i.e., the actus reus. The expression “with an intention to share or transmit”
cannot be singled out and construed devoid of its context. Thus, it is the
manner in which along with the attending circumstances attributable to the
failure to delete, destroy or report that must sufficiently be indicative of the
intent to share or transmit any material.
91. In Section 15 sub-section (1) of the POCSO the legislature by qualifying and
linking the expression “intent to share or transmit” to the omission to delete,
destroy or report, has in its wisdom made the intention or mens rea under the
said provision a matter of inference, to be ascertained from the actus reus
itself. The degree of probability for inferring such intention would largely
depend upon the manner in which the actus reus i.e., how the omission took
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place. It is for the courts to ascertain whether the manner in which the
material was found in storage or possession, the attending circumstances to
the omission and the conduct of the person accused sufficiently refutes or
displaces the inference of an intention to share or transmit or not.
92. The underlying reason behind tying the inference of intention to the omission
alone is because the legislature was alive to the practical difficulty that exists
in establishing an intention to share or transmit any child pornographic
material from just the mere possession of such material. In offences
pertaining to or involving the possession of any contraband, it is too uphill a
task for the courts to peer through and look into the mind of the person
accused and then cull out the intention of that person behind possessing or
storing such material. Thus, in such cases instead of directly establishing the
intention from the mental state of the person accused, it is established
indirectly by inferring it from the manner in which the contraband was found
to have been stored or in possession. Here again due to the infeasibility or
difficulty in cogently establishing an inference of intention often due to the
lack of any material and the very private and clandestine nature of the
offence, the courts instead try to look for some material or circumstances
that might displace the inference of such an intention, and wherever there is
nothing to show the same, the courts may without hesitation proceed to infer
the existence of such an intention.
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93. Whereas, under Section 15 sub-section (2) the mens rea is to be gathered
from the manner in which the pornographic material was found to be stored
or in possession and any other material apart from such possession or storage
that would be indicative of any facilitation or actual transmission,
propagation, display or distribution of such material. Thus, wherever in
addition to the storage or possession of any child pornographic material,
there exists any material or attending circumstances that would either show
or indicate the facilitation or actual commission of any of the acts
enumerated in Section 15 sub-section (2) of the POCSO, the said provision
would get attracted in place of Section 15 sub-section (1). We say so
because, the presence of such additional material may demonstrate that the
intention of the person accused has gone beyond the contours of Section 15
sub-section (1). It evinces a more significant manifestation of the intention
of the person accused, which moved from what is required in sub-section (1)
to a much higher degree of intention that is required under sub-section (2).
In other words, the existence of such additional material strengthens the
inference of that intention which is required and made punishable under
Section 15 sub-section (2).
94. Section 15 sub-section (3) penalizes the storage or possession of any child
pornographic material when done for any commercial purpose. The term
‘commercial purpose’ refers to and encompasses any activity or transaction
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that is carried out or undertaken as a means of any commercial enterprise
i.e., with the object or intention of any gain, irrespective of whether it was in
monetary terms or not. Thus, to constitute an offence under this provision,
the requirement is that the storage or possession of any child pornography
must be in lieu of any monetary gain or for receiving any other valuable
consideration. Again, the words “any commercial purpose” indicate that the
storage or possession must be with an intention to generate or acquire any
monetary gain or any other form of valuable consideration, irrespective and
regardless of whether such monetary gain or valuable consideration is
actually generated or acquired. Thus, it is immaterial whether any monetary
gain or any other benefit was actually realized or not. 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 of any form of gain or
benefit. As soon as there is any material to indicate that the storage or
possession of any child pornographic material was done in lieu or in
expectation of some form of gain or benefit, it would constitute an offence
under Section 15 sub-section (3) of the POCSO notwithstanding whether
such gain was actually realized.
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95. Thus, while Section 15 sub-section (1) requires the existence of the requisite
mens rea or intention due to which the child pornographic material was not
deleted, destroyed or reported, Section 15 sub-section (2) requires the
existence of the requisite mens rea or intention which propelled or led the
person accused to not only store or possess the said material but also to take
some additional steps towards either the actual transmission, propagation,
display or distribution or the facilitation of the same. In contrast, Section 15
sub-section (3) requires the existence of the requisite mens rea or intention
due to which the person accused not only stored or possessed the child
pornographic material but also compelled him to take some additional steps
either for any gain or benefit or in lieu or expectation of some form of gain
or benefit.
96. For the sake of clarity, it would be apposite to give few illustrations as a
guiding example to further demonstrate the fine but pertinent distinction that
exists between sub-section (1), (2) and (3) of Section 15 of the POCSO.
97. For illustration; say certain child pornographic material was found stored in
the personal mobile phone of ‘A’ and the same was neither deleted,
destroyed nor reported. Here though there is possession or storage of child
pornographic material but since there is nothing to show any facilitation of
transmission, propagation, display or distribution of the said material, this
would attract the provision of Section 15(1). At the same time, since the
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material in question was found in the personal mobile of ‘A’ the same is
indicative that the omission to either delete, destroy or report in all likelihood
was due to the intent to share or transmit. Here the manner in which the
omission has occurred is sufficiently indicative of the intent to share or
transmit, as there is nothing apart to show that the omission was attributable
to any other reason but the intent to share or transmit, and thus it would
constitute an offence under Section 15(1) of the POCSO.
98. Conversely, say for example certain child pornographic material was found
stored in a broken mobile phone of ‘A’ and the said material had never been
deleted, destroyed or reported. Now again, there is nothing to show that there
was either any actual transmission, propagation, display or distribution nor
anything to show that something apart from and in addition to the storage or
possession had been done by ‘A’ for facilitation of the transmission,
propagation, display or distribution of such material. This would again
attract the provision of Section 15(1) instead of 15(2) of the POCSO.
However, since the material was found in a broken phone, it is likely that the
failure to delete, destroy or report the same was attributable to the inability
of ‘A’ to operate the broken mobile rather than the intent to share or transmit,
thus, no offence would be made out under Section 15(1) of the POCSO. This
is because, the manner in which the omission has occurred is not sufficiently
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indicative of the intent to share or transmit. Thus, no offence could be said
to have been constituted under Section 15 sub-section (1) of the POCSO.
99. Take for instance, certain child pornographic material was found stored in
the mobile phone of ‘A’ but this time, the said material had found its way in
the device due to an automatic download of media of which ‘A’ had no
knowledge whatsoever. Here although there is possession or storage of such
material, yet the omission to delete, destroy or report is clearly shown and
established by ‘A’ that it was due to lack of knowledge about the existence
of such material on his parts. Here the manner in which the omission has
occurred is not sufficiently indicative of the intent to share or transmit, thus
no offence could be said to have been made out under Section 15(1) of the
POCSO.
100. Take a case where certain child pornographic material was found stored in
the mobile phone of ‘A’ but this time in addition to the aforesaid material
few chats were also recovered wherein ‘A’ told his friend ‘B’ that he had
some child pornographic material which he could share with him. Here,
since there is additional material to show that ‘A’ had taken some overt steps
in order to propagate the said material, he would be liable under Section
15(2) of the POCSO.
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101. For another illustration, say for example, again certain child pornographic
material was found stored in the mobile phone of ‘A’ but this time ‘A’
creates a chat group consisting of several of his friends, and sends a message
therein stating that he has some child pornographic material which he would
forward on the group. Here, since there is additional material to show that
‘A’ had taken some overt steps in order to distribute the said material, he
would be liable under Section 15(2) of the POCSO.
102. Conversely, say ‘A’ who has certain child pornographic material in his
phone, again creates a group consisting of several of his friends, but this time
he sends a message stating that he has some child pornographic material
which he would send in exchange of some amount of money. Here, since
there is additional material to show that ‘A’ had taken some overt steps in
respect of the said material for some monetary gain, he would now be liable
under Section 15(3) of the POCSO instead.
103. We may at the cost of repetition clarify that there may be situations where
the possession or storage of the pornographic material is found to be in a
such a manner that the same by itself would be indicative of an intention to
either transmit, display, propagate or distribute such material or that it was
done in lieu or expectation of any gain. In such cases the storage or
possession of child pornographic material itself would sufficiently be
indicative of the requisite intention either under Section 15 sub-section(s)
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(2) or (3) as the case may be, and there would be no requirement to adduce
any additional material as long as the manner of storage or possession of
such material or the attending circumstances itself is sufficiently indicative
of such intention.
104. For illustration; say certain child pornographic material was found stored in
five to six television devices in a hotel run by ‘A’. Here, because the
pornographic material has been found to be stored in multiple devices that
too at a place which has easy access for the public, the same would be
indicative that the ‘A’ was using the hotel and the television devices therein
as a means for facilitating display of such pornographic material, and thus,
would be punishable under Section 15 sub-section (2) of the POCSO.
105. For another illustration say again certain child pornographic material were
found stored in five to six television devices in a hotel run by ‘A’, but this
time some price was mentioned onto the pornographic material itself. Here,
because some amount of money was found to be mentioned on the material
itself and the said material was stored in a place with easy public access, the
same would be indicative that the ‘A’ was using the hotel and the television
devices therein as a means for facilitating display of such pornographic
material in lieu of monetary gain, thus, would be punishable under Section
15 sub-section (3) of the POCSO.
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106. The aforesaid illustrations have been provided only as a guiding example to
highlight the distinction between sub-section(s) (1), (2) and (3) of Section
15 of the POCSO. These illustrations should not be mechanically applied or
construed by any court in any proceeding while dealing with any matter
involving Section 15 of the POCSO devoid of the context in which these
illustrations have been given and without applying its mind as to whether the
necessary ingredients have been established or not in the individual facts and
circumstances of the matter. Any matter involving Section 15 sub-section
(1), (2) or (3) of the POCSO, must be dealt with independent of the
illustrations narrated above and stricto-sensu in accordance with only the
ratio of this decision.
107. Lastly, we must also caution the police and the courts to be mindful of the
fact that wherever in a given case a particular sub-section of Section 15 is
found to be applicable, the other two remaining sub-sections of the said
provision will cease to be applicable. Section 15 sub-section(s) (1), (2) and
(3) respectively of the POCSO are independent and distinct offences. The
three offences cannot coexist simultaneously in the same set of facts. They
are distinct from each other and are not intertwined that they cannot survive
without each other. This is because, the underlying distinction between
Section 15 sub-section(s) (1), (2) and (3) respectively lies in the different
degree of culpable mens rea that is required under each of the three
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provisions. The inception of the requisite culpable mens rea begins and takes
shape from the intention specified under sub-section (1), then gradually
continues to transform into the intention stipulated under sub-section (2) and
finally culminates into the intention prescribed under sub-section (3). Under
Section 15 sub-section (1) of the POCSO, the requisite intention therein is
still in fieri i.e., in process of developing and culminating into either the
intention under sub-section(s) (2) or (3). Whenever, the said intention
ultimately crystalizes into the intention either under sub-section(s) (2) or (3),
the other provisions would automatically become inapplicable.
108. Yet one another important aspect, that the police and the courts should be
mindful of is that while examining any matter involving the storage or
possession of any child pornography, it finds that particular sub-section of
Section 15 is not attracted, it must not jump to the conclusion that no offence
at all is made out under Section 15 of the POCSO. The police at the time of
investigation and the courts at the time of taking cognizance, should keep
this aforesaid aspect in mind. In other words, both should try to ascertain that
if offence is not made out in one particular sub-section, whether the same is
made out in the other two sub-sections or not.
II. Concept of ‘Possession’, ‘Constructive Possession’ and ‘Immediate
Control’ under Section 15 of the POCSO.
109. During the course of hearing, our attention was also drawn to a recent news
article that reported how on social media, links to view child pornography
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were being circulated and sold for anywhere between Rs. 40 to Rs. 5,000.
The news report indicates, how social media platforms are rife with child
sexual abuse, and gave certain insight about the modus operandi of the
distribution of such material on these platforms. It explained how the
sellers and distributors of child pornographic material rather than sharing
any downloads to such material, would ingeniously only share links to such
material instead in lieu of money, so as to circumvent the penal provisions
of the POCSO and IT Act, which criminalized only the storage of such
material. By indefinitely forwarding links, they completely bypass the
requirement of first storing such material onto any device, and similarly
those who view such material also only use the links, without ever
downloading such material onto their device.
110. As earlier mentioned, prior to the 2019 Amendment Act, Section 15 of the
POCSO only criminalized the storage of any child pornographic material for
any commercial purpose. Thereafter, the legislature in view of the
increasing number of child sexual abuse cases, amended Section 15 of the
POCSO, to recognize and criminalize three distinct forms or manner of
storage of child pornographic material, as has been discussed in the
preceding parts of this judgment.
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111. One another subtle but significant change that was made to all three sub-
sections of Section 15 was the inclusion of the word “possession” in addition
to storage, which was earlier not there in the erstwhile provision of Section
15 of the POCSO.
112. Thus, while the word “possession” was originally absent in the unamended
Section 15 of the POCSO, the legislature in its wisdom, specifically added
the said word in the amended Section 15, whereby now both the storage or
the possession of any child pornographic material would be liable to be
punished when done with any of the specified intention thereunder.
113. We believe that the change referred to above was not made inadvertently or
lightly, but rather was done specifically with the intention of making the
provisions of Section 15 of the POCSO more stringent to effectively deter
the dissemination and use of child pornography.
114. An important aspect of the jurisprudence on possession as an inchoate crime
is the doctrine of constructive possession. Constructive possession extends
the concept of possession beyond physical control to situations where an
individual has the power and intention to control the contraband, even if it is
not in their immediate physical possession. This doctrine is particularly
relevant in cases where contraband is found in a location that is not directly
Criminal Appeal Nos. 2161-2162 of 2024 Page 80 of 199
under the physical control of the accused, but where the accused has access
to and control over the area where the contraband is found.
115. In U.S. v. Tucker reported in 150 F. Supp. 2d 1263 (D. Utah. 2001), the
U.S. District Court, Utah, explained and elaborated on the doctrine of
constructive possession. In the said case, the defendant therein used to
routinely view child pornography, but he never used to keep it stored in his
computer, and would often delete any such material and its traces from its
computer after he was finished viewing them. When charged with the
offence of possession of child pornographic material, he challenged the
same, contending that since no material had been stored in his disk, he cannot
be said to be in possession of any child pornography. The court held that
wherever a person exercises some form or manner of immediate control over
any particular material, both tangible or intangible, such material would be
said to be in his constructive possession. It observed that the control of a
person over such material can be ascertained by seeing whether he could
manipulate, alter, modify or destroy such material or not, if the answer to
any of the above is in an affirmative, such material would be deemed to be
in his conscious or constructive possession.
116. Similarly in U.S. v. Romm reported in 455 F. 3d. 990 (9th Cir., 2006), the
defendant therein admitted to viewing images of child pornography on the
Internet. He would save them to disk, view them for about 5 minutes, then
Criminal Appeal Nos. 2161-2162 of 2024 Page 81 of 199
delete them. The Court held that a person can be said to possess child
pornography even without downloading or storing it, if he or she seeks it out
and exercises dominion or control over it. It observed that this dominion or
control may be evident by factors such as when viewing the images on the
screen, did the person have the ability to print them, save them, forward them
or delete them. If he did, then he can be said to have knowingly exercised
custody or control over those images and thus, consequently in possession
of the same.
117. Thus, for establishing constructive possession both the power to control the
material in question and the knowledge of exercise of such control are
required. 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.
118. 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
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invariable degree of control over such material, applying the aforesaid
doctrine of constructive possession.
119. Say for instance, ‘A’ routinely watches child pornography over the internet,
but never downloads or stores the same in his mobile. Here ‘A’ would still
be said to be in possession of such material, as while watching he exercises
a considerable degree of control over such material including but not limited
to sharing, deleting, enlarging such material, changing the volume etc.
Furthermore, since he himself on his own volition is viewing such material,
he is said to have knowledge of having control over such material.
120. Conversely, say ‘A’ is sent an unknown link by ‘B’, which upon clicking
opened a child pornographic video on the phone of ‘A’. Here although ‘A’
at the time of opening the link had control over the said link, yet he cannot
be said to have a knowledge of that control over such material as he at that
relevant point of time was unaware as to what would open from the said link;
thus ‘A’ cannot be said to be in possession. We say so, because, ‘A’ had no
information as to what the link pertained to, in order to have knowledge of
control over such material, a person requires reasonable information such as
what is involved in the material in question, what is the purpose of such
material, etc. Without such information no person can decide whether he
wants to view it, or delete it or further forward it i.e., he cannot effectively
exercise the control that he has, without a certain degree of knowledge.
Criminal Appeal Nos. 2161-2162 of 2024 Page 83 of 199
121. However, in the aforementioned illustration, if ‘A’ rather than closing the
link in a reasonable time, continues to view such material he would be
deemed to be in possession of such material. This is because, after a
reasonable window of time, he would be said to have sufficient information
about such material to have knowledge for the effective exercise of his
control over such material.
122. 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.
123. For instance, say, ‘A’ is sent an unknown link by ‘B’, which upon clicking
opened a child pornographic video on the phone of ‘A’. Now if ‘A’
immediately closes the link, although once the link is closed ‘A’ is no longer
in constructive possession of the child pornography, this by itself does not
mean that ‘A’ has destroyed or deleted the said material by merely closing
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the link. ‘A’ will only be absolved of any liability if he after closing the link
further reports the same to the specified authorities. Thus, when it comes to
constructive possession of an accused, it is the failure or omission to report
that constitutes the requisite actus-reus for the purposes of Section 15 sub-
section (1) of POCSO.
124. At this juncture we may also address ourselves on another pertinent aspect
for constituting an offence under Section 15 of the POCSO. The term
‘storage’ and ‘possession’ that has been used in the said provision does not
require that such ‘storage’ or ‘possession’ must continue to be there at the
time of registration of an FIR or any criminal proceeding. The provision of
Section 15 is not fixated any particularly time-frame. What is simpliciter
required to constitute an offence under Section 15 of the POCSO is the
establishment of ‘storage’ or ‘possession’ of any child pornographic material
with the specified intention under sub-section(s) (1), (2) or (3), at any
relevant point of time. Even, if the said ‘storage’ or ‘possession’ no longer
exists at the time of registration of the FIR, nonetheless an offence can be
made out under Section 15 if it is established that the person accused had
‘stored’ or ‘possessed’ of any child pornographic material with the specified
intention at any particular point of time even if it is anterior in time. We say
so because, any other view aside from the above, in our opinion would lead
to a chilling effect with drastic consequences, whereby the provisions of the
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POCSO may be defeated by a devious person. If for instance, a person
immediately after storing and watching child pornography in his mobile
phone deletes the same before an FIR could be registered, could it be said
that the said person is not liable under Section 15, because at the time of
registration of the FIR, such material no longer existed on the device of the
person accused? The answer to the aforesaid, must be an emphatic “no”.
Thus, we clarify that there is no requirement under Section 15 of the POCSO
that ‘storage’ or ‘possession’ must continue to exist at the time of initiation
of the criminal proceeding, and no such requirement can be read into the said
provision. An offence can be made out under Section 15 if it is established
that the person accused had ‘stored’ or ‘possessed’ of any child pornographic
material with the specified intention at any particular point of time even if it
was before such initiation or registration of criminal proceedings.
c. Pornographic Material must prima facie appear to involve a Child.
125. At this stage, we may explain one another crucial aspect concerning
Section 15 of the POCSO, more particularly the criteria for determining
whether the material in question involves or depicts a ‘child’, or in other
words whether such material can be considered a ‘child pornography’ or not.
The determination of whether the individual involved is a ‘child’ or not, in
terms of the POCSO is a crucial foundational element for constituting
various offences under the Act.
Criminal Appeal Nos. 2161-2162 of 2024 Page 86 of 199
126. Section 2(1)(d) of the POCSO stipulates that the term ‘child’ means and
refers to any person who is below the age of eighteen years. Thus, under the
POCSO more particularly Section 2(1)(d) an objective criterion has been
prescribed by the legislature for determining whether a person is a ‘child’ or
not for the purposes of any offence under the Act. The said criteria is based
on the age of the individual in question, and involves ascertaining and
establishing whether he or she is under eighteen years of age, if so, such
person would be considered a ‘child’ for the purposes of any offence in
respect of such child that is punishable under the POCSO.
127. Earlier under the POCSO, there was no specific definition of ‘child
pornography’. Thus, under the erstwhile Section 15 of the POCSO, there was
only one criteria for ascertaining whether the material in question can be
regarded as ‘child pornography’ or not, which was by establishing that the
material depicts or involves a person who is under the age of eighteen years.
