Just Rights for Children Alliance & Anr vs. S. Harish & Ors.

AUTHOR: DISHA SISODIA, VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES, DELHI 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 2161-2162 OF 2024

(ARISING OUT OF SPECIAL LEAVE PETITION (CRL) NOS. 3665-3666 OF 2024)

JUST RIGHTS FOR CHILDREN ALLIANCE & ANR .                      ...APPELLANT(S)

                                                      VERSUS

S. HARISH & ORS.                                                                         ...RESPONDENT(S)

BENCH : Hon’ble Former CJI Dr. Dhananjaya Y. Chandrachud and Hon’ble Justice J.B. Pardiwala

This is a landmark  comprehensive judgement discussing the crucial and critical issue of child sexual exploitation and abusive material which is propagated online and is easily accessible to millions. This triggering act is emotionally, physically and psychologically detrimental and traumatic to the holistic development and wellbeing of a child.The judgement is authored by Former Hon’ble  CJI D.Y. Chandrachud and & Hon’ble Justice J.B. Pardiwala.  It is a common judgement arising out of appeals filed before the Hon’ble High court of Madras dated 11.01.2024 in Criminal Original Petition (Crl. O.P.) No. 37 of 2024. This judgement highlights the erred impugned judgement of the Hon’ble High Court in  ascertaining the scope of criminality u/s 15(1) POCSO Act and  67B of the IT Act of 2002. Thus, challenging the order of the Hon’ble court of quashing of the chargesheet dated 19.09.2023 . As a consequence, the criminal proceedings in Special Sessions Case No. 170 of 2023 stood terminated.

This judgement is Landmark due to the  liberal interpretation of challenging provisions of POCSO & IT Act and the path breaking suggestions which will shape the legal terminology replacing ‘child pornography’ with ‘ Child Sexual Exploitation and Abuse Material'(hereinafter referred as CSEAM for the sake of brevity). This will forthwith be adopted  in every judicial order across all courts of India. Sensitization of the terminology in the legal sphere will safeguard the victim and reflect understanding of trauma despite the trivialization of the offence by using the term ‘ child pornography’. It is visionary and commences with a change in thought, vocabulary and actions fostering the protection and safeguarding the interest and holistic development of victims of CSEAM. 

The Madras High Court  passed a judgement dated 11.01.2024 in Criminal Original  Petition (Crl. O.P.) No. 37 of 2024 (“Impugned Order”)  filed by the respondent no. 1 /accused . The Hon’ble High court had quashed the charge sheet dated 19.09.23 and allowed the quashing petition u/ Section 482 of the Code of Criminal Procedure, 1973 . The Charge Sheet was filed for the offences punishable under Section 67B of the Information Technology Act, 2000 (for short, the “IT Act”) and Section 15(1) of the Protection of Children from Sexual Offences Act, 2012 (for short, the “POCSO”) arising  out of the FIR No. 03 of 2020, P.S. Ambattur, Chennai. The criminal proceedings in the Special Sessions Case No. 170 of 2023 stood terminated as a consequence of the Impugned order. 

The appellant in the present special leave were not the original complainant but, have filed a leave against the impugned order. Appellant no. 1 is ‘Just right for Children Alliance’  a coalition of five different NGOs that work in unison against child trafficking, sexual exploitation and other allied causes. And, the appellant no. 2 is a child rights organization working towards protecting children from exploitation and one of the partner NGOs to the aforesaid collation. The appellants herein were not a party to the proceedings before the High Court. 

The respondent no.1 in this case is the accused under FIR no. 03 of 2020 and respondent no. 2 and 3 are the State of Tamil Nadu and the Inspector of Police, All-Women’s Police Station Ambattur, Chennai, respectively.

On 29.01.2020 P.S. Ambattur received a complaint in a letter  against the respondent no. 1 ,  from the Additional Deputy Commissioner of Police (Crime against women and children Branch) as per the Cyber Tipline Report of the National Crimes Record Bureau (NCRB), the respondent no. 1 actively watched  pornography and has allegedly downloaded 

pornographic material involving children in his mobile phone. The Fir no. 03 of 2020 was registered in the police station the very same day under section 14 of the POCSO Act,2012 and 67B of the IT Act of 2002. Upon investigation, by the report of the Forensic Science Laboratory, downloaded and stored two videos of child pornography. During investigation the respondent admitted to have downloaded the explicit content and was in the habit of viewing such videos since college. Charge Sheet was filed upon completion of investigation, dated 19.09.2023 against the respondent no. 1 for the offences punishable under Section(s) 67B of the IT Act and 15(1) of the POCSO respectively, in light of the materials collected in the course of the investigation and the findings recorded in the Computer Forensic Analysis Report. 

Respondent filed a quashing petition under Section 482 C.r.P.C., 1973 being the Criminal Original Petition (Crl. O.P.) No. 37 of 2024 for quashing the charge sheet which was allowed by the Hon’ble High Court of Madras on grounds that:-

1. Under section 14 of POCSO,2012 the essentials of an offense include the transmission or propagation of the possessed material which in the present case is not proven . 

2. Secondly, under section 67B, similarly like section 14 of POCSO,2012 the requirement of transmission and propagation is integral to make the complaint maintainable which in the present case is not present. Likewise under section 292 of IPC,1860 the tantamount of criminality if publishing of an obscene material which is not the case herein. 

3. Thus , it quashed the chargesheet dated 19.09.2023, which consequently terminated the criminal  proceedings  in Special Sessions Case No. 170 of 2023. 

