Landmark Judgement In POCSO Case

The Supreme Court Division Bench comprising Chief Justice of India DY Chandrachud and Justice JB Pardiwala gave a landmark judgement and set aside the judgment passed by the Madras High Court to quash criminal proceedings in POCSO case and restored the criminal proceedings in Special Court.

The Appellants in the matter are Child Rights Organization and NGOs working against Child Trafficking, Sexual Exploitation and other allied causes. The Appellants were not a party in the proceedings before the High Court but since the matter involved serious issue of public importance, the Court allowed them to challenge the Impugned Judgement of the Madras High Court.

The Factual matrix is that FIR was registered against the Accused on January 29, 2020 for allegedly being an active consumer of pornographic material involving children. Chargesheet came to be filed on September 19, 2023 under s.67B of IT Act and s.15(1) POCSO which came to be quashed by Madras High Court on January 11, 2024 on the following grounds:

1. Charge as per FIR of s.14(1) would not be attracted since the accused person should have used the child for pornographic purposes. 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”

2. To constitute offense u/s 67B IT Act, the Accused must have published, transmitted or created material depicting children in sexually explicit act or conduct. The same is not the case.

3. Placed reliance on s.292 IPC and took view that 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.

The Ld. Senior Counsel for Appellants submitted that this interpretation of the High Court poses a threat to the well-being of the children and may result in proliferation of child pornography. He also placed reliance on Convention on Cybercrime and the United Nations Convention on the Rights of the Child, 1989. He also contended that s.15(1) POCSO was not given due consideration and was not addressed. Also, that the s.67B IT Act was specifically introduced for stringent punishment for collecting, downloading, or watching child pornographic material unlike Adult Pornography u/s 67 & 67A IT Act. He further stated that presumption of existence of Culpable Mental state u/s 30 POCSO was not considered.

Senior Counsel for NCPCR submitted that the State failed to registered the FIR u/s 15(1) and the Prosecuting Agency failed to bring into the Court’s notice that Chargesheet was filed u/s 15(1) POCSO not 14(1). Also, that the Accused failed to take steps u/s 19 POCSO of deleting the pornographic material stored by him for two years. Further contended that s.19 POCSO mandates reporting to Special Juvenile Police Unit and if not done, is punishable u/s 21. So, reporting to an NGO cannot absolve social media platforms of its liability u/s 21. Finally, she submitted that it is imperative to provide children, a safe online environment for educational purposes, as per Art.12 of UNCRC.

Counsel for the Accused submitted that FIR was lodged u/s 14(1) POCSO and 67B IT Act. Thus, no error of law in the Judgement. Receipt of videos recovered were dated before the 2019 amendment of s.15 was in force. Forensic Evidence clearly shows creation and modification date to be the same depicting that the videos were never accessed. Research study shows that “WA” in the name of the videos meant that those were auto-downloaded. Mere possession doesn’t constitute u/s 15(1) as the Accused had no intention to share or distribute them. Also, contended ignorantia juris of s.15 due to government’s failure to publicize the law with bona fide belief. He placed reliance on Chandi Kumar Das Karmarkar v. Abanidhar Roy, AIR 1965 SC 585 and Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409.

Ld. Counsel for State submitted that Impugned order was erroneous as both chargesheet and Quashing Petition mentioned s.15(1) POCSO but that was not considered while indictment. Impugned Order doesn’t give due consideration to s.67B IT Act. Objective of s.15 & s.67B included tackling creation and dissemination of such material by the perpetrators. Impugned Order itself admits that Accused a/w his friends would regularly watch such material. There was presence of more than 100 pornographic videos on the phone of the Accused. Marginal note of s.15 self-explanatory (punishable for storage or possession). Chargesheet prima facie disclosed commission of Offense so quashing of proceedings were not proper.

The Issues Raised and held the following:

I. What is the scope of Section 15 of the POCSO and underlying distinction between sub-section(s) (1), (2) and (3)?

The court observed that Section 15 of the POCSO provides to penalize mere storage or possession of any pornographic material involving a child when done with any particular intention without requiring any actual transmission, dissemination etc. specified under subsection(s) (1), (2) or (3) respectively.

