JUST RIGHTS FOR CHILDREN ALLIANCE v. S. HARISH

Citation: 2024 INSC 716                                                                                                               

Bench: The Bench comprising Chief Justice D.Y. Chandrachud and Justice J.B. Pardiwala set aside the judgment of the Madras High Court, which had quashed the criminal proceedings against the accused on the ground that an offence under Section 14(1) of the POCSO Act requires the active use of a child by the accused for pornographic purposes.

Date of Judgement: 23rd September 2024

Parties Involved:

Petitioners (Appellants):

Just Rights for Children Alliance & Another:

A group of child rights organizations working to prevent child trafficking, abuse, and exploitation in India. They are not directly involved in the original criminal case but approached the Supreme Court as public-spirited entities due to the broader implications of the matter for child protection. Their appeal challenged a High Court decision that they believed weakened legal safeguards against child sexual exploitation.

National Commission for Protection of Child Rights The Supreme Court invited the NCPCR to assist the Court during the hearings because the matter concerned the interpretation of child protection laws — specifically the Protection of Children from Sexual Offences (POCSO) Act. NCPCR submitted its views in support of the petitioners, emphasizing the dangers of normalizing the mere viewing or possession of Child Sexual Exploitation and Abuse Material (CSEAM).

Respondents:

Harish:

The main accused in the criminal case. He was alleged to have accessed and stored sexually exploitative material involving children on his mobile phone. The High Court had quashed the case against him, accepting that mere viewing or unintentional possession of such material did not constitute an offence.

State of Tamil Nadu:

The prosecuting authority in the case. It was responsible for filing and pursuing the criminal complaint through its police and legal machinery.

Inspector of Police, All Women’s Police Station, Ambattur:

The investigating officer who registered the FIR against S. Harish based on a cybercrime alert about possible child sexual abuse material being accessed from his device.

Facts:

1. On 29 January 2020, the All-Women’s Police Station in Ambattur, Chennai, received a report from the NCRB identifying the respondent, S. Harish, as a consumer of online pornography, including child sexual abuse material. An FIR (Crime No. 03 of 2020) was registered under Section 67B of the IT Act and Section 14(1) of the POCSO Act, alleging that Harish had been downloading and viewing child pornographic content over two years.
2. Harish’s mobile phone was seized and subjected to forensic examination, which revealed over 100 pornographic files, including two videos involving minor boys. He admitted to watching pornography during college. Although the FIR was initially under Section 14(1), the final chargesheet dated 19 September 2023 invoked Section 15(1) POCSO, based on the volume, nature, and duration of content retained, and Harish’s failure to delete or report the material.
3. However, the Madras High Court quashed the proceedings on 11 January 2024, holding that mere possession or viewing did not amount to an offence under Section 14(1) POCSO or Section 67B IT Act, as there was no evidence of transmission or child involvement in production.
4. Aggrieved by this decision, the appellants two child rights organizations approached the Supreme Court. They contended that the High Court had fundamentally erred by failing to appreciate the legislative intent behind Sections 15 and 30 of the POCSO Act, which explicitly criminalize the possession and non-deletion of child sexual exploitative material.

Issues Raised:

• Whether mere possession or storage of child sexual exploitative and abuse material (CSEAM) without transmission or publication amounts to an offence under the POCSO Act, particularly under Section 15(1)?
• What is the correct interpretation and scope of Section 15 of the POCSO Act?
  Specifically:
• Whether the act of watching or downloading child pornography in a private domain constitutes an offence under Section 67B of the Information Technology Act, 2000?
• What is the role and applicability of the statutory presumption under Section 30 of the POCSO Act?
• Whether the High Court was justified in exercising its inherent powers under Section 482 CrPC to quash the chargesheet and criminal proceedings, despite the presence of prima facie evidence indicating the commission of offences under POCSO and the IT Act?
• Whether the High Court erred in relying on Section 14(1) of POCSO instead of Section 15(1), which was the actual charge in the case?
• To what extent does failure to delete child pornography, despite knowledge of its presence, demonstrate culpability and justify prosecution under child protection laws?
• What obligations do accused persons, and digital intermediaries have under Sections 19 and 21 of the POCSO Act to report such material to the authorities?

