The Supreme Court’s reportable decision in Just Rights for Children Alliance & Anr. v. S. Harish & Ors. (Criminal Appeal Nos. 2161–2162 of 2024, decided on 23 September 2024) is a watershed moment in India’s cyber–child protection jurisprudence. It corrects a trend of quashing prosecutions on the premise that mere storage or private viewing of child sexual abuse material is not punishable unless there is proof of publication or transmission.
The prosecution began with a cyber-tipline input, followed by seizure and forensic examination of the accused’s mobile phone. The forensic report indicated the presence of two video files treated as child pornography, besides a larger volume of other pornographic material. While the FIR initially mentioned Section 14(1) POCSO (use of child for pornographic purposes), the investigation culminated in a chargesheet for Section 15(1) POCSO (storage/possession-related offence) and Section 67B of the IT Act.
The Madras High Court, however, quashed the proceedings—reasoning broadly that (i) Section 14(1) POCSO was not attracted because the accused had not “used” a child, and (ii) Section 67B IT Act required publication/transmission/creation, so mere downloading or viewing in private would not suffice. The Supreme Court found this approach fundamentally flawed because it failed to engage with the actual charge under Section 15 POCSO and misconceived the breadth of Section 67B.
Section 15 POCSO: an “inchoate” design with three mutually exclusive offences
The decision’s doctrinal centrepiece is the Court’s reconstruction of Section 15 POCSO as an inchoate offence framework—criminalising storage/possession of child sexual abuse material depending on the underlying intent, without insisting on completed acts of dissemination in every case.
The Court explains Section 15 in three compartments:
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Section 15(1): Storage/possession + failure to delete/destroy/report, where circumstances indicate an intention to share or transmit.
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Section 15(2): Storage/possession for transmitting/propagating/displaying/distributing (including facilitation and preparatory conduct), except reporting/evidence use.
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Section 15(3): Storage/possession for commercial purpose, i.e., intent to derive gain/benefit (even if gain is not actually realised).
A key operational takeaway: these are not cumulative. The Court cautions that 15(1), 15(2), and 15(3) cannot co-exist simultaneously on the same facts, because each reflects a different intensity and direction of culpable intent.
Mens rea as the differentiator: inference, not confession
Equally significant is the Court’s method for locating mens rea.
For 15(1), intent is often inferred from the actus reus—specifically the omission to delete/destroy/report and the circumstances in which the material is retained. For 15(2) and 15(3), there is typically “something more”: additional facts suggesting dissemination-oriented facilitation or commercial motive, unless the very manner of storage/possession itself speaks to those purposes.
This approach matters for trial courts because it shifts the analytical lens away from “did the accused forward it?” toward “what does the retention and surrounding conduct indicate?”—a more realistic model for digital offences where direct evidence of sharing may be elusive.
“Possession” expanded: constructive possession and control in digital spaces
The judgment also modernises the idea of possession by endorsing the concept of constructive possession. Even where material is not permanently downloaded, if a person exercises meaningful control over the content (for instance, by intentionally accessing/viewing in a manner that enables management or use), that conduct may still qualify as possession for Section 15 purposes.
The Court’s discussion implicitly addresses a practical enforcement gap: link-based consumption and transient viewing are common vectors in online child exploitation ecosystems, and a purely “device-storage only” understanding would make the law easy to bypass.
“Appears to depict a child”: the threshold under POCSO’s definition
For child pornography offences, the Court underscores that POCSO defines “child pornography” to include depictions that appear to depict a child, allowing courts to proceed on a prima facie assessment—often aided by forensic or expert opinion—rather than requiring near-impossible identity/age proof of the victim at the threshold. This prevents prosecutions from collapsing merely due to practical impossibility of tracing victims shown in circulating abuse material.
Section 67B IT Act: not just publication—browsing and downloading are squarely within the net
One of the judgment’s most direct corrections is to the belief that Section 67B is triggered only by publication or transmission. The Court highlights the multi-clause structure of Section 67B and, in particular, the breadth of Section 67B(b) which criminalises acts such as collecting, seeking, browsing, downloading, promoting, exchanging, and distributing child sexual exploitation material in electronic form.
For practitioners, the interpretive move is clear: Section 67B is consumption-aware—it targets the demand-side behaviours that sustain production and dissemination.
Section 30 POCSO at the quashing stage: foundational facts, then presumption
The Court’s procedural message is equally firm: statutory presumptions cannot be neutralised by premature quashing.
It explains that Section 30 POCSO (presumption of culpable mental state) can operate once the prosecution establishes foundational facts corresponding to the actus reus of the relevant Section 15 sub-clause. Importantly, the Supreme Court holds that such presumptions are not confined to trial alone; they may be relevant even when a High Court considers a quashing petition, provided foundational facts are prima facie shown.
As a result, defences such as accidental download, lack of knowledge, or absence of intent are generally matters to be tested at trial rather than conclusively adjudicated in proceedings under Section 482 CrPC when the record contains prima facie forensic material.
The outcome—and the larger signal
The Supreme Court set aside the Madras High Court’s quashing order and restored the prosecution for trial. Beyond the outcome, the judgment carries an unmistakable normative signal: courts must treat child sexual abuse material offences as a distinct category—not as a mere morality concern, not as an analogue of adult obscenity law, and not as conduct excused by the privacy of consumption.
It also contains broader observations/suggestions, including discouraging the term “child pornography” in favour of “child sexual exploitative and abuse material (CSEAM)” in judicial discourse, reflecting global shifts in language that centre victimisation rather than adult pornography framing.
Why this judgment should be on every criminal court’s desk
For judges, prosecutors, defence counsel, and investigators, this decision supplies a structured roadmap:
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Identify which Section 15 compartment is attracted (don’t mechanically add all three).
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Treat “possession” as a functional concept fit for digital realities, not limited to permanent storage.
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Read Section 67B as a broad child protection provision, especially through 67B(b).
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At the quashing stage, ask: are foundational facts present on record? If yes, avoid mini-trials that nullify statutory presumptions.
In an era where online child exploitation thrives on precisely the behaviours some courts previously treated as legally “private,” this judgment restores the law’s preventive and deterrent architecture—without waiting for the last mile of dissemination to be proved in every case.
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