Ratio Decidendi:
Any act of viewing, distributing or displaying etc., of any child pornographic material by a person over the internet without any actual 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 Protection of Children from Sexual Offences Act, 2012, provided the said person exercised an invariable degree of control over such material, by virtue of the doctrine of constructive possession.
IN THE SUPREME COURT OF INDIA
Criminal Appeal Nos. 2161-2162 of 2024 (Arising out of Special Leave Petition (Crl.) Nos. 3665-3666 of 2024)
Just Rights for Children Alliance and Ors. vs. S. Harish and Ors.
Hon'ble Judges/Coram:
Dr. D.Y. Chandrachud, C.J.I. and J.B. Pardiwala, J.
Citation: 2024 INSC 716, MANU/SC/1041/2024.
Criminal - Child pornography - Possession thereof - Sections 14, 14(1), 15,15(1), 15(2), 15(3)and 30 of Protection of Children from Sexual Offences Act, 2012 and Sections 67, 67A and 67B of Information Technology Act, 2000 - Respondent no. 3 received letter wherein it was mentioned that Respondent no. 1 was active consumer of pornography and had allegedly downloaded pornographic material involving children in his mobile phone - FIR was registered against Respondent no. 1 for offence punishable under Section 67B of Act and 14(1) of Act - Upon completion of investigation, chargesheet was filed against Respondent no. 1 for offences punishable under Section 67B of IT Act and 15(1) of POCSO - Aggrieved, Respondent no. 1 went before High Court for quashing of chargesheet and criminal proceedings arising therefrom quashed - High Court quashed criminal proceedings on ground that mere possession or storage of any pornographic material was not offence under POCSO and mere watching or downloading of child pornography in private domain was not punishable under Section 67B of Act - Hence, present appeal - Whether mere viewing, possessing or storing of any child pornographic material was punishable under POCSOand it was permissible for High Court in quashing petition to resort to statutory presumption of culpable mental state contained in Section 30 of POCSO.
Facts:
The Respondent no. 3 received a letter wherein it was mentioned that the Respondent no. 1 herein is an active consumer of pornography and had allegedly downloaded pornographic material involving children in his mobile phone. An FIR was registered against the Respondent no. 1 for the offence punishable under Section 67B of the IT Act and 14(1) of the POCSO. 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.As per the Computer Forensic Analysis Report 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. Upon completion of the investigation, chargesheet 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. Aggrieved by the aforesaid, the Respondent no. 1 went before the High Court by way of a quashing petition being the Criminal Original Petition for the purposes of getting the aforesaid chargesheet and the criminal proceedings arising therefrom quashed. The High Court quashed the criminal proceedings essentially on three grounds on the ground that mere possession or storage of any pornographic material is not an offence under the POCSO. It was held that 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 was not punishable under the same.
Held, while allowing the appeal:
(i) The High Court in its Impugned order whilst quashing the criminal proceedings arising out of the aforesaid chargesheet 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 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 was no longer res-integra that once the investigation was over and chargesheet was 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.[196]
(ii) In the case at hand, there was no dispute by either side that, the two videos in fact depicted children in a sexual activity. It was 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 established 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, 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.[203]
(iii) The conclusion of this court were as under:
(a) 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.
(b) 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 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.
(c) 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 the actual transmission, propagation, display or distribution of such material or 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.
(d) Section 15 Sub-section (3) penalizes the storage or possession of any child pornographic material when done for any commercial purpose. 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 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.
(e) 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.
(f) 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.
(g) Any act of viewing, distributing or displaying etc., of any child pornographic material by a person over the internet without any actual 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.
(h) 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.
(i) 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. 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.
(j) 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.
(k) 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:
(1) 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.
(2) 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.
(3) 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.
(l) 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.[222]
(iv) The High Court committed an egregious error in passing the impugned judgment. The impugned judgment was set aside passed by the High Court, and restore the criminal proceedings. [261]
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