JUST RIGHTS FOR CHILDREN ALLIANCE & ANR. v. S. HARISH & ORS

Citation: Criminal Appeal No(s).

Court: Allahabad High Court (Lucknow Bench)

Bench: Just Rights for Children Alliance

Case summary

offence under the POCSO that relates to child pornographic material, such as Section 15 - Such satisfaction

Judgment text

SUPREME COURT OF INDIA Just Rights for Children Alliance & Anr. v. S. Harish & Ors. [2024] 10 S. C. R. 154 : 2024 INSC 716 Just Rights for Children Alliance & Anr. v. S. Harish & Ors. (Criminal Appeal No(s). 2161-2162 of 2024) 23 September 2024 [Dr. Dhananjaya Y. Chandrachud, CJI, J. B. Pardiwala,* J.

] Issue for Consideration What is the scope of Section 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO); what is the underlying distinction between sub-section(s) (1), (2) and (3) respectively of the POCSO; whether, mere viewing, possessing or storing of any child pornographic material is punishable under the POCSO; what is the true scope of Section 67B of the IT Act; what is the scope of Section 30 of the POCSO; what are the foundational facts necessary for invoking the statutory presumption of culpable mental state in respect of Section 15 of the POCSO; whether, the statutory presumption contained in Section 30 of the POCSO can be invoked only at the stage of trial by the Special Court alone established under the POCSO; whether it is permissible for the High Court in a quashing petition filed under Section 482 of the Cr. P. C. to resort to the statutory presumption of culpable mental state contained in Section 30 of the POCSO.

Headnotes† Protection of Children from Sexual Offences Act, 2012 - s. 15 - Scope - Interpretation - Protection of Children from Sexual Offences (Amendment) Act, 2019 - Mere viewing, possessing or storing of any child pornographic material, if punishable under the POCSO: Held: Yes - Any activity 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 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 (possession beyond physical control, having the power and intention to control the contraband) - s. 15 provides for three distinct offences that penalize * Author Just Rights for Children Alliance & Anr. v. S. Harish & Ors.

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 an inchoate offence which penalizes the mere storage or possession of any pornographic material involving a child when done with a specific intent as prescribed, without requiring any actual transmission, dissemination etc. - 2019 Amendment Act made three different forms of storage or possession of child pornography a punishable offence u/s. 15, unlike the unamended s. 15, which criminalized only the storage of child pornography for a commercial purpose - s. 15(1) penalizes the failure to delete, destroy or report any child pornographic material found to be stored or in possession of any person with an intention to share or transmit the same - The mensrea or the intention required under this provision is to be gathered from the actus reus itself i. e.

, from the manner in which such material is stored or possessed and the circumstances in which the same was not deleted, destroyed or reported - s. 15(2) penalizes both the actual transmission, propagation, display or distribution of any child pornography as-well as the facilitation of any of the said acts - 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 indicative of any facilitation or actual transmission, propagation, display or distribution of such material - Further, s.

15(3) penalizes the storage or possession of any child pornographic material when done for any commercial purpose wherein 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 however, to constitute an offence under sub-section (3) there is no requirement to establish that such gain or benefit had been actually realized - Sub-section(s) (1), (2) and (3) of Section 15 constitute independent and distinct offences with distinction between the varying degree of culpable mens-rea required under the three sub-sections - The three offences cannot co-exist simultaneously in the same set of facts. [Paras 73, 76, 86, 114, 118, 222] Information Technology Act, 2000 - s. 67B - Scope: Held: s.

67B 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, 156 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 - s. 67B 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. [Paras 151, 153, 222] Protection of Children from Sexual Offences Act, 2012 - s.

15 - "Punishment for storage of pornographic material involving child" - Inchoate Crime/Offence - 'Actus Reus'; 'Mens Rea' - If there is any requirement for an actual transmission of any child pornographic material in order to fall within the ambit of s. 15: Held: No - s. 15 is in the nature and form of an inchoate offence wherein it is the intention which is being punished and not the commission of any criminal act in the traditional sense - What is sought to be penalized under Section 15 is the storage or possession of any child pornographic material when done with a particular intention or purpose as stipulated in sub-section(s) (1), (2) or (3), as the case may be. [Paras 81, 86] Criminal jurisprudence - Doctrine of Inchoate Crimes - Concept and aim - Discussed. Interpretation of Statutes - Aid of marginal note - Protection of Children from Sexual Offences Act, 2012 s.

15 - "Punishment for storage of pornographic material involving child" - Interpretation with the aid of marginal note when there is no contradiction between marginal note and the substantive parts: Held: In the absence of any inherent conflict or contradiction between the marginal note and the substantive parts of a particular provision, the marginal note may be used to aid in the interpretation of the provision s. 15 along with the marginal note indicates, that it punishes only the storage of pornographic material involving a child when done with a specific intent prescribed thereunder and that there is no requirement for any actual transmission - Thus, s. 15 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 stored with a specific intent prescribed thereunder, without requiring any actual transmission, dissemination etc. [Para 86] Just Rights for Children Alliance & Anr. v. S.

Harish & Ors. Criminal jurisprudence - Inchoate Crimes - Protection of Children from Sexual Offences Act, 2012 - s. 15 - Child pornographic material - "Possession" - Doctrine of constructive possession - "actus-reus": Held: Under inchoate crimes possession is sought to be punished - Constructive possession extends the concept of possession beyond physical control to situations where an individual has the power and intention to control the contraband, even if it is not in their immediate physical possession - For establishing constructive possession both the power to control the material in question and the knowledge of exercise of such control are required - Wherever a person indulges in any activity such as viewing, distributing or displaying etc.

pertaining to any child pornographic material without actually possessing or storing it in any device or in any form or manner, such act would still tantamount to 'possession' in terms of Section 15 of the POCSO, if he exercised an invariable degree of control over such material, applying the doctrine of constructive possession - Thus, in terms of the Doctrine of Constructive Possession, any form of intangible or constructive possession of any child pornographic material will also amount to "possession" under Section 15 of the POCSO - There is no requirement of a physical or tangible "storage" or "possession" of such material in Section 15 - Thus, where any child pornographic material is in the constructive possession of an accused, the failure or omission to report the same would constitute the requisite actus-reus for the purposes of Section 15 sub-section (1) of POCSO. [Paras 114, 117, 118, 122] Protection of Children from Sexual Offences Act, 2012 - s.

15(1), (2), (3) - 'mens rea' required under - Distinction between: Held: Section 15 sub-section (1) requires the existence of the requisite mens rea or intention due to which the child pornographic material was not deleted, destroyed or reported whereas, Section 15 sub-section (2) requires the existence of the requisite mens rea or intention which propelled or led the person accused to not only store or possess the said material but also to take some additional steps towards either the actual transmission, propagation, display or distribution or the facilitation of the same - In contrast, Section 15 sub-section (3) requires the existence of the requisite mens rea or intention due to which the person accused not only stored or possessed the child pornographic material but also compelled him to take some additional steps either for any gain or benefit or 158 in lieu or expectation of some form of gain or benefit - Distinction further explained through examples.

[Para 95] Protection of Children from Sexual Offences Act, 2012 - s. 15 - Protection of Children from Sexual Offences (Amendment) Act, 2019 - 'Possession' added to make s. 15 more stringent to deter the dissemination and use of child pornography: Held: Word "possession" was originally absent in the unamended Section 15 and the legislature specifically added it in the amended Section 15 - Hence, now both the storage or the possession of any child pornographic material would be liable to be punished when done with any of the specified intention thereunder. [Para 112] Protection of Children from Sexual Offences Act, 2012 - s. 15 - 'storage'; 'possession' of child pornographic material - To constitute offence u/s.

15, 'storage' and 'possession' not to continue to be there at the time of registration of FIR: Held: Section 15 does not fixate any particularly time-frame - What is simpliciter required to constitute an offence under Section 15 of the POCSO is the establishment of 'storage' or 'possession' of any child pornographic material with the specified intention under sub-section(s) (1), (2) or (3), at any relevant point of time - Thus, an offence can be made out under Section 15 even if the said 'storage' or 'possession' no longer exists at the time of registration of the FIR, if it is established that the person accused had 'stored' or 'possessed' of any child pornographic material with the specified intention at any particular point of time even if it is anterior in time. [Para 124] Protection of Children from Sexual Offences Act, 2012 - s. 15 - Information Technology Act, 2000 - s.

