Supreme Court clarifies the scope of Section 15 of the POCSO Act and Section 67B of the IT Act in Child Pornography Cases: Just Rights for Children Alliance & Anr. vs. S. Harish & Ors. (2024) INSC 716 (23 September 2024)

Date of the Judgment: 23 September 2024
Citation: (2024) INSC 716
Judges: Dr. Dhananjaya Y. Chandrachud, CJI., J.B. Pardiwala, J.
Can mere possession of child pornography be a crime? The Supreme Court of India recently addressed this crucial question, clarifying the legal boundaries of the Protection of Children from Sexual Offences Act, 2012 (POCSO) and the Information Technology Act, 2000 (IT Act) in cases involving child pornography. This judgment provides much-needed clarity on the responsibilities of individuals and the scope of these laws.

Case Background

On 29 January 2020, the All-Women’s Police Station in Ambattur, Chennai, received a tip from the National Crimes Record Bureau (NCRB) stating that S. Harish, the respondent, was actively consuming child pornography and had downloaded such material on his mobile phone. An FIR was registered against Harish for offences under Section 67B of the IT Act and Section 14(1) of the POCSO Act. During the investigation, Harish’s mobile phone was seized and sent for forensic analysis. The analysis revealed two video files of child pornography involving underage boys engaged in sexual activity with an adult woman, along with over a hundred other pornographic video files. Subsequently, a chargesheet was filed against Harish under Section 67B of the IT Act and Section 15(1) of the POCSO Act.

Timeline

Course of Proceedings

Aggrieved by the chargesheet, the accused filed a quashing petition before the High Court of Judicature at Madras. The High Court allowed the petition and quashed the chargesheet, stating that mere possession or viewing of child pornography does not constitute an offense under Section 14(1) of the POCSO Act or Section 67B of the IT Act. This decision was challenged by Just Rights for Children Alliance and another child rights organization before the Supreme Court.

Legal Framework

The Supreme Court examined the following key legal provisions:

• Section 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act): This section penalizes the storage or possession of pornographic material involving a child. It has three sub-sections:
  • Section 15(1): Punishes storing or possessing child pornography with the intention to share or transmit it, but failing to delete or report it. “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.”
  • Section 15(2): Punishes storing or possessing child pornography for transmitting, propagating, displaying, or distributing it. “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.”
  • Section 15(3): Punishes storing or possessing child pornography for commercial purposes. “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.”
• Section 67B of the Information Technology Act, 2000 (IT Act): This section penalizes the publishing, transmitting, or creating of material depicting children in sexually explicit acts. “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”
• Section 30 of the POCSO Act: This section establishes a presumption of a culpable mental state for offences under the Act. “(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.”

Arguments

Appellants:

• The High Court erred in interpreting the POCSO Act and ignoring Section 15, which penalizes the possession of child pornography.
• The High Court failed to distinguish between adult pornography and child pornography, and that Section 67B of the IT Act specifically addresses child pornography.
• The High Court should have presumed a culpable mental state on the part of the accused under Section 30 of the POCSO Act.

National Commission for Protection of Child Rights (NCPCR):

• The State failed to register the FIR under Section 15 of the POCSO Act and did not inform the High Court that the chargesheet was filed under Section 15(1) and not Section 14.
• The accused failed to delete the child pornographic material for two years, violating Section 19 of the POCSO Act.
• The High Court did not apply Section 30 of the POCSO Act, which presumes a culpable mental state.

Respondent (Accused):

• The FIR was lodged under Section 14(1) of the POCSO Act, and the High Court did not err in its order.
• The videos were automatically downloaded via WhatsApp and he was unaware of their existence.
• Mere possession of the videos does not constitute an offense under Section 15(1) of the POCSO Act.
• He was unaware of the law and had a bona fide belief that his actions were not illegal.

State:

• The High Court erred by proceeding under Section 14 of the POCSO Act instead of Section 15(1).
• The High Court failed to consider Section 67B of the IT Act.
• Section 15 of the POCSO Act and Section 67B of the IT Act were enacted to curtail child abuse.
• The High Court should not have quashed the criminal proceedings based on the materials on record.

