JUST RIGHTS FOR CHILDREN ALLIANCE vs S. HARISH, 2024
Case Title and Citation: Just Rights for Children Alliance v. S. Harish 2024 INSC 716 (23 September 2024)
Factual Background
On January 29, 2020, law enforcement received notification via a Cyber Tipline Report that the accused (S. Harish) was an active consumer and had downloaded Child Sexual Exploitation and Abuse Material (CESAM) on his mobile phone. An initial First Information Report (FIR) was registered against him under Section 67B of the Information and Technology (IT) Act and Section 14(1) of the Protection of Children from Sexual Offences (POCSO) Act. During the investigation, S. Harish conceded to habitually watching pornography. A Computer Forensic Analysis Report confirmed that his personal device contained two videos related to CESAM, with dates suggesting they had been stored since 2016 and 2019. When the charge sheet was filed, the initial charge under Section 14(1) was substituted with Section 15(1) of the POCSO Act (punishment for storage or possession of child pornographic material). The Respondent petitioned the Madras High Court to quash these charges. The High Court allowed the petition, reasoning that merely watching or downloading CESAM without transmission or publication was not an offense. A coalition of NGOs then appealed this decision to the Supreme Court.
Issue(s)
- Whether the act of viewing, possessing, or storing Child Sexual Exploitation and Abuse Material (CESAM) is subject to penalty under Section 15 of the POCSO Act and Section 67B of the IT Act.
- Whether the statutory assumption regarding a culpable mental state, as established in Section 30 of the POCSO Act, can be invoked by a High Court during proceedings to quash criminal charges.
Decision of the Supreme Court
The Supreme Court, acting through a Division Bench, set aside the Madras High Court’s ruling. The Court unequivocally held that the simple act of viewing CESAM is punishable if the individual neglects to delete or report the material. Consequently, the criminal proceedings against the Respondent were reinstated.
Reason for the decision
The Court provided extensive reasoning centered on the scope and purpose of the POCSO Act and the IT Act:
- Section 15 of the POCSO Act (Inchoate Crime): The Court determined that Section 15(1) penalizes the possession or storage of CESAM coupled with a failure to delete, destroy, or report it, when done with an intention to share or transmit the material. This is characterized as an ‘Inchoate Crime’ because it punishes the intent and preparatory conduct without requiring the completion of the subsequent crime (actual transmission).
- Viewing as Constructive Possession: The 2019 Amendment introduced “possession” to Section 15 to deter consumption and dissemination. The Court applied the doctrine of constructive possession, ruling that a person viewing CESAM online, even without physical storage, is considered to be in “possession” under Section 15 if they exercise control over the material (e.g., the ability to print, save, or delete). In the present case, the presence of CESAM recovered from the personal mobile phone of the Respondent, routinely in use, prima facie established storage or possession and failure to delete or report the material.
- Statutory Presumption (Section 30): The malicious intention required for the offense under Section 15 is often difficult to prove. Section 30 mandates a rebuttable presumption of this culpable mental state. The Court confirmed that High Courts, when considering quashing petitions, must utilize this statutory presumption if the foundational facts (such as evidence of storage/possession and failure to report) are prima facie established. Failure to apply this presumption would allow an accused to evade the legislative mandate by seeking to quash proceedings prematurely.
- Scope of IT Act Section 67B: Section 67B is broad and penalizes various acts, including the creation, possession, propagation, and consumption (browsing) of CESAM. It addresses different types of online sexual exploitation and denigration of children.
Conclusion
The Supreme Court reversed the quashing order of the Madras High Court, reinforcing the principle that viewing or possessing Child Sexual Exploitation and Abuse Material, even without transmission, is a punishable offense under the POCSO Act. The judgment clarified the broad scope of “possession” under Section 15 of the POCSO Act to include constructive possession and affirmed that the statutory presumption of culpable mental state under Section 30 is applicable during quashing proceedings. The Court also suggested that the Union of India substitute the term “child pornography” with “child sexual exploitation and abuse material” (CSEAM) to accurately reflect the heinous nature of the crime.