67B - Ingredients necessary to constitute offences under - Divergent views of different High Courts - Discussed. Protection of Children from Sexual Offences Act, 2012 vis-à- vis Protection of Children from Sexual Offences (Amendment) Act, 2019 - Statement of Object and Reasons - Discussed. Information Technology Act, 2000 - ss. 67, 67A, 67B - Information Technology (Amendment) Act, 2008 - History of amendment traced. Interpretation of Statutes - Information Technology Act, 2000 - Information Technology (Amendment) Act, 2008 - ss. 67, 67A vis-à-vis s. 67B - Purposive interpretation: Just Rights for Children Alliance & Anr. v. S. Harish & Ors. Held: A conjoint reading of Section(s) 67 and 67A vis-a-vis 67B would reveal that unlike the former which penalizes only the publication or transmission of any obscene material or pornographic material,scope and ambit of Section 67B is much wider as it recognizes and penalizes five different forms/categories of actus reus - s.

67B 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 children - ss. 67, 67A, s. 67B 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 cyberoffences relating to children and the use of obscene/pornographic material through electronic means is not defeated by a narrow construction. [Paras 150, 153] Protection of Children from Sexual Offences Act, 2012 - Protection of Children from Sexual Offences (Amendment) Act, 2019 - ss.

15, 2(1)(d), 2(1)(da) - "child"; "child pornography" - Pornographic material must prima facie appear to involve a Child - "Subjective satisfaction" criteria - "Subjective satisfaction" criteria, as existing in various countries discussed: Held: 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' - 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 such as a forensic science laboratory (FSL) report of such material or from any expert opinion or by the assessment of such material by the courts themselves - Practical difficulties in conclusively establishing the age of an individual in a pornographic material through objective means or criteria resulting in absurd consequences, enumerated.

[Paras 131, 222] Protection of Children from Sexual Offences Act, 2012 - Protection of Children from Sexual Offences (Amendment) Act, 2019 - ss. 15, 2(1)(da), 2(1)(d) - "but appear to depict a 160 child" - Purport of s.

2(1)(da) - Section 2(1)(da) is a departure from the existing objective criterion of determination of age in terms of Section 2(1)(d): Held: Neither Section 15 of the POCSO nor Section 2(1)(da) can be interpreted or invoked in isolation from the other - Section 2(1) (da) of the POCSO, made a conscious departure from the already existing objective criterion of determination of age in terms of Section 2(1)(d) which is generally applicable to the POCSO, as the legislature was alive to inherent difficulty posed by such criteria - Section 2(1)(da) of the POCSO was inserted to explicitly define and delineate what type of visual depictions would be considered 'child pornography' to remove any ambiguity that existed earlier and more importantly, to mitigate the tendency of the courts to refer and apply the objective criteria of age determination prescribed under Section 2(1)(d) of the POCSO, even when dealing with matters involving child pornography - Thus, the legislature in addition to explaining the contour of visual depiction in Section 2(1)(da) of the POCSO, also specifically added the words "but appear to depict a child" in the end - If the courts while dealing with any matter involving child pornography, continue to refer and rely on Section 2(1)(d) of the POCSO, then the same will frustrate the intention behind Section 2(1)(da), rendering the words "but appear to depict a child" otiose and nugatory - The true purport of Section 2(1)(da) of the POCSO is to ensure that for offences pertaining to child pornography, it is Section 2(1)(da) that is given due regard and not Section 2(1)(d) - Thus, it is the definition of 'child pornography' which is of relevance while considering whether Section 15 of the POCSO can be invoked or not.

[Paras 139-143] Protection of Children from Sexual Offences Act, 2012 - ss. 2(1) (d), 2(1)(da)- Protection of Children from Sexual Offences (Amendment) Act, 2019 - "child"; "child pornography" - Whether the individual involved is a 'child' or not - Determination - "but appear to depict a child": Held: Under s. 2(1)(d), an objective criterion is prescribed based on the age of the individual in question which involves ascertaining and establishing whether he or she is under eighteen years of age, if so, such person would be considered a 'child' for the purposes of any offence in respect of such child that is punishable under the POCSO - Further, under the unamended Section 15, there was only one criteria for ascertaining whether the material in Just Rights for Children Alliance & Anr. v. S. Harish & Ors.

question can be regarded as 'child pornography' or not, which was by establishing that the material depicts or involves a person who is under the age of eighteen years - "child pornography" was specifically defined after the 2019 Amendment Act meaning any visual depiction of a child involved in any sexually explicit conduct wherein the expression 'visual depiction' is inclusive in nature - Further, "but appear to depict a child" lays down the test or criteria for ascertaining, whether any of the mentioned visual depiction is a 'child pornography' or not, by prescribing a prima facie subjective satisfaction that the material appears to depict a child - The use of the comma before the words "but appear to depict a child" is significant which is used both as a disjunctive and a conjunctive to the words preceding it - It has been used as a disjunctive to stress, that the subjective criteria that the material in question appears to depict a child is not inextricably linked or limited to just one category of visual depictions i.

e. , the last category being "image created, adapted, or modified" - At the same time, it has been used as a conjunctive in relation to all types of visual depictions that have been illustrated in the said provision, to clearly indicate, that this subjective criterion applies to the entire provision i. e. , to all types of visual depictions mentioned therein or in other words to 'child pornography'. [Paras 126-130] Protection of Children from Sexual Offences Act, 2012 - s.

30 - Culpable mental state under - Presumption mandatory yet, rebuttable: Held: 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 - The standard prescribed for rebutting the said statutory presumption of culpable mental state is beyond a reasonable doubt. [Paras 156, 222] Protection of Children from Sexual Offences Act, 2012 - s.

30 - Statutory presumption of culpable mental state under - Reasons therefor, stated - Principle of Foundational Facts: Held: Statutory presumption of culpable mental state is in view of the exigency posed by the difficulty that exists in establishing certain 162 types of offences such as inchoate offences due to its clandestine nature - Such presumptions are in essence an exception to the cardinal principle of criminal jurisprudence that the act does not make a person guilty unless the mind is also guilty - Before the statutory presumption of culpable mental state could be validly invoked, the prosecution must first establish certain foundational facts beyond a reasonable doubt - Initial burden always lies on the prosecution - Thus, the establishment of foundational facts by the prosecution is a prerequisite for triggering the statutory presumption for shifting the onus on the accused to prove the contrary - It is a delicate balance struck between the practical need for such presumption in law and the cardinal principles of criminal jurisprudence to ensure that the presumption does not cross or transgress the fine line that demarcates presumption of 'culpable mental state' from the 'presumption of guilt' itself - Even if the prosecution establishes such foundational facts and the presumption is raised against the accused, he can rebut the same either by discrediting prosecution's case as improbable or absurd or could lead evidence to prove his defence, in order to rebut the presumption, however the said presumption under Section 30 of the POCSO will be said to have been rebutted only where the accused by way of his defence establishes a fact contrary to the presumption and proves the same beyond a reasonable doubt.

[Paras 166, 171, 172, 174] Protection of Children from Sexual Offences Act, 2012 - s. 15(1), (2), (3) - Statutory presumption of culpable mental state for offence u/s.

15 - Necessary foundational facts to be established for invocation thereof: Held: For the purpose of sub-section (1), the 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 - 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 Just Rights for Children Alliance & Anr.

v. S. Harish & Ors. said act(s) had not been done for the purpose of either reporting or for use as evidence - Further, 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. [Para 222] Protection of Children from Sexual Offences Act, 2012 - s. 30 - Code of Criminal Procedure, 1973 - s. 482 - Presumption u/s. 30, if can be resorted to in a quashing proceeding - Two videos depicting children involved in a sexual activity were recovered from the mobile phone of respondent no. 1- accused - FIR alleged offences u/ss. 14(1) of the POCSO and 67B of the IT Act, however, in the chargesheet, the offence u/s. 14(1) of the POCSO was substituted and instead offence u/s.