128. It was only with the enactment of the aforesaid 2019 Amendment Act,
whereby the term “child pornography” was specifically defined under the
POCSO by way of insertion of Section 2(1)(da) in the Act. At the cost of
repetition, Section 2(1)(da) of the POCSO is reproduced below: –
“2. Definitions. –
(1) In this Act, unless the context otherwise requires, –Criminal Appeal Nos. 2161-2162 of 2024 Page 87 of 199
(da) “child pornography” means any visual depiction of sexually
explicit conduct involving a child which include photograph, video,
digital or computer generated image indistinguishable from an actual
child and image created, adapted, or modified, but appear to depict
a child;”
129. A plain reading of the above would indicate that the term “child
pornography” means any visual depiction of a child involved in any sexually
explicit conduct. It further explains that the expression ‘visual depiction’
means and includes the following: –
i. A photograph or video, which may be either in actual or any
electronic form.
ii. An image generated digitally or by a computer which is
indistinguishable from an actual child i.e., any self-generated image
which appears to depict a lifelike child indistinguishable from an
actual child, and will not include any artistic or cartoon based
depiction.
iii. Any other image (including any video-based imagery) that has been
created, adapted or modified.
The above list of material mentioned is inclusive in nature i.e., the
different types, form and manner of visual depiction that has been
enumerated therein is not exhaustive in any manner. In the last, the said
provision, more particularly the words “but appear to depict a child” lays
down the test or criteria for ascertaining, whether any of the above
mentioned visual depiction is a ‘child pornography’ or not, by prescribing
a prima facie subjective satisfaction that the material appears to depict a
child.
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130. The use of the comma before the words “but appear to depict a child” is
significant. The legislature has used the aforesaid comma both as a
disjunctive and a conjunctive to the words preceding it. It has been used as
a disjunctive to stress, that the subjective criteria that the material in question
appears to depict a child is not inextricably linked or limited to just one
category of visual depictions i.e., the last category being “image created,
adapted, or modified”. At the same time, it has been used as a conjunctive
in relation to all types of visual depictions that have been illustrated in the
said provision, to clearly indicate, that this subjective criterion applies to the
entire provision i.e., to all types of visual depictions mentioned therein or in
other words to ‘child pornography’.
131. Thus, 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’
for the purposes of the POCSO. Therefore, for any offence under the POCSO
that relates to child pornographic material, such as Section 15, the courts
would only be required to form a prima facie subjective satisfaction that the
material appears to depict a child from the perspective of any ordinary
prudent person. Such satisfaction may be arrived at from any authoritative
and definitive opinion such as through a forensic science laboratory (FSL)
report of such material or from any expert opinion on the material in
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question, or by the assessment of such material by the courts themselves,
depending on the peculiar facts and circumstances of each case.
132. This aforesaid test or criteria of ‘subjective satisfaction’ is not a superfluous
or imaginary creation of the legislature, but a well-founded test, that exists
in various other countries. In this regard, reference may be made to the
decision of the Court of Appeal of England & Wales in Regina v. Michael
Land reported in [1997] EWCA Crim J1010-15 wherein the court was
dealing with an offence of possession of indecent photographs of children
for the purpose of distribution under Section 1(1)(c) of the Protection of
Children Act 1978. There the question arose whether the individual in the
aforesaid photographs was under sixteen years of age or not. The court
observed that often there lies an inherent difficulty in making any positive
identification of the person in question, so as to establish their age
conclusively. It held that, thus in such situations, the question whether such
person is a child or not would have to be ascertained as a matter of inference
from the facts and the material in question, without any need for a formal
proof of the same. The court further rejected the contention that in the
absence of any paediatric or other expert evidence, no such inference can be
drawn. It observed that such fact-based questions of age can be assessed by
the judge or the jury as the case may be by use of their critical faculties and
Criminal Appeal Nos. 2161-2162 of 2024 Page 90 of 199
senses such as their eyes, supplemented with their own judgement and
experience.
133. In John Leadbetter v. Her Majesty’s Advocate reported in [2020] HCJAC
51, the High Court of Justiciary, Scottland held that no expert witness is
required for proof of age of any person depicted in an obscene material in
question. It further held that, such proof of age may be established by any
witness or a person who demonstrates a certain extent of skill or knowledge
in determination of the age on the basis of a wide range of evidence that may
be available.
134. In United States v. Katz reported in 178 F.3rd 368 (5th Cir. 1999), it was
held by the U.S. Court of Appeals, Fifth Circuit, Louisiana, that the threshold
question whether the age of any person in a child pornography may be
determined by a ‘lay’ jury without the assistance of expert testimony where
there is no conflict of opinion as to the age. However, it observed that where
the individual in question appears to have reached puberty, there expert
testimony or opinion as to proof of age would be necessary.
135. In Commonwealth v. Robert reported in (829 A.2d. 127), the Superior
Court of Pennsylvania observed that proof of age, like proof of any material
fact, can be accomplished by the use of either direct or circumstantial
evidence, or both. It held that the proof necessary to satisfy the element of
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age in a dissemination or possession of child pornography case is not limited
to expert opinion testimony.
136. What is discernible from the aforesaid is that, although, in the few decisions
referred to by us, there is a difference of opinion as to whether an expert’s
testimony or determination is necessary or not for the proof of age of an
individual depicted in any pornographic material, yet in all of the
aforementioned decisions it has been consistently held that the criteria for
such determination is only the subjective satisfaction.
137. The test or criteria of ‘subjective satisfaction’ is in view of the practical
difficulty that exists in conclusively establishing the age of an individual in
any pornographic material through any objective means or criteria. This is
owed to the fact that often, it is next to impossible to establish the identity of
the victim, then to trace the whereabouts of such person, and then objectively
determine their age. If such a criterion is adopted, then most of the cases
pertaining to the possession of any child pornographic material would fail at
the threshold, due to want of any means or information for conclusively
proving the age of the victim.
138. The aforesaid aspect may be looked at from one another angle. Any mandate
of an objective determination of the age by conclusive means, could possibly
result in absurd consequences. For instance, say a pornographic material
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involves an under-teen child who by virtue of his built on the face of it
appears to be a child, yet such material will not be considered child
pornographic material in the eyes of law, unless an objective determination
of the exact age of such child is carried out in a conclusive manner. In the
absence of any such determination, the prosecution of possession of such
material would have to fail, merely due to technicalities and the inflexible
character of the criteria or test for determining the age.
139. The aforesaid provision of Section 2(1)(da) of the POCSO holds significant
importance, as the legislature whilst giving teeth to the existing provision of
Section 15 of the Act, and making three distinct offences punishable under
it through the 2019 Amendment Act, also consciously defined the term ‘child
pornography’ under the POCSO through the very same amendment. It
indicates the legislature’s intention of construing both these provisions
together as a whole; neither Section 15 of the POCSO nor Section 2(1)(da)
can be interpreted or invoked in isolation from the other.
140. The legislature through Section 2(1)(da) of the POCSO, made a conscious
departure from the already existing objective criterion of determination of
age in terms of Section 2(1)(d) which is generally applicable to the POCSO,
as it was alive to aforementioned inherent difficulty that is posed by such
criteria. The legislature was well aware, that if the proof of age in offences
Criminal Appeal Nos. 2161-2162 of 2024 Page 93 of 199
pertaining to child pornography such as under Section 15 of the POCSO
would also have to be assessed by the existing objective test, it would lead
to a very chilling effect, whereby the entire Section 15 of the POCSO could
be rendered unworkable merely on account of a hyper-technical approach as
to determination of age, thereby defeating the very object of the POCSO.
141. The aforesaid aspect may also be looked at from one more angle. Section
2(1)(da) of the POCSO was inserted by the legislature with two-fold purpose
in mind. While one of the purpose of Section 2(1)(da) of the POCSO, was to
explicitly define and delineate what type of visual depictions would be
considered ‘child pornography’ to remove any ambiguity that existed earlier,
the real purpose behind insertion of the said provision was to mitigate the
tendency of the courts to refer and apply the objective criteria of age
determination prescribed under Section 2(1)(d) of the POCSO, even when
dealing with matters involving child pornography. Which is why the
legislature in addition to explaining the contour of visual depiction in Section
2(1)(da) of the POCSO, also specifically added the words “ but appear to
depict a child” in the end.
142. If the courts while dealing with any matter involving child pornography,
continue to refer and rely on Section 2(1)(d) of the POCSO, then the same
will frustrate the intention behind Section 2(1)(da) more particularly the
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words “but appear to depict a child” in the statute book, thereby render that
portion of the aforesaid provision otiose and nugatory.
143. The true purport of Section 2(1)(da) of the POCSO, is to ensure that for
offences pertaining to child pornography, it is Section 2(1)(da) that is given
due regard and not Section 2(1)(d). Thus, in any offence pertaining to child
pornography the definition of ‘child’ in Section 2(1)(d) would pale in
comparison to the definition of ‘child pornography’ under Section 2(1)(da)
of the POCSO. As such, the court while dealing with an offence under
Section 15 of the POCSO, must be mindful of the fact, that it is Section
2(1)(da) of the POCSO, which has to be referred to and relied upon and not
Section 2(1)(d). In other words, it is the definition of ‘child pornography’
which is of relevance while considering whether Section 15 of the POCSO
can be invoked or not.
d. Scope of Section 67B of the IT Act.
144. The IT Act was originally enacted with the object of providing a legal
framework for inter-alia recognizing electronic records & digital signatures,
facilitating electronic commerce, and providing a legal sanctity to
e-contracts. While the IT Act did include certain provisions to penalize
cybercrimes, they were rudimentary and did not comprehensively address
issues like creation and facilitation of sexual abuse of children, the online
Criminal Appeal Nos. 2161-2162 of 2024 Page 95 of 199
publication, transmission and distribution of child pornography or the sexual
inducement, enticement and exploitation of children over the internet.
145. The aforesaid was due to the fact that, the IT Act prior to the Information
Technology (Amendment) Act, 2008 (for short, the ‘2008 Amendment
Act’), criminalized only one act being the publication or transmission of
obscene material, under Section 67. The IT Act made no distinction between
the publication or transmission of an ‘obscene material’ from the publication
or transmission of an obscene material involving any sexually explicit act or
conduct i.e., pornographic material or for that matter child pornographic
material. More glaringly, there was no difference in either publication or
transmission of such material from the distribution, facilitation and
consumption of such material over the internet. The IT Act also did not
recognize other forms of sexual abuse and exploitation of children over the
internet as a punishable offence such as enticement of children into any
sexual act.
146. Over a period of time, as the age of internet evolved, the inadequacies of the
IT Act became apparent, primarily due to more and more children using the
internet and a corresponding increase in number of cyber-crimes being
committed against them. Thus, there was a need for a more robust legal
framework particularly for the protection of vulnerable population like
children over the internet.
Criminal Appeal Nos. 2161-2162 of 2024 Page 96 of 199
147. The 50th Report of the Standing Committee on Information Technology on
the ‘Information Technology (Amendment) Bill, 2007’ noted that although
a new provision in the form of Section 67A had been proposed for
specifically criminalizing publication or transmission of pornographic
material with enhanced punishment, yet there was no specific provision
pertaining to child pornography. The Standing Committee, rejected the
response of the Department of Information Technology that the provision of
Section 67A in general would also include child pornography, and instead
recommended that a specific provision for child pornography be
incorporated, in order to not just criminalize the publication and transmission
of child pornography with an enhanced punishment but also to tackle and
criminalize other related forms of child sexual abuse such as, online
enticement of children into sexual acts, distribution of child pornography and
the facilitation or creation of such material. The relevant recommendations
read as under: –
“6. The Information Technology Act, 2000 was enacted keeping in
view technology directions and scenario as it existed at that point of
time. As the technology has a habit of reinventing itself into cheaper
and more cost-effective options, it becomes imperative to give a fresh
look to any technology driven law from time to time. Moreover, due
to overall increase in e-commerce, growth in outsourcing business,
new forms of transactions, new means of identification, consumers
concern, promotion of e-governance and other information
technology applications, technology neutrality from its present
‘technology specific’ form in consonance with development all over
the world, security practices and procedures for protection of Critical
Information infrastructure, emergence of new forms of computer
misuse like child pornography, video voyeurism, identity theft and e-
commerce frauds like phishing and online theft, rationalization ofCriminal Appeal Nos. 2161-2162 of 2024 Page 97 of 199
punishment in respect of offences with reference to the Indian Penal
code, a need was felt to review the Indian Information Technology
Act, 2000”
xxx xxx xxx
(iii) Child Pornography
118. Clause 31 proposes to insert Section 67 A whereby punishment
has been provided for publishing or transmitting of material
containing sexually explicit act in electronic form.
119. In the above context, a non-official witness as well as the CBI
have been of the view that the proposed Section should be recast to
include ‘child pornography’ also and specific provisions should be
incorporated in this Section to criminalize child pornography in tune
with the laws prevailing in advanced democracies of the world as well
as Article 9 of the Council of Europe Convention on Cyber Crimes
which states as under: –
“Each Party shall adopt such legislative and other
measures as may be necessary to establish as criminal
offences under its domestic law, when committed
intentionally and without right, the following conduct:
(a) producing child pornography for the purpose of its
distribution through a computer system; (b) offering or
making available child pornography through a computer
system; (c) distributing or transmitting child
pornography through a computer system; (d) procuring
child pornography through a computer system for oneself
or for another person; (e) possessing child pornography
in a computer system or on a computer-data storage
medium.
2. For the purpose of paragraph 1 above, the term “child
pornography” shall include pornographic material that
visually depicts:
(a) a minor engaged in sexually explicit conduct;
(b) a person appearing to be a minor engaged in sexually
explicit conduct;
(c) realistic images representing a minor engaged in
sexually explicit conduct.
3. For the purpose of paragraph 2 above, the term
“minor” shall include all persons under 18 years of age.
A Party may, however, require a lower age-limit, which
shall be not less than 16 years.
4. Each Party may reserve the right not to apply, in whole
or in part, paragraphs 1, sub-paragraphs d. and e, and
2, sub-paragraphs b. and c
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120. When the Committee desired to hear the views of the Department
of Information Technology in incorporating an express provision on
defining child pornography as suggested by the Expert Committee, it
was replied that a new Section 67A related to punishment for
publishing or transmitting of material containing sexually explicit
acts has been proposed as per which stringent provision has been
made relating to pornography in general and would also
automatically cover child pornography.
121. On the issue of criminalising child pornography and making
penal provision towards that, the Department stated that, the advice/
assistance in the Commission of Crime (Pornography) through
offering advice on information regarding the websites for facilitating
any possession or downloading illegal content might be considered
an offence.
122. The Department of Information Technology also agreed to a
suggestion that the pre-offence grooming i.e. the initial actions taken
by the offender to prepare the child for sexual relationships through
online enticement and distributing or showing pornography to a child
should also be made a criminal offence.
RECOMMENDATIONS / OBSERVATIONS
xxx xxx xxx
Child Pornography
24. The Committee note that Clause 31 of the Bill intends to insert a
new Section 67A which provides for stringent punishment for
publishing or transmitting of material containing sexually explicit
acts in electronic form. But the Committee are concerned to find that
the term ‘child pornography’ has nowhere been mentioned in the
proposed Section. The Department’s argument that the Section while
covering ‘pornography’ will automatically cover child pornography
does not convince the Committee as there should be no scope for
assumption or presumption when fresh amendments are being
proposed. The Committee, therefore, impress upon the Department to
include the term ‘child pornography’ in the proposed Section 67A in
view of its growing menace. They also desire that specific provisions
should be incorporated in this Section to criminalise child
pornography in tune with the laws prevailing in the advanced
Countries and Article 9 of the Council of Europe Convention on
Cyber Crimes. In view of the several manifestations of sexual abuse
of the children and its loathsome ramifications, the Committee desire
that the act of grooming the child for sexual relationship through
online enticement or distributing/showing pornography or through
any other online means should also be made a criminal offence and
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a suitable provision be made in this regard in the proposed Section
67A.”
(Emphasis supplied)
148. From the aforesaid, it can be seen that the Standing Committee whilst
making its recommendation, underscored that no useful purpose would be
served if the publication or transmission of any child pornography is
punished all the same as any other pornographic material. It highlighted, that
while the IT Act had originally been enacted keeping in mind the
requirements that existed then, yet now with the march of the age of internet,
it has become imperative to undertake a fresh approach to the provisions of
the IT Act particularly those relating to cyber-crime in light of the new
emerging forms of misuse of the internet. It opined that, merely
criminalizing the publication or transmission of child pornography will not
be sufficient, and that other various forms of online sexual abuse and
exploitation also need to be recognized and adequately punished, on par with
the laws prevailing in various other countries.
149. It was in the aforesaid backdrop that the legislature by virtue of the
Information Technology (Amendment) Act, 2008 inter-alia amended
Section 67 of the IT Act and introduced Section 67A along with Section 67B.
This was for the first time, that a specific provision had been made, to
recognize and protect the vulnerable and tender age of children by
criminalizing various forms of online sexual degradation, abuse and
Criminal Appeal Nos. 2161-2162 of 2024 Page 100 of 199
exploitation with enhanced punishment. At the cost of repetition, Section
67B of the IT Act is being reproduced below: –
“67-B. Punishment for publishing or transmitting of material
depicting children in sexually explicit act, etc., in electronic
form. — Whoever —
(a) publishes or transmits or causes to be published or
transmitted material in any electronic form which depicts
children engaged in sexually explicit act or conduct; or
(b) creates text or digital images, collects, seeks, browses,
downloads, advertises, promotes, exchanges or distributes
material in any electronic form depicting children in obscene or
indecent or sexually explicit manner; or
(c) cultivates, entices or induces children to online relationship
with one or more children for and on sexually explicit act or in
a manner that may offend a reasonable adult on the computer
resources; or
(d) facilitates abusing children online; or
(e) records in any electronic form own abuse or that of others
pertaining to sexually explicit act with children,
shall be punished on first conviction with imprisonment of either
description for a term which may extend to five years and with a
fine which may extend to ten lakh rupees and in the event of
second or subsequent conviction with imprisonment of either
description for a term which may extend to seven years and also
with fine which may extend to ten lakh rupees:
Provided that provisions of Section 67, Section 67-A and this
section does not extend to any book, pamphlet, paper, writing,
drawing, painting, representation or figure in electronic form—
(i) the publication of which is proved to be justified as being for
the public good on the ground that such book, pamphlet, paper,
writing, drawing, painting, representation or figure is in the
interest of science, literature, art or learning or other objects of
general concern; orCriminal Appeal Nos. 2161-2162 of 2024 Page 101 of 199
(ii) which is kept or used for bona fide heritage or religious
purposes.
Explanation. — For the purpose of this section, “children”
means a person who has not completed the age of 18 years.”
150. A conjoint reading of Section(s) 67 and 67A viz-a-viz 67B would reveal that
unlike the former which penalizes only the publication or transmission of
any obscene material or pornographic material, the scope and ambit of
Section 67B is much wider inasmuch as it recognizes and penalizes five
different forms / categories of actus reus, being: –
(i) Section 67B sub-section (a): –
a. Section 67B sub-section (a) of the IT Act pertains to the dissemination
of child pornography and penalizes the publication or transmission of
any material involving a child in any sexually explicit act or conduct,
and the direct or indirect involvement in aiding or facilitating the
dissemination of such material.
b. In order, to constitute an offence under this provision, there must be
an actual publication or transmission of any child pornographic
material, though the said publication or transmission may be done
either by the accused himself or be caused through someone else at
the instance or behest of the accused. In other, words Section 67B sub-
section (a) punishes any person who is involved in a process, in any
Criminal Appeal Nos. 2161-2162 of 2024 Page 102 of 199
manner that leads to the publication or transmission of any child
pornographic material.
c. Thus, twin-conditions as prescribed under Section 67B(a) of the IT
Act, need to be satisfied in order to constitute an offence: – (I) the
actual publication or transmission of any child pornographic material
AND (II) the involvement of the accused in such publication or
transmission process in any manner.
(ii) Section 67B sub-section (b): –
a. It penalizes the creation of any text or image-based content in any
electronic form, that depict children in any obscene or indecent or
sexually explicit manner. It further penalizes the collection, solicitation,
browsing i.e., online viewing, or downloading of such material. Thus,
even the mere viewing of any child pornographic material that is stored
in a mobile phone would tantamount to ‘browsing’ of such material in
electronic form. Lastly, it also penalizes the advertising, promotion,
exchange or distribution of any such material. Here again, what is
punishable is only the actual commission of any of the above-mentioned
acts.
b. The scope of Section 67B sub-section (b), is more expansive than the
preceding sub-section because, (i) first, the term ‘material’ here
includes any electronic content depicting children in sexually explicit
Criminal Appeal Nos. 2161-2162 of 2024 Page 103 of 199
acts as well as in obscene or indecent contexts, and (ii) secondly, the
actus reus encompasses not just the act of disseminating but also the
acts of creating, propagating, or engaging with or using such material.
c. In other words, Section 67B sub-section (b) penalizes the actual
commission of any of the following: –
i. the act of producing or creating any text or digital image based
electronic material (incl. videos) that depict children in any
obscene, indecent or sexually explicit manner;
ii. the act of engaging or using such material by way of collecting,
browsing, accessing, downloading, saving, seeking, actively
searching such material from any computer resource, and;
iii. the act of facilitating or propagating the circulation or
dissemination of such material by advertising, promoting,
exchanging or sharing, distributing or offering for sale such
material from any computer resource on the internet.
