JUST RIGHTS FOR CHILDREN ALLIANCE & ANR. versus S. HARISH & ORS.
[2024] 10 S.C.R. 154, Supreme Court of India, 2024
Outcome: Disposed off
Segment: Facts
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142.	If the courts while dealing with any matter involving child pornography, 
continue to refer and rely on Section 2(1)(d) of the POCSO, then 
the same will frustrate the intention behind Section 2(1)(da) more 
particularly the words “but appear to depict a child ” in the statute 
book, thereby render that portion of the aforesaid provision otiose 
and nugatory. 
143.	The true purport of Section 2(1)(da) of the POCSO, is to ensure 
that for offences pertaining to child pornography, it is Section 2(1)
(da) that is given due regard and not Section 2(1)(d). Thus, in any 
offence pertaining to child pornography the definition of ‘child’ in 
Section 2(1)(d) would pale in comparison to the definition of ‘child 
pornography’ under Section 2(1)(da) of the POCSO. As such, the 
court while dealing with an offence under Section 15 of the POCSO, 
must be mindful of the fact, that it is Section 2(1)(da) of the POCSO, 
which has to be referred to and relied upon and not Section 2(1)(d). 
In other words, it is the definition of ‘child pornography’ which is of 
relevance while considering whether Section 15 of the POCSO can 
be invoked or not.
d.	
Scope of Section 67B of the IT Act.
144.	The IT Act was originally enacted with the object of providing a 
legal framework for inter-alia recognizing electronic records & 
digital signatures, facilitating electronic commerce, and providing 
a legal sanctity to e-contracts. While the IT Act did
include certain 
provisions to penalize cybercrimes, they were rudimentary and did 
not comprehensively address issues like creation and facilitation of 
sexual abuse of children, the online publication, transmission and 
distribution of child pornography or the sexual inducement, enticement 
and exploitation of children over the internet. 
145.	The aforesaid was due to the fact that, the IT Act prior to the 
Information Technology (Amendment) Act, 2008 (for short, the ‘2008 
Amendment Act’), criminalized only one act being the publication or 
transmission of obscene material, under Section 67. The IT Act made 
no distinction between the publication or transmission of an ‘obscene 
material’ from the publication or transmission of an obscene material 
involving any sexually explicit act or conduct i.e., pornographic 
material or for that matter child pornographic material. More glaringly, 
there was no difference in either publication or transmission of such 
material from the distribution, facilitation and consumption of such
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material over the internet. The IT Act also did not recognize other 
forms of sexual abuse and exploitation of children over the internet 
as a punishable offence such as enticement of children into any 
sexual act. 
146.	Over a period of time, as the age of internet evolved, the inadequacies 
of the IT Act became apparent, primarily due to more and more 
children using the internet and a corresponding increase in number 
of cyber-crimes being committed against them. Thus, there was a 
need for a more robust legal framework particularly for the protection 
of vulnerable population like children over the internet. 
147.	The 50th Report of the Standing Committee on Information Technology 
on the ‘Information Technology (Amendment) Bill, 2007’ noted that 
although a new provision in the form of Section 67A had been 
proposed for specifically criminalizing publication or transmission 
of pornographic material with enhanced punishment, yet there was 
no specific provision pertaining to child pornography. The Standing 
Committee, rejected the response of the Department of Information 
Technology that the provision of Section 67A in general would also 
include child pornography, and instead recommended that a specific 
provision for child pornography be incorporated, in order to not just 
criminalize the publication and transmission of child pornography with 
an enhanced punishment but also to
tackle and criminalize other 
related forms of child sexual abuse such as, online enticement of 
children into sexual acts, distribution of child pornography and the 
facilitation or creation of such material. The relevant recommendations 
read as under: -
“6. The Information Technology Act, 2000 was enacted 
keeping in view technology directions and scenario as 
it existed at that point of time. As the technology has a 
habit of reinventing itself into cheaper and more cost-
effective options, it becomes imperative to give a fresh 
look to any technology driven law from time to time. 
Moreover, due to overall increase in e-commerce, growth 
in outsourcing business, new forms of transactions, new 
means of identification, consumers concern, promotion 
of e-governance and other information technology 
applications, technology neutrality from its present 
‘technology specific’ form in consonance with development
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all over the world, security practices and procedures for 
protection of Critical Information infrastructure, emergence 
of new forms of computer misuse like child pornography, 
video voyeurism, identity theft and e-commerce frauds like 
phishing and online theft, rationalization of punishment 
in respect of offences with reference to the Indian Penal 
code, a need was felt to review the Indian Information 
Technology Act, 2000”
xxx xxx xxx
(iii) Child Pornography
118. Clause 31 proposes to insert Section 67 A whereby 
punishment has been provided for publishing or 
transmitting of material containing sexually explicit act in 
electronic form. 
