03/12/2024
Relevant Facts:
A First Information Report (“FIR”) was registered against a man (“Accused”) for allegedly downloading and possessing pornographic material involving children in his mobile phone. The FIR was registered for the offences under Section 14 (1) of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) and Section 67B of the Information Technology Act, 2000 (“IT Act”). After completion of investigation, a chargesheet dated 19 September 2023 was filed by the investigating authorities, and Section 14 (1) of the POCSO Act was replaced with Section 15 (1) of the POCSO Act.
Aggrieved by the proceedings and the findings in the chargesheet, the Accused invoked the inherent powers of the High Court of Madras through a petition under Section 482 of the Code of Criminal Procedure, 1973 (“CrPC”). The High Court of Madras, vide judgment dated 11 January 2024 was pleased to allow the petition of the Accused and quash the proceedings and the chargesheet in relation to the FIR. It was held by the High Court of Madras:
- Mere possession of the pornographic material involving children would not constitute an offence under Section 14 (1) of the POCSO Act, but it will have to be shown that a child was used for pornographic purposes.
- With respect to Section 67B of the IT Act, the High Court held that what was required was that there should be transmission or publication of the pornographic content, and not mere possession or watching of the same.
The Appellants, which are a collation comprising of five different NGOs working in unison against child trafficking, sexual exploitation and allied causes, preferred a Special Leave Petition against the judgment of the High Court of Madras. It was argued on their behalf that the judgment of the High Court would have drastic negative effects with respect to welfare of children. It was also argued that despite the chargesheet having been filed for the offence of Section 15 (1) of the POCSO Act, the High Court erroneously proceeded to quash the proceedings based on interpretation for Section 14 (1) of the POCSO Act. It was submitted that Section 15 (1) of the POCSO Act squarely covered the present scenario by penalizing the download and failure to delete or reporting of child pornography. The Appellants also submitted that the High Court was obligated to consider the statutory presumption under Section 30 of the POCSO Act with respect to culpable mental state on the part of the Accused.
Issues:
- What is the scope of Section 15 of the POCSO Act? In other words, what is the underlying distinction between sub-sections (1), (2) and (3) respectively of Section 15 of the POCSO Act.
- Whether, mere viewing, possessing or storing of any child pornographic material is punishable under the POCSO Act?
- What is the scope of Section 30 of the POCSO Act? In other words, what are the foundational facts necessary for invoking the statutory presumption of culpable mental state in respect of Section 15 of the POCSO?
Judgment:
Section 15 of the POCSO Act
The Hon’ble Supreme Court of India agreed with the Appellants that storage or possession of child pornography would be punishable under POCSO Act. It was held that the findings of the High court of Madras were completely erroneous in view of Section 15 of the POCSO Act clearly penalizing the storage/possession of child pornographic content. Therefore, the impugned judgment of the High Court of Madras was set aside and the proceedings with respect to the Accused was restored before the concerned Sessions judge.
The Hon’ble Supreme Court noted the difference in views of High Courts across the country, and therefore felt the need to clarify on the subject of watching, downloading and being in possession of child pornographic material in the light of Section 15 of the POCSO Act. While the Bombay High Court has held that even possession and storage of child pornographic material is an offence, the Kerala High Court and Karnataka High Court hold a contrary view and deem actual transmission as a necessary ingredient.
An ‘inchoate crime’ is one which is committed in preparation for a further offence. The doctrine of inchoate crimes provides for penalizing the preparatory part of the commission of the offence. The principle behind the doctrine is that the law does not only respond to offences already committed but also intervenes when the crime is about to be committed, thereby protecting public order and safety. The Hon’ble Supreme Court of India described Section 15 of the POCSO Act as a provision penalizing an inchoate crime of possessing/storing child pornographic material with a specific ‘intent’ to transmit or publish the same in a manner prescribed thereunder. What is penalized is the intention of possessing/storing such content, and not the actual commission of crime, i.e., transmitting or publishing the same which is penalized under other provisions. An analogy was drawn with penalization of mere possession of contraband before it can cause further harm by distribution or consumption.
The Hon’ble Supreme Court of India further clarified that sub-sections (1), (2) and (3) of Section 15 of the POCSO Act envisage three independent and distinct offences, each having a common actus reus but differing in degree of mens reus. The Supreme Court’s clarification with respect to the sub-sections of Section 15 may be summarized as follows:
- Sub-section (1) of Section 15 is attracted when the Accused either stores or possesses any child pornography and fails to delete or report the same. What is clear is that the provision penalizes the actus reus of possessing or storing child pornography without deleting or reporting the same with an intention to share or transmit. Therefore, there is no requirement of actual transmission to be proved, but only the intention of doing so.
- Sub-section (2) of Section 15 penalizes two forms of actus reus, i.e., firstly, the storage or possession of child pornography when done with an intention to either transmit it or to propagate it or to display or distribute it though no actual transmission, propagation, display or distribution might have occurred, or secondly, the storage or possession of child pornography which was actually transmited, propagated, displayed or distributed in any form or manner. The difference between sub-section (1) and sub-section (2) is that the former penalizes storage or possession on account of omission to either delete or report the child pornography, while the latter is attracted where the possession or storage is for the purpose of facilitating transmission, propagation, display or distribution or where there is an actual transmission, propagation, display or distribution.