15(1) of the POCSO was alleged - Criminal proceedings quashed by High Court - Correctness: Held: There is no bar for the High Court to invoke the statutory presumption at the stage of deciding the quashing petition in respect to any offence to which such a presumption is applicable - The statutory presumption envisaged under Section 30 of the POCSO is applicable and can be invoked in any proceeding which involves an offence under the said Act that requires a culpable mental state, irrespective of the court where such proceeding is taking place - Once the investigation is over and chargesheet is filed, the FIR pales into insignificance - Child pornographic material that was recovered from the personal mobile phone of the accused which was regularly in use by him, which prima facie establishes the storage or possession of child pornographic material - Further, since the aforesaid child pornographic material was found to have been stored in the said personal mobile phone since 2016 and 2019, prima facie there was a failure on his part to delete, destroy or report such material - High Court failed 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 and erred in quashing the criminal proceedings - In view of the statutory presumption of culpable mental state being attracted, any defence of the accused such as the absence of knowledge or intention would be a matter of trial - Absence of culpable mental state has to be established before the trial court by leading cogent evidence in that regard, such defences should not be looked into at this stage - Impugned judgment set aside, criminal proceedings restored.

[Paras 185, 193, 201, 203, 221, 261] 164 Code of Criminal Procedure, 1973 - s. 482 - Duty of High Court - Quashing of criminal proceedings, when justified - Discussed. Protection of Children from Sexual Offences Act, 2012 - s.

15 - Ignorance of law vis-à-vis incognizance of law - Ignorance of law, when can be used as a valid defence - Plea of the accused that he was unaware that storing of child-pornography was a punishable offence under Section 15 of POCSO along with the bona-fide belief that such storage was not an offence: Held: Rejected - For a plea of ignorance of law, the ignorance or mistake of law must be such which legitimately gives rise to a bona-fide belief of the existence of a right or a claim, and the said person commits any act on the strength of such right or claim - Even if a person is unaware that the possession or storage of such material is punishable, it by no stretch can be considered to give rise to any right or assertion as there exists no such right to either store or possess such material, and thus it is not a valid defence - No person of an ordinary prudent mind with the same degree of oblivion or unawareness as to the law, more particularly Section 15 of POCSO could as a natural corollary be led to a belief of existence of a right to store or possess any child pornographic material - The ignorance or unawareness must have a reasonable nexus with the right or assertion claimed i.

e. , the ignorance or unawareness must be such which could legitimately and reasonably give rise to a corresponding right or claim and the existence of which must be bona-fidely believed - Thus, even if the accused was unaware about Section 15 of POCSO, this by itself does not give rise to a corresponding legitimate or reasonable ground to believe that there was any right to store or possess child pornographic material - As such the four-prong test for a valid defence is not fulfilled and the defence of ignorance of law by the accused fails - Even otherwise, one must be mindful to the fact that such a plea is not a statutory defence with any legal backing, but rather a by-product of the doctrine of equity - Unawareness or incognizance of law should not be conflated with ignorance of law.

[Paras 212, 214, 217] Suggestions by Court - Protection of Children from Sexual Offences Act, 2012 - Suggestions made to Ministry of Women and Child Development, Union of India: Just Rights for Children Alliance & Anr. v. S. Harish & Ors.

Held: The term "child pornography" is a misnomer that fails to capture the full extent of the crime - Each case of what is traditionally termed "child pornography" involves the actual abuse of a child, the use of the term "child pornography" trivializes the crime, as pornography is often seen as a consensual act between adults - It undermines the victimization because the term suggests a correlation to pornography- conduct that may be legal, whose subject is voluntarily participating in, and whose subject is capable of consenting to the conduct - The term "child sexual exploitation and abuse material"("CSEAM") more accurately reflects the reality that these images and videos are not merely pornographic but are records of incidents, where a child has either been sexually exploited and abused or where any abuse of children has been portrayed through any self-generated visual depiction - CSEAM rightly places the emphasis on the exploitation and abuse of the child, highlighting the criminal nature of the act and the need for a serious and robust response - Courts forbidden from using the term "child pornography" and instead the term CSEAM should be used in judicial orders and judgements of all courts across the country - Parliament should consider to amend the POCSO for substituting the term "child pornography" with "child sexual exploitation and abuse material" (CSEAM) - Further, though, there is a tangible difference between the act of viewing CSEAM and the act of engaging in sexual abuse of children, yet the latter desire is always inherent in the former - Need for and importance of positive age-appropriate sex education emphasized - Implementation of comprehensive sex education programs - Impact of CSEAM on victims; need for legal, social, therapeutic support to the victims and rehabilitation programs for the offenders, stated - These services should include psychological counselling, therapeutic interventions and educational support to address the underlying issues and promote healthy development - For those involved in viewing or distributing child pornography, CBT has proven effective in addressing the cognitive distortions that fuel such behaviour - Raising awareness about the realities of child sexual exploitative material and its consequences through public campaigns can help reduce its prevalence - Identifying at-risk individuals early and implementing intervention strategies for youth with problematic sexual behaviours (PSB) involves several steps and requires a coordinated effort among various stakeholders, including schools, educators, healthcare providers, law enforcement, and child welfare services - Union of India may consider constituting an Expert 166 Committee for devising a comprehensive program or mechanism for health and sex education, as well as raising awareness about the POCSO among children - Obligation of the appropriate government and the commission under Section(s) 43 and 44 of the POCSO does not end at just spreading awareness about the provisions of the POCSO - Their efforts must go beyond just the textual wording of the said provisions and to earnestly take into account the pragmatic necessities for curtailing the issue of child abuse, exploitation and addiction to pornography - Collective responsibility of the society u/s.

19, 20 of the POCSO, specified - Parliament to consider amending Section 15(1) of POCSO to make it more convenient for the general public to report by way of an online portal, any instance of storage or possession of CSEAM to the specified authorities for the purpose of the said provision. [Paras 227-229, 248, 260] Protection of Children from Sexual Offences Act, 2012 - Information Technology Act, 2000 - ss.

2(w), 79 - Protection of Children from Sexual Offences Rules, 2020 - Role and obligations of "intermediaries": Held:Significance of role of "intermediaries" as defined under Section 2(w) of the IT Act in checking the proliferation of child pornography; obligation on the intermediaries under Protection of Children from Sexual Offences Rules, 2020, enumerated - Social media intermediaries in addition to reporting the commission or the likely apprehension of commission of any offence under POCSO to the National Centre for Missing & Exploited Children (NCMEC) are also obligated to report the same to authorities specified under Section 19 of POCSO - Courts to refrain from showing any 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 fail 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(s) 19, 20 and 21 of the POCSO are mandatory in nature, and there can be no dilution of the salutary object and purport of these provisions - In view of the the mandatory character of Sections 19 and 20 of the POCSO read with Rule 11 of the POCSO Rules, an intermediary cannot claim exemption from the liability under Section 79 of the IT Act for any third-party information, data, or communication link made available or hosted by it, unless due diligence is conducted Just Rights for Children Alliance & Anr. v. S. Harish & Ors.

by it and compliance is made of these provisions of the POCSO - 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. [Paras 254-256, 258-260] Words and Phrases - Protection of Children from Sexual Offences Act, 2012 - s. 2(da) - "child pornography"; 'Possession', 'Constructive Possession'; 'Immediate Control' u/s. 15 - Concept. Case Law Cited Chandi Kumar Das Karmarkar v. Abanidhar Roy AIR (1965) SC 585; Motilal Padampat Sugar Mills Co. Ltd. v. State of U. P. [1979] 2 SCR 641 : (1979) 2 SCC 409 - held inapplicable. Independent Thought v. Union of India & Anr. [2017] 13 SCR 821 : (2017) INSC 1030; Attorney General for India v. Satish [2021] 10 SCR 955 : (2021) INSC 762; Eera through Dr. Manjula Krippendorf v. State (Govt. of NCT of Delhi) & Anr. [2017] 7 SCR 924 : (2017) INSC 658; Nawabuddin v.