119. In the above context, a non-official witness as well as 
the CBI have been of the view that the proposed Section 
should be recast to include ‘child pornography’ also and 
specific provisions should be incorporated in this Section 
to criminalize child pornography in tune with the laws 
prevailing in advanced democracies of the world as well 
as Article 9 of the Council of Europe Convention on Cyber 
Crimes which states as under: -
“Each Party shall adopt such legislative and 
other measures as may be necessary to 
establish as criminal offences under its domestic 
law, when committed intentionally and without 
right, the following conduct: (a) producing child 
pornography for the purpose of its distribution 
through a computer system; (b) offering or 
making available child
pornography through a 
computer system; (c) distributing or transmitting 
child pornography through a computer system; 
(d) procuring child pornography through a 
computer system for oneself or for another 
person; (e) possessing child pornography in a 
computer system or on a computer-data storage 
medium.
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2. For the purpose of paragraph 1 above, 
the term “child pornography” shall include 
pornographic material that visually depicts: 
(a)	 a minor engaged in sexually explicit 
conduct; 
(b)	 a person appearing to be a minor engaged 
in sexually explicit conduct; 
(c)	
realistic images representing a minor 
engaged in sexually explicit conduct.
3. For the purpose of paragraph 2 above, the 
term “minor” shall include all persons under 18 
years of age. A Party may, however, require a 
lower age-limit, which shall be not less than 
16 years. 
4. Each Party may reserve the right not to 
apply, in whole or in part, paragraphs 1, sub-
paragraphs d. and e, and 2, sub-paragraphs 
b. and c
120. When the Committee desired to hear the views of 
the Department of Information Technology in incorporating 
an express provision on defining child pornography as 
suggested by the Expert Committee, it was replied that a 
new Section 67A related to punishment for publishing or 
transmitting of material containing sexually explicit acts 
has been proposed as per which stringent provision has 
been made relating to pornography in general and would 
also automatically cover child pornography. 
121. On the issue of criminalising child pornography and 
making penal provision towards that, the Department 
stated that, the advice/ assistance in the Commission of 
Crime (Pornography) through offering advice on
information 
regarding the websites for facilitating any possession or 
downloading illegal content might be considered an offence. 
122. The Department of Information Technology also 
agreed to a suggestion that the pre-offence grooming 
i.e. the initial actions taken by the offender to prepare the
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child for sexual relationships through online enticement 
and distributing or showing pornography to a child should 
also be made a criminal offence.
RECOMMENDATIONS / OBSERVATIONS
xxx xxx xxx
Child Pornography 
24. The Committee note that Clause 31 of the Bill intends 
to insert a new Section 67A which provides for stringent 
punishment for publishing or transmitting of material 
containing sexually explicit acts in electronic form. But 
the Committee are concerned to find that the term ‘child 
pornography’ has nowhere been mentioned in the proposed 
Section. The Department’s argument that the Section 
while covering ‘pornography’ will automatically cover child 
pornography does not convince the Committee as there 
should be no scope for assumption or presumption when 
fresh amendments are being proposed. The Committee, 
therefore, impress upon the Department to include the 
term ‘child pornography’ in the proposed Section 67A 
in view of its growing menace. They also desire that 
specific provisions should be incorporated in this Section 
to criminalise child pornography in tune with the laws 
prevailing in the advanced Countries and Article 9 of the 
Council of Europe Convention on Cyber Crimes. In view of 
the several manifestations of sexual abuse of the children 
and its loathsome ramifications, the Committee desire that 
the act of grooming the child for sexual relationship through 
online enticement or
distributing/showing pornography or 
through any other online means should also be made a 
criminal offence and a suitable provision be made in this 
regard in the proposed Section 67A.”