Arguments by the parties:

Arguments on behalf of the Appellants (Just Rights for Children Alliance)

• Represented by Senior Advocate H.S. Phoolka.
• Argued that the Madras High Court erred by applying Section 14(1) POCSO instead of Section 15(1), which covers possession/storage of child pornography without deletion or reporting.
• Emphasized that allowing possession of Child Sexual Exploitation and Abuse Material (CSEAM) undermines the core purpose of child protection laws in India.
• Referred to forensic evidence and the NCMEC (USA) report, confirming the accused viewed child pornography over two years.
• Highlighted India’s international obligations under the Convention on Cybercrime and UN Convention on the Rights of the Child.
• Stressed the High Court failed to apply Section 30 POCSO, which presumes culpable mental state, shifting the burden of proof to the accused.
• Clarified that Section 67B of the IT Act deals specifically with child pornography, unlike Sections 67 and 67A, which relate to adult content.

Arguments on behalf of the NCPCR (National Commission for Protection of Child Rights)

• Represented by Senior Advocate Ms. Swarupama Chaturvedi.
• Argued the FIR should have been under Section 15(1); reliance on Section 14(1) was a procedural lapse by investigating authorities.
• Noted the accused stored CSEAM for over two years and failed to delete/report, clearly violating Section 15(1).
• Cited Section 19 POCSO, which imposes a mandatory duty to report to Special Juvenile Police Units, not NGOs like NCMEC.
• Warned that failure to report triggers penalty under Section 21 POCSO.
• Criticized the High Court for not applying Section 30’s presumption of mens rea.
• Urged for better online safety frameworks in line with Article 12 of the UNCRC.

Respondents: 

Arguments on behalf of the Respondent (Accused – S. Harish)

• Represented by Advocate Prashant S. Kenjale.
• Argued that the FIR was registered under Section 14(1) POCSO, not Section 15(1), and since the accused did not use a child for pornography, no offence under POCSO was made out.
• Claimed the videos were auto-downloaded via WhatsApp, as suggested by file names starting with “WA”.
• Stated the accused was unaware of the files’ presence, and the creation/modification dates matched, indicating the files were never accessed.
• Argued ignorance of the law and lack of intent negated criminal liability.

Arguments on behalf of the State of Tamil Nadu

• Represented by Advocate D. Kumanan.
• Asserted that the High Court misread the charges, which clearly invoked Section 15(1) POCSO, not Section 14(1).
• Highlighted forensic evidence of over 100 pornographic videos, including child abuse material, on the accused’s phone.
• Noted that the accused admitted to viewing such content with friends, indicating intent to share, fulfilling the mental element under Section 15(1).
• Referred to the marginal note of Section 15 – “Punishment for storage of pornographic material involving child” – to support the statutory interpretation.
• Emphasized the application of Section 30 POCSO, placing the burden on the accused to prove absence of mens rea.
• Criticized the High Court for quashing proceedings under Section 482 CrPC, despite sufficient prima facie evidence to warrant trial.

Final Decision:

The Supreme Court of India allowed the appeal and set aside the judgment of the Madras High Court dated 11 January 2024, which had quashed criminal proceedings against the respondent, S. Harish. The Court held that the High Court erred in interfering at the pre-trial stage, despite the existence of prima facie evidence under Section 15(1) of the Protection of Children from Sexual Offences (POCSO) Act and Section 67B of the Information Technology Act. It ruled that mere possession or storage of Child Sexual Exploitative and Abuse Material (CSEAM) without deletion or reporting constitutes an offence under Section 15(1), even in the absence of transmission or publication. The Court emphasized that the 2019 amendment to POCSO expanded its scope to include such possession, and further clarified that Sections 15(1), (2), and (3) address distinct intentions—personal use, distribution, and commercial use respectively—which are mutually exclusive but equally punishable.