• Section 15(1) penalizes failure to delete, destroy, or report child pornographic material with intent to share or transmit it. The intent must be determined from the storage or possession of the material and the circumstances in which it was not deleted or destroyed.
• Section 15(2) penalizes the actual transmission, propagation, display, or distribution of child pornography and the facilitation of such acts. To be considered an offense, there must be evidence of the actual transmission or facilitation of such material, such as preparation or setup. Mens rea is gathered from the manner of storage and possession.
• Section 15(3) penalizes the storage or possession of child pornographic material for commercial purposes, requiring additional circumstances to indicate intent to derive gain or benefit, without requiring actual realization of such gain or benefit.

The court, for this issue concluded that Section 15 sub-sections (1), (2), and (3) are distinct offences, distinct from each other due to varying degrees of culpable mens rea required under each provision and that he police and courts must determine if an offense under Section 15 of the POCSO is committed if it does not fall within one specific subsection, and must consider other sub-sections.

II. Whether, mere viewing, possessing or storing of any child pornographic material is punishable under the POCSO?

The court, for this issue, held that the internet viewing, distribution, or display of child pornographic material without physical possession or storage is considered possession under Section 15 of the POCSO, provided the person maintains control over the material by virtue of the doctrine of constructive possession. Child pornography refers to sexually explicit visual depictions of a child that appear to involve a child from the perspective of an ordinary prudent person. Courts must form a prima facie opinion to determine if the material is considered child pornographic under the POCSO.

III. What is the true scope of Section 67B of the IT Act?

The court held that Section 67B of the IT Act penalizes electronic exploitation and abuse of children online, including the dissemination of child pornographic material, creation, possession, propagation, and consumption of such material and that Sections 67, 67A, and 67B of the IT Act should be interpreted purposively to suppress mischief and promote remedy, ensuring legislative intent in penalizing cyber-offences involving children and pornography.

IV. What is the scope of s.30 POCSO and what are the foundational facts necessary for invoking the statutory presumption of culpable mental state in respect of s.15 POCSO?

The court held that the statutory presumption of culpable mental state of the accused as envisaged under Section 30 of the POCSO allows the prosecution to establish the necessary foundational facts for a specific offense against the accused, which can be rebutted by discrediting the prosecution's case or providing evidence.

The Court laid down the foundational facts necessary for the purpose of invoking the statutory presumption of culpable mental state for an offence under Section 15 of POCSO as follows: -

• The prosecution may have to establish the storage or possession of child pornographic material and the accused's failure to delete, destroy, or report it as foundational facts for sub-section (1).
• To invoke the statutory presumption of culpable mental state for an offense under sub-section (2), the prosecution must establish storage or possession of child pornographic material, actual transmission, propagation, display, or distribution, or any overt act for facilitating such transmission. The court presumes the act was done with intent.
• The prosecution must prove the storage or possession of material and any fact suggesting it was done for gain or benefit or expectation.

V. Whether, the statutory presumption in s.30 POCSO can be invoked only at the stage of trial by the Special Court alone? In other words, whether it is permissible for the High Court in a quashing petition filed under s.482 CrPC to resort to the statutory presumption of culpable mental state contained in s.30 POCSO?

For this issue, the court held that 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.

Before parting with the Judgement, the Court also added a portion wherein it made a few suggestions to various Departments.

• Child sexual exploitation and child pornography are heinous crimes, extending harm infinitely and at a larger scale. Addressing this issue is crucial as it turns incidents into a ripple of trauma-inducing acts. Sexual abuse, perpetuated through pornographic material, deeply exacerbates physical and emotional trauma, denying victims hope for healing and closure. The term "child pornography" misrepresents the full extent of child abuse, trivializing the crime and undermining victimization by suggesting legal, consenting adult conduct. The term "child sexual exploitative and abuse material" or "CSEAM" refers to images and videos depicting child sexual exploitative and abuse, not just pornography, and depicting incidents of child abuse through self-generated visual depiction.
• The term "child sexual exploitative and abuse material" (CSEAM) is used to emphasize the criminal nature of child exploitation and abuse, while "child pornography" is used for better understanding. Courts are forbidden from using "child pornography" and should use "CSEAM" in all judicial orders.