(Emphasis supplied)
148.	From the aforesaid, it can be seen that the Standing Committee 
whilst making its recommendation, underscored that no useful 
purpose would be served if the publication or transmission of any 
child pornography is punished all the same as any other pornographic 
material. It highlighted, that while the IT Act had originally been
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enacted keeping in mind the requirements that existed then, yet now 
with the march of the age of internet, it has become imperative to 
undertake a fresh approach to the provisions of the IT Act particularly 
those relating to cyber-crime in light of the new emerging forms 
of misuse of the internet. It opined that, merely criminalizing the 
publication or transmission of child pornography will not be sufficient, 
and that other various forms of online sexual abuse and exploitation 
also need to be recognized and adequately punished, on par with 
the laws prevailing in various other countries. 
149.	It was in the aforesaid backdrop that the legislature by virtue of the 
Information Technology (Amendment) Act, 2008 inter-alia amended 
Section 67 of the IT Act and introduced Section 67A along with Section 
67B. This was for the first time, that a specific provision had been 
made, to recognize and protect the vulnerable and tender age of 
children by criminalizing various forms of online sexual degradation, 
abuse and exploitation with enhanced punishment. At the cost of 
repetition, Section 67B of the IT Act is being reproduced below: -
“67-B. Punishment for publishing or transmitting of 
material depicting children in sexually explicit act, 
etc., in electronic form. — Whoever —
(a) publishes or transmits or causes to be published or 
transmitted material in any electronic form which depicts
children engaged in sexually explicit act or conduct; or
(b) creates text or digital images, collects, seeks, browses, 
downloads, advertises, promotes, exchanges or distributes 
material in any electronic form depicting children in obscene 
or indecent or sexually explicit manner; or
(c) cultivates, entices or induces children to online 
relationship with one or more children for and on sexually 
explicit act or in a manner that may offend a reasonable 
adult on the computer resources; or
(d) facilitates abusing children online; or
(e) records in any electronic form own abuse or that of 
others pertaining to sexually explicit act with children,
shall be punished on first conviction with imprisonment 
of either description for a term which may extend to five
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years and with a fine which may extend to ten lakh rupees 
and in the event of second or subsequent conviction with 
imprisonment of either description for a term which may 
extend to seven years and also with fine which may extend 
to ten lakh rupees:
Provided that provisions of Section 67, Section 67-A 
and this section does not extend to any book, pamphlet, 
paper, writing, drawing, painting, representation or figure 
in electronic form—
(i) the publication of which is proved to be justified as being 
for the public good on the ground that such book, pamphlet, 
paper, writing, drawing, painting, representation or figure 
is in the interest of science, literature, art or learning or 
other objects of general concern; or
(ii) which is kept or used for bona fide heritage or religious 
purposes.
Explanation. — For the purpose of this section, “children” 
means a person who has not completed the age of 18 
years.”
150.	A conjoint reading of Section(s) 67 and 67A viz-a-viz 67B would 
reveal that unlike the former which penalizes only the publication 
or transmission of any obscene material or pornographic material, 
the scope and ambit of Section 67B is much wider inasmuch as it 
recognizes and penalizes five different forms / categories of actus 
reus, being: -
(i)	
Section 67B sub-section (a): -
a.	
Section 67B sub-section (a) of the IT Act pertains to 
the dissemination of child pornography and penalizes 
the publication or
transmission of any material involving 
a child in any sexually explicit act or conduct, and the 
direct or indirect involvement in aiding or facilitating the 
dissemination of such material. 
b.	
In order, to constitute an offence under this provision, 
there must be an actual publication or transmission of any 
child pornographic material, though the said publication or 
transmission may be done either by the accused himself or
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be caused through someone else at the instance or behest 
of the accused. In other, words Section 67B sub-section 
(a) punishes any person who is involved in a process, in 
any manner that leads to the publication or transmission 
of any child pornographic material. 
c.	
Thus, twin-conditions as prescribed under Section 67B(a) 
of the IT Act, need to be satisfied in order to constitute an 
offence: - (I) the actual publication or transmission of any 
child pornographic material AND (II) the involvement of 
the accused in such publication or transmission process 
in any manner. 
(ii)	 Section 67B sub-section (b): -
a.	
It penalizes the creation of any text or image-based 
content in any electronic form, that depict children in any 
obscene or indecent or sexually explicit manner. It further 
penalizes the collection, solicitation, browsing i.e., online 
viewing, or downloading of such material. Thus, even the 
mere viewing of any child pornographic material that is 
stored in a mobile phone would tantamount to ‘browsing’ 
of such material in electronic form. Lastly, it also penalizes 
the advertising, promotion, exchange or distribution of any 
such material. Here again, what is punishable is only the 
actual commission of any of the above-mentioned acts.
b.	
