JUST RIGHTS FOR CHILDREN ALLIANCE & ANR. versus S. HARISH & ORS. (23/09/2024) — Supreme Court headnote

AI-generated headnote. Verify against the judgment before relying on it. Paragraph numbers refer to the judgment.

Summary

The Supreme Court set aside a Madras High Court order quashing a prosecution under Section 15(1) POCSO and Section 67B IT Act against a man on whose phone two videos of children in sexual activity were found. It held that Section 15 creates three distinct inchoate offences of storing or possessing child sexual material with a specified intent, needing no actual transmission; that possession includes constructive possession, such as viewing online; that Section 67B(b) punishes browsing and downloading; and that the presumption of culpable mental state under Section 30 POCSO applies even in quashing proceedings. The Court also directed courts to use the term 'child sexual exploitation and abuse material' (CSEAM).

Issues

What is the scope of Section 15 POCSO, and how do sub-sections (1), (2) and (3) differ?
Whether merely viewing, possessing or storing child pornographic material is punishable under POCSO.
What is the true scope of Section 67B of the Information Technology Act, 2000?
What foundational facts must be proved before the presumption of culpable mental state under Section 30 POCSO can be invoked for an offence under Section 15?
Whether the High Court may apply the Section 30 presumption in a quashing petition under Section 482 CrPC, or only the Special Court at trial.
Whether the High Court rightly quashed the proceedings.

Provisions considered

Section 15(1), Protection of Children from Sexual Offences Act, 2012Read as an inchoate offence: the actus reus is the failure to delete, destroy or report stored or possessed child pornographic material, and the intent to share or transmit is to be inferred from the manner and circumstances of that omission; no actual sharing is required. (¶¶ 49, 81, 86, 87, 89, 90, 91, 92, 97, 98, 99)
Section 15(2), Protection of Children from Sexual Offences Act, 2012Requires, beyond storage or possession, material showing actual transmission, propagation, display or distribution, or a preparatory act facilitating it, done otherwise than for reporting or use as evidence. (¶¶ 78, 88, 89, 93, 100, 101, 104)
Section 15(3), Protection of Children from Sexual Offences Act, 2012Storage or possession for commercial purpose requires additional material indicating an intent to obtain some gain or benefit, monetary or otherwise, whether or not any gain was realised. (¶¶ 79, 94, 102, 105)
Section 2(1)(da), read with Section 2(1)(d), Protection of Children from Sexual Offences Act, 2012The words 'but appear to depict a child' govern every kind of visual depiction listed, so for child pornography offences the test is whether an ordinary prudent person would prima facie believe the material depicts a child, not the objective age test in Section 2(1)(d). (¶¶ 48, 128, 129, 130, 131, 137, 139, 140, 141, 142, 143)
Section 30, Protection of Children from Sexual Offences Act, 2012The presumption of culpable mental state arises only once the prosecution establishes the foundational facts of the actus reus alleged; it is rebuttable, under sub-section (2) by proof beyond reasonable doubt, and attaches to the offence rather than to the Special Court, so it can be applied in quashing proceedings. (¶¶ 51, 156, 171, 173, 174, 177, 178, 179, 185, 193)
Section 67B, Information Technology Act, 2000Read as a comprehensive provision with five distinct heads of actus reus; clause (b) punishes creating, collecting, seeking, browsing (including viewing material stored on a phone) and downloading child sexual material, not merely publication or transmission under clause (a). (¶¶ 59, 149, 150, 151, 152, 153)
Sections 19, 20 and 21, Protection of Children from Sexual Offences Act, 2012Reporting obligations are mandatory; failure to report is punishable despite the short sentence, and courts were cautioned against leniency, particularly towards institutions housing children. (¶¶ 250, 251, 253, 259)
Section 79, read with Section 42A POCSO and Rule 11 of the POCSO Rules, 2020, Information Technology Act, 2000An intermediary cannot claim safe-harbour protection unless its due diligence includes removing such content and reporting it to the SJPU or local police as POCSO and Rule 11 require; reporting to NCMEC alone does not suffice, given POCSO's overriding effect. (¶¶ 254, 255, 256, 257, 258)
Sections 43 and 44, Protection of Children from Sexual Offences Act, 2012The duties of the Governments and the child rights commissions to publicise the Act and monitor it were read to extend to imparting sex education and awareness, especially in schools. (¶¶ 246, 247, 248)
Section 482 (Section 530 BNSS), Code of Criminal Procedure, 1973Once foundational facts are prima facie shown, the High Court should not conduct an evidentiary inquiry into mental state; it must examine the chargesheet and consider whether any offence, including one not named, is made out before quashing. (¶¶ 180, 188, 189, 190, 196, 197, 201, 202)