State of Uttarakhand[2022] 1 SCR 1083 : (2022) INSC 162; Sharat Babu Digumarti v. Govt. of NCT of Delhi [2016] 8 SCR 1015 : (2017) 2 SCC 18; State of M. P. v. Harsh Gupta (1998) 8 SCC 630; Prakash Nath Khanna v. CIT[2004] 2 SCR 434 : (2004) 9 SCC 686; R. Kalyani v. Janak C. Mehta & Ors. [2008] 14 SCR 1249 : (2009) 1 SCC 516; Rathis Babu Unnikrishnan v. The State (Govt. of NCT of Delhi) & Anr. [2022] 4 SCR 989 : (2022) INSC 480; R. P. Kapur v. State of Punjab AIR (1960) SC 866; State of Haryana v. Bhajan Lal (1992) AIR SC 604; S. M. Datta v. State of Gujarat [2001] Supp. 2 SCR 140 :(2001) 7 SCC 659; National Spot Exchange Ltd. v. Anil Kohli, Resolution Professional for Dunar Foods Ltd. [2021] 7 SCR 1024 : (2022) 11 SCC 761; M. Siddiq v. Mahant Suresh Das (2020) 1 SCC 1; Shankar Kisanrao Khade v. State of Maharashtra[2013] 6 SCR 949 : (2013) 5 SCC 546; State of Maharashtra & Anr. v. Maroti [2022] 8 SCR 821 : (2023) 4 SCC 298 - relied on. Bhanabhai Khalpabhai v.

Collector of Customs[1994] 2 SCR 348 : (1994) Supp. (2) SCC 143; Devchand Kalyan Tandel v. State of Gujarat[1996] Supp. 4 SCR 382 : (1996) 6 SCC 255; State of Punjab v. Baldev Singh[1999] 3 SCR 977 : (1999) 6 SCC 172; Seema Silk Sarees v. Directorate of Enforcement[2008] 8 SCR 201 : (2008) 5 SCC 580; Noor Aga v. State of Punjab & Anr. [2008] 168 10 SCR 379 : (2008) 16 SCC 417; Bhola Singh v. State of Punjab [2011] 2 SCR 642 : (2011) 11 SCC 653; Baldev Singh v. State of Haryana[2015] 12 SCR 969 : (2015) 7 SCC 554 - referred to. Nupur Ghatge v. State of Madhya Pradesh (MCRC No. 52596 of 2020); P. G. Sam Infant Jones v. State represented by Inspector of Police (2021) SCC OnLine Mad 2241; Ajin Surendran v. State of Kerala & Anr. (2022) KER 7207; Manuel Benny v. State of Kerala (2022) KER 9730; Lakshya v. State of Maharashtra & Anr. (Criminal Writ Petition No. 479 of 2022); Shantheeshlal T. v. State of Kerala (2024) KER 35968; Akash Vijay v. State of Kerala (2024) KER 42626; Akhil Johny v.

State of Kerala (2024) KER 53767; Inayathulla N (1) v. State (2024) KHC 26513; Inayathulla N (2) v. State (2024) KHC 28204 - referred to. U. S. v. Tucker 150 F. Supp. 2d 1263 (D. Utah. 2001); U. S. v. Romm 455 F. 3d. 990 (9th Cir. , 2006); Regina v. Michael Land (1997) EWCA Crim J1010-15; John Leadbetter v. Her Majesty's Advocate (2020) HCJAC 51; United States v. Katz 178 F. 3rd 368 (5th Cir. 1999); Commonwealth v. Robert (829 A. 2d. 127) - referred to. Books and Periodicals cited 50th Report of the Standing Committee on Information Technology on the 'Information Technology (Amendment) Bill, 2007; Eva J. Klain, Heather J Davies, Molly A. Hicks Et. Al. , Child Pornography: The Criminal Justice-System Response, 8 (Penn State University Press, 2001); Philip Jenkins, Beyond Tolerance: Child Pornography on the Internet (New York University Press, 2003); Burgess, Ann W. & C. R.

Hartman, Child Abuse Aspects of Child Pornography, 7 PSYCHIATRIC ANNALS, 248 (1987); Audrey Rogers, The Dignity Harm of Child Pornography - From Producers to Possessors, in Carissa Byrne Hessick (Eds. ), Refining Child Pornography Law - Crime, Language and Social Consequences (University of Michigan Press, 2016); Tali Gal, Child Victims and Restorative Justice - A Needs Rights Model, 17 (Oxford University Press, 2011); Jonah R. Rimmer, Child Sexual Exploitation, (Oxford Research Encyclopaedia Criminology, 2024); Mary Graw Leary, The Language of Child Sexual Abuse and Exploitation, in Carissa Byrne Hessick (Eds. ), Refining Child Pornography Law - Crime, Language and Social Consequences (University of Michigan Press, 2016); Danijela Frangež, Anton Toni Klančnik, Mojca Žagar Karer Et. Al. , The Importance of Terminology Related to Child Sexual Just Rights for Children Alliance & Anr. v. S. Harish & Ors. Exploitation, 66(4) REV. ZA. KRIM. KRIMINOL. 291 (2015); Kathryn C.

Seigfried Spellar & Virginia Soldino, Child Sexual Exploitation: Introduction to a Global Problem, in Thomas J. Holt & Adam M. Bossler (Eds. ); The Palgrave Handbook of International Cybercrime and Cyberdeviance, (Palgrave Macmillian, Cham, 2020); Vaughn I. Rickert & Owen Ryan, Is the Internet the Source, 40 J. ADOLESC. HEALTH 104 (2007); Dr. Ethel Quayle, Assessment issues with young people who engage in problematic sexual behaviour through the Internet, in M. C. Calder (Ed. ), New Developments with young people who sexually abuse (Russel House Publishing, Lyme Regis, UK, 2007); Matthew L Long, Laurence A. Alison & Michelle A McManus, Child pornography and likelihood of contact abuse: a comparison between contact child sexual offenders and noncontact offenders, 25(4) SEX ABUSE, 370 (2013); Dr. Ethel Quayle Et. Al. , The role of sexual images in online and offline sexual bheaviour with minors, 17(6) CURR. PSYCHIATRY REP.

1 (2019); Melissa Hamilton, The Child Pornography Crusade and Its Net- Widening Effect, 33 CARDOZO L. REV. 1694 (2012); Esposito & Lesli C. , Regulating the Internet: The Battle Against Child Pornography, 30 CASEW. RES. J. INT'L. L. 5 (1998); Jason S. Carrol Et Al. , Generation XXX, Pornography Acceptance and Use Among Emerging Adults, 23 J. ADOLESCENT RES. 6 (2008); Clare McGlynn & Dr. Hannah Bows, Possessing Extreme Pornography: policing, prosecutions and the need for reform, 83(6) J. CRIM. LAW. , 473 (2019); Dr. Ethel Quayle, Lars Loof and Tink Palmer, Child Pornography and Sexual Exploitation of Children Online, 64 (ECPAT International, 2008); Michael C. Seto, Kailey Roche, Nicole C Rodrigues Et. Al. , Evaluating Child Sexual Abuse Perpetration Prevention Efforts: A Systematic Review, 33 J. CHILD SEX. ABUS. 22 (2024); Paul G. Cassel, James Marsh & Jeremy M. Christiansen, The Case for Full Restitution for Child Pornography Victims, 82 GEO. WASH. L. REV.

61 (2013); Padminin Iyer & Peter Aggleton, Seventy years of sex education - A Critical Review, 74(1) HEALTH EDUC. J. 3 (2015); Udaan Adolescent Education Program by the Centre for Catalyzing Change in Jharkhand in India; Cortney Lollar, Child Pornography and the Restitution Revolution, 103 J. CRIM. L. & CRIMINOLOGY 343 (2013); Jagdish Khubchandani, Jeffrey Clark & Raman Kumar, Beyond Controversies: Sexuality Education for Adolescents in India, 3(3) J. FAMILY MED. PRIM. CARE. 175 (2014) - referred to. 170 List of Acts Protection of Children from Sexual Offences Act, 2012; Protection of Children from Sexual Offences (Amendment) Act, 2019; Information Technology Act, 2000; Information Technology (Amendment) Act, 2008; Protection of Children from Sexual Offences Rules, 2020.

List of Keywords Section 15 of the Protection of Children from Sexual Offences Act, 2012; Section 67B of the Information Technology Act, 2000; POCSO; Child pornography; Child; Pornographic content; Child pornographic material; Child sexual exploitation; Child sexual abuse; Exploitation and abuse of children; Use of obscene/ pornographic material through electronic means; Online sexual denigration and exploitation of children; Cyber-offences relating to children; Videos showing children involved in a sexual activity; Statutory presumption of culpable mental state; Quashing; Storage or possession; Mere storage or possession; Intangible possession; Constructive possession; "Deleted, destroyed, reported"; Failure or omission to report; Transmission; Propagation; Display or distribution; Foundational facts; Marginal note; Commercial purpose; Inchoate offence; Mens-rea; Culpable mens-rea; Requisite mens rea; Intention; Actus reus; Purposive interpretation; "Subjective satisfaction" criteria; Ignorance of Law; Incognizance of Law; Suggestions by Court; Due diligence; Intermediaries; "Child Sexual Exploitation and Abuse Material"(CSEAM).

