Mere Possession Of Child Pornography Is A Crime

We have reached the conclusion that the High Court committed an egregious error in passing the impugned judgment. We are left with no other option but to set aside the impugned judgment... and restore the criminal proceedings... to the court of Sessions Judge, Mahila Neethi Mandram (Fast Track Court), Tiruvallur District - Supreme Court

New Delhi: In a path-breaking judgment, the Supreme Court on Monday held mere possession of any child pornographic material will constitute offences under the POCSO and the IT laws even if they are not disseminated further.

Observing that “sexual exploitation of children is a pervasive and deeply rooted issue that has plagued societies worldwide and has been a matter of serious concern in India”, the top court termed as “egregious” the verdict of the Madras High Court on the issue and set it aside.

On January 11, the high court had quashed the criminal proceedings against a 28-year-old man charged with downloading pornographic content involving children on his mobile phone, saying mere possession and downloading of such pornographic materials did not constitute offences under the Protection of Children from Sexual Offences (POCSO) Act and the Information Technology (IT) Act.

“We have reached the conclusion that the High Court committed an egregious error in passing the impugned judgment. We are left with no other option but to set aside the impugned judgment... and restore the criminal proceedings... to the court of Sessions Judge, Mahila Neethi Mandram (Fast Track Court), Tiruvallur District,” the top court said.

While passing a slew of directions and suggestions on the sensitive issue, a bench comprising Chief Justice D Y Chandrachud and Justice J B Pardiwala asked Parliament to seriously consider bringing an amendment to the POCSO Act for substituting the term “child pornography” with “child sexual exploitative and abuse material” with a view to reflect more accurately the reality of such offences.

In the meanwhile, the verdict put all the courts “to notice that the term ‘child pornography’ shall not be used in any judicial order or judgment, and instead the term ‘child sexual exploitative and abuse material’ (CSEAM) should be endorsed”. “Section 15 of the POCSO Act 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 subsection(s) (1), (2) or (3) respectively.

“It 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 done with a specific intent prescribed thereunder, without requiring any actual transmission, dissemination etc,” it said. It referred to three facets of the crime under section 15 of the POCSO Act. It said sub-section (1) of section 15 penalises “the failure to delete, destroy or report any child pornographic material that has been found to be stored or in possession of any person with an intention to share or transmit the same”. Referring to mens-rea (criminal motive), an essential ingredient of any ordinary crime, it said the intention required under the POCSO provision is to be gathered from actus reus (actual act) itself.

“That is it must be determined from the manner in which such material is stored or possessed and the circumstances in which the same was not deleted, destroyed or reported. To constitute an offence under this provision the circumstances must sufficiently indicate the intention on the part of the accused to share or transmit such material,” it elaborated.