Watching, or even storage of child porn crime under POCSO, says SC, asks parliament to amend term

The Supreme Court on Monday held that watching and storage of child pornographic is an offence under the POCSO Act, if the person concerned had the intention to make some gain or advantage from it.

With its judgement, the apex court set overturned the recent decision of the Madras High Court, which said the degree of mens rea (a legal term that refers to a defendant’s mental state or intent) required for such an act to constitute an offence under Section 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

“There must be intention on part of the accused to share such material. To constitute an offence under section 15(2) of POCSO, there must be something more to show that the actual transmission or distribution of such material. Facilitation of such transmission, preparation, set up to enable transmit etc has to be there. Mens rea has to be found from the storage of such pornographic material. To establish offence under Section 15(3), apart from storage of child pornographic material, it has to be shown that such storage was done to make some gain or advantage,” the SC bench comprising Chief Justice of India (CJI) DY Chandrachud and Justice JB Pardiwala said.

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Observing that the Madras High Court committed an “egregious error” and “atrocious” in quashing the criminal proceedings, the SC set it aside and restored the criminal prosecution.

SC suggests parliament to bring amendment to POCSO Act

The Supreme Court also suggested that the parliament should bring in an amendment to the POCSO Act to amend the term ‘child pornography’ with ‘‘child sexual exploitative and abusive material’.

The SC further said that it has also directed the courts to not use the term ‘child pornography’.

“We have suggested an ordinance can be brought in. We have asked all courts not to refer to it as ‘child pornography’ in any orders,” the apex court said.

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The order by the SC comes after a plea filed by Just Rights for Children Alliance against the Madras High Court ruling which held that watching child pornography in private does not constitut an offence.

Justice N Anand Venkatesh of the Madras HC had held that merely downloading or watching child pornography on one’s personal electronic device does not constitute an offence under the POCSO Act and the IT Act.

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.

As part of the probe, the mobile phone was seized and a forensic analysis was conducted which confirmed that the device 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 Madras High Court seeking to quash the criminal proceedings.

With inputs from agencies.