Storage Of Child Pornography Without Deletion Or Reporting Indicates Intention To Transmit, Constitutes POCSO Act Offence :Supreme Court

Watching, Storing Child Pornography Is an Offence Under POCSO Act: Supreme Court

Setting aside a Madras High Court judgment which held that mere storage of child pornographic material without any intention to transmit the same was not an offence under the Protection of Children from Sexual Offences Act (POCSO Act), the Supreme Court on Monday (September 23) held that the storage of such material, without deleting or without reporting the same, would indicate an intention to transmit.

Observing that the High Court committed an "egregious error" in quashing the criminal proceedings, the  bench comprising CJI DY Chandrachud and Justice JB Pardiwala set aside the decision set it aside and restored the criminal prosecution.

Intention must be gathered from the circumstances

Justice Pardiwala read out the conclusions of the judgment as follows "

Section 15 of the POCSO provides for three distinct offences that penalise either the storage or possession of any child pornographic material when done with any intention to transmit, diplay etc as specified in sub-sections of the Section.

It is in the nature and form of an inchoate offence, which penalises the mere storage or possession of any pornographic material involving a child when done with the specific intent prescribed thereunder without requiring any actual transmission, dissemination etc.

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 with any person with an intention to share or transmit the same. The mens rea for the intention required under this provision is to be gathered from the actus reas itself, that is it has to be determined from the manner in which such material is stored or possessed and the circumstances under which the same was not deleted, destroyed or reported. To constitute an offence under this provision, the circumstance must sufficiently indicate the indication on the part of the accused to share or transmit such material.

As regards sub-section (2) of Section 15, the Court noted that to constitute an offence under section 15(2) of POCSO, apart from mere storage, there must be something more to show that the actual transmission or distribution of such material or facilitation etc. The mens rea for this offence has to be found from the manner in which the pornographic material was found to be stored or in possession.

Regarding Section 15(3), the Court noted that it penalised storage of child pornographic material for commercial purposes. To establish an offence under this provision, besides the storage, there must be some additional material to indicate that such storage was done with an intent to derive an economic gain or benefit. To constitute an offence under this Section, there is no requirement to establish that such gain or benefit actually was realised.

The Court held that sub-sections (1), (2) and (3) of Section 15 are independent of each other. If a case is not falling within one sub-section, that does not mean that it does not fall within the entire Section 15.

The judgment authored by Justice Pardiwala contains various guidelines and suggestions regarding the enforcement of the POCSO Act.

The Court also suggested the Parliament to amend the term 'child pornography' with the term 'child sexual exploitative and abusive material' and requested the Union to bring an Ordinance to bring about the amendment. The Court has directed the Courts to not use the term 'child pornography'.

The decision comes in a plea filed by Just Rights for Children Alliance. The coalition of NGOs has raised concerns over the potential impact of such a ruling on child welfare.