Just Rights for Children Alliance & Anr. vs S. Harish & Ors.

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 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, 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] 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 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: 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 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 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 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 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] 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:

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 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 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.