In January 2020, the police were informed that the accused had been watching and downloading child sexual exploitation material on his mobile phone. A forensic examination of his phone confirmed the presence of such material.
The police charged him under:
- Section 67B of the IT Act, which punishes publishing, transmitting, or storing child sexual content.
- Section 14(1) of the POCSO Act, which penalizes using children for making pornographic material.
However, as there was no proof that he personally created or transmitted the content, the charge under Section 14(1) was removed. Instead, Section 15 of the POCSO Act was applied. This section punishes people who store, possess, or fail to delete/report child sexual exploitation material if they intend to share it.
The accused went to the Madras High Court, asking to dismiss the case. The High Court ruled in his favour, saying that just watching or downloading such material (without sharing it) was not an offence. A group of NGOs that fight against child sexual exploitation challenged this decision in the Supreme Court.
Issue before the Court
- Whether viewing Child Sexual Exploitation and Abuse Material (CSEAM) is punishable under Section 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and Section 67B of the Information Technology (IT) Act, 2000.
- Whether the statutory presumption of culpable mental state under Section 30 of the POCSO Act can be invoked in a quashing petition.
Analysis of the Court
The Supreme Court overturned the High Court’s decision and reinstated criminal proceedings against the respondent. The Court held that merely viewing Child Sexual Exploitation and Abuse Material (CSEAM) without deleting or reporting it constitutes an offence under Section 15 of the POCSO Act. It further clarified that the presumption of culpable mental state under Section 30 applies even in petitions to quash criminal proceedings.
The Court explained that Section 15 of the POCSO Act penalizes not only the transmission of CSEAM but also the possession of such material with the intent to share. Since possession is considered a ‘preparatory act’ for a more serious offence, it falls under the category of an inchoate offence. The Court interpreted the term ‘possession’ broadly to include ‘constructive possession,’ which means that control over CSEAM is enough to establish possession, even if the content is not stored on the accused’s device. This interpretation prevents individuals from avoiding liability by deleting the material after viewing.
The Court also emphasized that possession of CSEAM at any point—whether before or after the filing of an FIR—remains punishable under the law. Moreover, the judgment highlighted the responsibilities of online intermediaries, noting that these platforms must remove and report CSEAM to claim immunity under Section 79 of the IT Act. Failure to do so makes them liable for criminal prosecution.
To further strengthen the legal framework, the Court suggested certain reforms. It recommended that the POCSO Act be amended to replace the term ‘child pornography’ with ‘child sexual exploitation and abuse material (CSEAM)’ to emphasize the gravity of the offence. Additionally, the Court proposed establishing an online portal to facilitate the reporting of CSEAM possession and related offences. These recommendations aim to create a more robust mechanism to combat the growing menace of CSEAM and protect vulnerable children from exploitation.