(iii) Section 67B sub-section (c): –
a. Section 67B sub-section (c) of the IT Act penalizes the act of any person
to induce or entice a child to participate or indulge in any sexually
explicit act or any other act that would offend any adult of reasonable
mind, using any computer resource.
b. In order to constitute an offence under the said provision, what is
required is only the actual commission of an act of inducement or
enticement in any manner by the accused alone, and there is no
Criminal Appeal Nos. 2161-2162 of 2024 Page 104 of 199
requirement that such enticement or inducement must have resulted inthe child indulging in any sexually explicit or any other offensive act.
c. Thus, even where the accused merely attempts to entice a child to
indulge in any such act, through a computer resource, he would be liable
under this provision, irrespective of whether the child also indulges in
such act or not. Furthermore, such enticement or inducement may be
for having the child either indulge in any sexually or offensive act with
the accused himself or with any other person at the instance or
persuasion of the accused.
d. In other words, what is penalized under Section 67B sub-section (c) is
the act of enticing or inducing a child to indulge in any sexually explicit
offensive act or behaviour.
(iv) Section 67B sub-section (d): –
a. Section 67B sub-section (d) penalizes any form or manner of facilitation
of abuse of children, online i.e., it penalizes any form of degradation,
exploitation, or abuse of children on any online platform. The actus reus
punishable under the said provision is the doing, aiding or abetting of
any act, either directly or indirectly that would facilitate or enable the
abuse of children online in any indecent, lascivious or prurient manner.
b. It is pertinent to note, that under Section 67B sub-section (d) there is no
requirement that the act in question must have been done only with an
Criminal Appeal Nos. 2161-2162 of 2024 Page 105 of 199
intention to facilitate the abuse of children online. What is ratherrequired to constitute an offence under the said provision is that the act
must be such which likely would facilitate the abuse of children online.
c. In other words, what is penalized is any act that has the propensity or
likelihood to aid, enable or support the online abuse of children in any
obscene, indecent, or lewd fashion.
(v) Section 67B sub-section (e): –
a. Section 67B sub-section (e) of the IT Act penalizes the act of recording
through video or any other electronic means, the participation of any
sexually explicit act with or in the presence of any child. The actus reus
required is the use of any video or any other electronic means to record
any sexually explicit act being done either by the accused himself or by
anyone else in the presence of a child.
b. It must be borne in mind, that the sexually explicit act itself need not be
done in the actual presence of the child, rather what is required is that
the child was made privy to such sexually explicit act, and the same was
recorded by the accused in any electronic form. Say for instance, that in
the presence of a child, a pornographic video is played, and the same is
then recorded by the accused. Here since, the recording includes a child
being subjected to a sexually explicit act in the form a pornographic
Criminal Appeal Nos. 2161-2162 of 2024 Page 106 of 199
video, an offence would be constituted under the said provision, eventhough no such act was done in the actual presence of the child.
c. In other words, what is penalized under Section 67B sub-section (e) is
the act of exposing or subjecting a child to any sexually explicit act by
anyone, and recording the same in any electronic form.
151. From the aforesaid, it is clear that Section 67B of the IT Act is a
comprehensive provision designed to address and penalize the 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.
152. This Court in Sharat Babu Digumarti v. Govt. of NCT of Delhi reported in
(2017) 2 SCC 18 held that Chapter XI of the IT Act, more particularly
Section(s) 67 through 67B are a complete code in itself when it comes to
offences relating to electronic forms of obscene and pornographic material.
The relevant observations read as under: –
“31. Having noted the provisions, it has to be recapitulated that
Section 67 clearly stipulates punishment for publishing,
transmitting obscene materials in electronic form. The said
provision read with Sections 67-A and 67-B is a complete code
relating to the offences that are covered under the IT Act. […]”(Emphasis supplied)
Criminal Appeal Nos. 2161-2162 of 2024 Page 107 of 199
153. Thus, Section(s) 67, 67A and 67B of the IT Act being a complete code, ought
to be interpreted in a purposive manner that suppresses the mischief and
advances the remedy and ensures that the legislative intent of penalizing the
various forms of cyber-offences relating to children and the use of obscene /
pornographic material through electronic means is not defeated by a narrow
construction of these provisions.
iii. The Presumption of Culpable Mental State under Section 30 of the
POCSO.
154. As discussed earlier, the POCSO is a special legislation that was specifically
enacted to punish aggravated forms of offences related to sexual abuse and
exploitation of children as well as including the well-being of the children.
Its nuanced provisions have been deliberately designed to provide stringent
measures in order to secure the dignity protection and interest of children. It
was in this backdrop, that the legislature in its wisdom specifically provided
for certain statutory presumptions as regards commission of certain specified
offences as-well as presumption of the existence of a culpable mental state
on the part of the person accused so as to ensure that the legislation is
effective in addressing the increasing number of child sexual abuse cases.
155. The provisions pertaining to statutory presumptions under the POCSO are
contained in Section(s) 29 and 30 which provide for presumption as to
Criminal Appeal Nos. 2161-2162 of 2024 Page 108 of 199
certain offences and presumption of culpable mental state respectively. In
the case at hand we are concerned with Section 30 of the POCSO which at
the cost of repetition is being reproduced hereunder: –
“30. Presumption of culpable mental state. –
(1) In any prosecution for any offence under this Act which requires
a culpable mental state on the part of the accused, the Special Court
shall presume the existence of such mental state but it shall be a
defence for the accused to prove the fact that he had no such mental
state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only
when the Special Court believes it to exist beyond reasonable doubt
and not merely when its existence is established by a preponderance
of probability.
Explanation. – In this section, “culpable mental state” includes
intention, motive, knowledge of a fact and the belief in, or reason to
believe, a fact.”
156. Section 30, sub-section (1) provides that where any offence under the
POCSO requires a culpable mental state on the part of the accused, the
Special Court shall presume the existence of such mental state. It further
provides that the accused may as a defence prove that he had no such mental
state with respect to any act being sought to be punished under the Act. Thus,
Section 30(1), makes it clear that the presumption of culpable mental state
applies to any offence under the said Act that requires such mental state, and
the use of the word “shall” makes it mandatory for the Special Court to
presume the existence of such mental state. However, the said provision also
clarifies that, although the said presumption is mandatory yet it is rebuttable
Criminal Appeal Nos. 2161-2162 of 2024 Page 109 of 199
inasmuch as the person accused is permitted to prove any fact to establish
the contrary i.e., to show that no such mental state existed on his part. Section
30 sub-section (2) further explains the manner and the circumstances under
which the said presumption can be rebutted, insofar as it stipulates that in
order to prove any fact to show that no such mental state existed, the person
accused has to prove the same beyond a reasonable doubt and not on a mere
preponderance of probability. Thus, the standard prescribed for rebutting the
said statutory presumption of culpable mental state is beyond a reasonable
doubt. Lastly, the Explanation appended to the said provision provides that
‘culpable mental state’ shall include intention, motive, knowledge of a fact
and the belief in, or the reason to believe a fact.
a. Concept of Statutory Presumption and Principle of Foundational
Facts.
157. In Attorney General (supra) this Court while considering the aforesaid
Section(s) 29 and 30 of the POCSO observed that the same had been
specifically incorporated by the legislature in view of the serious nature of
the offences punishable under the POCSO and the object behind the
enactment of the said legislation. Furthermore, this Court in view of the
importance of the aforesaid provisions, held that any offence under the Act
pertaining to sexual, assault, harassment etc., ought to be construed viz-a-viz
Criminal Appeal Nos. 2161-2162 of 2024 Page 110 of 199
the other provision (sic Section(s) 29 and 30) of the POCSO. The relevant
observations read as under: –
“36. It may also be pertinent to note that having regard to the
seriousness of the offences under the POCSO Act, the
Legislature has incorporated certain statutory presumptions.
Section 29 permits the Special Court to presume, when a person
is prosecuted for committing or abetting or attempting to commit
any offence under Section 3, 5, 7 and Section 9 of the Act, that
such person has committed or abetted or attempted to commit
the offence, as the case may be, unless the contrary is proved.
Similarly, Section 30 thereof permits the Special Court to
presume for any offence under the Act which requires a culpable
mental state on the part of the accused, the existence of such
mental state. Of course, the accused can take a defence and
prove the fact that he had no such mental state with respect to
the act charged as an offence in that prosecution. It may further
be noted that though as per sub section (2) of Section 30, for the
purposes of the said section, a fact is said to be proved only when
the Special Court believes it to exist beyond reasonable doubt
and not merely when its existence is established by a
preponderance of probability, the Explanation to Section 30
clarifies that “culpable mental state” includes intention, motive,
knowledge of a fact and the belief in, or reason to believe, a fact.
Thus, on the conjoint reading of Section 7, 11, 29 and 30, there
remains no shadow of doubt that though as per the Explanation
to Section 11, “sexual intent” would be a question of fact, the
Special Court, when it believes the existence of a fact beyond
reasonable doubt, can raise a presumption under Section 30 as
regards the existence of “culpable mental state” on the part of
the accused.
37. This takes the Court to the next argument of Mr. Luthra that
there being an ambiguity, due to lack of definition of the
expressions – “sexual intent”, “any other act”, “touching” and
“physical contact”, used in Section 7, coupled with the
presumptions under Sections 29 and 30 of the Act, the reverse
burden of proof on the accused would make it difficult for him to
prove his innocence and, therefore, the POCSO Act must be
strictly interpreted. In the opinion of the Court, there cannot be
any disagreement with the said submission of Mr. Luthra. In fact
it has been laid down by this Court in catena of decisions thatCriminal Appeal Nos. 2161-2162 of 2024 Page 111 of 199
the Penal Statute enacting an offence or imposing a penalty has
to be strictly construed. A beneficial reference of the decisions
in the case of Sakshi v. Union of India reported in (2004) 5 SCC
518, in the case of R. Kalyani v. Janak C. Mehta reported in
(2009) 1 SCC 516 and in the case of State of Punjab v. Gurmeet
Singh, (2014) 9 SCC 632 be made in this regard. However, it is
equally settled legal position that the clauses of a statute should
be construed with reference to the context vis-a-vis the other
provisions so as to make a consistent enactment of the whole
Statute relating to the subject matter. The Court can not be
oblivious to the fact that the impact of traumatic sexual assault
committed on children of tender age could endure during their
whole life, and may also have an adverse effect on their mental
state. The suffering of the victims in certain cases may be
immeasurable. Therefore, considering the objects of the POCSO
Act, its provisions, more particularly pertaining to the sexual
assault, sexual harassment etc. have to be construed vis-a-vis the
other provisions, so as to make the objects of the Act more
meaningful and effective.”
(Emphasis supplied)
158. The statutory presumption of culpable mental state is neither a concept
which is alien to the law nor is it something which is exclusive to the POCSO
alone. In fact, there are several legislations which also contain similar
provisions relating to the statutory presumption of culpable mental state,
such as Section 35 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (for short, the “NDPS Act”), Section 138A of the Customs Act, 1962
(for short, the “Customs Act”), Section 278E of the Income Tax Act, 1961
(for short, the “Act, 1961”) to name a few. Since all of the aforesaid
provisions are pari materia with Section 30 of the POCSO, it would be
apposite to refer to the various decisions of this Court interpreting these
analogous provisions.
Criminal Appeal Nos. 2161-2162 of 2024 Page 112 of 199
159. In Bhanabhai Khalpabhai v. Collector of Customs reported in 1994 Supp.
(2) SCC 143, this Court whilst examining the scope of Section 138A of the
Customs Act which relates to presumption of culpable mental state observed
that the said statutory presumption had been incorporated by the legislature
in view of the difficulty that the prosecution often faces in proving every link
in respect of commission of certain offences by way of direct evidence. It
further observed that such statutory presumption is an exception to the
general criminal jurisprudence that the onus never shifts on the accused and
he has only to raise a doubt in the mind of the court, in respect of the
correctness of the prosecution version. The relevant observation reads as
under: –
“9. In the facts and circumstances of the case, it can also be held
that the appellant was concerned with the specified goods in
connection with ‘fraudulent evasion or attempt at evasion’ of
duty chargeable on the specified goods. It is well known, that it
is very difficult for the prosecution, to prove every link, in respect
of the commission of the offence under the Act by direct evidence.
The whole process of smuggling, for evading payment of custom
duty consists of different links. The links aid and abate each
other, sometimes through a remote control. That is why,
Parliament has introduced Section 138-A in the Act. […] The
provision relates only to burden and nature of proof at the trial,
as such it was applicable in the present case. In view of the
aforesaid section, a presumption has to be drawn, in respect of
existence of the alleged mental state. An option has been given
to the accused to prove by way of defence the fact, that he did
not have any such mental state with respect to the act charged
which is an offence. It can be said that the provision aforesaid is
an exception to the general criminal jurisprudence that onus
never shifts on the accused and he has only to raise a doubt in
the mind of the court, in respect of the correctness of theCriminal Appeal Nos. 2161-2162 of 2024 Page 113 of 199
prosecution version. It is different from Sections 106 and 114 of
the Evidence Act. In view of Section 138-A, once a presumption
is raised about a culpable mental state on the part of the
accused, that he had stored the silver ingots, to export them
outside the country evading payment of custom duties, the
accused has to prove as a defence that no such mental state with
respect to the act charged, did exist. […]”
(Emphasis supplied)
160. In another decision of this Court in Devchand Kalyan Tandel v. State of
Gujarat reported in (1996) 6 SCC 255, it was reiterated that the statutory
presumption engrafted in Section 138A of the Customs Act was out of
necessity in view of the growing number of cases pertaining to evasion of
duty or prohibitions or other alike economic offences and the inherent
difficulty of the prosecution in establishing ingredients of such offences. It
held that, once the recovery of prohibited goods from the accused person has
been duly established by the prosecution, the statutory presumption would
arise. It further held, that the question in such cases would be whether in the
proved facts and circumstances, could the recourse of the statutory
presumption be taken. The relevant observations read as under: –
“10. […] It is no doubt true that in a charge for violation of the
provisions of Section 135(1)(a) it is required for the prosecution
to establish that the accused have fraudulently evaded or
attempted to evade any duty chargeable on the goods or have
violated the prohibition imposed under the Act in respect of the
goods. But if the prosecution establishes the aforesaid facts then
there is no necessity of attracting the statutory presumption
under Section 138-A and without such presumption an accused
can be convicted under Section 135(1)(a). But the legislature
having found it difficult to establish the necessary ingredients of
such evasion of duty or prohibitions and the economic offencesCriminal Appeal Nos. 2161-2162 of 2024 Page 114 of 199
having grown in proportion beyond the control, came forward
with the presumption available under Section 138-A of the Act.
The main object of Section 138 A is to raise a presumption as to
the culpable mental state on the part of the accused when he is
prosecuted in a court of law. In other words, if a recovery is
made from the accused of any prohibited goods within the
notified area then the statutory presumption would arise that he
was knowingly concerned in the fraudulent evasion or attempted
evasion of any duty chargeable on the goods in question. In the
case of Bhanabhai Khalpabhai v. Collector of Customs [1994
Supp (2) SCC 143 : 1994 SCC (Cri) 882] this Court has held
that in view of Section 138-A a presumption has to be drawn in
respect of the existence of the alleged mental state. An option has
been given to the accused to prove by way of defence the fact,
that he did not have any such mental state with respect to the act
charged which is an offence. The question, therefore, arises as
to whether in the proved facts and circumstances the courts
below were justified in taking recourse to the statutory
presumption under Section 138-A of the Act. […](Emphasis supplied)
161. In State of Punjab v. Baldev Singh reported in (1999) 6 SCC 172 a
Constitution Bench of this Court held that a presumption is an inference of
fact drawn from the facts which are known as proved and as such the
statutory presumption under Section 54 of NPDS Act that an accused has
committed an offence under the Act will only get attracted once the
prosecution has established that the accused was found to be in possession
of the contraband in a search conducted in accordance with the procedure
laid down in the Act. The relevant observations read as under: –
“54. Thus, even if it be assumed for the sake of argument that all
the material seized during an illegal search may be admissible
as relevant evidence in other proceedings, the illicit drug or
psychotropic substance seized in an illegal search cannot byCriminal Appeal Nos. 2161-2162 of 2024 Page 115 of 199
itself be used as proof of unlawful conscious possession of the
contraband by the accused. An illegal search cannot also entitle
the prosecution to raise a presumption under Section 54 of the
Act because presumption is an inference of fact drawn from the
facts which are known as proved. A presumption under Section
54 of the Act can only be raised after the prosecution has
established that the accused was found to be in possession of the
contraband in a search conducted in accordance with the
mandate of Section 50.”
(Emphasis supplied)
162. In Seema Silk Sarees v. Directorate of Enforcement reported in (2008) 5
SCC 580, although the provision involved therein is not pari materia with
Section 30 of the POCSO, yet the observations made by this Court are
relevant to the issue involved in the case at hand. Therein this Court whilst
upholding the constitutional validity of Section 18 of the Foreign Exchange
Regulation Act, 1973 which inter-alia provided for a statutory presumption
of contravening the provisions of the said Act, held that such a statutory
presumption would stand attracted once certain foundational facts are
established by the prosecution. The relevant observation read as under: –
“19. A legal provision does not become unconstitutional only
because it provides for a reverse burden. The question as
regards burden of proof is procedural in nature. […]
20. The presumption raised against the trader is a rebuttable
one. Reverse burden as also statutory presumptions can be
raised in several statutes as, for example, the Negotiable
Instruments Act, Prevention of Corruption Act, TADA, etc.
Presumption is raised only when certain foundational facts are
established by the prosecution. The accused in such an event
would be entitled to show that he has not violated the provisions
of the Act. […]
(Emphasis supplied)Criminal Appeal Nos. 2161-2162 of 2024 Page 116 of 199
163. Similarly in Noor Aga v. State of Punjab & Anr. reported in (2008) 16 SCC
417, the constitutional validity of Section 35 of the NDPS Act was
challenged which as aforestated provided for the presumption of culpable
mental state. This Court speaking through Justice S.B. Sinha (as he then was)
whilst upholding the validity of the aforesaid provision observed that
although the presumption of innocence being a human right cannot be
thrown aside, yet the same would still be subject to exceptions. The court
held that where a statute raises a presumption with regard to the culpable
mental state on the part of the accused and also places the burden of proof
on the accused to prove the contrary, the said presumption would be
constitutionally valid and can be raised provided that the foundational facts
pertaining to the establishing the actus reus of the requisite offence has been
proved. It further held that despite such statutory presumption, the initial
burden would always lie upon the prosecution to prove certain foundational
facts clearly establishing the actus reus in respect of the offence that is
sought to be punished. It is only after the prosecution has proved the
foundational facts, that the statutory presumption gets attracted, whereafter
the burden would shift onto the accused to prove otherwise. In the last it also
held that the extent of burden to prove the foundational facts pertaining to
the actus reus by the prosecution would depend upon the seriousness of the
offence. The relevant observations read as under: –
Criminal Appeal Nos. 2161-2162 of 2024 Page 117 of 199
“35. A right to be presumed innocent, subject to the
establishment of certain foundational facts and burden of
proof, to a certain extent, can be placed on an accused. It must
be construed having regard to the other international
conventions and having regard to the fact that it has been held
to be constitutional. Thus, a statute may be constitutional but
a prosecution thereunder may not be held to be one.