Held

Section 15 POCSO, as amended in 2019, creates three independent offences of storing or possessing child pornographic material with escalating intent; it is inchoate and punishes storage or possession with the specified intent without any actual transmission. Only one sub-section can apply to a given set of facts, and if one sub-section is not attracted the police and courts must examine whether another is. (¶¶ 76, 81, 86, 107, 108, 222)
Under Section 15(1) the intent to share or transmit is inferred from how the material was stored and why it was not deleted, destroyed or reported; under Section 15(2) something more than storage must show actual or facilitated transmission, display or distribution; under Section 15(3) material must indicate an intent to gain. The illustrations given are guides only and must not be applied mechanically. (¶¶ 89, 90, 93, 94, 95, 106)
'Possession' in Section 15 includes constructive possession: a person who views, distributes or displays such material online without downloading it possesses it if he has control over it with knowledge of that control. A person who unwittingly opens a link is not in possession unless he keeps viewing beyond a reasonable time, and for constructive possession the failure to report is the actus reus under Section 15(1). (¶¶ 114, 117, 118, 119, 120, 121, 122, 123)
Storage or possession need not continue at the time the FIR is registered; the offence is made out if storage or possession with the specified intent existed at any relevant time, so deleting the material before the FIR is no answer. (¶ 124)
Material is 'child pornography' if an ordinary prudent person would reasonably believe it prima facie depicts a child; the court may reach that view from an FSL report, expert opinion or its own assessment, without conclusive proof of the depicted person's age. (¶¶ 131, 137, 143)
Section 67B IT Act penalises not only electronic publication or transmission but also the creation, collection, browsing, downloading, possession and consumption of material depicting children sexually, together with online enticement, facilitation of abuse and recording of abuse; with Sections 67 and 67A it is a complete code to be construed purposively. (¶¶ 150, 151, 153)
The Section 30 presumption operates only after the prosecution establishes the foundational facts: for Section 15(1), storage or possession and failure to delete, destroy or report; for Section 15(2), additionally some act of transmission or facilitation; for Section 15(3), additionally some indication of gain. The presumption is rebuttable, under Section 30(2) by proof beyond reasonable doubt. (¶¶ 171, 172, 173, 174, 177, 178, 179)
The Section 30 presumption is tied to the offence, not to the Special Court, and may be applied by the High Court in a quashing petition; once foundational facts are prima facie shown, defences such as lack of knowledge or intent, including the claim of automatic WhatsApp download, are for trial. Noor Aga did not hold that the presumption operates only at trial. (¶¶ 185, 187, 188, 189, 191, 192, 193, 220, 221)
Ignorance of law is a defence only where it gives rise to a bona fide and reasonable claim of right on which the act is done; since no right to store or possess child sexual material can exist, unawareness of Section 15 is no defence. (¶¶ 210, 211, 214, 217)
The High Court erred by deciding on Section 14(1), which had been dropped, instead of the chargesheeted Section 15(1), and by not examining Section 67B; the recovery from the accused's personal phone of videos stored since 2016 and 2019 prima facie showed possession and failure to delete or report. As the storage continued after the 2019 amendment and when the FIR was registered, the plea that the amendment post-dated the downloads failed. The Court also directed courts to use 'child sexual exploitation and abuse material' (CSEAM) instead of 'child pornography'. (¶¶ 195, 196, 203, 204, 205, 228, 260, 261)

Result

Appeals disposed of; the High Court's order of 11.01.2024 set aside and Spl. S.C. No. 170 of 2023 restored before the Sessions Judge, Mahila Neethi Mandram (Fast Track Court), Tiruvallur; suggestions made to the Union of India; copies sent to the Ministries of Law and Justice and of Women and Child Development.