Case Arising From CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 2161- 2162 of 2024 From the Judgment and Order dated 11. 01. 2024 of the High Court of Judicature at Madras in CRLOP No. 37 of 2024 and CRLMP No. 79 of 2024 Appearances for Parties H. S. Phoolka, Sr. Adv. , Jagjit Singh Chhabra, Bhuwan Ribhu, Ms. Rachna Tyagi, Saksham Maheshwari, Ms. Shashi, Ms. Taruna Panwar, Ms. Tanvi Chaudhry, Advs. for the Appellants. Ms. Swarupama Chaturvedi, Sr. Adv. , Prashant S. Kenjale, Amol Nirmalkumar Suryawanshi, Ms. Srishty Pandey, Ashutosh Chaturvedi, M/s. Juristrust Law Offices, Abhaid Parikh, Ms. Katyayani Anand, Ms. Saumya Kapoor, Aayush Shivam, D. Kumanan, Sheikh F. Kalia, Advs. for the Respondents. Just Rights for Children Alliance & Anr. v. S. Harish & Ors. Judgment / Order of the Supreme Court Judgment J. B. Pardiwala, J. : For the convenience of exposition, this judgment is divided into the following parts: - INDEX* A.

FACTUAL MATRIX........................................................................... 4 B. IMPUGNED ORDER....................................................................... 10 C. SUBMISSIONS OF THE PARTIES................................................ 16 i. Submissions on behalf of the Appellants............................. 16 ii. Submissions on behalf of the National Commission for Protection of Child Rights (NCPCR).................................... 18 iii. Submissions on behalf of the respondent no. 1 / the Sole Accused................................................................................... 20 iv. Submissions on behalf of the respondent nos. 2 & 3 / the State......................................................................................... 22 D. ISSUES FOR DETERMINATION.................................................... 24 E. ANALYSIS........................................................................................ 25 i.

Relevant Statutory Scheme and Provisions....................... 25 a. Legislative History and Scheme of the POCSO................ 25 b. Relevant Provisions of the IT Act....................................... 38 ii. Scope of Section 15 of the POCSO and Section 67B of the IT Act................................................................................. 40 a. Contradictory Views of different High Courts on the subject.. 40 b. Three distinct offences punishable under Section 15 of the POCSO.......................................................................... 55 I. Concept of an Inchoate Crime - The 'Actus Reus' and 'Mens Rea' required under Section 15................. 60 II. Concept of 'Possession', 'Constructive Possession' and 'Immediate Control' under Section 15 of the POCSO........................................................................ 78 c.

Pornographic Material must prima facie appear to involve a Child................................................................................... 86 d. Scope of Section 67B of the IT Act.................................... 95 * Ed. Note: Pagination as per the original Judgment. 172 iii. Presumption of Culpable Mental State under Section 30 of the POCSO.......................................................................... 108 a. Concept of Statutory Presumption and Principle of Foundational Facts............................................................ 110 b. Foundational Facts required under Section 15 of the POCSO............................................................................... 126 c. Whether the Presumption under Section 30 of the POCSO can be resorted to in a Quashing Proceeding?................ 130 iv. Whether the case at hand was one fit for the High Court to quash?................................................................................ 141 a.

Plea of Ignorance of Law: Ignorance of Law viz-a-viz Incognizance of Law.......................................................... 147 v. Summary of our conclusion.................................................. 161 F. FEW MEANINGFUL SUGGESTIONS............................................. 167 i. The Lingering Impact of Child Pornography on the Victimization & Abuse of Children....................................... 167 a. Obligation to report under Section(s) 19 & 20 respectively of the POCSO and Role of the Society and all Stakeholders... 180 ii. Suggestions to the Union of India and to the courts......... 195 G. FINAL ORDER................................................................................. 198 1. Since the issues raised in both the captioned appeals are same and the challenge is also to a self-same judgment and order passed by the High Court those were taken up for hearing analogously and are being disposed of by this common judgment and order. 2.

The present appeals arise out of the final judgment and order passed by the High Court of Judicature at Madras dated 11. 01. 2024 in Criminal Original Petition (Crl. O. P. ) No. 37 of 2024 ("Impugned Order") filed by the respondent no. 1 (accused) herein under Section 482 of the Code of Criminal Procedure, 1973 (for short, the "Cr. P. C. ") by which the High Court allowed the petition and thereby quashed the chargesheet dated 19. 09. 2023 filed for the offences punishable under Section 67B of the Information Technology Act, 2000 (for short, the "IT Act") and Section 15(1) of the Protection of Children from Sexual Offences Act, 2012 (for short, the "POCSO") arising out of the FIR No. 03 of 2020, P. S. Ambattur, Chennai. As a consequence, the criminal proceedings in Special Sessions Case No. 170 of 2023 stood terminated. Just Rights for Children Alliance & Anr. v. S. Harish & Ors. 3. It may be necessary to clarify that the appellant no.

1 herein, 'Just Rights for Children Alliance' is a collation comprising of five different NGOs that work in unison against child trafficking, sexual exploitation and other allied causes. Whereas the appellant no. 2 is a child rights organization working towards protecting children from exploitation and one of the partner NGOs to the aforesaid collation. The appellants herein were not a party to the proceedings before the High Court. However, having regard to the serious issue of public importance involved in the matter they sought leave of this Court to challenge the impugned judgment of the High Court. The respondent nos. 2 & 3 are the State of Tamil Nadu and the Inspector of Police, All-Women's Police Station Ambattur, Chennai, respectively. A. FACTUAL MATRIX 4. On 29. 01. 2020, the All-Women's Police Station Ambattur, Chennai, Tamil Nadu i. e. , the respondent no.

3 herein, received a letter from the Additional Deputy Commissioner of Police (Crime against women and children Branch) wherein it was mentioned that as per the Cyber Tipline Report of the National Crimes Record Bureau (NCRB), the respondent no. 1 herein is an active consumer of pornography and has allegedly downloaded pornographic material involving children in his mobile phone. 5. Accordingly, in view of the aforesaid letter an FIR was registered against the respondent no. 1 herein on the very same day i. e. , 29. 01. 2020 at the All-Women's Police Station Ambattur, Chennai, Tamil Nadu as Crime No. 03 of 2020 for the offence punishable under Section(s) 67B of the IT Act and 14(1) of the POCSO. The relevant portion of the FIR reads as under: - "Today on 29. 01. 2020 at 12. 00 noon, I, the Inspector of W28, All Women Police Station was on duty, received letter RC. No. 03/ADC CWC/West/Camp/2020 dated 28. 01. 2020 from Thirumathi S.

Megalina, Additional Deputy Commissioner of Police, Prevention of Crimes against Women and Children Division, Chennai, West Zone. On perusal of the same, 4 References were mentioned therein viz. Ref: 1. DO. Lr. No. 05/ADGP-CWC/NCMEC/2020 2. C. No. 30/COP/CO/2020 174 3. R. C. No. 228 VIII/DC CWC/Genl/2020 (CTR No. 49303278) 4. RC No. 68 /Japu - ii/NCMEC/2020 As per the notice issued in CTR No. 49303278 by National Crime Record Bureau, it is seen that Harris, resident of Door No. 2, 1st Main Road, VPC Nagar, Kallikuppam, Ambattur, Mobile No. 99406 87836, has for the past more than two years, been watching child pornographic films. Details have also been obtained with regard to child pornographic films which were made by using children who have been exploited, children who have gone missing, and by collecting information from centres which deal with missing children, and details have been provided with regard to the persons who have downloaded such child pornographic films.