Indisputably, civil liberties and rights of citizens must be
upheld.
xxx xxx xxx
51. The Act specifically provides for the exceptions. It is a trite
law that presumption of innocence being a human right cannot
be thrown aside, but it has to be applied subject to exceptions.
xxx xxx xxx
56. The provisions of the Act and the punishment prescribed
therein being indisputably stringent flowing from elements
such as a heightened standard for bail, absence of any
provision for remissions, specific provisions for grant of
minimum sentence, enabling provisions granting power to the
court to impose fine of more than maximum punishment of Rs
2,00,000 as also the presumption of guilt emerging from
possession of narcotic drugs and psychotropic substances, the
extent of burden to prove the foundational facts on the
prosecution i.e. “proof beyond all reasonable doubt” would be
more onerous. A heightened scrutiny test would be necessary
to be invoked. It is so because whereas, on the one hand, the
court must strive towards giving effect to the parliamentary
object and intent in the light of the international conventions,
but, on the other, it is also necessary to uphold the individual
human rights and dignity as provided for under the UN
Declaration of Human Rights by insisting upon scrupulous
compliance with the provisions of the Act for the purpose of
upholding the democratic values. It is necessary for giving
effect to the concept of “wider civilisation”. The court must
always remind itself that it is a well-settled principle of
criminal jurisprudence that more serious the offence, the
stricter is the degree of proof. A higher degree of assurance,
thus, would be necessary to convict an accused. […]Criminal Appeal Nos. 2161-2162 of 2024 Page 118 of 199
xxx xxx xxx
58. Sections 35 and 54 of the Act, no doubt, raise presumptions
with regard to the culpable mental state on the part of the
accused as also place the burden of proof in this behalf on the
accused; but a bare perusal of the said provision would clearly
show that presumption would operate in the trial of the accused
only in the event the circumstances contained therein are fully
satisfied. An initial burden exists upon the prosecution and
only when it stands satisfied, would the legal burden shift. Even
then, the standard of proof required for the accused to prove
his innocence is not as high as that of the prosecution. Whereas
the standard of proof required to prove the guilt of the accused
on the prosecution is “beyond all reasonable doubt” but it is
“preponderance of probability” on the accused. If the
prosecution fails to prove the foundational facts so as to attract
the rigours of Section 35 of the Act, the actus reus which is
possession of contraband by the accused cannot be said to have
been established.
(Emphasis supplied)
164. In Bhola Singh v. State of Punjab reported in (2011) 11 SCC 653 this Court
while placing reliance on the decision in Noor Aga (supra) reiterated that the
statutory presumption envisaged in Section 35 of the NDPS Act will only
come into play after the prosecution had discharged its initial burden to prove
certain foundational facts. It observed that the applicability of such statutory
presumption is dependent upon the facts as spelt out by the prosecution, after
which the burden would shift onto the accused to establish otherwise. It held
that in the absence of any foundational facts pertaining to the alleged
offence, no presumption can be drawn. The relevant observations read as
under: –
Criminal Appeal Nos. 2161-2162 of 2024 Page 119 of 199
“10. While dealing with the question of possession in terms of
Section 54 of the Act and the presumption raised under Section
35, this Court in Noor Aga v. State of Punjab while upholding
the constitutional validity of Section 35 observed that as this
section imposed a heavy reverse burden on an accused, the
condition for the applicability of this and other related sections
would have to be spelt out on facts and it was only after the
prosecution had discharged the initial burden to prove the
foundational facts that Section 35 would come into play.
11. Applying the facts of the present case to the cited one, it is
apparent that the initial burden to prove that the appellant had
the knowledge that the vehicle he owned was being used for
transporting narcotics still lay on the prosecution, as would be
clear from the word “knowingly”, and it was only after the
evidence proved beyond reasonable doubt that he had the
knowledge would the presumption under Section 35 arise.
Section 35 also presupposes that the culpable mental state of an
accused has to be proved as a fact beyond reasonable doubt and
not merely when its existence is established by a preponderance
of probabilities. We are of the opinion that in the absence of any
evidence with regard to the mental state of the appellant no
presumption under Section 35 can be drawn. […]”
(Emphasis supplied)
165. In Baldev Singh v. State of Haryana reported in (2015) 7 SCC 554 this
Court held that the presumption of culpable mental state contained in Section
35 of the NDPS Act would come into play once the possession of the
contraband in question by the accused has been established by the
prosecution, whereafter, the onus would be on the accused to rebut the said
presumption. It further held, that such presumption may be rebutted by the
accused by either raising doubts in the prosecution’s case and the material
relied upon it for establishing the possession or that it may adduce any other
Criminal Appeal Nos. 2161-2162 of 2024 Page 120 of 199
evidence to rebut the same. In the last, it also held that where the prosecution
is unable to establish the possession or where the court has doubts over the
prosecution’s case, the said presumption would automatically be discharged.
The relevant observations read as under: –
“12. […] Once the physical possession of the contraband by the
accused has been proved, Section 35 of the NDPS Act comes into
play and the burden shifts on the appellant-accused to prove that
he was not in conscious possession of the contraband. […]The
Explanation to sub-section (1) of Section 35 expanding the
meaning of “culpable mental state” provides that “culpable
mental state” includes intention, knowledge of a fact and
believing or reason to believe a fact. Sub-section (2) of Section
35 provides that for the purpose of Section 35, a fact is said to
be proved only when the court believes it to exist beyond a
reasonable doubt and not merely when its existence is
established by a preponderance of the probability. Once the
possession of the contraband by the accused has been
established, it is for the accused to discharge the onus of proof
that he was not in conscious possession. Burden of proof cast on
the accused under Section 35 of the NDPS Act can be discharged
through different modes. One of such modes is that the accused
can rely on the materials available in the prosecution case
raising doubts about the prosecution case. The accused may also
adduce other evidence when he is called upon to enter on his
defence. If the circumstances appearing in the prosecution case
give reasonable assurance to the court that the accused could
not have had the knowledge of the required intention, the burden
cast on him under Section 35 of the NDPS Act would stand
discharged even if the accused had not adduced any other
evidence of his own when he is called upon to enter on his
defence.”
(Emphasis supplied)
166. What can be discerned from the above is that the idea behind providing for
a statutory presumption of culpable mental state is in view of the exigency
Criminal Appeal Nos. 2161-2162 of 2024 Page 121 of 199
posed by the difficulty that often exists in establishing certain types ofoffences such as inchoate offences due to its clandestine nature. Such
presumptions are in essence an exception to the cardinal principle of criminal
jurisprudence that the act does not make a person guilty unless the mind is
also guilty.
167. Traditionally, it is the prosecution who bears the burden of proving every
element in a particular offence, including the accused’s mental state, beyond
a reasonable doubt. In order to establish the commission of any offence, the
prosecution must stand on its own legs i.e., the onus lies on the prosecution
to prove beyond reasonable doubt not just the wrongful act but also the
wrongful intention of the person in doing such an act. However, in certain
offences particularly economic offences or inchoate offences like possession
of child pornography where apart from the actus reus there exists no other
material to depict or demonstrate the mens rea, it is too difficult for the
prosecution to look into the mind of the accused to cull out with certainty
what his intention was or could have been for doing a particular act let alone
cogently establish the same beyond a reasonable doubt. Due to the elusive
and concealed nature of such offences there is often little to no direct
evidence available to establish what was in fact in the mind of the accused
at the time when the particular act in question occurred or that the said act
was done only with a particular intention.
Criminal Appeal Nos. 2161-2162 of 2024 Page 122 of 199
168. It is in such scenarios, the legislature consciously provides for a statutory
presumption of a culpable mental state to overcome the aforesaid hurdles
and assist the prosecution to prove its case. This presumption of a culpable
mental state is neither a conclusive proof of guilt for any particular offence
nor does it completely replace or absolve the prosecution of its burden of
proof and should not be understood as such, but rather it is a potent tool to
assist the prosecution in discharging its initial burden and establishing its
case. It seeks to bridge the evidentiary gap that exists between the actus reus
and the mens rea in complex clandestine offences which otherwise cannot
be proved through conventional means.
169. One good reason for providing such statutory presumptions in different
legislations is owed to the fact that at times having regard to the peculiar case
the prosecution may find it extremely difficult to know the mind of the
accused so as to establish his intention and mental state. In contrast, the
accused may not have to face the same degree of difficulty because he is
fully aware of his mental state and can explain his intentions on the basis of
his conduct or actions.
170. However, since the courts were in seisin of the harshness of such
presumptions and the inherent danger they pose – particularly in blurring
the line between the presumption of a culpable mental state and the
Criminal Appeal Nos. 2161-2162 of 2024 Page 123 of 199
presumption of the guilt itself and thereby undoing or compromising thefairness of such criminal proceeding, this Court for the first time in Baldev
Singh (supra) sowed the seeds for a test to ascertain as to when such
presumption can be safely attracted which was later more fully evolved in
Noor Aga (supra) wherein a brightline test was laid down in the form of the
‘Rule or Principle of Foundational Facts’.
171. This ‘Rule or Principle of Foundational Facts’ simpliciter lays down that
before the statutory presumption of culpable mental state could be validly
invoked, the prosecution must first establish certain foundational facts.
These foundational facts typically involve or correspond to proving those
facts or elements that cogently establish the actus reus required for the
offence alleged by the prosecution. It is only after such foundational facts
have been proved beyond a reasonable doubt that the prosecution may take
recourse of the statutory presumption provided by the legislature. The
rationale behind the same is two-fold. First, in the absence of any actus reus
there is no possible way to ascertain the corresponding mens rea that is
required to be established. This is because it is the actus reus which
demarcates or delineates the mens rea which is to be looked for and
established. Without an actus reus of any form there arises no question of
establishing and consequently presuming the mens rea, in view of the
fundamental principle of criminal jurisprudence, that no one should be
Criminal Appeal Nos. 2161-2162 of 2024 Page 124 of 199
punished for their thoughts or intention alone unless accompanied by some
form of act. Secondly, and more importantly it ensures that the statutory
presumption does not overreach or take the place of proof of guilt under the
guise of ‘presumption of culpable mental state’.
172. It would be too much to shift the entire onus onto the accused and to then
ask him to prove a negative fact. Thus, any statutory presumption would
operate only after the prosecution first lays the foundational facts necessary
for the offences that have been alleged beyond a reasonable doubt. This is
because a negative cannot be proved in the initial threshold, in order to prove
a contrary fact, the fact whose opposite is sought to be established must be
proposed first. Thus, in law it is trite that the initial burden always lies on the
prosecution. This why, the establishment of foundational facts by the
prosecution is a prerequisite for triggering the statutory presumption for
shifting the onus on the accused to prove the contrary. It is a delicate balance
struck between the practical need for such presumption in law and the
cardinal principles of criminal jurisprudence to ensure that the presumption
does not cross or transgress the fine line that demarcates presumption of
‘culpable mental state’ from the ‘presumption of guilt’ itself.
173. Since a negative cannot be proved, an accused cannot be asked to disprove
his guilt even before the foundational allegations with supporting material
Criminal Appeal Nos. 2161-2162 of 2024 Page 125 of 199
thereof are placed and duly established by the prosecution before the court.
Unless the prosecution is able to prove foundational facts in the context of
the allegations made against the accused under any specific provision of the
POCSO as the case may be, the statutory presumption of culpable mental
state under Section 30 of the POCSO will not come into the picture.
174. Even if the prosecution establishes such foundational facts and the
presumption is raised against the accused, he can rebut the same either by
discrediting prosecution’s case as improbable or absurd or the accused could
lead evidence to prove his defence, in order to rebut the presumption,
however the said presumption under Section 30 of the POCSO will be said
to have been rebutted only where the accused by way of his defence
establishes a fact contrary to the presumption and proves the same beyond a
reasonable doubt.
b. Foundational Facts required under Section 15 of the POCSO.
175. Now coming to Section 15 of the POCSO, as discussed earlier, the
foundational facts ordinarily pertain to the actus reus required under a
particular offence. However, given the fact that Section 15 penalizes three
distinct and varying degrees of intention and having regard to the mutually
exclusive nature of each of the three offences provided thereunder, the mere
Criminal Appeal Nos. 2161-2162 of 2024 Page 126 of 199
storage or possession of a child pornographic material cannot become the
foundational facts or basis for attracting all three of the said offences all the
same.
176. As discussed by us in the foregoing parts of this judgment, while on a plain
reading Section 15 sub-section(s) (1), (2) and (3) it might appear that all
require the same actus reus i.e., the storage or possession of the child
pornographic material, however, such an interpretation is flawed as a closer
examination of each of the sub-section would reveal that there exists a very
fine but pertinent distinction in the actus reus which is required to constitute
an offence under Section 15 sub-section(s) (1), (2) or (3) of the POCSO.
177. Thus, for the purpose of Section 15 sub-section (1), the necessary
foundational facts which the prosecution would first have to establish before
it can be allowed to validly raise the statutory presumption of culpable
mental state would simpliciter be the storage or possession of any child
pornographic material and that the person accused had failed to delete,
destroy or report the same. Once, the aforesaid is clearly established by the
prosecution, a presumption would be raised in terms of Section 30 of the
POCSO that the person accused had the knowledge of the child pornographic
material that was found to be stored or possessed by him and that he had the
intent to share or transmit the same due to which he failed to delete, destroy
or report it.
Criminal Appeal Nos. 2161-2162 of 2024 Page 127 of 199
178. Whereas when it comes to Section 15 sub-section (2), since the actus reus
required to constitute an offence thereunder requires the storage or
possession of any pornographic material involving a child along with any
additional mater to show either the actual transmission, propagation, display
or distribution of any such material or the facilitation of any of the
abovementioned acts. Thus, in order to invoke the statutory presumption of
culpable mental state as contained in Section 30 of the POCSO, the
prosecution would be required to first establish not just the storage or
possession of any child pornographic material, but also any other material to
indicate any actual transmission, propagation, display or distribution of any
such material or any form of an overt act such as preparation or setup done
for the facilitation of the transmission, propagation, display or distribution
of such material, whereafter, the statutory presumption would stand
attracted, and it shall be presumed by the courts that the said act was done
with the intent of transmitting, displaying, propagating or distributing such
material and that the said act(s) had not been done for the purpose of either
reporting or for use as evidence. We clarify that, though wherever any actual
transmission, propagation, display or distribution of such material takes
place, the offence under Section 15 sub-section (2) would be constituted,
thereby seemingly not requiring any further to be proved. However, due to
the two exceptions carved out in sub-section (2) namely that transmission,
Criminal Appeal Nos. 2161-2162 of 2024 Page 128 of 199
propagation, display or distribution of child pornographic material when
done for either reporting the same or for use as evidence, the statutory
presumption in such scenario will still continue to serve a useful purpose by
aiding the prosecution in reinforcing that any of the abovementioned acts
had not been done with the intention of either reporting the same or for using
it as evidence, unless the contrary is proven.
179. Lastly, for the purpose of Section 15 sub-section (3) of the POCSO, the actus
reus required therein is the storage or possession of any child pornographic
material and any other material to indicate that such storage or possession
was done in lieu or in expectation of some form of gain or benefit. Thus,
where the prosecution established the storage or possession of such material
and further shows anything else that might indicate that the same had been
done for some form of gain or benefit or the expectation of some gain or
benefit, the foundational facts would be said to have been proved, and the
statutory presumption envisaged under Section 30 of the POCSO can be
validly raised. Then the onus would lie on the accused to prove that the
storage or possession of such material had not been done with intention of
any commercial purpose.
Criminal Appeal Nos. 2161-2162 of 2024 Page 129 of 199
c. Whether the Presumption under Section 30 of the POCSO can be
resorted to in a Quashing Proceeding?
180. The last aspect which remains to be examined is whether the said statutory
presumption of culpable mental state provided in Section 30 of the POCSO
can be resorted to in a quashing proceeding by the High Courts in exercise
of their inherent powers under Section 482 of the Cr.P.C. (corresponding
Section 530 of the Bhartiya Nagrik Suraksha Sanhita, 2023, for short, the
“BNSS”). In other words, at what stage can the aforesaid said statutory
presumption be invoked at. Before proceeding with the analysis of the said
aspect, it would be appropriate to refer to a few decisions of this Court on
this issue.
181. In State of M.P. v. Harsh Gupta reported in (1998) 8 SCC 630, this Court
held that the statutory presumption contained in Section 69 of the Indian
Forest Act, 1927 could not have been ignored by the High Court in deciding
the quashing petition under Section 482 of the Cr.P.C. The relevant
observations read as under: –
“3. It is rather surprising that at a stage when the only question
to be considered was whether the complaint and its
accompaniments disclosed any or all of the offences alleged
against the respondent, the learned Judge not only went into a
detailed discussion about his defence but recorded a conclusive
finding that he was not guilty of the offences alleged against him.
More surprising is that the learned Judge ignored the provisions
of Section 69 of the Act which expressly raises a statutoryCriminal Appeal Nos. 2161-2162 of 2024 Page 130 of 199
presumption against a person arraigned that the forest produce
recovered from him was a property of the Government, until the
contrary is proved; and needless to say, the question of proof of
the contrary can be answered after evidence is led.
4. For the foregoing discussion, we allow this appeal, set aside
the impugned judgment and direct the Magistrate to proceed
with the case in accordance with law, without in any way being
influenced by any of the observations made by the High Court in
the impugned order.”
(Emphasis supplied)
182. This Court in Prakash Nath Khanna v. CIT reported in (2004) 9 SCC 686
examined the scope of Section 278E of the Act, 1961. It held that where
there is a statutory presumption as regards the existence of a culpable mental
state on the part of the accused in respect of any offence alleged, any defence
in respect of the absence of such mental state can only be pleaded in the trial.
It further held that in such scenario, it will not be open for the High Court to
delve into the aspect of the absence of such mental state in a quashing
proceeding. The relevant observations read as under: –
“23. There is a statutory presumption prescribed in Section 278-
E. The court has to presume the existence of culpable mental
state, and absence of such mental state can be pleaded by an
accused as a defence in respect to the act charged as an offence
in the prosecution. Therefore, the factual aspects highlighted by
the appellants were rightly not dealt with by the High Court. This
is a matter for trial. It is certainly open to the appellants to plead
absence of culpable mental state when the matter is taken up for
trial.”
(Emphasis supplied)Criminal Appeal Nos. 2161-2162 of 2024 Page 131 of 199
183. In another decision of this Court in R. Kalyani v. Janak C. Mehta & Ors.
reported in (2009) 1 SCC 516 although the issue therein did not pertain to
the applicability of any statutory presumption, yet the observations made
therein are significant. This Court held that the High Court in a quashing
petition in exercise of its inherent jurisdiction cannot go into the aspect of
either the existence or absence of any mens rea or actus reus for a particular
offence to pass an order in favour of the accused. The relevant observations
read as under: –
“15. Propositions of law which emerge from the said decisions
are:
(1) The High Court ordinarily would not exercise its inherent
jurisdiction to quash a criminal proceeding and, in particular, a
first information report unless the allegations contained therein,
even if given face value and taken to be correct in their entirety,
disclosed no cognizable offence.
(2) For the said purpose the Court, save and except in very
exceptional circumstances, would not look to any document
relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the
allegations made in the FIR disclose commission of an offence,
the Court shall not go beyond the same and pass an order in
favour of the accused to hold absence of any mens rea or actus
reus.
(4) If the allegation discloses a civil dispute, the same by itself
may not be a ground to hold that the criminal proceedings
should not be allowed to continue.”
(Emphasis supplied)
184. In a recent decision of this Court in Rathis Babu Unnikrishnan v. The State
(Govt. of NCT of Delhi) & Anr. reported in 2022 INSC 480 it was held that
when there is a statutory presumption, it would not be judicious of the
Criminal Appeal Nos. 2161-2162 of 2024 Page 132 of 199
quashing court to carry out a detailed enquiry on the facts alleged before first
permitting the trial court to evaluate the evidence. It further observed that
where a accused moves the court for quashing even before the
commencement of trial, the High Courts in such cases should be slow and
circumspect in prematurely extinguishing by discarding the legal
presumption all together. The relevant observation reads as under: –
“11. The legal presumption of the cheque having been issued in
the discharge of liability must also receive due weightage. In a
situation where the accused moves Court for quashing even
before trial has commenced, the Court’s approach should be
careful enough to not to prematurely extinguish the case by
disregarding the legal presumption which supports the
complaint.
xxx xxx xxx
13. Bearing in mind the principles for exercise of jurisdiction in
a proceeding for quashing, let us now turn to the materials in
this case. On careful reading of the complaint and the order
passed by the Magistrate, what is discernible is that a possible
view is taken that the cheques drawn were, in discharge of a debt
for purchase of shares. In any case, when there is legal
presumption, it would not be judicious for the quashing Court to
carry out a detailed enquiry on the facts alleged, without first
permitting the trial Court to evaluate the evidence of the parties.
The quashing Court should not take upon itself, the burden of
separating the wheat from the chaff where facts are contested.
To say it differently, the quashing proceedings must not become
an expedition into the merits of factual dispute, so as to
conclusively vindicate either the complainant or the defence.
xxx xxx xxx
16. The proposition of law as set out above makes it abundantly
clear that the Court should be slow to grant the relief of quashing
a complaint at a pre-trial stage, when the factual controversy is
in the realm of possibility particularly because of the legal
presumption, as in this matter. What is also of note is that the
Criminal Appeal Nos. 2161-2162 of 2024 Page 133 of 199
factual defence without having to adduce any evidence need to
be of an unimpeachable quality, so as to altogether disprove the
allegations made in the complaint.
