SC Introduces Doctrine of Constructive Possession; Watching Child Pornography Now Falls under the Ambit of Section 15, POCSO

Brief: Supreme Court interpreted possession to also include ‘constructive possession’ whereby even if a person does not physically possess child pornographic material but exercises immediate control over it, he/she will be said to be in “possession” of it under section 15 POCSO Act.  

Case Description 

Just Rights for Children Alliance & Anr v. S. Harish & Other 

Supreme Court of India 

Case Type: Criminal Appeal (arising out of Special Leave Petition) 

Case No.: Criminal Appeal Nos. 2161-2162 of 2024 

Date of Order: 23.09.2024 

Bench: D.Y. Chandrachud, CJI. & J.B. Pardiwala, J. 

Facts 

1. After receiving information from the Cyber Tipline Report of the National Crimes Record Bureau (NCRB), the Additional Deputy Commissioner of Police sent a letter to the police station for registering a complaint against accused for allegedly downloading and consuming child pornography.  

2. An FIR was registered against the accused and his phone was sent to Forensic Science Laboratory. Moreover, during his questioning, the accused admitted to watching porn in college. 

3. As per the forensic report, accused’s phone contained two video files where two underage boys were shown in a sexually explicit manner.  

4. Although the FIR was lodged under section 14(1) of Protection of Children from Sexual Offences (“POCSO”) and section 67B of Information Technology Act (“IT Act”), the chargesheet filed contained charges of section 15 (1) POCSO with section 67B IT Act.  

5. After the special court convicted him, the accused filed a quashing petition before the High Court.  

6. The High Court analysed the facts and material on record and concluded that offences under POCSO, IT Act or IPC were not made out.  

High Court’s View 

1. No offence under section 14(1) POCSO Act is made as the accused had downloaded, stored and assumably watched the pornographic video involving children, but had not used the children for pornographic purpose, per se.  

2. No offence under section 67B IT Act is made as the accused had downloaded and watched the videos without transmitting or publishing the same.  

3. No offence under section 292 IPC is made as there is no material to show that accused had transmitted or published the concerned pornographic videos.  

After considering these points, the Hon’ble High Court concluded: 

• Mere possession or storage of any pornographic material is not an offence under POCSO, IT Act or IPC, unless there is material on record to show that the accused has transmitted or published the video. 

Issues Before the Supreme Court 

1. What is the scope of section 15 of POCSO Act? 

2. Whether, mere viewing, possessing or storing of any child pornographic material is punishable under the POCSO? 

3. What is the true scope of Section 67B of the IT Act? 

4. What is the scope of Section 30 of the POCSO?  

Laws Involved 

1. Sections 15 & 30 of Protection of Children from Sexual Offences 2012 (“POCSO”). 

2. Section 67, 67A & 67B of Information Technology Act 2000 (“IT Act”) 

Appellant’s submission 

1. High Court’s interpretation that “storing or possessing child pornography material is not an offence under POCSO” poses a significant threat to well-being of children and might lead to proliferation of child pornography.  

2. As per USA (NC-MEC) reports, accused (respondent 1) has been watching child pornographic content for past two years.  

3. High Court proceeded under the charges of section 14 POCSO, as mentioned in FIR, and failed to consider the charge of section 15 POCSO as recorded in the chargesheet.  

4. Further, High Court failed to distinguish between adult pornography (section 67 & 67A of IT Act) and child pornography (section 67B of IT Act).  

5. High Court was obliged under section 30 POCSO to presume the existence of culpable mental state on part of the accused.  

6. A conjoint reading of sections 15 & 30 of POCSO and section 67B of IT Act indicates culpability of persons in possession of child pornography.  

National Commission for Protection of Child Rights’ (NCPCR) submission 

1. State failed to register FIR for the offences punishable under section 15 POCSO. Further, as prosecuting agency, it failed to bring to High Court’s attention that the chargesheet was filed under section 15 and not section 14.  

2. Accused (respondent 1) had downloaded the child pornographic material, retained its possession, and failed to delete the same for two years. This violates section 19 POCSO.  

3. Section 19 mandates reporting of any act (likely to happen or has happened) that qualifies as an offence under POCSO. Failure to discharge this obligation is an offence under section 21 POCSO. 

4. Social media platforms claim to report such material to National Centre for Missing and Exploited Children (NCMEC), a US-based NGO. The NGO then reports it to National Crime Records Bureau (NCRB).  

5. As per the mandate, such material must be reported to Special Juvenile Police Unit (SJPU) or the Special Police. Therefore, social media platforms cannot claim to have disposed their mandatory duty by reporting the material to an NGO. 