Submissions of the Parties

Issues Framed by the Supreme Court

1. What is the scope of Section 15 of the POCSO Act, and what is the distinction between its sub-sections?
2. Is the mere viewing, possessing, or storing of child pornography punishable under the POCSO Act?
3. What is the true scope of Section 67B of the IT Act?
4. What is the scope of Section 30 of the POCSO Act, and what foundational facts are necessary to invoke it?
5. Can the statutory presumption under Section 30 of the POCSO Act be invoked in a quashing proceeding under Section 482 of the CrPC?

Treatment of the Issue by the Court

Authorities

Judgment

How each authority was viewed by the Court?

• The Supreme Court relied on Independent Thought v. Union of India & Anr. [2017 INSC 1030]* to emphasize that the POCSO Act should be interpreted in a manner that is in the best interest of the child.
• The Supreme Court used Attorney General for India v. Satish [2021 INSC 762]* to highlight that the provisions of the POCSO Act should be construed in a way that makes the Act more meaningful and effective.
• The Supreme Court referred to Eera through Dr. Manjula Krippendorf v. State ( Govt. of NCT of Delhi) & Anr. [2017 INSC 658]* to underscore that the POCSO Act was brought to protect children from sexual exploitation and harassment.
• The Supreme Court cited Nawabuddin v. State of Uttarakhand [2022 INSC 162]* to emphasize that offences under POCSO should be dealt with stringently.
• The Supreme Court distinguished the rulings of the Kerala High Court in Shantheeshlal T. v. State of Kerala [2024 KER 35968], Akash Vijay v. State of Kerala [2024 KER 42626], and Akhil Johny v. State of Kerala [2024 KER 53767], which held that mere possession of child pornography is not an offense under Section 15 of POCSO, stating that these rulings were incorrect.
• The Supreme Court overruled the Karnataka High Court’s ruling in Inayathulla N (1) v. State [2024 KHC 26513], which stated that mere browsing of child pornography does not attract Section 67B of the IT Act.

What weighed in the mind of the Court?

The Supreme Court’s decision was heavily influenced by the need to protect children from sexual exploitation and abuse. The Court emphasized the importance of a robust legal framework to deter offenders and ensure the safety and dignity of child victims. The Court also highlighted the need for a comprehensive approach that includes preventative measures, education, and support services for victims. The Court’s reasoning was also guided by the need to interpret the POCSO Act and the IT Act in a manner that gives effect to the legislative intent and the constitutional obligations to protect children.

Final Decision

The Supreme Court set aside the order of the High Court of Judicature at Madras and restored the criminal proceedings against the accused. The Court held that the High Court erred in quashing the chargesheet and failed to consider the relevant provisions of the POCSO Act and the IT Act. The Court emphasized that the statutory presumption under Section 30 of the POCSO Act applies in cases of child pornography and the accused has the burden to prove the absence of a culpable mental state. The Court further held that the mere possession of child pornography, if done with the intention to share, transmit, or for commercial purposes, is an offense under Section 15 of the POCSO Act and Section 67B of the IT Act.

Implications of the Judgment

This judgment has significant implications for child protection laws and digital safety. It clarifies that the mere possession of child pornography is a crime if it is done with specific intent, such as the intention to share or transmit it. The judgment also emphasizes the importance of the statutory presumption of a culpable mental state in cases of child pornography, which places the burden of proof on the accused. This ruling will likely lead to increased enforcement of child pornography laws and a greater focus on preventing the spread of such material. It also underscores the need for individuals to be aware of the legal implications of possessing or viewing child pornography, even if it is done unintentionally. The judgment reinforces the importance of protecting children from sexual exploitation and abuse and sends a strong message that such behavior will not be tolerated. It also highlights the need for a multi-faceted approach to child protection, including legal frameworks, preventative measures, education, and support services for victims.