17. The consequences of scuttling the criminal process at a pre-
trial stage can be grave and irreparable. Quashing proceedings
at preliminary stages will result in finality without the parties
having had an opportunity to adduce evidence and the
consequence then is that the proper forum i.e., the trial Court is
ousted from weighing the material evidence. If this is allowed,
the accused may be given an un-merited advantage in the
criminal process. Also because of the legal presumption, when
the cheque and the signature are not disputed by the appellant,
the balance of convenience at this stage is in favour of the
complainant/prosecution, as the accused will have due
opportunity to adduce defence evidence during the trial, to rebut
the presumption.”
(Emphasis supplied)
185. From the above exposition of law, it is clear that there is no bar for the High
Court to invoke the statutory presumption at the stage of deciding the
quashing petition in respect to any offence to which such a presumption is
applicable. Rather, any failure to give due weightage to the same, may result
in dire consequences such as premature quashing of the criminal proceeding
or allowing the accused to completely bypass the statutory presumption
which otherwise would have been applicable in the trial. In light of our
earlier discussion and without again referring to a plethora of decisions in
this regard, it is clear how the statutory presumption plays a vital role when
it comes to offences such as those under the POCSO.
Criminal Appeal Nos. 2161-2162 of 2024 Page 134 of 199
186. This Court in Attorney General (supra) specifically held that considering the
objects of POCSO, its provisions, more particularly, pertaining to sexual
assault etc should be construed viz-a-viz the other provisions of the Act more
meaningful and effective. Any selective reference to a particular provision
in complete ignorance of the other provision would result in a mutilation of
the entire scheme and purport of the legislation and thereby defeat the
purpose with which it was enacted. The High Courts as a matter of choice
should not shy away from referring to the statutory presumption that has
been incorporated in the Act, whilst deciding a quashing petition. The High
Courts must not deal with a particular offence under any enactment devoid
or in disregard of the rest of the statutory framework, it must recognize and
refer to the legislation in toto.
187. Otherwise, it would give an undue advantage to an accused by allowing him
to mischievously prefer a quashing petition before the trial commences and
completely bypass the statutory presumption provided by the legislature and
walk right away from the criminal proceedings, thereby setting the entire
legislation at naught. It is imperative for the courts to discourage any such
attempts on part of the accused to short circuit the statutory provisions and
procedure laid in a particular Act and evade trial entirely. In such situations,
the statutory presumption becomes all the more important to effectively
ensure that criminal process is not manipulated by any devious accused.
Criminal Appeal Nos. 2161-2162 of 2024 Page 135 of 199
188. As has been held in Prakash Nath Khanna (supra) and Rathis Babu
Unnikrishnan (supra), any defence of the accused for the purpose of
rebutting the said statutory presumption should ordinarily be left to the trial
court to be looked into at-least when it comes to quashing petitions. Though,
in certain exceptional circumstances, the High Court may entertain such
defence to quash the criminal proceedings where it appears from the facts
itself that the allegations themselves are completely false and bogus and by
no stretch of imagination said to be established. But in doing so, the High
Court must be slow and circumspect & must exercise some restraint. The
statutory presumption may be ignored only where no foundational facts have
been established from the material on record.
189. Once the foundational facts are prima facie established from the materials
on record, it would be improper for the High Court in a quashing petition to
conduct an intricate evidentiary inquiry into the facts and ascertain whether
the requisite mental elements are present or not. All these aspects should be
left to be decided by the trial court which is the appropriate forum for the
evaluation of the same, especially where the statutory presumption has been
attracted prima facie from the material on record.
190. When the High Court quashes any criminal proceedings without considering
the legal effect of the statutory presumption, it effectively scuttles the
process of trial and thereby denies the parties the opportunity to adduce
Criminal Appeal Nos. 2161-2162 of 2024 Page 136 of 199
appropriate evidence and the right to a fair trial. This would not only defeat
the very case of the prosecution but would also thwart the very object of a
particular legislation and thereby undermine the public confidence in the
criminal justice system.
191. We are conscious of the fact that in Noor Aga (supra) this Court had held
that the statutory presumption under Section 35 of the NDPS Act would only
operate in the trial of the accused. However, 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. We may
at the cost of repetition again reproduce the relevant observations of Noor
Aga (supra) in this regard: –
“58. Sections 35 and 54 of the Act, no doubt, raise
presumptions with regard to the culpable mental state on the
part of the accused as also place the burden of proof in this
behalf on the accused; but a bare perusal of the said provision
would clearly show that presumption would operate in the trial
of the accused only in the event the circumstances contained
therein are fully satisfied. An initial burden exists upon the
prosecution and only when it stands satisfied, would the legal
burden shift. Even then, the standard of proof required for the
accused to prove his innocence is not as high as that of the
prosecution. Whereas the standard of proof required to prove
the guilt of the accused on the prosecution is “beyond all
reasonable doubt” but it is “preponderance of probability” on
the accused. If the prosecution fails to prove the foundational
facts so as to attract the rigours of Section 35 of the Act, the
actus reus which is possession of contraband by the accused
cannot be said to have been established.
(Emphasis supplied)
Criminal Appeal Nos. 2161-2162 of 2024 Page 137 of 199
192. What has been conveyed by this Court in so many words in the aforesaid
paragraph of Noor Aga (supra) is that despite the statutory presumption of
culpable mental state, the initial burden to establish the foundational facts
will still lie on the prosecution. This Court by no stretch of imagination could
be said to have held that the statutory presumption of culpable mental state
would only be applicable in trial. Even otherwise, since the decision of Noor
Aga (supra) arose from a criminal appeal against conviction, this Court by
no extent had the occasion to examine the applicability of the statutory
presumption to proceedings other than the trial and appeal thereof.
193. We are also in seisin of the fact that Section 30 sub-section (1) specifically
provides that “the Special Court shall presume the existence of such mental
state”. Similarly, Section 30 sub-section (2) also uses the words “Special
Court”. However, this in no manner can be construed to hold that it is the
Special Court alone which has been vested with the power to raise the
presumption under Section 30 of the POCSO. We say so, because: –
(i) First, the use of the words “the Special Court shall presume the
existence of such mental state” in sub-section (1) and other mention
of Special Courts in the provision is only explanatory in nature
inasmuch as the legislature has used the said word to only explain how
such presumption would ordinarily operate in a trial. It by no stretch
can be understood as a bar on the applicability of such presumption to
Criminal Appeal Nos. 2161-2162 of 2024 Page 138 of 199
other proceedings, as the said provision does not in any mannerdelineate or lay down the scope of such presumption and rather only
elucidates the nature of the presumption (i.e., presumption of culpable
mental state), the manner in which it would operate (i.e., applicable to
any offence under the POCSO which requires any culpable mental
state) and the standard of proof required to prove anything contrary
(i.e., beyond a reasonable doubt). By no means it could be said that
the legislature by the use of the words “Special Court” in Section 30
of the POCSO intended to curtail the application of the said statutory
provision only in trial. Any such interpretation would completely
render the other penal provisions meaningless, wherever the accused
at the earlier stages moves for a quashing petition.
(ii) Secondly, the statutory presumption under Section 30 of the POCSO
operates or gets attracted not by virtue of the court before which the
matter happens to be at, but by the offence itself, for which the
legislature specifically provides such presumption in the first place.
Since, the presumption in essence is in respect of mens rea required
for any offence under the POCSO, this presumption is inextricably
linked to the offence alone and not the power conferred upon a
particular court. This is evinced by Section 30 sub-section (1), more
particularly the expression “In any prosecution for any offence under
this Act which requires a culpable mental state on the part of the
Criminal Appeal Nos. 2161-2162 of 2024 Page 139 of 199
accused”. Furthermore, the aforesaid expression is of wide import and
the words “prosecution for any offence under this Act” occurring
therein would subsume and include any proceeding in respect of an
offence under the POCSO would.
(iii) Thirdly, even otherwise, the mere usage of words “Special Court” in
the said provision can by no extent defeat or override the inherent
powers that have been vested in the High Court by virtue of Section(s)
482 and 530 of the Cr.P.C. and BNSS, respectively.
As such, the statutory presumption envisaged under Section 30 of
the POCSO is applicable and can be invoked in any proceeding which
involves an offence under the said Act that requires a culpable mental state,
irrespective of the court where such proceeding is taking place.
194. It is a settled position of law that a statute is an edict of the legislature, the
elementary principle of interpreting or construing a statute is to gather the
mens or sententia legis i.e., the true intention of the legislature. It is trite
saying that while interpreting a statute, the courts should strive to ascertain
the intention of the Legislature enacting it, and it is the duty of the Courts to
accept an interpretation or construction which promotes the object of the
legislation and prevents its possible abuse. Thus, we are of the considered
view that any other interpretation of the provisions of the POCSO and of the
Criminal Appeal Nos. 2161-2162 of 2024 Page 140 of 199
various issues that have been discussed by us in the foregoing paragraphs,
would frustrate the very avowed and salutary object of the POCSO and its
provisions.
iv. Whether the case at hand was one fit for the High Court to quash?
195. The undisputed facts are that, during investigation two videos depicting
children involved in a sexual activity were recovered from the mobile phone
of the respondent no. 1. As per the FSL Report, the aforesaid two videos
were last modified in the memory of the accused person’s phone on
05.09.2016 and 14.06.2019 respectively. The respondent no. 1 himself
admitted before the High Court as recorded in the impugned order that he
was addicted to watching pornography. In what circumstances such
statement come to be recorded by the High court is a mystery. Although, the
FIR dated 29.01.2020 alleged offences under Section(s) 14(1) of the POCSO
and 67B of the IT Act, yet in the chargesheet, the aforesaid offence under
Section 14(1) of the POCSO was substituted and instead offence under
Section 15(1) of the POCSO was alleged to have been committed.
196. The High Court in its Impugned Order whilst quashing the criminal
proceedings arising out of the aforesaid chargesheet dated 19.09.2023
completely failed to advert to the actual charge that was alleged therein more
particularly Section 15 sub-section (1) of the POCSO. Instead, the High
Criminal Appeal Nos. 2161-2162 of 2024 Page 141 of 199
Court appears to have just relied upon the FIR and premised its findings on
Section 14 of the POCSO, even though the said offence had been dropped in
the chargesheet. Thus, there appears to be a serious lapse on part of the High
Court in failing to advert to Section 15 of the POCSO especially when the
chargesheet had already been filed at the time of passing of the Impugned
Order. It is no longer res-integra that once the investigation is over and
chargesheet is filed, the FIR pales into insignificance. The court, thereafter,
owes a duty to look into all the materials collected by the investigating
agency in the form of chargesheet.
197. It is no longer res-integra, that the High Court in exercise of its inherent
powers under Section(s) 482 of the Cr.P.C. or 530 of the BNSS as the case
must not conduct a mini trial or go into the truthfulness of the allegations
while dealing with a quashing petition. The High Court may be justified in
quashing the chargesheet if it appears to it that continuance of criminal
proceedings would be nothing but gross abuse of the process of law.
198. In R.P. Kapur v. State of Punjab reported in AIR 1960 SC 866, this Court
summarised some categories of cases where inherent power can, and should
be exercised to quash the proceedings: –
(i) where it manifestly appears that there is a legal bar
against the institution or continuance e.g. want of
sanction;
Criminal Appeal Nos. 2161-2162 of 2024 Page 142 of 199
(ii) where the allegations in the first information report or
complaint taken at its face value and accepted in their
entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is
no legal evidence adduced or the evidence adduced
clearly or manifestly fails to prove the charge.
199. This Court in State of Haryana v. Bhajan Lal reported in 1992 AIR SC 604
held that the power of quashing must be used very sparingly and with
circumspection. It must only be used in the rarest of the rare cases. While
laying down the principles relating to quashing of criminal proceedings, this
Court held that while examining a complaint or FIR, the quashing of which
is sought, the Court cannot embark upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made in the FIR or in the
complaint. The relevant observations read as under: –
“102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of decisions
relating to the exercise of the extraordinary power under Article
226 or the inherent powers under Section 482 of the Code which
we have extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such power
could be exercised either to prevent abuse of the process of any
court or otherwise to secure the ends of justice, though it may
not be possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds of cases
wherein such power should be exercised.
(1) Where the allegations made in the first information report or
the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.
Criminal Appeal Nos. 2161-2162 of 2024 Page 143 of 199
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by police officers
under Section 156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out a case
against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable offence,
no investigation is permitted by a police officer without an order
of a Magistrate as contemplated under Section 155(2) of the
Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously instituted
with an ulterior motive for wreaking vengeance on the accused
and with a view to spite him due to private and personal
grudge.”
200. In S.M. Datta v. State of Gujarat reported in (2001) 7 SCC 659 this Court
again cautioned that criminal proceedings ought not to be scuttled at the
initial stage. Quashing of a complaint or FIR should rather be an exception
Criminal Appeal Nos. 2161-2162 of 2024 Page 144 of 199
and a rarity than an ordinary rule. This Court also held that if a perusal of the
first information report leads to disclosure of an offence even broadly, law
courts are barred from usurping the jurisdiction of the police, since the two
organs of the State operate in two specific spheres of activities and one ought
not to tread over the other sphere.
201. In view of the aforesaid consistent line of decisions of this Court, the High
Court in our considered view could be said to have committed an egregious
error by quashing the criminal proceedings without even properly perusing
the chargesheet and the other material on record.
202. The High Court should neither be picky nor remain oblivious in deciding
which provision to advert to while considering a quashing petition. When
dealing with a quashing petition, there lies a duty on the High Court to
properly apply its mind to all the material on record. The least which is
expected of High Court in such situation is to carefully go through the
allegations contained in the FIR and the charge-sheet, and to ascertain (i)
whether, the offences alleged therein could be said to have been prima facie
established from the material on record? or (ii) whether, apart from the
offences alleged in the FIR or the charge-sheet, there is possibility of any
other offence prima facie being made out? The High Court in exercise of its
inherent powers, may be justified in quashing the criminal proceedings only
Criminal Appeal Nos. 2161-2162 of 2024 Page 145 of 199
where, neither any offence as alleged in the FIR or charge-sheet is disclosed
nor any other offence is prima facie made out, and the continuance of the
proceedings may be found to amount to abuse of process of law.
203. In the case at hand, there is no dispute by either side that, the two videos
infact depicted children in a sexual activity. It is also not the case of the
respondent no. 1 that the said videos were not recovered from his mobile
phone. In such circumstances, the child pornographic material that was
recovered from the personal mobile phone of the accused which was
regularly in use by him, prima facie establishes the storage or possession of
child pornographic material at his hand. Further, since the aforesaid child
pornographic material was found to have been stored in the said personal
mobile phone since 2016 and 2019, prima facie it could be said there was a
failure on the part of the respondent no.1 to delete, destroy or report such
material.
204. It was also sought to be contended on behalf of the respondent no. 1 that the
2019 Amendment Act whereby and whereunder, the three distinct offences
pertaining to the storage or possession of child pornography were made
punishable under Section 15 of the POCSO came into force with effect from
16.09.2019. Whereas the both the videos in question had been allegedly
stored in the device before the 2019 Amendment Act came into force. Since,
Criminal Appeal Nos. 2161-2162 of 2024 Page 146 of 199
the present Section 15(1) of the POCSO was not in operation at the relevant
time when the videos were allegedly stored, the respondent no. 1 cannot be
punished under the said provision which did not exist at the time of storage
of such video.
205. However, we are not impressed with the aforesaid submission. 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. In the present case, it is not in dispute that when 2019 Amendment
came into force and later when the FIR was registered, the aforesaid two
videos were still stored in the mobile phone of the respondent no. 1. In such
circumstances, Section 15 sub-section (1) could be said to be prima facie
attracted.
a. Plea of Ignorance of Law: Ignorance of Law viz-a-viz Incognizance of
Law.
206. At this juncture, we may address yet another submission that was canvassed
on behalf of the accused as regards the plea of bona-fide ignorance of law.
It was contended that the accused was not aware of the fact that storing of
child-pornography was a punishable offence under Section 15 of POCSO
Criminal Appeal Nos. 2161-2162 of 2024 Page 147 of 199
and that the child pornographic material which was found stored in his
mobile phone was due to his unawareness of the law accompanied by a bona-
fide belief that such storage was not an offence, and as such he ought not to
be held liable. In this regard, reliance has been placed on two decisions of
this Court in Chandi Kumar Das Karmarkar (supra) and Motilal Padampat
Sugar Mills (supra).
207. In Chandi Kumar Das Karmarkar (supra), the facts of the case are as
follows; there was a civil dispute inter-alia between the accused persons
therein and the complainant as regards the ownership of a water tank where
fishes had been reared. The complainant therein had acquired possession of
the said tank on the strength of an ex-parte decree against the accused
persons. Eventually, that ex-parte decree was set-aside, however the final
decision on the title was still pending. Although no application for restitution
was preferred yet the accused, due to a bona-fide ignorance of law, was
under the impression that he had regained possession of the said tank and
again started catching fishes in the tank. The complainant lodged an FIR
against the accused persons inter-alia alleging theft of fish from his tank.
The accused therein in his defence pleaded ignorance of law stating that he
was unaware that, the said tank and the fishes in that expanse of water under
the law continued to be deemed to be the property of the complainant in the
absence of any restitution or that the possession of the water reservoir had
Criminal Appeal Nos. 2161-2162 of 2024 Page 148 of 199
not reverted back to him. He further pleaded that; he was under a bona-fide
belief that he had a right of possession of the said tank by virtue of the ex-
parte decree being set-aside. This Court held that any claim of right due to a
bona-fide ignorance of law, if reasonable will not constitute an act of theft.
It further explained that a claim to such right means one which is not a false
pretence but a fair pretence, and not a complete absence of claim but a bona-
fide claim, however weak. The relevant observations read as under: –
“6. The offence of theft consists in the dishonest taking of any
moveable property out of the possession of another with his
consent. Dishonest intention exists when the person so taking the
property intends to cause wrongful gain to himself or wrongful
loss to the other. This intention is known as animus furandi and
without it the offence of theft is not complete. Fish in their free
state are regarded as ferae naturae but they are said to be in the
possession of a person who has possession of any expanse of
water such as a tank, where they live but from where they cannot
escape. Fishes are also regarded as being in the possession of a
person who owns an exclusive right to catch them in a particular
spot known as a fishery but only within that spot. There can thus
be theft of fish from a tank which belongs to another and is in his
possession, if the offender catches them without the consent of
the owner and without any bona fide claim of right.
7. Now the ordinary rule that mens rea may exist even with an
honest ignorance of law is sometimes not sufficient for theft. A
claim of right in good faith, if reasonable saves the act of taking
from being theft and where such a plea is raised by the accused
it is mainly a question of fact whether such belief exists or not.
This court in Criminal Appeal No. 31 of 1961 (Suvvari Sanyasi
Apparao v. Boddepalli Lakhminarayana decided on October 5,
1961 observed as follows:
“It is settled law that where a bona fide claim of right
exists, it can be a good defence to a prosecution for theft.
An act does not amount to theft, unless there be not onlyCriminal Appeal Nos. 2161-2162 of 2024 Page 149 of 199
no legal right but no appearance or colour of a legal
right.”
8. By the expression “colour of a legal right” is meant not a false
pretence but a fair pretence, not a complete absence of claim put
a bona-fide claim, however weak. This Court observed in the
same case that the law was stated in 2 East P.C. 659 to be:
“If there be in the prisoner any fair pretence of property
or right, or if it be brought into doubt at all, the court will
direct an acquittal.”
and reffered to 1 Hale P.C. 509 that “the best evidence is
that the goods were taken quite openly”. The law stated by East
and Hale has always been the law on the subject of theft in India
and numerous cases decided by Indian Courts are to be found in
which these principles have been applied.
Niyogi, J. in his judgment also referred to some of the decisions
of the Calcutta High Court and we find ourselves in particular
agreement with the following statement of the law in Hamid Ali
Bepari v. Emperor :
“It is not theft if a person, acting under a mistaken
notion of law and; believing that certain property is his
and that he has the right to take the same … removes
such property from the possession of another.”(Emphasis supplied)
208. In Motilal Padampat Sugar Mills (supra) the State Government therein had
framed a policy for grant of sales tax exemption to new industrial units in
the State. On the basis of the said policy, the appellant therein set-up an
industrial unit and approached the State Government for claiming the
exemption. The State Government informed him that he would be granted
only partial concession in sales tax, to which the appellant was agreeable.