When those notices were perused, it was seen that the above said person had downloaded those films through Old Site ID-KALLI/OLD/ Chm ID-CHM2307, with a view to indulge in sexual activities, and these films were made at the address 'Gopalsamy, No. 2, Gangai Amman Kovil 3rd Main Road, Kallikuppam, Ambattur' by exploiting children in this area. Since this bad activity is a crime against good social order, it was directed to take appropriate action against the said person, and therefore, Crime No. 03/2020 U/S 67B IT ACT r/w 14(1) POCSO Act 2012 was registered, and the original FIR has been sent to the concerned Court of learned Judicial Magistrate, and copies have been sent to the concerned superior officers of police without any delay, and investigation has been taken up. 13. Action Taken: Since the above information reveals commission of offence(s) u/s as mentioned at Item No. 2, registered the case and took up the investigation.

FIR read over to the complainant/Informant, admitted to be correctly recorded and a copy given to the Complainant/ Informant free of cost. " 6. During the course of the investigation, the mobile phone belonging to the respondent no. 1 was seized and sent to the Forensic Science Just Rights for Children Alliance & Anr. v. S. Harish & Ors. 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. 7. As per the Computer Forensic Analysis Report dated 22. 08. 2020 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. The Computer Forensic Analysis Report further stated that more than hundred other pornographic video files were downloaded and stored in the said mobile phone.

The relevant portion of the said Computer Forensic Analysis Report reads as under: - "COMPUTER FORENSIC ANALYSIS REPORT Received from : The Sessions Judge, Mahalir Neethi Mandram, (Fast Track Mahila Court) Tiruvallur. Crime No. & P. S. : 03/2020 of Ambattur AWPS Organization Report No. : CF/52/2020 Case received Date : 28. 02. 2020 Case received through : WHC 43450, Tmt. Poornima Seals status : Correct & Intact Nature of crime : 67(B) IT Act and 14(1) of POCSO Act 2012 Tools used : UFED 4 PC. Report date : 22. 08. 2020 Head of the Division : A. Visalakshi, M. Sc, PGDCA Examiner : S. Hemalatha, M. Sc. , (FS), M. Sc. , (CS) RECEIVED DEVICE DESCRIPTION One (1) sealed cloth-lined paper parcel marked, "PI No. 5/2020. Cr. No. 3/2020, Ambattur AWPS ...

" containing the following item: Marked Name of Details of the Item Packing / as the Item Labelling received details 1 Mobile Make: MOTO phone Model: XT 1804 IMEI1: 356477088126073 Kept in a IMEI2: 356477088126081 plastic box marked, Airtel 4G 128K "PI No: SIM 1 ICCID: 05/2020". 8991000902533662473U Strontium 16 GB Memory Inbuilt Card Battery Objective The above item was examined with a view to find if there is any facility of viewing video files using YouTube application and the details. And also to find if any media files pertaining to pornography were found accessed/downloaded/saved. EXAMINATION Mobile Phone : [MOTO] The internal memory of the mobile phone was acquired using file system extraction and examined using the forensic software tool "UFED 4 PC". The retrieved details such as contacts, call logs, SMS messages and media files are generated as a report and the report (in pdf) is copied on to a Compact Disc marked as "CF 52/20".

Selected pages from the report are given as Annexure-I. Some of the findings from the report are as follows: - [... ] [... ] Above findings indicated that the mobile phone was found to be equipped with the facility of viewing videos through YouTube Application. 4. (a) Video files pertaining to pornography (more than 100 Nos. ) were found downloaded and stored in different paths, the details of the same are given as Annexure - II. [... ] (b) Some of the vide files pertaining to pornographic nature were found stored under the path "Motorola GSM_XT1806 MotoG5SPlus. zip/sdcard/ProgramData/ Android/Language/. fr/Videos/wat up pono". [... ] Just Rights for Children Alliance & Anr. v. S. Harish & Ors. (c) Under the same path two video files which could be accounted for Child Pornography content were found stored. In the videos boys (under-teen) were found involved in sexual activity with a adult woman/girl. The details of the same are pasted below: - S. No. File Info Additional File Info 1.

Name: VID-20190614-WA0006. Size (bytes): 11256288 mp4 Modified: Path: Motorola GSM_XT1806 6/14/2019 MotoG5SPlus. zip/sdcard/ 15:44 (UTC +5:30) ProgramData/Android/Language/. fr/Videos/wat up pono/ VID- 20190614-WA0006. mp4 2. Name: Unmayal sollungal Ennodu Size (bytes): 20467994 sellungal with Vadivel Balaji in AIE 4-8-2012 - Youtube. 3GP Modified: 9/5/2016 Path: Media/Internal shared 23:12 (UTC +5:30) storage/trending/adhu idu/Unmayal sollungal Ennodu sellungal with Vadivel Balaji in AIE 4-8-2012 - Youtube. 3GP [... ] Memory Card: [Strontium 16 GB] The memory card was acquired and examined using the forensic software tool "UFED 4 PC". The retrieved details such as document, image and video files are generated as a report and the report (in pdf) is copied on to a Compact Disc marked as "CF 52/20". The full report is given as Annexure-III. On perusing the medial files, multiple video snapshot images and video files were found related to pornography.

The representative samples of the same are copied onto the CD mentioned earlier under a specified folder. [... ]" 8. Upon completion of the investigation, chargesheet dated 19. 09. 2023 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 178 respectively. It may not be out of place to state at this stage, that although the FIR was registered for the offence punishable under Section 14(1) of the POCSO yet in light of the materials collected in the course of the investigation and the findings recorded in the Computer Forensic Analysis Report, the chargesheet was ultimately filed for the offence punishable under Section 15(1) of the POCSO.

The relevant portion reads as under: - "Final Report Before the Hon'ble Mahila Fast Track Mahila Court, Tiruvallur Police Final Report under 173(i) W28 Ambattur All Women Police Station Crim no- 3/2020 U/s 67(B) IT ACT & 14 (1) of POCSO ACT 2012 @67 (B) IT ACT 15(1) of POCSO ACT 2012. [... ] Nature of the case Mrs. Megallina, Additional Deputy Commissioner of Police, Women and Child Crime Branch, Chennai, West Zone LETTER RC. NO. 03/ADC CWC/West/Camp/2020 Dated: 28. 01. 2020 in that mentioned Ref: 1. Do. Lr. No. 05/ ADGP- CWC/ camp/ NCMEC/ 2020, 2. C. No. 30/ COP/ CO/ 2020, 3. R. CNO. 228 VIII/ DC CWC/ Genl/ 2020 (CTR No. 49303278), 4. RC. No. 68/ japu- ii/ NCMEC/ 2020 as per the detail, Haris residing at 1st Main Road, Door No. 03, VPC Nagar, Kallikuppam, Ambattur has reported to NCRB (National Crime Record Bureau) that he had seen child pornography on his mobile phone number 99406 87836 for more than two years at CTR No.

49303278 has been obtained and a report on child exploitation and missing persons and details of those who have downloaded child pornography against children banned by the data collection system has been obtained. Aforesaid person OLD Size ID- KALLI 4/OLD Chm Id- CHM2307 Downloaded from the address No. 2 Gopalsamy, 3rd Main Road, Gangaiyamman Temple, Ampathur, Kallikuppam, with the malicious intention of viewing children's pornographic films for sexual purposes. As this evil act is considered to be a crime of disturbance of social morals, after being instructed to Just Rights for Children Alliance & Anr. v. S. Harish & Ors. take appropriate action against the said person, the All Women Police Station registered a case in CRIME NO. 03/20 U/ S 67B IT ACT r/ w 14(1) POCSO Act 2012 and the copy of the same was sent to the concerned court and the copies to the higher police officers without delay for investigation. [... ] In the investigation conducted so far, crime scene no.

2, VPC Nagar to Main Road Kallikuppam Ambattur, Chennai is within the jurisdiction of Ambattur All Women Police Station. On 28. 01. 2000 Additional Deputy Commissioner, Women and Child Prevention Division, Chennai West Zone gone through the case received from (NCMEC) According to the National Center for Exploited Children in this case accused Harish AGE 24/S/o. Santhanam No. 2 VPC Nagar First Main Road Kallikuppam Ampathur Chennai has been using his phone number ( 99406 87836) for more than two years from his mobile phone number OLD Size ID- KALLI 4/OLD Chm Id- CHM2307 Downloaded from the address No. 2 Gopalsamy, 3rd Main Road, Gangaiyamman Temple, Ampathur, Kallikuppam, with the malicious intention of viewing children's pornographic films for sexual purposes As this evil act is considered to be a crime of disturbance of social morals, as per CTR NO 49303278 a report of the crime has been received by NCRB.