"We further forbid the courts from using the term "child pornography" and instead the term "child sexual exploitative and abuse material" (CSEAM) should be used in judicial orders and judgements of all courts across the country."

• The act of viewing CSEAM and engaging in child sexual abuse share a common intent: exploitation and degradation for the abuser's sexual gratification. Both involve the production of child sexual exploitative material, which is deliberate and intentional, causing harm to the child.
• CSEAM is a heinous crime where the abuser dehumanizes a child, treating them as a commodity to be consumed. This dehumanization can lead to increased desire for further acts of exploitation and desensitization to the horrors of child abuse. The demand for CSEAM incubates the production and distribution of such material, further perpetuating the cycle of abuse and exploitation.
• Child sexual exploitative material is deeply degrading to the dignity of children. It reduces them to objects of sexual gratification, stripping them of 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.
• 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.
• CSEAM is a severe issue requiring strong legal and moral action, including criminal penalties and preventative measures like education and awareness campaigns. 
• Social stigma and honor and shame in society lead to severe social repercussions for victims of CSEAM. Victims face isolation, trust issues, and trauma-related challenges, leading to withdrawal and alienation. The ongoing revictimization perpetuates their suffering, impacting their self-esteem and long-term psychological damage. This also affects their education and employment opportunities, leading to academic underachievement, employment difficulties, and economic hardships, further exacerbating their sense of insecurity.
• Victims require compassionate, comprehensive support, including therapeutic interventions, legal services, and social services, to heal and reclaim their lives.

The Supreme Court also laid emphasis on Education Programs and observed that:

• Misconceptions about sex education in India, such as promoting promiscuity and irresponsible behaviour, contribute to limited implementation and effectiveness. Conservative views and societal stigma create a knowledge gap among adolescents. Research shows comprehensive sex education delays sexual activity and promotes safer practices. Sex education in India faces resistance due to Western beliefs that doesn't align with traditional Indian views, leading to school bans and hindering effective sexual health programs. This lack of accurate information leads to adolescents relying on unfiltered, misleading information online, potentially leading to unhealthy sexual behaviors.
• Sex education, despite misconceptions, covers topics like consent, healthy relationships, gender equality, and diversity. Successful programs like the Udaan in Jharkhand emphasize community involvement, transparency, and government support to reduce sexual violence and promote gender equity.
• Positive sex education is crucial for preventing harmful sexual behaviors among youth. It provides accurate information about sexuality, consent, and respectful relationships. Research in India shows the need for comprehensive programs, as students not exposed to scientific literature are more likely to initiate sex early.
• Positive sex education fosters healthy attitudes towards sexuality and relationships, countering distorted perceptions of child pornography. It promotes empathy, respect, and understanding of consent and legal implications of sexual activities.Addressing misconceptions about sexual health and promoting sex education's benefits is crucial for improving health outcomes and reducing sexual crimes in India, especially with the growing population.
• The court emphasized that the government and commission under Section(s) 43 and 44 of the POCSO must not only spread awareness about the provisions but also impart sex education and awareness among the general public, children, parents, and guardians, particularly in schools and educational institutions. It emphasized the collective responsibility to ensure victims of child pornography receive care, support, and justice, fostering a compassionate society, improving legal frameworks, and holding perpetrators accountable.

The court also laid down an obligation to report under Section(s) 19 & 21 respectively of the POCSO and Role of the Society and all Stakeholders.