Criminal Appeal Nos. 2161-2162 of 2024 Page 150 of 199
However, subsequently, the State having second thoughts, rescinded the
concession which was being granted to the appellant. Aggrieved by which
the appellant preferred a writ petition claiming exemption from sale tax as
per the policy. However, the State Government in response submitted that
the appellant therein by accepting a partial concession on sales tax had
waived its right to claim full exemption. This Court rejecting the said plea
of waiver and estoppel held that, the appellant therein was unaware about
the policy and the extent of the exemption in sales tax under the law. Thus,
the appellant due to the ignorance of law had a bona-fide belief that the
policy only provided for a partial concession rather than a complete
exemption. This Court observed that it cannot be presumed that the appellant
was fully informed about the policy and that he had waived or abandoned
his right with full knowledge of the said policy. It further observed that often
the maxim “ignorantia juris non excusat” i.e., “ignorance of the law is no
excuse” is often misconstrued to mean that everyone is presumed to know
the law. Accordingly, this Court rejecting the plea of promissory estoppel
held that due to the ignorance of law on the part of the appellant, it cannot
be said that he had full knowledge of its right to exemption so as to waive or
abandon the same. The relevant observations read as under: –
“6. […] The claim of the appellant to exemption could be
sustained only on the doctrine of promissory estoppel and this
doctrine could not be said to be so well defined in its scope and
ambit and so free from uncertainty in its application that we
should be compelled to hold that the appellant must have hadCriminal Appeal Nos. 2161-2162 of 2024 Page 151 of 199
knowledge of its right to exemption on the basis of promissory
estoppel at the time when it addressed the letter dated June 25,
1970. In fact, in the petition as originally filed, the right to claim
total exemption from Sales Tax was not based on the plea of
promissory estoppel which was introduced only by way of
amendment. Moreover, it must be remembered that there is no
presumption that every person knows the law. It is often said that
everyone is presumed to know the law, but that is not a correct
statement : there is no such maxim known to the law. Over a
hundred and thirty years ago, Maule, J., pointed out
in Martindale v. Falkner:
“There is no presumption in this country that every
person knows the law : it would be contrary to common
sense and reason if it were so.”Scrutton, L.J., also once said:
“It is impossible to know all the statutory law, and not
very possible to know all the common law.”But it was Lord Atkin who, as in so many other spheres, put the
point in its proper context when he said in Evans v. Bartlam
“… the fact is that there is not and never has been a
presumption that every one knows the law. There is the
rule that ignorance of the law does not excuse, a maxim
of very different scope and application.”It is, therefore, not possible to presume, in the absence of any
material placed before the Court, that the. appellant had full
knowledge of its right to exemption so as to warrant an inference
that the appellant waived such right by addressing the letter
dated June 25, 1970. We accordingly reject the plea of waiver
raised on behalf of the State Government.
(Emphasis supplied)
209. Thus, from the aforesaid, we are of the considered view that the reliance on
the part of the accused on the two decisions of this Court in Chandi Kumar
Das Karmarkar (supra) and Motilal Padampat Sugar Mills (supra) is
Criminal Appeal Nos. 2161-2162 of 2024 Page 152 of 199
completely misplaced. In Chandi Kumar Das Karmarkar (supra) the
question before this Court was whether the accused therein due to the
ignorance of law could be said to have a bona-fide belief of a right or claim
to possession of the fish tank or in other words whether a plea of ignorance
is a valid defence to any acts done pursuant to a bona-fide belief of existence
of a right under the mistaken notion of law. Whereas in Motilal Padampat
Sugar Mills (supra) the issue for consideration before this Court was
whether the appellant therein due to the ignorance of law could be said to
have wilfully waived his right, or in other words whether a plea of ignorance
is a valid defence to any promissory estoppel to a right.
210. Thus, both the aforesaid decisions in Chandi Kumar Das Karmarkar (supra)
Motilal Padampat Sugar Mills (supra) are not applicable. We say so,
because this Court in the aforesaid decisions has only gone so far as to say
that a plea of ignorance of law can be used as a valid defence for either
showing that the purported act was done or not done (as the case may be)
due to a consequent bona-fide belief as to the existence of such a right or
claim. In other words, a plea of ignorance of law can be a valid defence if it
consequently gives rise to a legitimate and bona-fide mistake of fact as to
the existence (or non-existence) of a particular right or claim.
Criminal Appeal Nos. 2161-2162 of 2024 Page 153 of 199
211. This may be better understood through a four-prong test wherein for a valid
defence, there must exist (1) an ignorance or unawareness of any law and (2)
such ignorance or unawareness must give rise to a corresponding reasonable
and legitimate right or claim (3) the existence of such right or claim must be
believed bonafide and (4) the purported act sought to be punished must take
place on the strength of such right or claim. It is only when all the four of
the above conditions are fulfilled, that the person would be entitled to take a
plea of ignorance of law as a defence from incurring any liability.
212. As held in Chandi Kumar Das Karmarkar (supra) a plea of ignorance of
law is a valid defence only to the acts said to have been done on the basis of
a right or a claim, the existence of which was bona-fidely believed or
entertained on the basis of ignorance of law or mistaken notion of law. Thus,
for a plea of ignorance of law, the ignorance or mistake of law must be such
which legitimately gives rise to a bona-fide belief of the existence of a right
or a claim, and the said person commits any act on the strength of such right
or claim. This is fortified from the following observation “A claim of right
in good faith, if reasonable saves the act […] where such a plea is raised” in
paragraph 7 of Chandi Kumar Das Karmarkar (supra). Thus, a plea of
ignorance of law is only valid for the defence of a bona-fide claim of right
and any acts done thereunder. As such, where a person commits any act on
the assertion of a right, the existence of which was bona-fidely believed due
Criminal Appeal Nos. 2161-2162 of 2024 Page 154 of 199
to a mistaken notion of law, such person will not be liable due to the honest
but mistaken factum of such right or claim stemming from or accompanied
by ignorance of law.
213. Similarly, in Motilal Padampat Sugar Mills (supra) this Court only held that
a plea of ignorance of law may be a valid defence for bona-fidely believing
the existence of a wrong or incorrect right i.e., the right to only a partial
concession of sale tax exemption. Accordingly, this Court held that where a
person due to ignorance of law was not fully informed about a particular
right, there can be no waiver of such right unless it is shown that such person
was indeed aware of the said right.
214. Thus, the aforesaid decisions of this Court in Chandi Kumar Das
Karmarkar (supra) Motilal Padampat Sugar Mills (supra) are
distinguishable for the simple reason that storage or possession of child
pornographic material cannot be equated or traced to any right or assertion
even if it was a mistaken one. Even if a person is unaware that the possession
or storage of such material is punishable, it by no stretch can be considered
to give rise to any right or assertion as there exists no such right to either
store or possess such material, and thus it is not a valid defence. We say so
because, no person of an ordinary prudent mind with the same degree of
oblivion or unawareness as to the law, more particularly Section 15 of
Criminal Appeal Nos. 2161-2162 of 2024 Page 155 of 199
POCSO could as a natural corollary be led to a belief of existence of a right
to store or possess any child pornographic material. The ignorance or
unawareness must have a reasonable nexus with the right or assertion
claimed i.e., the ignorance or unawareness must be such which could
legitimately and reasonably give rise to a corresponding right or claim the
and the existence of which must be bona-fidely believed. Otherwise, anyone
could make a bald or blanket claim of having a bonafide belief of any right
to wriggle out of any liability arising out of its actions on the touchstone of
unawareness of any particular law. Thus, even if the accused was unaware
about Section 15 of POCSO, this by itself does not give rise to a
corresponding legitimate or reasonable ground to believe that there was any
right to store or possess child pornographic material. As such the four-prong
test is not fulfilled and the defence of ignorance of law by the accused must
fail.
215. Even otherwise, one must be mindful to the fact that such a plea is not a
statutory defence with any legal backing, but rather a by-product of the
doctrine of equity. Whether such a defence is to be accepted or not, largely
depends upon the extant of equity in the peculiar facts and circumstances of
each individual cases. It is an equally settled cannon of law that equity cannot
supplant the law, equity has to follow the law if the law is clear and
unambiguous.
Criminal Appeal Nos. 2161-2162 of 2024 Page 156 of 199
216. This Court in National Spot Exchange Ltd. v. Anil Kohli, Resolution
Professional for Dunar Foods Ltd. reported in (2022) 11 SCC 761 after
referring to a catena of its other judgments, had held that where the law is
clear the consequence thereof must follow. The High Court has no option
but to implement the law. The relevant observations made in it are being
reproduced below: –
“15.1. In Mishri Lal [BSNL v. Mishri Lal, (2011) 14 SCC 739 :
(2014) 1 SCC (L&S) 387], it is observed that the law prevails
over equity if there is a conflict. It is observed further that equity
can only supplement the law and not supplant it.
15.2. In Raghunath Rai Bareja [Raghunath Rai Bareja v. Punjab
National Bank, (2007) 2 SCC 230] , in paras 30 to 37, this Court
observed and held as under : (SCC pp. 242-43)
“30. Thus, in Madamanchi Ramappa v. Muthaluru
Bojjappa [AIR 1963 SC 1633] (vide para 12) this Court
observed: (AIR p. 1637)
‘12. … [W]hat is administered in Courts is
justice according to law, and considerations
of fair play and equity however important
they may be, must yield to clear and express
provisions of the law.’
31. In Council for Indian School Certificate
Examination v. Isha Mittal [(2000) 7 SCC 521] (vide
para 4) this Court observed: (SCC p. 522)
‘4. … Considerations of equity cannot
prevail and do not permit a High Court to
pass an order contrary to the law.’
32. Similarly, in P.M. Latha v. State of Kerala [(2003) 3
SCC 541 : 2003 SCC (L&S) 339] (vide para 13) this
Court observed: (SCC p. 546)
Criminal Appeal Nos. 2161-2162 of 2024 Page 157 of 199
‘13. Equity and law are twin brothers and
law should be applied and interpreted
equitably but equity cannot override written
or settled law.’
33. In Laxminarayan R. Bhattad v. State of Maharashtra
[(2003) 5 SCC 413] (vide para 73) this Court observed:
(SCC p. 436)
‘73. It is now well settled that when there is a
conflict between law and equity the former
shall prevail.’
34. Similarly, in Nasiruddin v. Sita Ram Agarwal
[(2003) 2 SCC 577] (vide para 35) this Court observed:
(SCC p. 588)
‘35. In a case where the statutory provision
is plain and unambiguous, the court shall not
interpret the same in a different manner, only
because of harsh consequences arising
therefrom.’
35. Similarly, in E. Palanisamy v. Palanisamy [(2003) 1
SCC 123] (vide para 5) this Court observed: (SCC p.
127)
‘5. Equitable considerations have no place
where the statute contained express
provisions.’
36. In India House v. Kishan N. Lalwani [(2003) 9 SCC
393] (vide para 7) this Court held that: (SCC p. 398)
‘7. … The period of limitation statutorily
prescribed has to be strictly adhered to and
cannot be relaxed or departed from for
equitable considerations.’…”
(Emphasis supplied)
Criminal Appeal Nos. 2161-2162 of 2024 Page 158 of 199
217. Unawareness or incognizance of law should not be conflated with ignorance
of law. This Court in Motilal Padampat Sugar Mills (supra) duly
acknowledged that a plea of unawareness of law is fundamentally different
in scope and application from the rule that ignorance of the law does not
excuse anyone. The former as explained above, is a byproduct of the doctrine
of equity whereas the latter is a cardinal rule of criminal jurisprudence and
no person can claim to be absolved of any criminal offence or liability on a
plea of ignorance of law. Thus, where something is specifically made
punishable under the law, then in such cases the law would prevail over
equity, and no plea of ignorance of law can be taken as a defence to absolve
or dilute any liability arising out of such punishable offences. Thus, even if
all four preconditions are satisfied, the courts are not bound to accept such a
plea, if it is in negation or derogation of any law or the idea of justice.
218. Equity modifies the applicable law or ensures its suitability to address the
particular circumstances before a court to produce justice. The modification
of general rules to the circumstances of the case is guided by equity, not in
derogation or negation of positive law, but in addition to it. It supplements
positive law but does not supplant it. In a second sense however, where
positive law is silent as to the applicable legal principles, equity assumes a
primary role as the source of law itself. Equity steps in to fill the gaps that
exist in positive law. Thus, where no positive law is discernible, courts turn
Criminal Appeal Nos. 2161-2162 of 2024 Page 159 of 199
to equity as a source of the applicable law. However, where positive law
exists, equity will always yield to it. [See M. Siddiq v. Mahant Suresh Das,
reported in 2020 1 SCC 1]
219. It was further contended by the respondent no. 1 that although the said child
pornographic material was found stored in his mobile phone, yet he had no
knowledge of the same. He would submit that, the aforesaid videos that were
found stored in his mobile as revealed by the FSL Report had been
automatically downloaded into his mobile phone without his knowledge or
volition.
220. Even, assuming that the respondent no. 1 did not actually store the aforesaid
two videos in his mobile phone, and that he had no knowledge of the
existence of those videos, nonetheless, the aforesaid aspect cannot be looked
into by us at the stage of quashing, more particularly while deciding whether
a prima-facie case is said to be made out. Even otherwise, since the material
on record adduced by the prosecution clearly establishes the possession or
storage of child pornographic material and the failure on the part of the
respondent no. 1 in deleting, destroying or reporting the same, the
foundational facts necessary to invoke the statutory presumption of culpable
mental state could be said to have been prima facie established.
Criminal Appeal Nos. 2161-2162 of 2024 Page 160 of 199
221. In view of the statutory presumption of culpable mental state being attracted,
any defence of the respondent no. 1 such as the absence of knowledge or
intention would be a matter of trial. Absence of culpable mental state has to
be established before the trial court by leading cogent evidence in that
regard. Such defences should not be looked into by us at this stage. All that
should be ascertained is whether a prima facie case is said to have been made
out.
v. Summary of our conclusion
222. We summarize our final conclusion as under: -
(I) Section 15 of the POCSO provides for three distinct offences that
penalize either the storage or the possession of any child pornographic
material when done with any particular intention specified under sub-
section(s) (1), (2) or (3) respectively. 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.
(II) Sub-section (1) of Section 15 penalizes 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. The mens-rea or the intention required under this provision is to
Criminal Appeal Nos. 2161-2162 of 2024 Page 161 of 199
be gathered from the actus reus itself i.e., 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.
(III) Section 15 sub-section (2) penalizes both the actual transmission,
propagation, display or distribution of any child pornography as-well as
the facilitation of any of the abovementioned 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 i.e., 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. The mens rea is to be gathered from the
manner in which the pornographic material was found to be stored or in
possession and any other material apart from such possession or storage
that is indicative of any facilitation or actual transmission, propagation,
display or distribution of such material.
(IV) Section 15 sub-section (3) penalizes the storage or possession of any
child pornographic material when done for any commercial purpose. To
Criminal Appeal Nos. 2161-2162 of 2024 Page 162 of 199
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. To constitute an offence
under sub-section (3) there is no requirement to establish that such gain
or benefit had been actually realized.
(V) Sub-section(s) (1), (2) and (3) respectively of Section 15 constitute
independent and distinct offences. The three offences cannot coexist
simultaneously in the same set of facts. They are distinct from each
other and are not intertwined. This is because, the underlying distinction
between the three sub-sections of Section 15 lies in the varying degree
of culpable mens rea that is required under each of the three provisions.
(VI) The police as well as the courts while examining any matter involving
the storage or possession of any child pornography, finds that a
particular sub-section 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 sub-
section of Section 15, then it must try to ascertain whether the same falls
within the other sub-sections or not.
(VII) Any act of viewing, distributing or displaying etc., of any child
pornographic material by a person over the internet without any actual
Criminal Appeal Nos. 2161-2162 of 2024 Page 163 of 199
or physical possession or storage of such material in any device or in
any form or manner would also amount to ‘possession’ in terms of
Section 15 of the POCSO, provided the said person exercised an
invariable degree of control over such material, by virtue of the doctrine
of constructive possession.
(VIII) 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 that the material appears
to depict a child from the perspective of any ordinary prudent person
for any offence under the POCSO that relates to child pornographic
material, such as Section 15. Such satisfaction may be arrived at from
any authoritative opinion like a forensic science laboratory (FSL) report
of such material or opinion of any expert on the material in question, or
by the assessment of such material by the courts themselves.
(IX) Section 67B of the IT Act is a comprehensive provision designed to
address and penalize the 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
Criminal Appeal Nos. 2161-2162 of 2024 Page 164 of 199
denigration and exploitation of the vulnerable age of children.
Section(s) 67, 67A and 67B respectively of the IT Act being a complete
code, ought to be interpreted in a purposive manner that suppresses the
mischief and advances the remedy and ensures that the legislative intent
of penalizing the various forms of cyber-offences relating to children
and the use of obscene / pornographic material through electronic
means is not defeated by a narrow construction of these provisions.
(X) 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.
(XI) The foundational facts necessary for the purpose of invoking the
statutory presumption of culpable mental state for an offence under
Section 15 of POCSO are as follows: –
(a) 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.
Criminal Appeal Nos. 2161-2162 of 2024 Page 165 of 199
(b) In order to invoke the statutory presumption of culpable
mental state for an offence under sub-section (2) the
prosecution would be required to first establish the storage or
possession of any child pornographic material, and also any
other fact to indicate either the actual transmission,
propagation, display or distribution of any such material or
any form of an overt act such as preparation or setup done for
the facilitation of the transmission, propagation, display or
distribution of such material, whereafter it shall be presumed
by the court that the said act was done with the intent of
transmitting, displaying, propagating or distributing such
material and that the said act(s) had not been done for the
purpose of either reporting or for use as evidence.
(c) For the purpose of sub-section (3) the prosecution must
establish the storage or possession of such material and further
prove any fact that might indicate that the same had been done
to derive some form of gain or benefit or the expectation of
some gain or benefit.
(XII) The statutory presumption of culpable mental under Section 30 of
POCSO can be made applicable in a quashing proceeding pertaining to
any offence under the POCSO.
Criminal Appeal Nos. 2161-2162 of 2024 Page 166 of 199
F. FEW MEANINGFUL SUGGESTIONS.
223. Before, we close this matter, we must address ourselves on a very important
aspect, as regards the need to effectively address the growing number of
dissemination and use of child pornography.
i. The Lingering Impact of Child Pornography on the Victimization &
Abuse of Children.
224. A child’s victimization begins with the sexual act, continues through its
recording, and perpetuates as photographs and videos that float through
cyberspace, freely accessible to anyone who has the ability to surf the
internet.1 Child sexual exploitation is one of the most heinous crimes
imaginable, and the offence of Child Pornography is equally as heinous, if
not more, as in the latter the victimization and exploitation of the child does
not end with the initial act of abuse. 2 The creation or dissemination of such
pornographic material further extends and compounds the harm infinitely
and at a far larger scale. 3 It in essence turns the singular incident of an abuse
into a ripple of trauma inducing acts where the rights and dignity of the child
is continuously violated each time such material is viewed or shared. This is
1
Eva J. Klain, Heather J Davies, Molly A. Hicks Et. Al., Child Pornography: The Criminal
Justice-System Response, 8 (Penn State University Press, 2001).
2
Philip Jenkins, Beyond Tolerance: Child Pornography on the Internet (New York University
Press, 2003)
3
Burgess, Ann W. & C.R. Hartman, Child Abuse Aspects of Child Pornography, 7
PSYCHIATRIC ANNALS, 248 (1987).
Criminal Appeal Nos. 2161-2162 of 2024 Page 167 of 199
why it is imperative that we collectively as a society address this issue with
the utmost seriousness.
225. The impact of such continuous victimization is profound. Any act of sexual
abuse inherently inflicts lasting physical and emotional trauma on the child.
However, the dissemination of this act of abuse through pornographic
material further accentuates and deepens the trauma into a psychological
scar. The knowledge that their abuse is being watched by countless strangers,
sometimes years after the actual event, exacerbates the psychological
wounds on top of the trauma that was already induced by the act in the first
place.4 This perpetuating violation deprives the victim of any remaining
hope or chance to heal, recover from the abuse and find closure. 5
226. One must also be mindful of the fact that the term “child pornography” is a
misnomer that fails to capture the full extent of the crime. It is important to
recognize that each case of what is traditionally termed “child pornography”
involves the actual abuse of a child. The use of the term “child pornography”
can lead to a trivialization of the crime, as pornography is often seen as a
consensual act between adults. It undermines the victimization because the
4
Audrey Rogers, The Dignity Harm of Child Pornography – From Producers to Possessors,
in Carissa Byrne Hessick (Eds.), Refining Child Pornography Law – Crime, Language and
Social Consequences (University of Michigan Press, 2016).
