“Private Viewing” Isn’t Private Immunity: Supreme Court Recasts Child Pornography Law Under POCSO & IT Act (2024 INSC 716)

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.

At its core, the judgment does two things for the legal system: first, it gives a structured, mens rea–centric interpretation of Section 15 of the POCSO Act (post-2019 amendment) as creating three distinct offences; second, it situates Section 67B of the IT Act as a broad anti-exploitation provision that criminalises not only dissemination, but also consumption-related conduct such as browsing and downloading.

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Important highlights of Supreme Court Judgment "Just Rights for Children Alliance and Ors. vs. S. Harish and Ors."

 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.

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What are the parameters for releasing the accused prosecuted for watching child pornography on anticipatory bail?

 When the matter was listed on 08.06.2021, the learned

Government Counsel opposed the grant of anticipatory bail by

contending that only seizure of the incriminating electronic

devices and their examination would reveal the actual content

and that it is too early to assume in favour of the petitioner that

what he watched was not child pornography. {Para 7}

8.The petitioner is a M.E degree holder and presently

pursuing Ph.D. Even according to the prosecution, the

occurrence took place almost one year back. It appears to be a

one-off act. It is not the case of the prosecution that the

possession or transmission was for commercial purposes. I

therefore, directed the petitioner to appear before the respondent

and hand over the mobile phone together with the sim card

mentioned in the FIR and other devices involved in the offence.

Liberty was given to the respondent to seize the same and send

it for forensic examination. Accordingly, the petitioner appeared

before the respondent and handed over the devices and

materials in question.

9.I am therefore of the view that custodial interrogation of

the petitioner is not warranted. I also bear in mind that we are

in pandemic times and that unless necessary, arrest should be

avoided. Of course, child pornography is a very serious issue

warranting a firm approach. But I would make a distinction

between a one time consumer and those who transmit or

propagate or display or distribute in digital domain. In the case

on hand, the petitioner is said to have shared the offending

material with his friend through Facebook messenger. Since the

petitioner has not come under adverse notice after the

occurrence and since he had also extended his fullest cooperation

with the investigation, I am inclined to grant him

anticipatory bail.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

( Criminal Jurisdiction )

PRESENT

 Mr.Justice G.R.SWAMINATHAN

CRL OP(MD). No.7426 of 2021

P.G.Sam Infant Jones Vs.  State 

Date : 11/06/2021

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