In this context, the Court observed that the High Court had wrongly applied Section 14(1) POCSO, which deals with the viewing of obscene material for sexual gratification, instead of Section 15(1), which specifically criminalizes the storage or failure to delete/report CSEAM. The Court noted that forensic evidence showed the presence of over 100 such files on the accused’s device, including at least two confirmed files involving minors. The defense of auto-download and ignorance was rejected, with the Court holding that constructive possession and the failure to delete such material indicated criminal intent. This, in turn, triggered the presumption of mens rea under Section 30 of POCSO, placing the burden on the accused to rebut it.

Accordingly, the Supreme Court reinstated the criminal charges under Section 15(1) POCSO and Section 67B of the IT Act. It directed that the trial proceed in accordance with law, based on the chargesheet dated 19 September 2023. The matter was remitted back to the trial court, and all interim protections granted by the High Court were vacated. The Court clarified that questions of intent, knowledge, and the applicability of the statutory presumption should be addressed during trial and not at the preliminary stage. The bench, comprising Chief Justice D.Y. Chandrachud and Justice J.B. Pardiwala, also recommended replacing the term “child pornography” with “Child Sexual Exploitative and Abuse Material (CSEAM)” to more accurately reflect the exploitative nature of the content. Emphasizing the importance of a safe digital environment for children, the Court called for greater accountability from digital intermediaries and stressed that even passive consumption of such material contributes to the cycle of exploitation.

Legal Reasoning / Ratio Decidendi:

The Supreme Court’s reasoning centered around the need for a purposive and child-centric interpretation of protective legislation, particularly the Protection of Children from Sexual Offences (POCSO) Act. The Court held that the High Court erred in prematurely quashing criminal proceedings against the accused when there was clear prima facie evidence of possession of Child Sexual Exploitative and Abuse Material (CSEAM). It emphasized that Section 15(1) of the POCSO Act, as amended in 2019, criminalizes mere possession or storage of exploitative material involving children without deletion or reporting, regardless of intent to distribute. This reflects a deliberate legislative shift to strengthen protections against child abuse in the digital era. The Court explained that Section 15 must be interpreted strictly and in line with the objectives of the Act, which aim to protect children from all forms of sexual exploitation, including the indirect harm caused by passive consumption.

A key aspect of the Court’s reasoning was its application of Section 30 of the POCSO Act, which creates a presumption of culpable mental state (mens rea) once basic facts like possession of CSEAM are established. The burden then shifts to the accused to prove the absence of intent. The Court rejected the defense that the material had been auto-downloaded or unintentionally saved, noting that failure to delete or report such material amounts to constructive possession and implies knowledge and intention. The Court further held that the High Court was incorrect in applying Section 14(1) of the POCSO Act, which deals with viewing obscene material for personal sexual gratification. Section 15(1), in contrast, specifically addresses the possession of exploitative material and carries a different legal standard. The Court also affirmed that Section 67B of the Information Technology Act punishes browsing, viewing, or downloading child sexual abuse content, thus reinforcing the offence even in the absence of active sharing.

In its analysis, the Court relied on the doctrine of purposive interpretation, stating that child protection laws must evolve to address digital threats and the growing prevalence of online sexual exploitation. It stressed that the law must not allow passive observers of CSEAM to escape liability, as this would undermine the very purpose of the statute and contribute to the demand for such material. Although no foreign precedents were heavily relied upon, the judgment aligns with evolving global standards on child online safety and reinforces the approach of balancing individual rights with societal interest in child protection. The Court also advocated for a terminological shift from “child pornography” to “Child Sexual Exploitative and Abuse Material,” recognizing the gravity and exploitative nature of such content.

Reference(S):

1. What are the distinctions between sub-sections (1), (2), and (3) of Section 15?
2. Can “constructive possession” or “failure to delete” be interpreted as intention under Section 15(1)?
3. Can it be invoked at the stage of quashing under Section 482 CrPC?
4. What are the “foundational facts” required to trigger this presumption?