Thus, the present leave is filed before the Hon’ble Supreme Court challenging the impugned order. The counsel for the appellants stated that the Hon’ble High Court of Madras had erred in overlooking the basic fact that the charge sheet was filed under Section 15(1) POCSO Act,2012 and Section 67B, of the IT Act, 2002. The marginal note of Section 15 reads as “ Punishment for storage of pornographic material involving children”. the mere  and storage of the pornographic material is sufficient to commit an offense under the said section. followed by section 67B which is a comprehensive provision which entails, downloading, browsing, accessing, propagating the child pornographic material shall be punishable. 

Whereas, the counsel for the respondent had contended that the respondent was unaware of the law on possession of pornographic content on children and he didn't propagate the material which escapes him from the punishment. The fact that he was watching the video for his own access and did not transmit is reflective of his intention to not propagate and commit a crime. The ignorance of law with a bonafide act of omitting the propagation does not amount to an offense under Section 15 of POCSO,2012 and S.67B of IT Act,2002, whereas respondent no. 2 and 3 contended that the Hon’ble High Court erred in overlooking the provisions of the chargesheet and failed to correctly interpret the sections properly in law. 

1.  What is the scope of Section 15 of the POCSO? In other words, what is the underlying distinction between sub-section(s) (1), (2) and (3) respectively of the POCSO? 

2.  Whether, mere viewing, possessing or storing of any child pornographic material 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? In, other words, what are the foundational facts necessary for invoking the statutory presumption of culpable mental state in respect of Section 15 of the POCSO? 

5.  Whether, the statutory presumption contained in Section 30 of the POCSO can be invoked only at the stage of trial by the Special Court alone established under the POCSO? In other words, whether it is permissible for the High Court in a quashing petition filed under Section 482 of the Cr.P.C. to resort to the statutory presumption of culpable mental state contained in Section 30 of the POCSO?

1. OBSERVATION OF THE COURT 

The Hon’ble Court interpreted the sections categorically to avoid any ambiguity and reach a conclusion. Under Section 15 of the POCSO,2012  it highlighted the conflict between the marginal note and the given provision, which highlights that the section lays three points which are

1. Under S.15(1), it is punishable to download or store the child pornographic material and fail to delete it. 

2. U/s 15(2), it is punishable to download or store the material with an intention to transmit or propagate it.

3. u/s 15(3) it is punishable to download or store the material with an intention to transmit the content in lieu of some monetary gain. 

Furthermore, the understanding of the “ possession” in this context is constructive, which is that in spite of the physical possession over the material to use or destroy it, the control over it  remains the ability to access,use, delete the content is constructive possession. and in the case of inchoate crimes, like Section 15 , the balance is struck between the intervention of law to prevent a crime or deter with a thought which is to commit a crime. The criminality of inchoate crimes is significant to create deterrence and balance with the interest of justice. Furthermore, the comprehensive provision of  S.67B of the IT Act , 2002 vividly covers every aspect of accessing child sexual explicitly explotative content which is punishable including downloading, browsing and propagating . 

   2. HELD

The Court held that the impugned order of the Hon’ble High Court is erred in law and it overlooked significant provisions of law which are discussed previously above, and the analysis of the circumstances of the case with the interpretation of law results into a reversing  opinion, that is , the respondent was in possession of offensive material which is punishable under the sections and is subject to trial in the Court of Session which must be restored. The impugned judgment be set aside. 

3.  SUGGESTIONS

1.  The pivotal element of this judgement is the landmark decision to replace the term “ child pornography “ with “ Child Sexual Exploitation and Abuse Material( CSEAM)”  , due t the fact that the word, ‘pornography’ includes consent to do the act which trivializes and neglects the trauma and torture on children to do this henious crime. 

2. Every court in the country to use CSEAM in judgements instead of other terms. 

3. Implementing comprehensive sex education programs

4. Providing support services to the victims and rehabilitation programs for the offenders is essential.

5. Raising awareness 

6. Schools can also play a crucial role in early identification and 

7. intervention. 

8. To give meaningful effect to the above suggestions and work out the necessary modalities, the Union of India may consider constituting an Expert Committee tasked with devising a comprehensive program or mechanism for health and sex education

This is a landmark judgement to annul any misconception around interpretation of the relevant sections of POCSO and it creates a smooth framework around its implementation and the seriousness with which the offence has to be viewed with. The 2019 Amendment to the Act of 2012, had the legislative intent to broaden the horizon of S.15 to include the dynamics of cybercrime due to the access of the internet and its advancement and ease in commission of crime. These offences are extremely grave which devastate the psychological, emotional, and physical development, well being and perspective of a child towards itself. The state then acts as a guardian to provide a safe space and environment to ensure the growth of the child in a sensitized environment which is considerate of their well- being. The suggestions are path breaking and visionary which will have effect on the children directly as it all is a chain which commences from a thought .A change which reformed legal vocabulary, its awareness amongst the people establishes the judicial and legislative intent and will build a healthy superstructure of protected and sensitive environment for its development. The legal interpretation of S.15 , POCSO Act, is comprehensive and has been precisely analysed considering all possibilities in extreme and upheld the legislative intent fostering the child from any kind of  sexual exploitation by restricting the access of its material and criminalising it, in case it is in possession , be it constructive. It cannot be misinterpreted as a minor offence due to its inchoate nature, rather a powerful deterrence for future crimes and protection of children from exploitation.

In the present case, S.15(1) is liberally interpreted which includes its new facets of constructive possession and description of an inchoate offence. The Hon’ble High court erred in overlooking the sections in the chargesheet and misinterpreted the given sections resulting in miscarriage of justice. The Apex court has been sensitive towards the impact of the offence on the life and mental health of the victim and kept it as a central point while interpreting the sections. The lacunae in the provision and the marginal note was misused by the respondents and could be repeated in future which has been corrected in law. The landmark suggestion of CSEAM is an example of victim sensitization and promotion of a framework which safeguards the development of a child.