Storage of child pornography constitutes POCSO act offence: Supreme Court

New Delhi: The Supreme Court on Monday overturned a Madras High Court judgement 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 bench comprising CJI DY Chandrachud and Justice JB Pardiwala held that storing such material without deleting or reporting the same would indicate an intention to transmit.

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, display etc as specified in sub-sections of the Section. 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 judgment authored by Justice Pardiwala contains various guidelines 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 lower 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. Senior Advocate HS Phoolka appeared for the petitioner. The Supreme Court is also considering a petition challenging a similar judgment passed by the Kerala High Court as well.

In the present case, based on a letter received by the Additional Deputy Commissioner of Police (Crime against women and children), a case was registered against the accused for downloading child pornographic material in his mobile.

During the investigation, the mobile phone was seized and a forensic analysis was conducted which confirmed that the mobile phone had two files which contained child pornography content involving teen boys. The court took cognizance of the offence under Section 67B of the Information Technology Act 2000 and Section 14(1) of the POCSO Act. The accused had approached the High Court seeking to quash the criminal proceedings.

Madras High Court's reasoning

The Madras High Court's decision was grounded in several key points: the accused had only downloaded the material for private viewing, it was not published or transmitted, and it was argued that merely downloading and watching child pornography is not an offence under Section 67-B of the Information Technology Act, 2000.

The single bench noted that to attract the offences under the POCSO Act, a child or children must have been used for pornography purposes. In the present case, the court noted that the accused had watched pornography videos but had not used a child or children for pornographic purposes. This, in the opinion of the court, could only be construed as a moral decay on the part of the accused person.

The Just Rights for Children alliance expressed concerns that the order might encourage child pornography by giving the impression that individuals downloading and possessing such material will not face prosecution. They emphasised the potential harm to innocent children and the negative impact on child welfare.
(With LiveLaw inputs.)