Therefore, the accused in this case is considered to have committed an offense of disturbing public morals and therefore has committed a cognizable offense under Section 67 (B) IT ACT & 15 (1) of the POCSO Act 2012. [... ]" B. IMPUGNED ORDER 9. Aggrieved by the aforesaid, the respondent no. 1 went before the High Court of Judicature at Madras by way of a quashing petition being the Criminal Original Petition (Crl. O. P. ) No. 37 of 2024 for the purposes of getting the aforesaid chargesheet and the criminal proceedings arising therefrom quashed. 10. The impugned judgment of the High Court is in three-parts. In other words, the High Court quashed the criminal proceedings essentially on three grounds: - 180 (i) First, the High Court was of the view that to constitute an offence under Section 14(1) of POCSO, a child must have been used by the person accused for pornographic purposes.

It observed that although the two videos depicting children engaged in a sexual activity were found to have been downloaded and stored in the mobile phone belonging to the respondent no. 1, and assuming that the accused had watched the same yet the same would not constitute an offence under Section 14(1) of the POCSO. The relevant observations read as under: - "9. To make out an offence under Section 14(1) of Protection of Child from Sexual Offences Act, 2012, a child or children must have been used for pornography purposes. This would mean that the accused person should have used the child for pornographic purposes. Even assuming that the accused person had watched child pornography video, that strictly will not fall within the scope of Section 14(1) of Protection of Child from Sexual Offences Act, 2012. Since 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.

" (ii) Secondly, the High Court held that, to constitute an offence under Section 67B of the IT Act, the person accused must have published, transmitted or created material depicting children in sexually explicit act or conduct. It held that although the respondent no. 1 had admitted that he was addicted to watching pornography, yet mere watching or downloading of child pornography without any transmission or publication of the same does not fall within the purview of Section 67B of the IT Act. The relevant portion reads as under: - "6. This Court enquired the petitioner and he stated that his date of birth is 13. 11. 1995 and that he has an elder brother. After a lot of persuasion, the petitioner admitted that during his teens, he had the habit of watching pornography. However, the petitioner made it clear that he had never watched child pornography.

That apart, he also stated that he had never attempted to publish or transmit any of the pornographic Just Rights for Children Alliance & Anr. v. S. Harish & Ors. materials to others. He had merely downloaded the same and he had watched pornography in privacy. xxx xxx xxx 10. In order to constitute an offence under Section 67-B of Information Technology Act, 2000, the accused person must have published, transmitted, created material depicting children in sexual explicit act or conduct. A careful reading of this provision does not make watching a child pornography, per se, an offence under Section 67-B of Information Technology Act, 2000. Even though Section 67-B of Information Technology Act, 2000, has been widely worded, it does not cover a case where a person has merely downloaded in his electronic gadget, a child pornography and he has watched the same without doing anything more.

" (iii) Lastly, the High Court in light of its aforesaid discussion and by placing reliance on Section 292 of the Indian Penal Code, 1860 (for short, the "IPC") took the view that although the pornographic content was found to have been downloaded and stored in the mobile phone of the respondent no. 1 yet in the absence of any material to show that the respondent no. 1 had transmitted or published the same, no offence whatsoever could be said to have been made out either under the POCSO, IT Act or the IPC and thus quashed the criminal proceedings. The relevant observations read as under: - "8. This Court had the advantage of going through the entire CD file. The mobile phone that was seized from the petitioner did contain pornographic materials. However, for the purposes of this case, only two videos were identified as child pornography. Those two videos contain boys (under teen) involved in sexual activity with an adult woman/girl.

Admittedly, those two videos were downloaded and available in the mobile phone belonging to the petitioner and it was neither published nor transmitted to others and it was within the private domain of the petitioner. xxx xxx xxx 182 11. The Kerala High Court had an occasion to deal with the scope of Section 292 IPC. That was a case where a person was caught watching porn videos and a First Information Report came to be registered against him. While dealing with this issue, the Kerala High Court held that, watching an obscene photo or obscene video by a person by itself will not constitute an offence under Section 292 IPC. This is in view of the fact that this act is done by the concerned person in privacy without affecting or influencing anyone else. The moment the accused person tries to circulate or distribute or publicly exhibits obscene photos or videos, then the ingredients of the offence starts kicking in. 11. Thus, the High Court vide its impugned judgment and order dated 11.

01. 2024 allowed the petition and thereby quashed the criminal proceedings in Spl. S. C. No. 170 of 2023 on the ground that no offence could be said to have been made out against the respondent no. 1 either under Section 14(1) of the POCSO or Section 67B of the IT Act. The operative portion of the Impugned Order reads as under: - "12. In the considered view of this Court, the materials that have been placed before this Court does not make out an offence against the petitioner under Section 67-B of Information Technology Act, 2000 and Section 14(1) of Protection of Child from Sexual Offences Act, 2012. xxx xxx xxx 18. In the light of the above discussion, the continuation of the proceedings against the petitioner will amount to abuse of process of Court. That apart, it will be a stumbling block for the petitioner's career in future. Therefore, this Court is inclined to quash the proceedings in Spl. S. C. No.

170 of 2023 on the file of the Sessions Judge, Mahila Neethi Mandram (Fast Track Court), Tiruvallur District. Accordingly, this Criminal Original Petition stands allowed and the proceedings in Spl. S. C. No. 170 of 2023 on the file of the Sessions Judge, Mahila Neethi Mandram (Fast Track Court), Tiruvallur District, is hereby quashed. Consequently, connected criminal miscellaneous petition is closed. " (Emphasis supplied) Just Rights for Children Alliance & Anr. v. S. Harish & Ors. 12. From the aforesaid it could be said that the High Court laid down three propositions of law which are as follows: i. Mere possession or storage of any pornographic material is not an offence under the POCSO. We are mindful of the fact that, whilst endorsing the aforesaid proposition of law, the High Court in its impugned Order either consciously did not deem it necessary to refer to Section 15 of the POCSO or inadvertently failed to refer to Section 15 of the POCSO.

Nevertheless, in either case that may be, the aforesaid proposition of law found favour with the High Court. ii. 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 is not punishable under the same. iii. In the 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, and the criminal proceedings would be liable to be quashed. In other words, to attract the provisions of the POCSO or the IT Act it is not sufficient to merely establish storage or possession of child pornography and that transmission or publication of the same is also required to be established. In the absence of the same the criminal proceedings are liable to be quashed. 13.

In such circumstances referred to above, the appellants being aggrieved with the Impugned Order passed by the High Court have come up before this Court with the present appeal. C. SUBMISSIONS OF THE PARTIES i. Submissions on behalf of the Appellants. 14. Mr. H. S. Phoolka, the learned Senior Counsel appearing for the appellants submitted that the interpretation of the relevant provisions of POCSO by the High Court for the purpose of holding that mere storage or possession of any child pornographic material does not amount to an offence, poses a significant threat to the well-being of children and may result in proliferation of child pornography, posing a significant threat to the very social fabric of the society at large. 184 In support of his submissions, Mr. Phoolka relied on the Convention on Cybercrime and the United Nations Convention on the Rights of the Child, 1989. 15.

He further submitted that the chargesheet filed by the investigating agency specifically records that, as per the information received from the National Commission for Missing and Exploited Children, USA (NC-MEC), the accused had been watching child pornographic videos for the past two years. 16. He further contended that the High Court erroneously proceeded under Section 14(1) of the POCSO, which deals with the use of children for pornographic purposes, without giving due consideration to Section 15(1) of the Act. 17. He further submitted that Section 15(1) explicitly penalizes the downloading and failure to delete child pornography. In the present case, the respondent's stance that he had received two files containing child pornography via WhatsApp is falsified by the NC-MEC report. Furthermore, there is nothing on record to substantiate that the videos were received on WhatsApp. 18.

It was further argued that the High Court committed a serious error in quashing the criminal proceedings without addressing itself on Section 15 of the POCSO. He submitted that the impugned judgment poses a significant threat to child welfare and is contrary to several national and international commitments. 19. He further submitted that the High Court also failed to distinguish between adult pornography and child pornography, as Sections 67 and 67A of the IT Act deal with adult pornography, while Section 67B was specifically introduced in 2009 to provide more stringent punishment for collecting, downloading, or watching child pornographic material. 20. He further submitted that in view of Section 30 of the POCSO the High Court was legally obliged to presume the existence of a culpable mental state on the part of the accused for having committed any offence under the Act that requires such a mental state. 21. In the last, Mr.