5
Tali Gal, Child Victims and Restorative Justice – A Needs Rights Model, 17 (Oxford
University Press, 2011)
Criminal Appeal Nos. 2161-2162 of 2024 Page 168 of 199
term suggests a correlation to pornography — conduct that may be legal,
whose subject is voluntarily participating in, and whose subject is capable of
consenting to the conduct.6
227. The term “child sexual exploitation and abuse material” or “CSEAM” more
accurately reflects the reality that these images and videos are not merely
pornographic but are records of incidents, where a child has either been
sexually exploited and abused or where any abuse of children has been
portrayed through any self-generated visual depiction. 7
228. The term “child sexual exploitation and abuse material” (CSEAM) rightly
places the emphasis on the exploitation and abuse of the child, highlighting
the criminal nature of the act and the need for a serious and robust response.
We are conscious that in the preceding parts of this judgment, we have used
the term “child pornography”, however the same has been done only for the
purposes of giving a better understanding of the nuances involved in the
6
Jonah R. Rimmer, Child Sexual Exploitation, (Oxford Research Encyclopaedia Criminology,
2024).
7
Mary Graw Leary, The Language of Child Sexual Abuse and Exploitation, in Carissa Byrne
Hessick (Eds.), Refining Child Pornography Law – Crime, Language and Social Consequences
(University of Michigan Press, 2016); see also, Danijela Frangež, Anton Toni Klančnik, Mojca
Žagar Karer Et. Al., The Importance of Terminology Related to Child Sexual Exploitation,
66(4) REV. ZA. KRIM. KRIMINOL. 291 (2015); see also, Kathryn C. Seigfried Spellar & Virginia
Soldino, Child Sexual Exploitation: Introduction to a Global Problem, in Thomas J. Holt &
Adam M. Bossler (Eds.), The Palgrave Handbook of International Cybercrime and
Cyberdeviance, (Palgrave Macmillian, Cham, 2020)
Criminal Appeal Nos. 2161-2162 of 2024 Page 169 of 199
present matter. We further forbid the courts from using the term “child
pornography” and instead the term “child sexual exploitation and abuse
material” (CSEAM) should be used in judicial orders and judgements of all
courts across the country.
229. Although, there exists a tangible difference between the act of viewing
CSEAM and the act of engaging in sexual abuse of children, yet the latter
desire is always inherent in the former. 8 Both the use of CSEAM and the act
of child sexual abuse share a common, malevolent intent: the exploitation
and degradation of a child for the sexual gratification of the abuser. The
production of child sexual exploitative material is inherently linked to the
act of sexual abuse. In both cases, the intent is clear: to sexually exploit and
harm a child. The creation of such material is not a passive act but a
deliberate one, where the abuser intentionally engages in the exploitation of
a child, knowing full well the harm it causes.9
230. This intent is what makes these crimes particularly heinous. The abuser is
not only violating the child’s body but is also reducing them to an object for
8
Vaughn I. Rickert & Owen Ryan, Is the Internet the Source?, 40 J. ADOLESC. HEALTH 104
(2007); see also, Dr. Ethel Quayle, Assessment issues with young people who engage in
problematic sexual behaviour through the Internet, in M.C. Calder (Ed.), New Developments
with young people who sexually abuse (Russel House Publishing, Lyme Regis, UK, 2007).
9
Matthew L Long, Laurence A. Alison & Michelle A McManus, Child pornography and
likelihood of contact abuse: a comparison between contact child sexual offenders and
noncontact offenders, 25(4) SEX ABUSE, 370 (2013).
Criminal Appeal Nos. 2161-2162 of 2024 Page 170 of 199
their own gratification, with little regard for the child’s dignity or well-being.
This dehumanization is evident in the production and distribution of
CSEAM, where the child is treated not as a person but as a commodity to be
consumed. Those who consume such material may develop an increased
desire to engage in further acts of child exploitation. The viewing of CSEAM
can desensitize individuals to the horrors of child abuse, leading them to seek
out more extreme forms of exploitation or even to commit acts of abuse
themselves. 10
231. Moreover, the demand for such material will always incubate a
corresponding production and distribution of CSEAM.11 Abusers may be
motivated to create and distribute these materials to satisfy the demand,
leading to the abuse of more children.12 This cycle of abuse and exploitation
underscores the need for stringent measures to not only punish those who
create and distribute CSEAM but also to deter potential consumers and
reduce the demand for such material.
232. Child sexual exploitative material is deeply degrading to the dignity of
children. It reduces them to objects of sexual gratification, stripping them of
10
Dr. Ethel Quayle Et. Al., The role of sexual images in online and offline sexual bheaviour
with minors, 17(6) CURR. PSYCHIATRY REP. 1 (2019).
11
Melissa Hamilton, The Child Pornography Crusade and Its Net- Widening Effect, 33
CARDOZO L. REV. 1694 (2012).
12
Esposito & Lesli C., Regulating the Internet: The Battle Against Child Pornography, 30
CASEW. RES. J. INT’L. L. 5 (1998).
Criminal Appeal Nos. 2161-2162 of 2024 Page 171 of 199
their humanity and violating their fundamental rights. Children are entitled
to grow up in an environment that respects their dignity and protects them
from harm. However, CSEAM violates this right in the most egregious
manner possible.
233. The existence and circulation of CSEAM are affronts to the dignity of all
children, not just the victims depicted in the material. It perpetuates a culture
in which children are seen as objects to be exploited, rather than as
individuals with their own rights and agency. This dehumanization is
particularly dangerous because it can lead to a broader societal acceptance
of child exploitation, further endangering the safety and well-being of
children.13
234. Given the severity and far-reaching consequences of child sexual
exploitation, there is a clear legal and moral imperative to take strong action
against those who produce, distribute, and consume CSEAM. This includes
not only criminal penalties for those involved in CSEAM but also
preventative measures, such as education and awareness campaigns. Laws
must be robust and strictly enforced to ensure that perpetrators are brought
13
Jason S. Carrol Et Al., Generation XXX, Pornography Acceptance and Use Among Emerging
Adults, 23 J. ADOLESCENT RES. 6 (2008).
Criminal Appeal Nos. 2161-2162 of 2024 Page 172 of 199
to justice and that children are protected from further harm. The courts ought
to be loathe in showing any form of leniency in such matters. 14
235. The impact of CSEAM on its victims is devastating and far-reaching,
affecting their mental, emotional, and social well-being. Victims of such
heinous exploitation often endure profound psychological trauma that can
manifest as depression, anxiety, and post-traumatic stress disorder (PTSD).15
The relentless reminder that images and videos of their abuse are circulating
online can lead to a persistent sense of victimization and helplessness, further
exacerbating feelings of shame, guilt, and worthlessness. This awareness can
make it highly challenging for victims to move forward, as the fear of being
recognized and judged by others remains ever-present.16
236. In our society, where social stigma and notions of honour and shame are
deeply entrenched, the social repercussions for victims are particularly
severe. Many victims face intense social stigmatization and isolation, finding
it difficult to form and maintain healthy relationships due to trust issues and
trauma-related challenges. The stigma attached to being a victim of CSEAM
14
Clare McGlynn & Dr. Hannah Bows, Possessing Extreme Pornography: policing,
prosecutions and the need for reform, 83(6) J. CRIM. LAW., 473 (2019).
15
Dr. Ethel Quayle, Lars Loof and Tink Palmer, Child Pornography and Sexual Exploitation
of Children Online, 64 (ECPAT International, 2008).
16
See, Michael C. Seto, Kailey Roche, Nicole C Rodrigues Et. Al., Evaluating Child Sexual
Abuse Perpetration Prevention Efforts: A Systematic Review, 33 J. CHILD SEX. ABUS. 22
(2024).
Criminal Appeal Nos. 2161-2162 of 2024 Page 173 of 199
can create significant barriers in social interactions, causing victims to
withdraw and feel alienated from their communities. The continuous re-
victimization through the sharing and viewing of these materials perpetuates
the victims’ suffering. Each instance of someone viewing or distributing the
material represents a new violation, making it harder for victims to heal. This
ongoing trauma can severely impact their self-esteem and self-worth,
leading to long-term emotional and psychological damage. Furthermore, the
impact extends to their education and employment opportunities. Many
victims struggle to concentrate on their studies or work due to the
overwhelming emotional burden they carry. This can lead to academic
underachievement, difficulty in securing employment, and economic
hardships, compounding their sense of insecurity and instability. 17
237. Providing compassionate and comprehensive support is crucial to help
victims heal and reclaim their lives. Therapeutic interventions, including
trauma-informed counselling and support groups, can offer a safe space for
victims to process their experiences and begin to heal. Legal and social
support services are also essential to help victims navigate the complexities
of their situation and rebuild their lives.
17
Paul G. Cassel, James Marsh & Jeremy M. Christiansen, The Case for Full Restitution for
Child Pornography Victims, 82 GEO. WASH. L. REV. 61 (2013).
Criminal Appeal Nos. 2161-2162 of 2024 Page 174 of 199
238. In India, the misconceptions about sex education are widespread and
contribute to its limited implementation and effectiveness. Many people,
including parents and educators, hold conservative views that discussing sex
is inappropriate, immoral, or embarrassing. This societal stigma creates a
reluctance to talk openly about sexual health, leading to a significant
knowledge gap among adolescents.
239. One prevalent misconception is that sex education encourages promiscuity
and irresponsible behaviour among youth. Critics often argue that providing
information about sexual health and contraception will lead to increased
sexual activity among teenagers. However, research has shown that
comprehensive sex education actually delays the onset of sexual activity and
promotes safer practices among those who are sexually active. 18
240. Another common belief is that sex education is a Western concept that does
not align with traditional Indian values. This view has led to resistance from
various state governments, resulting in bans on sex education in schools in
some states. This type of opposition hinders the implementation of
comprehensive and effective sexual health programs, leaving many
adolescents without accurate information. This is what causes teenagers and
18
Padminin Iyer & Peter Aggleton, Seventy years of sex education – A Critical Review, 74(1)
HEALTH EDUC. J. 3 (2015).
Criminal Appeal Nos. 2161-2162 of 2024 Page 175 of 199
young adults to turn to the internet, where they have access to unmonitored
and unfiltered information, which is often misleading and can plant the seed
for unhealthy sexual behaviours.
241. Additionally, there is a misconception that sex education only covers
biological aspects of reproduction. Effective sex education encompasses a
wide range of topics, including consent, healthy relationships, gender
equality, and respect for diversity. Addressing these topics is crucial for
reducing sexual violence and promoting gender equity.
242. Despite some of these challenges, there are successful sex education
programs in India, such as the Udaan program in Jharkhand. This program’s
success highlights the importance of community involvement, transparency,
and government support in overcoming resistance and creating a supportive
environment for sex education. 19
243. Positive age-appropriate sex education plays a critical role in preventing
youth from engaging in harmful sexual behaviours, including the
distribution, and viewing of CSEAM.20 Positive sex education focuses on
19
See, the Udaan Adolescent Education Program by the Centre for Catalyzing Change in
Jharkhand in India.
20
Cortney Lollar, Child Pornography and the Restitution Revolution, 103 J. CRIM. L. &
CRIMINOLOGY 343 (2013).
Criminal Appeal Nos. 2161-2162 of 2024 Page 176 of 199
providing accurate, age-appropriate information about sexuality, consent,
and respectful relationships. Research indicates that comprehensive sex
education can significantly reduce risky sexual behaviours, increase
knowledge, enable healthy decision-making, reduce misinformation, delay
sexual debut, decrease the number of sexual partners, and increase
contraceptive use. The research done in India has shown the need for
comprehensive sex education programs. A study of over 900 adolescents in
Maharashtra found that students not exposed to scientific literature on
reproductive and sexual health were more likely to initiate sex early.21
244. Furthermore, positive sex education promotes healthy attitudes towards
sexuality and relationships, which can counteract the distorted perceptions
often associated with the consumption of child pornography. It can also help
foster greater empathy and respect for others, reducing the likelihood of
engaging in exploitative behaviours. Comprehensive sex education
programs also teach youth about the importance of consent and the legal
implications of sexual activities, helping them understand the severe
consequences of viewing and distributing child pornography.
21
Jagdish Khubchandani, Jeffrey Clark & Raman Kumar, Beyond Controversies: Sexuality
Education for Adolescents in India, 3(3) J. FAMILY MED. PRIM. CARE. 175 (2014).
Criminal Appeal Nos. 2161-2162 of 2024 Page 177 of 199
245. It is of paramount importance that we begin to address misconceptions
around sexual health, and promoting a comprehensive understanding of sex
education’s benefits is essential for improving sexual health outcomes and
reducing the incidence of sexual crimes in India. This is especially crucial
given India’s growing population.
246. Section 43 of the POCSO obligates the Central Government and the State
Government to undertake measures and ensure that the provisions of the said
Act are given wide publicity through media including the television, radio
and the print media at regular intervals to make the general public, children
as well as their parents and guardians aware of the legislation. It further
requires the appropriate government to also impart proper training at tegular
intervals to all government offices such as police on the implementation of
the provisions of this Act. The relevant provision reads as under: –
“43. Public awareness about Act.—
The Central Government and every State Government, shall take
all measures to ensure that—
(a) the provisions of this Act are given wide publicity
through media including the television, radio and
the print media at regular intervals to make the
general public, children as well as their parents and
guardians aware of the provisions of this Act;
(b) the officers of the Central Government and the
State Governments and other concerned persons
(including the police officers) are imparted periodic
training on the matters relating to the
implementation of the provisions of the Act.”Criminal Appeal Nos. 2161-2162 of 2024 Page 178 of 199
247. Section 44 of the POCSO on the other hand obligates the National
Commission for Protection of Child Rights and the State Commission for
Protection of Child Rights constituted under the Act to regularly monitor and
assist in the implementation of the provisions of this Act. The relevant
provision reads as under: –
“44. Monitoring of implementation of Act.—
(1) The National Commission for Protection of Child Rights
constituted under section 3, or as the case may be, the State
Commission for Protection of Child Rights constituted under
section 17, of the Commissions for Protection of Child Rights
Act, 2005 (4 of 2006) shall, in addition to the functions assigned
to them under that Act, also monitor the implementation of the
provisions of this Act in such manner as may be prescribed.
(2) The National Commission or, as the case may be, the State
Commission, referred to in sub-section (1), shall, while inquiring
into any matter relating to any offence under this Act, have the
same powers as are vested in it under the Commissions for
Protection of Child Rights Act, 2005 (4 of 2006).
(3) The National Commission or, as the case may be, the State
Commission, referred to in sub-section (1), shall, also include,
its activities under this section, in the annual report referred to
in section 16 of the Commissions for Protection of Child Rights
Act, 2005 (4 of 2006).”
248. We are of the considered view that the obligation of the appropriate
government and the commission under Section(s) 43 and 44 of the POCSO
respectively, does not end at just spreading awareness about the provisions
of the POCSO. Since, one of the salutary and avowed object of the POCSO
was the deterrence of offences of child sexual abuse and exploitation, thus,
as a natural corollary, the obligation of the appropriate government and the
Criminal Appeal Nos. 2161-2162 of 2024 Page 179 of 199
commission under the aforesaid provisions will also entail imparting of sex
education and awareness amongst the general public, children as well as their
parents and guardians, particularly in schools and places of education. The
steps and efforts of the appropriate government and the commission towards
the compliance of Section(s) 43 and 44 must go beyond just the textual
wording of the said provisions and ought to earnestly take into account the
pragmatic necessities for curtailing the issue of child abuse, exploitation and
addiction to pornography.
249. Ultimately, it is our collective responsibility to ensure that victims of child
pornography receive the care, support, and justice they deserve. By fostering
a compassionate and understanding society, we can help them find their path
to recovery and regain a sense of safety, dignity, and hope. This includes
changing societal attitudes towards victims, improving legal frameworks to
protect them, and ensuring that perpetrators are held accountable.
a. Obligation to report under Section(s) 19 & 20 respectively of the
POCSO and Role of the Society and all Stakeholders.
250. Section 19 read with 20 & 21 of the POCSO is one such step towards
recognizing this collective responsibility of the society in curtailing the issue
of abuse and exploitation of children. Section 19 places an obligation on any
Criminal Appeal Nos. 2161-2162 of 2024 Page 180 of 199
person who has an apprehension that an offence under POCSO is likely to
be committed or has knowledge that such an offence has been committed, to
report and provide information about the same to the Special Juvenile Police
Unit or the local police. Section 19 further delineates the process and
procedure in which such information or report has to be recorded by the
authorities, and the course of action to be adopted. Section 20 extends such
obligation to any and all personnel of media, hotels, hospitals, clubs or
studios etc., to mandatorily report and provide information about any
material or object which is sexually exploitative of a child (including
pornographic, sexually-related or making obscene representation of a child
or children) through the use of any medium to the authorities mentioned
above. Any failure to do so, either in terms of Section 19 or 21 of POCSO
shall be liable to be punished with imprisonment upto 6-months or fine or
both. Further, any failure on the part of any employer or supervisor in
reporting the commission of any offence or its apprehension in respect of a
subordinate under his control, will also be liable to be punished with
imprisonment which may extend to 1-year and also fine. The relevant
provisions read as under: –
“19. Reporting of offences.—
(1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of1974) any person (including the child),
who has apprehension that an offence under this Act is likely to
be committed or has knowledge that such an offence has been
committed, he shall provide such information to,—
(a) the Special Juvenile Police Unit; or
Criminal Appeal Nos. 2161-2162 of 2024 Page 181 of 199
(b) the local police.
(2) Every report given under sub-section (1) shall be —
(a) ascribed an entry number and recorded in writing;
(b) be read over to the informant;
(c) shall be entered in a book to be kept by the Police Unit.
(3) Where the report under sub-section (1) is given by a child,
the same shall be recorded under sub-section (2) in a simple
language so that the child understands contents being recorded.
(4) In case contents are being recorded in the language not
understood by the child or wherever it is deemed necessary, a
translator or an interpreter, having such qualifications,
experience and on payment of such fees as may be prescribed,
shall be provided to the child if he fails to understand the same.
(5) Where the Special Juvenile Police Unit or local police is
satisfied that the child against whom an offence has been
committed is in need of care and protection, then, it shall, after
recording the reasons in writing, make immediate arrangement
to give him such care and protection including admitting the
child into shelter home or to the nearest hospital within twenty-
four hours of the report, as may be prescribed.
(6) The Special Juvenile Police Unit or local police shall,
without unnecessary delay but within a period of twenty-four
hours, report the matter to the Child Welfare Committee and the
Special Court or where no Special Court has been designated,
to the Court of Session, including need of the child for care and
protection and steps taken in this regard.
(7) No person shall incur any liability, whether civil or criminal,
for giving the information in good faith for the purpose of sub-
section (1).
20. Obligation of media, studio and photographic facilities to
report cases.—
Any personnel of the media or hotel or lodge or hospital or club
or studio or photographic facilities, by whatever name called,
irrespective of the number of persons employed therein, shall, on
coming across any material or object which is sexually
exploitative of the child (including pornographic, sexually-
Criminal Appeal Nos. 2161-2162 of 2024 Page 182 of 199
related or making obscene representation of a child or children)
through the use of any medium, shall provide such information
to the Special Juvenile Police Unit, or to the local police, as the
case may be.
21. Punishment for failure to report or record a case.—
(1) Any person, who fails to report the commission of an offence
under sub-section (1) of section 19 or section 20 or who fails to
record such offence under sub-section (2) of section 19 shall be
punished with imprisonment of either description which may
extend to six months or with fine or with both.
(2) Any person, being in-charge of any company or an institution
(by whatever name called) who fails to report the commission of
an offence under sub-section (1) of section 19 in respect of a
subordinate under his control, shall be punished with
imprisonment for a term which may extend to one year and with
fine.
(3) The provisions of sub-section (1) shall not apply to a child
under this Act.”
251. Thus, it is evident that, to achieve the avowed purpose, a legal obligation has
been imposed under the POCSO Act on any person to report an offence to
the relevant authorities specified therein if they have knowledge that an
offence under the Act has been committed. This obligation also extends to
individuals who have reason to believe that an offence under the Act is likely
to be committed. In addition to imposing this legal duty under Section 19,
the legislature being in seisin of the paramount importance in collectively
addressing the problems of child abuse and exploitation, deemed it expedient
to make the failure to discharge this obligation punishable under Section 21
of the Act. Such provisions have been inserted with a view to ensure strict
Criminal Appeal Nos. 2161-2162 of 2024 Page 183 of 199
compliance of the provisions under the POCSO and thereby to ensure that
the tender age of children is not being abused and their childhood and youth
is protected against exploitation.
