CASE NOTE - JUST RIGHTS FOR CHILDREN ALLIANCE vs. S. HARISH

 

CASE NOTE

JUST RIGHTS FOR CHILDREN ALLIANCE vs. S. HARISH

Written By: Adv. Ms Vashvi Singh &  Adv. Mr. Yash Jain

Edited by: Yash Jain 

BACKGROUND

The POCSO defines 'child' as someone below 18 years of age and defines “child pornography” under Section 2(1)(da) as "means any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer generated image indistinguishable from an actual child and image created, adapted, or modified, but appear to depict a child." 

The respondents were accused to have been active consumers of child pornography as per the Cyber Tipline Report of the National Crimes Record Bureau (NCRB), and subsequently FIR was registered in the at the at the All- Women’s Police Station Ambattur, Chennai, Tamil Naidu as Crime No. 03 of 2020 for the offence punishable under Section(s) 67B of the IT Act and 14(1) of the POCSO. During the investigation and after thorough forensic examination of his phones, it was found out that more than 100 pornographic videos were found in the phone of the respondent 1 along with two videos of two underage boys engaging in sexual activities with an older woman. After completion of investigation, chargesheet was filed under section 15(1) of the POCSO Act and 67B of the IT Act.

The All-Women Police Station registered a case in CRIME NO. 03/20 U/ S 67B IT ACT r/ w14(1) POCSO Act 2012 and on 28.01.2000 Additional Deputy Commissioner, Women and Child Prevention Division, Chennai West Zone came to conclusion that respondent no.1 has been watching pornography for more than two years and hence he has committed a cognizable offence under section 67B and 15(1) of IT Act and POCSO Act respectively. The aggrieved respondent went to the High court.

The High court view regarding section 14(1) of the POCSO Act was that to constitute an offence under it the accused should have used the child for pornographic purpose and no doubt that the accused downloaded and watched child porn, he did not himself use a child for creating any pornographic content. Further, the High court held that to constitute an offence under section 67(B) of the IT Act transmitting and sharing of the pornographic content is vital, which was missing in this case as the accused downloaded and watched the porn, but there was no evidence of him distributing, sharing or transmitting it.

Therefore, the High Court quashed the criminal proceedings against the accused. The High court did not take into consideration section 15 of the POCSO Act and since according to the high court judgement the accused did not commit any crime under section 14(1) and 67(B), the accused was let go. Aggrieved, the appellant decided to move to the Supreme Court.

Supreme Court held that mere storage of “child sexual exploitative and abuse material" (child pornography) without deleting or reporting the same would indicate the intention to transmit, and merely watching it without download would amount to "possession" under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The Supreme Court has forbidden Courts across the country to use "child pornography" and instead shall use "child sexual exploitative and abuse material" (CSEAM).

SUBMISSIONS BY BOTH APPELLANT AND RESPONDENTS

Appellant

The counsel representing the appellant relying on the chargesheet consideration information received from the National commission of missing and exploited children USA, (NEC-MEC) stated that the accused has been watching child pornography since last two years and the narrow interpretation of the high court of article 14(1) without giving due consideration to article 15 of the POCSO act may put a lot of young children in danger.

The learned counsel for appellant further submitted that the respondent couldn’t prove that the files containing the pornographic videos was downloaded by him through WhatsApp and that section 15(1) penalizes the downloading and failure to delete child pornography. The learned counsel for appellant also stated that the high court has erroneously failed to distinguish between section 67 and 67 (B)of the IT Act, as 67(b) was introduced in 2009 to prescribe punishment for downloading, collecting or watching child pornographic videos. The high court should have presumed that the accused had a culpable mental state to commit the crime under section 30of the POCSO Act.

Submissions were also made by the National Commission for Protection of Child Rights (NCPCR).The learned counsel submitted that state had made a grave error of not bringing it to the consideration of High court that the chargesheet was filed for offence under Section 15(1) and not under section (14) and that High court had failed to take into consideration section 30 of the act . The counsel further stated that accused had committed an offence under section 19 as accused had downloaded child pornographic content, and did not take any steps to delete it.

 

Respondent’s

The learned counsel representing the learned counsel submitted that since FIR was lodged under section 14(1) of the POCSO Act and section 67 of the IT Act, it cannot be said that high court committed an error of law. Files found in the phone of the respondent contained the term WA in its name and thus it shows that files were downloaded from WhatsApp and WhatsApp has an auto-download feature hence accused has submitted that he has unknowingly downloaded the files from WhatsApp and was unaware of its existence, forensic reports indicated that both creation and modification date are same and thus it can be said that files were never accessed and when these files were downloaded amendment to section 19 wasn’t in existence. He further stated that mere possession of child pornographic video without sharing and distributing it did not form an offence under section 15 (1) of the POCSO act.

 

Conclusion

"Any act of viewing, distributing or displaying etc., of any child pornographic material by a person over the internet without any actual physical possession or storage of such material in any device or in any form or manner would also amount to 'possession' in terms of Section 15 of the POCSO, provided the said person exercised an invariable degree of control over such material, by virtue of the doctrine of constructive possession."

“Ultimately, it is our collective responsibility to ensure that victims of child pornography receive the care, support, and justice they deserve. By fostering a compassionate and understanding society, we can help them find their path to recovery and regain a sense of safety, dignity, and hope. This includes changing societal attitudes towards victims, improving legal frameworks to protect them, and ensuring that perpetrators are held accountable,”

This case serves as a landmark decision that underscores the importance of safeguarding children's rights in India. It highlights the need for systemic changes to ensure that every child can grow up in a safe, healthy, and supportive environment.