- Sub-section (3) of Section 15 introduces the mens reus of ‘commercial purpose’. The actus reus of possession or storage remains the same, however the mens reus that needs to be proved is that the possession or storage must be in lieu of some form of gain or benefit in the form of monetary consideration or any other valuable consideration. It is not mandatory that the Accused should have actually gained or benefit. The intention of storing or possessing the content for commercial gain or benefit is all that is required.
The Hon’ble Supreme Court further clarified that the term ‘possession’ used in Section 15 of the POCSO Act includes ‘constructive possession’. To establish constructive possession, both the power to control the material in question and the knowledge of exercise of such control are required.
Statutory Presumption under Section 30 of the POCSO Act.
Section 30 of the POCSO Act provides for statutory presumption of existence of culpable mental state. Sub-section (1) of Section 30 states that where any offence under the Act requires a culpable mental state, the special court shall presume the existence of such mental state until the Accused rebuts such presumption by showing he had no such mental state with respect to the act under question. Sub-section (2) provides that a fact would be deemed to be proved when the special court believes it to exist beyond reasonable doubt, and not merely when it is established through preponderance of probabilities.
The Hon’ble Supreme Court compared the provision with other Acts that provide statutory presumption, such as the Customs Act, 1962 (S. 138A), the Narcotic Drugs and Psychotropic Substances Act, 1985 (S. 35), and the Income Tax Act, 1961 (S. 278E). Based on the examination of judgments passed on scope of other provisions that provide for statutory presumption, the Hon’ble Supreme Court reiterated that to attract the statutory presumption, the Prosecution is obligated to prove certain initial foundational facts. Such proof would have to be beyond reasonable doubt, and the rebuttal of the Accused must also be such as to prove his defense beyond reasonable doubt.
Applying the above to Section 15 of the POCSO Act, the Hon’ble Supreme Court explained how statutory presumption would be drawn in all three sub-sections of Section 15:
- To attract sub-section (1) of Section 15, the prosecution would have to prove simpliciter that the Accused was in possession or had stored child pornography and that he had failed to delete, destroy or report the same.
- Sub-section (2) of Section 15 would not only require the proving of possession or storage, but also some material that indicates actual transmission or any overt act to facilitate such transmission, propagation, display or distribution in any form or manner. The Hon’ble Supreme Court clarified that though such material might prove beyond reasonable doubt the commission of the offence, the two exceptions to sub-section (2), i.e., that the transmission was for either reporting of the same or for being used as evidence may be proved by the Accused. After such a defense, it would be further open to the prosecution to prove that such transmission was not for reporting or being used for evidence.
- Sub-section (3) of Section 15 would not only require the proving of possession or storage, but also some material that indicates that such storage or possession was done in lieu of commercial benefit or gain, not necessarily being monetary gain but for any valuable consideration.
Comments:
The Hon’ble Supreme Court has delineated the categories of offences under the sub-sections of Section 15. It has also clarified what would be required to attract statutory presumption under each sub-section. The findings would aid the investigative authorities and the courts to identify which sub-section would be applicable under what scenario in terms of an act which involves storage or possession of child pornography. The judgment ensures the protection of the objectives of the POCSO Act and is an overall boost to the welfare of children. The impugned judgment of the High Court of Madras would have had drastic negative effects, providing several loopholes to persons accused of possession of child pornography. The findings of the Hon’ble Supreme Court are also in line with the provisions of Section 19 of the POCSO Act which obligates any person having knowledge of a sexual crime against children to report to the police authorities. Any person coming into possession of any child pornography is expected to either delete the same or report to the police and keeping such content without reporting the same speaks volumes of the intention of such person, making him/her liable for prosecution.
However, there still remains to be a state of confusion when it comes to proving/disproving the culpable mental state envisaged under Section 30 of the POCSO Act. The ingredients listed by the Hon’ble Supreme Court for attracting a statutory presumption for Section 15 (3) of the POCSO Act seems to be contrary to the object of providing statutory presumptions. As per the Hon’ble Supreme Court, statutory presumption is provided where it is difficult to prove the intention of the Accused behind the act and the connection between actus reus and mens reus, and therefore the proving of the actus reus would be sufficient to attract a statutory presumption towards mens reus. Until the presumption is rebutted beyond reasonable doubt by the Accused, his conviction would stand. However, for sub-section (3), the Hon’ble Supreme Court has burdened the prosecution to further prove that the storage or possession was for some commercial purpose, which is a question of mens reus. It must be noted that as per sub-section (2) of Section 30 of the POCSO Act, the standard of proving is beyond reasonable doubt, which would make it an uphill task for the prosecution to prove such intent leading to the Accused easily escaping the clutches of the POCSO Act. In terms of the objective behind statutory presumption, the Hon’ble Supreme Court should have limited the burden of the prosecution to proving possession or storage of child pornography.
The views of the author are personal.