252. In Shankar Kisanrao Khade v. State of Maharashtra, reported in (2013) 5
SCC 546, this Court expressing its anguish over the large number of cases
of abuse and exploitation of children, held that such issues must be
collectively dealt by all stakeholders in a child-centric manner by applying
the best interest of child standard, since best interest of the child is
paramount and not the interest of perpetrator of the crime. It further inter-
alia laid down the manner in which all persons in charge of the
schools/educational institutions, special homes, children homes, shelter
homes, hostels, remand homes, jails, etc. or wherever children are housed
have to comply with the obligation(s) envisaged under Section(s) 19 & 21
of the POCSO. The relevant observations read as under: –
“72. I may also point out that, in large numbers of cases,
children are abused by persons known to them or who have
influence over them. Criminal courts in this country are galore
with cases where children are abused by adults addicted to
alcohol, drugs, depression, marital discord, etc. Preventive
aspects have seldom been given importance or taken care of.
Penal laws focus more on situations after commission of offences
like violence, abuse, exploitation of the children. Witnesses of
many such heinous crimes often keep mum taking shelter on
factors like social stigma, community pressure, and difficulties
of navigating the criminal justice system, total dependency on
the perpetrator emotionally and economically and so on. Some
adult members of family including parents choose not to reportCriminal Appeal Nos. 2161-2162 of 2024 Page 184 of 199
such crimes to the police on the plea that it was for the sake of
protecting the child from social stigma and it would also do more
harm to the victim. Further, they also take shelter pointing out
that in such situations some of the close family members having
known such incidents would not extend medical help to the child
to keep the same confidential and so on, least bothered about the
emotional, psychological and physical harm done to the child.
Sexual abuse can be in any form like sexually molesting or
assaulting a child or allowing a child to be sexually molested or
assaulted or encouraging, inducing or forcing the child to be
used for the sexual gratification of another person, using a child
or deliberately exposing a child to sexual activities or
pornography or procuring or allowing a child to be procured for
commercial exploitation and so on.
73. In my view, whenever we deal with an issue of child abuse,
we must apply the best interest of child standard, since best
interest of the child is paramount and not the interest of
perpetrator of the crime. Our approach must be child-centric.
Complaints received from any quarter, of course, have to be kept
confidential without casting any stigma on the child and the
family members. But, if the tormentor is the family member
himself, he shall not go scot-free. Proper and sufficient
safeguards also have to be given to the persons who come
forward to report such incidents to the police or to the Juvenile
Justice Board.
74. The conduct of the police for not registering a case under
Section 377 IPC against the accused, the agony undergone by a
child of 11 years with moderate intellectual disability, non-
reporting of offence of rape committed on her, after having
witnessed the incident either to the local police or to the Juvenile
Justice Board compel us to give certain directions for
compliance in future which, in my view, are necessary to protect
our children from such sexual abuses. This Court as parens
patriae has a duty to do so because the Court has guardianship
over minor children, especially with regard to the children
having intellectual disability, since they are suffering from legal
disability. Prompt reporting of the crime in this case could have
perhaps, saved the life of a minor child of moderate intellectual
disability.
xxx xxx xxx
Criminal Appeal Nos. 2161-2162 of 2024 Page 185 of 199
76. Considering the entire facts and circumstances of the case, I
am inclined to convert death sentence awarded to the accused to
rigorous imprisonment for life and that all the sentences
awarded will run consecutively.
77. In my opinion, the case in hand calls for issuing the following
directions to various stakeholders for due compliance:
77.1. The persons in charge of the schools/educational
institutions, special homes, children homes, shelter homes,
hostels, remand homes, jails, etc. or wherever children are
housed, if they come across instances of sexual abuse or assault
on a minor child which they believe to have been committed or
come to know that they are being sexually molested or assaulted
are directed to report those facts keeping upmost secrecy to the
nearest Special Juvenile Police Unit (SJPU) or local police, and
they, depending upon the gravity of the complaint and its
genuineness, take appropriate follow-up action casting no
stigma to the child or to the family members.
77.2. Media personnel, persons in charge of hotels, lodges,
hospitals, clubs, studios and photograph facilities have to duly
comply with the provision of Section 20 of Act 32 of 2012 and
provide information to the SJPU, or local police. Media has to
strictly comply with Section 23 of the Act as well.
77.3. Children with intellectual disability are more vulnerable to
physical, sexual and emotional abuse. Institutions which house
them or persons in care and protection, if come across any act
of sexual abuse, have a duty to bring to the notice of the Juvenile
Justice Board/SJPU or local police and they in turn be in touch
with the competent authority and take appropriate action.
77.4. Further, it is made clear that if the perpetrator of the crime
is a family member himself, then utmost care be taken and
further action be taken in consultation with the mother or other
female members of the family of the child, bearing in mind the
fact that best interest of the child is of paramount consideration.
77.5. If hospitals, whether government or privately-owned or
medical institutions where children are being treated come to
know that children admitted are subjected to sexual abuse, the
same will immediately be reported to the nearest Juvenile JusticeCriminal Appeal Nos. 2161-2162 of 2024 Page 186 of 199
Board/SJPU and the Juvenile Justice Board, in consultation with
SJPU, should take appropriate steps in accordance with the law
safeguarding the interest of the child.
77.6. The non-reporting of the crime by anybody, after having
come to know that a minor child below the age of 18 years was
subjected to any sexual assault, is a serious crime and by not
reporting they are screening the offenders from legal
punishment and hence be held liable under the ordinary criminal
law and prompt action be taken against them, in accordance
with law.
77.7. Complaints, if any, received by Ncpcr, Scpcr, Child
Welfare Committee (CWC) and Child Helpline, NGOs or
women’s organisations, etc., they may take further follow-up
action in consultation with the nearest Juvenile Justice Board,
SJPU or local police in accordance with law.
77.8. The Central Government and the State Governments are
directed to constitute SJPUs in all the districts, if not already
constituted and they have to take prompt and effective action in
consultation with the Juvenile Justice Board to take care of the
child and protect the child and also take appropriate steps
against the perpetrator of the crime.
77.9. The Central Government and every State Government
should take all measures as provided under Section 43 of Act 32
of 2012 to give wide publicity to the provisions of the Act through
media including television, radio and print media, at regular
intervals, to make the general public, children as well as their
parents and guardians, aware of the provisions of the Act.”
253. This Court in its decision in State of Maharashtra & Anr. v. Maroti reported
in (2023) 4 SCC 298 examined and explained the true purport of the
obligations envisaged under Section(s) 19 & 21 of the POCSO. It held that
prompt and proper reporting of offences under the POCSO is the bedrock of
the obligations that have been cast under the said provisions, and any other
Criminal Appeal Nos. 2161-2162 of 2024 Page 187 of 199
view would defeat the very purpose and object of the Act. It further observedthat merely because the failure to discharge the obligation under Section(s)
19 & 21 is punishable with imprisonment for a short duration, does not mean
that such an offence is not to be taken seriously. Accordingly, it held that
strict compliance of such provisions must be ensured to protect the tender
age and youth of children against exploitation. The relevant observations
read as under: –
“11. To achieve the avowed purpose, a legal obligation for
reporting of offence under the POCSO Act is cast upon on a
person to inform the relevant authorities specified thereunder
when he/she has knowledge that an offence under the Act had
been committed. Such obligation is also bestowed on person who
has apprehension that an offence under this Act is likely to be
committed. Besides casting such a legal obligation under Section
19, the Legislature thought it expedient to make failure to
discharge the obligation thereunder as punishable, under
Section 21 thereof. True that under Section 21 (1), failure to
report the commission of an offence under Sub Section 1 of
Section 19 or Section 20 or failure to report such offence under
Sub Section 2 of Section 19 has been made punishable with
imprisonment of either description which may extend to six
months or with fine or with both. Sub section 2 of Section 21
provides that any person who being in-charge of any company
or an institution (by whatever name called) who fails to report
the commission of an offence under Sub-Section 1 of Section 19
in respect of a subordinate under his control, shall be punishable
with imprisonment with a term which may extend to one year or
with fine. Certainly, such provisions are included in with a view
to ensure strict compliance of the provisions under the POCSO
Act and thereby to ensure that the tender age of children is not
being abused and their childhood and youth is protected against
exploitation.
12. Looking at the penal provisions referred above, making
failure to discharge the obligation under Section 19 (1)
punishable only with imprisonment for a short duration viz., sixCriminal Appeal Nos. 2161-2162 of 2024 Page 188 of 199
months, one may think that it is not an offence to be taken
seriously. However, according to us that by itself is not the test
of seriousness or otherwise of an offence of failure to discharge
the legal obligation under Section 19, punishable under Section
21 of POCSO Act. We are fortified in our view, by the decisions
of a three Judge Bench of this Court in Vijay Madanlal
Choudhary & Ors. v. Union of India & Ors. and a two Judge-
Bench in Shankar Kisanrao Khade v. State of Maharashtra.
xxx xxx xxx
14. […] the length of punishment is not only the indicator of the
gravity of offence and it is to be judged by a totality of factors,
especially keeping in mind the background in which the offence
came to be recognized by the Legislature in the specific
international context. In this context, it is also relevant to note
that the United Nations Convention on Rights of Children, which
was ratified by India on 11.12.1992, requires the State parties to
undertake all appropriate national, bilateral and multilateral
measures to prevent the inducement or coercion of child to
engage in any unlawful sexual activity, the exploitative use of
children in prostitution or other unlawful sexual practices etc.
Articles 3 (2) and 34 of the Convention have placed a specific
duty on the State to protect the child from all forms of sexual
exploitation and abuse.
15. Prompt and proper reporting of the commission of offence
under the POCSO Act is of utmost importance and we have no
hesitation to state that its failure on coming to know about the
commission of any offence thereunder would defeat the very
purpose and object of the Act. We say so taking into account the
various provisions thereunder. Medical examination of the
victim as also the accused would give many important clues in a
case that falls under the POCSO Act. […] We refer to the
aforesaid provisions only to stress upon the fact that a prompt
reporting of the commission of an offence under POCSO Act
would enable immediate examination of the victim concerned
and at the same time, if it was committed by an unknown person,
it would also enable the investigating agency to commence
investigation without wasting time and ultimately to secure the
arrest and medical examination of the culprit. There can be no
two views that in relation to sexual offences medical evidence
has much corroborative value.”
(Emphasis supplied)
Criminal Appeal Nos. 2161-2162 of 2024 Page 189 of 199
254. The role of “intermediaries” as defined under Section 2(w) of the IT Act in
checking the proliferation of child pornography is significant. Section 79 of
the IT Act, 2000 which relates to due diligence that is to be observed by an
intermediary, provides an exemption from liability to such intermediaries in
certain cases if they are in compliance with the due-diligence requirements
prescribed under the said provision, more particularly sub-section (3)(b), this
is known as the “safe harbour” protection or provision. “Safe Harbour”
protection means that an intermediary will not be held liable for any third-
party information, data, or communication link made available or hosted by
him. As per sub-section (2), in order to avail such protection, the
intermediary foremost must not in any manner be involved in either initiating
the transmission, or the receipt or the modification of the third-party data or
information in question, and further is required to observe due diligence
while discharging his duties under the IT Act and to also observe such other
guidelines as the Central Government may prescribe in his behalf. Sub-
section (3) (b) of the above-mentioned provision stipulates that if an
intermediary receives actual knowledge or is notified by the appropriate
government or its agency that any information, data, or communication link
residing in or connected to a computer resource controlled by the
intermediary is being used to commit an unlawful act, the intermediary must
expeditiously remove or disable access to that material on that resource
without compromising the evidence in any manner. It further states that the
Criminal Appeal Nos. 2161-2162 of 2024 Page 190 of 199
protection under Section 79 lapses and does not apply if the intermediary has
conspired or abetted or aided or induced, whether by threats or promise or
otherwise in the commission of the unlawful act, or if upon receiving “actual
knowledge”, or if the intermediary fails to expeditiously remove or disable
access to that material on that resource without vitiating the evidence in any
manner on being notified by the appropriate Government or its agency that
any information, data or communication link residing in or connected to a
computer resource controlled by the intermediary is being used to commit
the unlawful act. The relevant provision reads as under: –
“79. Exemption from liability of intermediary in certain
cases.—
(1) Notwithstanding anything contained in any law for the time
being in force but subject to the provisions of sub-sections (2)
and (3), an intermediary shall not be liable for any third-party
information, data, or communication link made available or
hosted by him.
(2) The provisions of sub-section (1) shall apply if—
(a) the function of the intermediary is limited to providing
access to a communication system over which information
made available by third parties is transmitted or
temporarily stored or hosted; or
(b) the intermediary does not—
(i) initiate the transmission;
(ii) select the receiver of the transmission; and
(iii) select or modify the information contained in the
transmission;
(c) the intermediary observes due diligence while
discharging his duties under this Act and also observes
such other guidelines as the Central Government may
prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if—
Criminal Appeal Nos. 2161-2162 of 2024 Page 191 of 199
(a) the intermediary has conspired or abetted or aided or
induced, whether by threats or promise or otherwise in the
commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by
the appropriate Government or its agency that any
information, data or communication link residing in or
connected to a computer resource controlled by the
intermediary is being used to commit the unlawful act, the
intermediary fails to expeditiously remove or disable
access to that material on that resource without vitiating
the evidence in any manner.
Explanation.—For the purposes of this section, the expression
‘third-party information’ means any information dealt with by
an intermediary in his capacity as an intermediary.”
255. Rule 11 of the Protection of Children from Sexual Offences Rules, 2020 (for
short, the “POCSO Rules”), places an obligation on the intermediaries to
not only report offences under POCSO but also to hand over the necessary
material including the source from which such material may have originated
to the Special Juvenile Police Unit or the local police, or the cyber-crime
portal. As per a MOU between the National Crime Records Bureau (NCRB)
under the Ministry of Home Affairs (MHA) and the National Centre for
Missing & Exploited Children (NCMEC), a US based NGO, all social media
intermediaries are required to report cases of child abuse and exploitation to
the NCMEC, which in turn reports these cases to the NCRB and the NCRB
forwards this to the concerned State authorities in India through the national
cybercrime reporting portal.
Criminal Appeal Nos. 2161-2162 of 2024 Page 192 of 199
256. It has been brought to the notice of this Court that social media
intermediaries do not report such cases of child abuse and exploitation to the
local authorities specified under POCSO and rather only comply with the
requirements stipulated in the MOU. In view of the salutary object and the
mandatory character of the provisions of Sections 19 and 20 of the POCSO
read with Rule 11 of the POCSO Rules, we are of the considered view, that
an intermediary cannot claim exemption from the liability under Section 79
of the IT Act for any third-party information, data, or communication link
made available or hosted by it, unless due diligence is conducted by it and
compliance is made of these provisions of the POCSO. We are also of the
view that such due diligence includes not only removal of child pornographic
content but also making an immediate report of such content to the
concerned police units in the manner specified under the POCSO Act and
the Rules thereunder.
257. Section 42A of the POCSO provides that the Act shall be in addition to and
not in derogation of the provisions of any other law and further provides that
it shall have overriding effect on the provisions of any such law to the extent
of the inconsistency. The relevant provision reads as under: –
“42A. Act not in derogation of any other law.—
The provisions of this Act shall be in addition to and not in
derogation of the provisions of any other law for the time being
in force and, in case of any inconsistency, the provisions of thisCriminal Appeal Nos. 2161-2162 of 2024 Page 193 of 199
Act shall have overriding effect on the provisions of any such
law to the extent of the inconsistency.”
258. In view of the overriding effect of the POCSO Act and the rules thereunder,
merely because an intermediary is in compliance of the requirements
specified under Section 79 of the IT Act, will not absolve it of any liability
under the POCSO, unless it duly complies with the requirements and
procedure set out under it, particularly Section 20 of POCSO Act and Rule
11 of the POCSO Rules. It is a settled position of law, that when a statute
describes or requires a thing to be done in a particular manner; it should be
done in that manner or not at all. Thus, social media intermediaries in
addition to reporting the commission or the likely apprehension of
commission of any offence under POCSO to the National Centre for Missing
& Exploited Children (NCMEC) is also obligated to report the same to
authorities specified under Section 19 of POCSO i.e., the Special Juvenile
Police Unit (SJPU) or the local police.
259. We endorse the view and the directions issued by this Court in Shankar
Kisanrao Khade (supra) and are of the considered view that a meaningful
effect to the provisions of the POCSO can only be given if such directions
are complied with to the letter and spirit. We further caution the courts to
refrain from showing any form of leniency or leeway in offences under
Section 21 of the POCSO, particularly to schools/educational institutions,
special homes, children’s homes, shelter homes, hostels, remand homes,
Criminal Appeal Nos. 2161-2162 of 2024 Page 194 of 199
jails, etc. who failed to discharge their obligation of reporting the
commission or the apprehension of commission of any offence or instance
of child abuse or exploitation under the POCSO. Section(s) 19, 20 and 21 of
the POCSO are mandatory in nature, and there can be no dilution of the
salutary object and purport of these provisions. Merely because Section 21
prescribes a lesser threshold of punishment, the same in no way derogates or
detracts from the gravity or severity of the offence which has been sought to
be punished as held in Maroti (supra). It is a settled position of law that the
length of punishment is not the only indicator of the gravity of the offence
and it is to be judged by a totality of factors, especially keeping in mind the
background in which the offence came to be recognized by the legislature in
the specific international context i.e., the United Nations Convention on
Rights of Children, particularly Article(s) 3(2) and 34 of the said
Convention.
ii. Suggestions to the Union of India and to the courts.
260. We propose to suggest the following to the Union of India in its Ministry of
Women and Child Development: –
(i) The Parliament should seriously consider to bring about an
amendment to the POCSO for the purpose of substituting the term
“child pornography” that with “child sexual exploitation and abuse
material” (CSEAM) with a view to reflect more accurately on the
Criminal Appeal Nos. 2161-2162 of 2024 Page 195 of 199
reality of such offences. The Union of India, in the meantime mayconsider to bring about the suggested amendment to the POCSO by
way of an ordinance.
(ii) We put 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 exploitation and abuse material” (CSEAM) should be
endorsed.
(iii) Implementing comprehensive sex education programs that include
information about the legal and ethical ramifications of child
pornography can help deter potential offenders. These programs
should address common misconceptions and provide young people
with a clear understanding of consent and the impact of exploitation.
(iv) Providing support services to the victims and rehabilitation
programs for the offenders is essential. These services should
include psychological counselling, therapeutic interventions, and
educational support to address the underlying issues and promote
healthy development. For those already involved in viewing or
distributing child pornography, CBT has proven effective in
addressing the cognitive distortions that fuel such behaviour.
Therapy programs should focus on developing empathy,
Criminal Appeal Nos. 2161-2162 of 2024 Page 196 of 199
understanding the harm caused to victims, and altering problematic
thought patterns.
(v) Raising awareness about the realities of child sexual exploitative
material and its consequences through public campaigns can help
reduce its prevalence. These campaigns should aim to destigmatize
reporting and encourage community vigilance.
(vi) Identifying at-risk individuals early and implementing intervention
strategies for youth with problematic sexual behaviours (PSB)
involves several steps and requires a coordinated effort among
various stakeholders, including educators, healthcare providers, law
enforcement, and child welfare services. Educators, healthcare
professionals, and law enforcement officers should be imparted
training to identify signs of PSB. Awareness programs can help
these professionals recognize early warning signs and understand
how to respond appropriately.
(vii) Schools can also play a crucial role in early identification and
intervention. Implementing school-based programs that educate
students about healthy relationships, consent, and appropriate
behaviour can help prevent PSB.
Criminal Appeal Nos. 2161-2162 of 2024 Page 197 of 199
(viii) To give meaningful effect to the above suggestions and work out the
necessary modalities, the Union of India may consider constituting
an Expert Committee tasked with devising a comprehensive
program or mechanism for health and sex education, as well as
raising awareness about the POCSO among children across the
country from an early age, for ensuring a robust and well-informed
approach to child protection, education, and sexual well-being.
(ix) We urge the Parliament to consider amending Section 15 sub-
section (1) of POCSO so as to make it more convenient for the
general public to report by way of an online portal, any instance of
storage or possession of CSEAM to the specified authorities for the
purpose of the said provision.
G. FINAL ORDER
261. For all the foregoing reasons, 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
order passed by the High Court, and restore the criminal proceedings in Spl.
S.C. No. 170 of 2023 to the court of Sessions Judge, Mahila Neethi Mandram
(Fast Track Court), Tiruvallur District. We accordingly pass such order.
262. 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
Criminal Appeal Nos. 2161-2162 of 2024 Page 198 of 199
Principal Secretary, Ministry of Women and Child Development, Union of
India, for undertaking appropriate course of action.
263. Pending application(s) if any, also stand disposed of.
……………………………………………… CJI.
(Dr. Dhananjaya Y. Chandrachud)
…………………………………………………. J.
(J.B. Pardiwala)
New Delhi
23rd September, 2024
Criminal Appeal Nos. 2161-2162 of 2024 Page 199 of 199