Harish v/s The Inspector Of Police

The POCSO Act, 2012 was introduced by the Union legislature to provide a common framework for providing safety and ensuring to reduction of the level of crime against children by preventing offenses against them, enshrining the value of Article 15(3) and 39(f) of the Indian constitution, inclusion of suggestions from United Nations Convention on Rights of the children held on 11 December 1992, and on rising level of crimes against children reported by National Crime Records Bureau.

The Act became a relief for victims, providing them with speedy trials through the institution of Special Courts under Section 28 of this Act.

The recent judgment of the Supreme Court in the case of Harish v. The Inspector of Police and Another picked up our ear to the scenario that ' watching and downloading of child pornography ' is an offense under the Act. The facts of the case are given below.

Facts of the case
On 29 January 2020, the Tamil Nadu police registered an FIR under the POCSO Act after a Cyber Tipline Report of the National Crime Records Bureau informed that S. Harish was involved in child pornography. An analysis of Harish's phone by the Forensic Science Laboratory found two local child pornographic videos linked to missing children who had been exploited. In September 2023, a chargesheet was filed against Harish under Section 15(1) of the POCSO Act and Section 67B of the IT Act. Therefore a basic understanding of these provisions is given below.

Related legal provisions
Section 15(1) of the POCSO Act follows: Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography, shall be liable to fine not less than five thousand rupees and in the event of second or subsequent offence, with fine which shall not be less than ten thousand rupees.

Section 67B of IT Act: Punishment for publishing or transmitting material depicting children in sexually explicit act, etc., in electronic form.

Here 'child' means any person below eighteen years of age as defined under Section.2(d) and 'child pornography' is defined under Section.2(da) which means any visual depicting of sexually explicit conduct involving a child that can be done through a photograph, video, computer or digital generated image which primary facia involves a child.

When the case reached the High Court, it was quashed and ruled that mere watching or downloading of child pornography is not an offense under the POSCO and IT Act. Unsatisfied by the judgment the organization called ' Just Rights for Children Alliance ' appealed to the Supreme Court on 22 February 2024. The analysis of the Supreme Court is given below.

Analysis:
Section 15(1) shows both the presence of actus reus and mens rea and the guilty act can be determined based on the intention of the accused.

For more understanding let's look at three circumstances:

• Certain phonographic material was found stored by an automatic download system in mobile of A. But A did not know of it. Here possession and storage without intention will not attract criminal liability.
• Certain phonographic material was found stored by an automatic download system in A's mobile phone without his knowledge. But later, A found this and shared the material with his friend, which would bring criminal liability.
• Likewise, A had the habit of watching and downloading child pornographic videos and would delete them after use without storing or possessing them. Here A is liable under S.15(1) of the POCSO Act.

The third circumstance emphasizes the concept of 'constructive possession' which defines possession as an inchoate crime. Here, the court interpreted that there is no need for immediate possession of such materials; the intention or control over them is enough to bring Section 15(1) of POSCO and Section 67B IT Act.

Therefore, mere watching and downloading of child pornographic material is an example of constructive possession, which can be termed as an offense. Thus the recent judgement of the Supreme Court is an eye-opener to society upholding the dignity and safety of children in India. The ultimate aim of POSCO is to protect the dignity and interest of children and the same is reflected in the cases given below.

Similar cases:

• Independent Thought v. Union of India reported in 2017 INSC 1030 held that POSCO should be interpreted in a manner that would be in the best interest and well-being of the children.
• Nawabuddin v. State of Uttarakhand reported in 2022 INSC 162 held that awarding a suitable punishment commensurate with the act of sexual assault and sexual harassment, a message must be conveyed to society at large that, if anybody commits any offense under POSCO...shall be punished suitably and no leniency shall be shown to them.

Requirements:

In short, these are essential elements required to establish criminal liability under the specified section of the POCSO Act:

• Actus reus in the form of possession or storage (Constructive possession is enough whereas immediate possession is not necessary)
• Mens rea
• Prima facie involves a child.

Thus single Judge Bench of Hon'ble Mr. Justice J.B. Pardiwala held the decision of the High Court had an 'egregious error' and made the following recommendations.

Suggestions:

• The term child pornography should be substituted by 'Child Sexual Exploitation and Abuse Material' (CSEAM) as the latter is a wider concept than the former.
• In India, there is a misconception about sex education. It is understood that it covers not only biological aspects but also healthy relationships, gender equality, respect for diversity, etc.
• Psychological rehabilitation should be given to those who are traumatized by sexual assault or harassment, or rape, and control over fake cases.
• Strong implementation of Section 43 of the POCSO Act, which authorizes the Central and State governments, provides public awareness of the said act.

Conclusion
In a nutshell, the judgment picks up our attention that, trivializes offense against children is not encouraging and our community should develop a sense of attitude to develop, protect, and promote the interest and dignity of children.

Reference:

• https://www.scobserver.in/journal/supreme-court-holds-that-viewing-storing-and-possessing-child-pornography-is-punishable-under-pocso-act-overturns-madras-hc-decision/amp/
• https://www.thehindu.com/news/national/why-has-the-sc-clarified-pocso-provisions-explained/article68695426.ece
• Just Rights For Children Alliance and Anr v. S. Harish and Ors 2024 INSC 716
• The Protection of Children from Sexual Offences Act, 2012, No.32, Acts of Parliament, 2012 (India)
• The Information Technology Act, 2000, s.67B, No.21, Acts of Parliament, 2000 (India)