Respondent 1’s submission 

1. FIR was registered under section 14 POCSO and section 67B of IT Act.  

2. Receipt date of recovered videos, through WhatsApp, is 14.06.2019. The amendment to section 15 was not in force at that point. 

3. The titles of two videos begin with “WA” indicating that they were auto downloaded and respondent 1 was not aware of their existence. Moreover, the forensic report shows that these files were never accessed.  

4. No offence under section 15 is made as respondent 1 did not have any intention of distributing the videos.  

State’s submission 

1. High Court erroneously proceeded under section 14 POCSO although chargesheet and quashing petition mentioned the matter to be of section 15 POCSO.  

2. High Court failed to consider section 67B IT Act. 

3. There were more than 100 pornographic videos in respondent 1’s phone and he himself admitted that he and his friends regularly watch those videos. Hence, there is an intention to share the videos.  

4. High Court overlooked presumption of culpable mental state as provided under section 30.  

5. Lastly, it was argued that commission of offences was prima facie visible based on the chargesheet and material on record. Therefore, it was not proper for High Court to exercise its power under section 482 CrPC.  

Supreme Court’s Analysis 

1. Section 15 POCSO 

1. Section 15(1): penalizes the failure to delete destroy or report child pornographic material that has been stored or found in possession of any person with an intention to transmit it. In such instance, the intention of the person is determined from the manner of storage or possession of the material and the circumstance that caused the material to not be deleted, destroyed or reported.  

2. Section 15(2): offence is constituted when, besides storage or possession of the material, there is proof that shows either actual transmission/ display/ propagation of such material or facilitation of any transmission/ display/ propagation of it, such as any form of set up done to enable the person to transmit or display the material.  

Again, intention is gathered from the way the material was stored or possessed by the person and any other material that’s indicative of facilitation or actual transmission/ display of the pornographic material. 

3. Section 15 (3): penalizes storage or possession of any child pornographic material for commercial purpose. Besides stored/possession of material, there has to be some additional material/circumstances that sufficiently indicate the intent of gain to establish offence under this subsection. There is no need to prove that actual gain has been realized.  

The three sub sections of section 15 hold different offences. These three offences cannot co-exist on same set of facts as they do not intertwine. Therefore, if offence is not made under one sub section, it should not be concluded that there is no offence under section 15. Other subsections must be checked before reaching the conclusion. 

Moreover, if any person, views, distributes or displays child pornography without actually possessing the material, such act will also amount to ‘possession’ in terms of section 15 POCSO. However, it has to be established that the person exercised invariable degree of control over such material (through doctrine of constructive possession).  

2. Section 30 POCSO: Statutory presumption of culpable mental state under section 30 can be made applicable in quashing proceedings under the POCSO Act.  

3. Section 67B of IT Act 

1. It is a comprehensive provision that is aimed at dealing with various electronic modes of exploitation and abuse of children online.  

2. It not only punishes dissemination of child pornographic material, but also the creation, possession, propagation and consumption of it. Moreover, it penalizes different types of direct and indirect exploitation of children. 

3. Sections 67, 67A and 67B IT Act must be interpreted in a purposive manner that supresses the mischief, encourages remedy and ensures adherence of legislative intent behind penalizing use of children in obscene or pornographic manner.  

Supreme Court’s conclusion on “whether watching child pornographic material is an offence under section 15?”: Doctrine of Constructive Possession  

As per Apex Court’s newly prescribed doctrine of constructive possession, even if a person does not download a child pornographic material or physically possess the material, the person will still be said to be in ‘possession’ if they exercise some manner of immediate control over any particular material.  

Hence, with reference to the case of U.S. v. Tucker [150 F. Supp. 2d 1263 (D. Utah. 2001)], the Hon’ble Bench held that viewing, distributing, or displaying child pornographic material falls in the ambit of “possession” under section 15(1) POCSO. 

Concluding Remarks 

• Supreme Court suggested the parliament to replace “child pornography” with “child sexual exploitative and abuse material” (CSEAM) in POCSO Act. Moreover, all judicial bodies have been directed to use the new term.  

• All intermediaries, like Google, Facebook, Instagram, have been directed to conduct proper due diligence and report any CSEA material.  

• Further suggestion for Union of India included: (i) implementing sex education program, (ii) providing counselling support to victims and rehabilitation, (iii) raising awareness about realities of sexual exploitative material, and (iv) identifying at-risk individuals and implementing intervention strategies.  

• Hon’ble Bench concluded that High Court’s order was erroneous and set it aside. 

Authored by Ayush Bardhan, Trainee Associate, The Legal Swan