Storing pornographic material of Child without deleting or reporting constitute POSCO Act Offence : Hon’ble Supreme Court of India.
“The right to digital privacy is not a license to perpetuate invisible crimes. When children are reduced to pixels of abuse, every byte of silence becomes complicit.”
— Supreme Court of India, 2024
- INTRODUCTION
We all know that in India, Women and Children have been given various special privileges as a part of affirmative actions and for their development and upliftment in the society.
In this realm, the Government of India had passed the Special Legal Framework i.e POSCO Act,2012 for the protection of child who are below the age of 18 years. In development of that, Supreme Court has passed the judgment of JUST RIGHTS FOR CHILDREN ALLIANCE & ANR. VS. S. HARISH & ORS. 2024 INSC 716 which held that Mere watching, downloading or storing, of ‘child sexual exploitation and abuse material’ constitute Offence under POSCO Act.
2. UNDERSTANDING THE POSCO ACT
The Protection of Children from Sexual Offences (POCSO) Act, 2012 is a significant Indian law enacted to protect individuals below the age of 18 from various forms of sexual abuse, including penetrative and non-penetrative assault, sexual harassment, and exploitation through child pornography which is effective from Nov 14, 2012.
It defines clear categories of offences:
Penetrative sexual assault, including insertion of body parts or objects, punishable by 10–20 years to life imprisonment (with harsher penalties if the child is below 16)
Sexual assault (non-penetrative touching) and sexual harassment, including gestures, remarks, or stalking.
Using Child For Pornographic Purposes including for the purposes of sexual gratification, which includes (a) representation of the sexual organs of a child; (b) usage of a child engaged in real or simulated sexual acts (with or without penetration); (c) the indecent or obscene representation of a child,
Abetment or attempt to commit offences are also criminalised
Section 21 & 22 provides Punishment for failure to report or record a case or false complaint or false information.
PRESUMPTION OF MENS REA
Under section 29 & 30 of the Act the burden of proof is on Accused person (which reverse the doctrine of presumption innocence until proven guilty).
Section 29 states —”Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.”
Section 30 states — “The Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.”
Here, “Culpable Mental State” includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.
3. LEGAL PROVISIONS INVOLVED
Articles 15 and 39 of the Constitution of India,1950
Article 15 more particularly sub-article (3) read with Article 39(f) of the Constitution
i) enables the State to make special provisions for children AND
ii) At the same time obligates the State to direct its policy towards ensuring that the tender and vulnerable age of children is not exploited or abused and to secure a dignified and healthy childhood and youth, free from any moral or material abandonment or exploitation
United Nations Convention on the Rights of the Children,1989 (ratified by India on 11th December,1992)
It is a set of standards that have to be ensured by all State parties including India to secure the best interest of the child and to specifically undertake preventive measures against any form of exploitation of children such as prostitution, unlawful sexual activity or pornographic performances and depictions.
POSCO ACT,2012
a) Section 13,14 &15 for Using Child For Pornographic Purposes And Punishment
b) Section 19 & 21 for Reporting of offences and Punishment for failure to report or record a case respectively
c) Section 29&30 for Presumption of culpable mental state.
4. Case Background: A Silent Crime Exposed
In 2020, law enforcement authorities in Chennai received a tip-off from the National Center for Missing and Exploited Children (NCMEC) in the United States. It alleged that an Indian citizen had been downloading child pornographic content on his phone for over two years.
The forensic analysis revealed:
Over 100 pornographic videos were stored. And at least two videos involved underage boys engaged in sexual acts with an adult woman. These videos had been downloaded and stored without being reported or deleted.
However, the Madras High Court quashed the chargesheet under Section 15 of POCSO and Section 67B of the IT Act, reasoning that:
Mere possession or storage of any pornographic material is not an offence under the POCSO Act
There was no evidence of transmission or sharing as to attract the provisions of the POCSO or the IT Act it is not sufficient to merely establish storage or possession of child pornography and that transmission or publication of the same is also required to be established.
The act, though “morally repugnant,” did not legally qualify as Mere watching or downloading of child pornography in private domain is not punishable under the same.
This prompted a coalition of NGOs — Just Rights for Children Alliance — to appeal to the Supreme Court.
5. ISSUES FOR DETERMINATION
I. 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?
II. Whether, mere viewing, possessing or storing of any child pornographic material is punishable under the POCSO?
III. What is the true scope of Section 67B of the IT Act?
IV. 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?
V. 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?
6. SUPREME COURT’S ANALYSIS & DECISION
A. Reversal of High Court’s Quashing Order
The Supreme Court held that mere storage or failure to delete child pornography is punishable under Section 15(1) of POCSO, especially if done with intent to transmit or if retained knowingly.
Under Section 67B of the IT Act, even downloading or browsing such material is punishable — sharing is not necessary to trigger liability.
The Court emphasized the use of Section 30 (Presumption of Mental State), meaning the accused must prove he lacked the intent or knowledge — not the other way around.
The Court found the High Court misread the law, ignored statutory amendments and misapplied precedent.
B. Key Doctrinal Points
Possession = Inchoate Offence: Holding child pornography is an offence in itself; no need for “distribution” to be proven.
Culpable Mental State Presumed: Burden lies on the accused to rebut this presumption under POCSO.
Child Porn is not similar to Adult Porn: The Court strongly condemned equating adult and child pornography — the latter constitutes heinous exploitation.
Ignorance of law is no excuse : The court said the child pornographic material that was recovered from the personal mobile phone of the accused prima facie established the storage or possession of child pornographic material by his hand.
7. BEYOND PUNISHMENT: THE COURT’S VISION FOR REFORM
The judgment also offers practical policy recommendations:
- Mandatory reporting of such offences by tech platforms.
- Increased accountability for investigators and prosecutors to apply correct legal provisions.
- Child-friendly procedures for ensuring victims are protected and heard.
8. WHY THIS MATTERS: LAW MEETS MORALITY
This is more than just legal semantics — it’s about the dignity and safety of children.
In a world where digital crimes are borderless, and content can be stored silently for years, the ruling:
a) Closes the defence of “private viewing”.
b) Sends a clear message: there is no safe haven for offenders behind screens.
c) Upholds India’s international obligations under the UN Convention on the Rights of the Child.
9. HOW NMA CAN CONTRIBUTE IN THIS
Legal Representation: We represent the accused in court, ensuring they receive a fair trial and their rights are protected.
Building a Defense: We analyze the evidence, identify weaknesses in the prosecution’s case, and build a strong defense strategy.
Bail Applications: We represent the accused in bail applications and explore options for securing bail.
Protecting Rights: We ensure the accused’s right to a fair trial is upheld, including the right to cross-examine witnesses and present their own evidence.
Negotiating Settlements: In some cases, lawyers may explore options for negotiated settlements or plea bargains, if appropriate.
Confidentiality: We are bound and adhered by strict confidentiality rules, which is crucial for protecting the privacy of all parties involved.
Ensuring Timely Justice: We work to ensure the case progresses efficiently and fairly, minimising delays and ensuring timely justice.
10. CONCLUSION
This judgment marks a powerful reaffirmation of child safety in the digital age. It ensures that no digital act of exploitation, no matter how private, goes unnoticed or unpunished. Possession is participation. Silence is complicity. Laws protecting children are not just prohibitive — they are preventive. Waiting for harm to be shared is already a failure.
In an era where smartphones and cloud storage have become silent accomplices in digital crimes, the Supreme Court of India has issued a resounding clarion call: merely possessing child pornography is itself a punishable offence under POCSO, regardless of whether it is shared or distributed.
