# Just Rights for Children Alliance & Anr v. S. Harish & Ors

- **Citation:** 2024 INSC 716
- **Court:** Supreme Court of India
- **Decided:** 2024-09-23
- **Case number:** Criminal Appeal Nos. 21612162 of 2024
- **Bench:** Dr. Dhananjaya Y. Chandrachud, J.B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/just-rights-for-children-alliance-anr-v-s-harish-ors-37250
- **Pages:** 161

## Headnote

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
[2024] 10 S.C.R.
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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 off

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[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
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155
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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,
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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]
[2024] 10 S.C.R.
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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
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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-àvis 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:
[2024] 10 S.C.R.
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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
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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
[2024] 10 S.C.R.
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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
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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
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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.1accused - 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]
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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:
[2024] 10 S.C.R.
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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
[2024] 10 S.C.R.
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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
[2024] 10 S.C.R.
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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
[2024] 10 S.C.R.
Digital Supreme Court Reports
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.
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