• Section 19 of the POCSO outlines the collective responsibility of society to curb child abuse and exploitation. It requires anyone with knowledge of an upcoming offense to report it to the Special Juvenile Police Unit or local police. Section 20 mandates media personnel to report any material or object that is sexually exploitative of a child. Failure to do so can result in imprisonment, fines, or both. Employers and supervisors also face penalties for failing to report offenses.
• Thus, it is evident that, POCSO Act imposes a legal obligation for individuals to report any offenses they know about or suspect. Failure to do so is punishable under Section 21, aiming to ensure strict compliance and protect children's tender age from abuse and exploitation, while also addressing the issue of child abuse and exploitation.
• In Shankar Kisanrao Khade v. State of Maharashtra, the court emphasized the importance of collectively addressing child abuse and exploitation in a child-centric manner, prioritizing the best interest of the child over the perpetrator's. It also outlined obligations for institutions and caretakers of children.
• The Supreme Court in State of Maharashtra & Anr. v. Maroti (2023) emphasized the importance of prompt reporting of offences under Section(s) 19 & 21 of the POCSO, stating that failure to comply with these provisions is serious and must be strictly enforced to protect children's youth from exploitation.
• The IT Act, 2000, provides a "safe harbor" protection for intermediaries in cases where they comply with due diligence requirements, excluding them from liability for third-party information or data. This protection ensures that intermediaries are not involved in initiating, receiving, or modifying the information, and must observe due diligence while fulfilling their duties under the IT Act and other guidelines prescribed by the Central Government. Sub-section (3)(b) requires intermediaries to remove or disable access to material on a computer resource controlled by them if they receive actual knowledge or are notified by the government of an unlawful act. However, protection under Section 79 lapses if the intermediary conspired, abetted, or aided in the act, or fails to do so without compromising evidence.

The Court ruled that social media intermediaries cannot claim exemption from liability under Section 79 of the IT Act for third-party information, data, or communication links unless due diligence is conducted, including reporting child pornographic content and also observed:

"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."

The Court also observed that Social media intermediaries are also obligated to report the same to the Special Juvenile Police Unit (SJPU) or the local police as per s.19 POCSO.

The court endorsed the Shankar Kisanrao Khade (Supra), emphasizing the importance of adherence to POCSO provisions and cautioning against leniency u/s 21 POCSO in cases of child abuse or exploitation by observing:

"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, 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 21's lesser punishment threshold does not diminish the gravity or severity of the offense, as affirmed in Maroti (supra). The length of punishment is not the sole indicator of an offence's gravity, but rather a combination of factors, particularly considering the international context of the United Nations Convention on Rights of Children.

The Court suggested the following to the Union of India in its Ministry of Women and Child Development:

• The Parliament should propose an amendment to the POCSO to replace "child pornography" with "child sexual exploitative and abuse material" (CSEAM) to accurately reflect such offenses. The Union of India may consider implementing the proposed amendment to the POCSO through an ordinance.
• The courts are advised to avoid using the term "child pornography" in judicial orders or judgments, instead promoting the use of "child sexual exploitative and abuse material."
• Comprehensive sex education programs to educate young people about child pornography's legal and ethical implications, addressing misconceptions and educating them about consent and exploitation.
• Support services for victims and offenders, including psychological counselling, therapeutic interventions, and educational support, are crucial for promoting healthy development and addressing cognitive distortions in child pornography.
• Raising awareness about the realities of child sexual exploitative material and its consequences through public campaigns aiming to destigmatise reporting and encourage community vigilance.
• Early identification and intervention strategies for youth with Problematic Sexual Behaviors (PSB) require coordinated efforts among stakeholders, including educators, healthcare providers, law enforcement, and child welfare services.
• 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.
• The Union of India may establish an Expert Committee to develop a comprehensive health and sex education program and raise awareness about POCSO among children, ensuring a robust approach to child protection and sexual well-being.

In finality, the High Court's judgment was deemed an error, leading to the decision to set aside it and restore criminal proceedings to the Sessions Judge's court. The order was also directed to be sent to the Principal Secretary of Law & Justice and Women and Child Development.

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