Phoolka submitted that a conjoint reading of Section 67B of the IT Act, Section 15, and Section 30 of the POCSO leaves no manner of doubt as regards the culpability of persons in possession of child pornography. Just Rights for Children Alliance & Anr. v. S. Harish & Ors. ii. Submissions on behalf of the National Commission for Protection of Child Rights (NCPCR). 22. Ms. Swarupama Chaturvedi, the learned Senior Counsel appearing for the National Commission for Protection of Child Rights (NCPCR), submitted that there was a serious lapse on the part of the State in failing to register the FIR for the offence punishable under Section 15 of the POCSO, 2012, as the possession of pornographic material involving a child in any form by itself is an offence under Section 15(1) of the Act.

It was also argued that the State as a Prosecuting agency failed in its duty to bring it to the notice of the High Court that chargesheet was ultimately filed for the offence under Section 15(1) of the POCSO & not Section 14. 23. She further submitted that the accused had downloaded pornographic material involving a child onto his mobile phone, retained possession of it, and failed to take any steps to delete the same for two years, as mandated under Section 19 of the POCSO, 2012. 24. She contended that the High Court failed to appreciate the mandate of Section 30, which raises a presumption of a culpable mental state on the part of the accused for any offence under the Act that necessitates such a mental state. The provision, therefore, shifts the burden of proving the absence of a culpable mental state onto the accused. 25.

She would further submit that Section 19 of the POCSO imposes mandatory reporting of an offence under the Act if there was an apprehension that such offence is likely to be committed or knowledge that such an offence has been committed. It was pointed out that the failure to discharge this obligation by itself is punishable under Section 21 of the POCSO. She pointed out that the social media platforms claim to report such instances to the National Center for Missing and Exploited Children (NCMEC), a US-based NGO, which then reports them to the National Crime Records Bureau (NCRB). However, Section 19 mandates reporting such cases to the Special Juvenile Police Unit (SJPU) or the Special Police. Therefore, reporting to an NGO cannot absolve the social media platforms of its liability under Section 21 of the POCSO. 26. In the last, it was submitted that the issue as regards the plight of minors involved or used in child pornography is a matter of serious 186 concern for one and all.

She prayed for issuance of appropriate directions. She submitted that in an age when children require internet access for educational purposes, it has become imperative to provide them with a safe online environment in accordance with Article 12 of the United Nations Convention on the Rights of the Child (UNCRC). iii. Submissions on behalf of the respondent no. 1 / the Sole Accused. 27. Mr. Prashant S. Kenjale, the learned Counsel appearing for the respondent no. 1 / the accused, submitted that the FIR was lodged for the offence under Section 14(1) of the POCSO and Section 67B of the IT Act, and thus, no error not to speak of any error of law could be said to have been committed by the High Court in passing the impugned order. 28. He further submitted that the date of the receipt of the videos recovered from the mobile phone of the respondent no. 1 phone is 14. 06. 2019, at which point the 2019 amendment to Section 15 was not yet in force. 29.

He further contended that the two files found from the Respondent's phone were named (a. ) VID-20190614-WA005. mp4 and (b. ) VID- 20190823-WA0020. mp4. The use of "WA" in the file names indicates that they were automatically downloaded by WhatsApp, which has an auto-download feature, as shown in a research study. He would submit that in such circumstances, the said videos had been automatically downloaded onto his phone and that the respondent no. 1 was unaware of their existence. He argued that the forensic evidence clearly indicates both the creation and modification date as 14. 06. 2019, thereby indicating that the files were never accessed. 30. He further submitted that the mere possession of the aforesaid videos does not constitute an offence under Section 15(1) of the POCSO, as the respondent never had any intention to share or distribute them. He also argued that even if it is assumed that the respondent no.

1 had watched the said videos once and then failed to delete it, he cannot be charged under Section 15(1) of the POCSO, as he was unaware of its presence due to the government's failure to publicize the law. Just Rights for Children Alliance & Anr. v. S. Harish & Ors. 31. He submitted that ignorance of law on the part of the respondent no. 1 was accompanied by a bona fide belief, and as such it would not constitute an offence under Section(s) 15 of the POCSO and 67B of the IT Act. In support of this argument, he placed reliance on the decisions of this Court in Chandi Kumar Das Karmarkar v. Abanidhar Roy, reported in AIR 1965 SC 585, and Motilal Padampat Sugar Mills Co. Ltd. v. State of U. P. , reported in (1979) 2 SCC 409. iv. Submissions on behalf of the respondent nos. 2 & 3 / the State. 32. Mr. D.

Kumanan, the learned Counsel appearing for the State, submitted that the High Court, whilst passing the Impugned Order proceeded on an erroneous footing that an offence under Section 14 of the POCSO had been alleged against the accused, eventhough both the chargesheet as-well as the quashing petition clearly mentioned that the indictment against the accused was under Section 15(1) of the POCSO. 33. He further submitted that the High Court in its Impugned Order failed to look into Section 67B of the IT Act. The High Court whilst quashing the criminal proceedings neither discussed nor gave any due consideration to Section 67B, eventhough chargesheet had been filed for an offence under it. 34.

It was submitted that both Section 15 of the POCSO and Section 67B of the IT Act had been enacted with the salutary object of curtailing child abuse by penalizing any form of use of child pornography, including watching of such pornographic content in order to tackle the larger problem of creation and dissemination of such material by the perpetrators. 35. He submitted that more than hundred pornographic videos were found stored in the mobile phone of the respondent no. 1 / accused herein. Furthermore, the accused had himself admitted before the High Court that he along with his friends would regularly watch such pornographic material. In such circumstances it was argued that the accused had stored such material in his phone with the intention of sharing it with his friends. 36. It was further submitted that the marginal note of Section 15 of the POCSO i. e.

"Punishment for storage of pornographic material involving child" is self-explanatory and that sub-section (1) of the 188 said provision punishes the storage or possession of any such pornographic material when done with an intention to share or transmit it. Reliance was placed on Section 30 of the POCSO to argue that the said provision specifically provides for presumption of a culpable mental state on part of the accused for any offence under the Act which requires such mental state, and as such the onus was on the accused to prove that he had no intention to share the material that was found stored in his phone, which was also overlooked by the High Court. 37.

In the last, it was submitted that once the chargesheet and the other materials on record prima-facie disclosed the commission of an offence, more particularly the pornographic videos that were found stored in the mobile phone of the accused, it was not proper for the High Court to exercise its inherent powers under Section 482 of the Cr. P. C to quash the criminal proceedings. D. ISSUES FOR DETERMINATION 38. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following questions of law fall for our consideration: - I. What is the scope of Section 15 of the POCSO? In other words, what is the underlying distinction between sub-section(s) (1), (2) and (3) respectively of the POCSO? II. Whether, mere viewing, possessing or storing of any child pornographic material is punishable under the POCSO? III. What is the true scope of Section 67B of the IT Act? IV. What is the scope of Section 30 of the POCSO?

In, other words, what are the foundational facts necessary for invoking the statutory presumption of culpable mental state in respect of Section 15 of the POCSO? V. Whether, the statutory presumption contained in Section 30 of the POCSO can be invoked only at the stage of trial by the Special Court alone established under the POCSO? In other words, whether it is permissible for the High Court in a quashing petition filed under Section 482 of the Cr. P. C. to resort to the statutory presumption of culpable mental state contained in Section 30 of the POCSO? Just Rights for Children Alliance & Anr. v. S. Harish & Ors. E. ANALYSIS i. Relevant Statutory Scheme and Provisions. a. Legislative History and Scheme of the POCSO. 39. Before adverting to the rival submissions canvassed on either side, it would be apposite to first look into the statutory scheme and refer to the relevant provisions of the POCSO. 40.

As the long title, 'Protection of Children from Sexual Offences Act, 2012' suggests, the POCSO was enacted by the Parliament to address the urgent need for a comprehensive law to protect children from sexual abuse and exploitation. 41. Sexual exploitati