The scope of Section 67B sub-section (b), is more 
expansive than the preceding sub-section because, (i) 
first, the term ‘material’
here includes any electronic 
content depicting children in sexually explicit acts as well 
as in obscene or indecent contexts, and (ii) secondly, the 
actus reus encompasses not just the act of disseminating 
but also the acts of creating, propagating, or engaging 
with or using such material. 
c.	
In other words, Section 67B sub-section (b) penalizes the 
actual commission of any of the following: -
i.	
the act of producing or creating any text or digital 
image based electronic material (incl. videos) that 
depict children in any obscene, indecent or sexually 
explicit manner;
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ii.	
the act of engaging or using such material by way of 
collecting, browsing, accessing, downloading, saving, 
seeking, actively searching such material from any 
computer resource, and; 
iii.	
the act of facilitating or propagating the circulation 
or dissemination of such material by advertising, 
promoting, exchanging or sharing, distributing or 
offering for sale such material from any computer 
resource on the internet.
(iii)	 Section 67B sub-section (c): -
a.	
Section 67B sub-section (c) of the IT Act penalizes the act 
of any person to induce or entice a child to participate or 
indulge in any sexually explicit act or any other act that 
would offend any adult of reasonable mind, using any 
computer resource. 
b.	
In order to constitute an offence under the said provision, 
what is required is only the actual commission of an act of 
inducement or enticement in any manner by the accused 
alone, and there is no requirement that such enticement 
or inducement must have resulted in the child indulging 
in any sexually explicit or any other offensive act. 
c.	
Thus, even where the accused merely attempts to entice 
a child to indulge in any such act, through a computer 
resource, he would be liable under this provision, 
irrespective of whether the child also indulges in such act 
or not. Furthermore, such enticement or inducement may 
be for having the child either indulge in any sexually or 
offensive act with the
accused himself or with any other 
person at the instance or persuasion of the accused. 
d.	
In other words, what is penalized under Section 67B 
sub-section (c) is the act of enticing or inducing a child to 
indulge in any sexually explicit offensive act or behaviour. 
(iv)	 Section 67B sub-section (d): -
a.	
Section 67B sub-section (d) penalizes any form or manner 
of facilitation of abuse of children, online i.e., it penalizes 
any form of degradation, exploitation, or abuse of children
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on any online platform. The actus reus punishable under 
the said provision is the doing, aiding or abetting of any act, 
either directly or indirectly that would facilitate or enable 
the abuse of children online in any indecent, lascivious 
or prurient manner. 
b.	
It is pertinent to note, that under Section 67B sub-section 
(d) there is no requirement that the act in question must 
have been done only with an intention to facilitate the abuse 
of children online. What is rather required to constitute an 
offence under the said provision is that the act must be such 
which likely would facilitate the abuse of children online. 
c.	
In other words, what is penalized is any act that has the 
propensity or likelihood to aid, enable or support the online 
abuse of children in any obscene, indecent, or lewd fashion. 
(v)	 Section 67B sub-section (e): -
a.	
Section 67B sub-section (e) of the IT Act penalizes the act 
of recording through video or any other electronic means, 
the participation of any sexually explicit act with or in the 
presence of any child. The actus reus required is the use 
of any video or any other electronic means to record any 
sexually explicit act being done either by the accused 
himself or by anyone else in the presence of a child. 
b.	
It must be borne in mind, that the sexually explicit act itself 
need not be done in the actual presence of the child, rather 
what is
required is that the child was made privy to such 
sexually explicit act, and the same was recorded by the 
accused in any electronic form. Say for instance, that in 
the presence of a child, a pornographic video is played, 
and the same is then recorded by the accused. Here since, 
the recording includes a child being subjected to a sexually 
explicit act in the form a pornographic video, an offence 
would be constituted under the said provision, even though 
no such act was done in the actual presence of the child. 
c.	
In other words, what is penalized under Section 67B sub-
section (e) is the act of exposing or subjecting a child to 
any sexually explicit act by anyone, and recording the 
same in any electronic form.
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151.	From the aforesaid, it is clear that Section 67B of the IT Act is a 
comprehensive provision designed to address and penalize the 
various electronic forms of exploitation and abuse of children 
online. It not only punishes the electronic dissemination of child 
pornographic material, but also the creation, possession, propagation 
and consumption of such material as-well as the different types of 
direct and indirect acts of online sexual denigration and exploitation 
of the vulnerable age of children. 
152.	This Court in Sharat Babu Digumarti v. Govt. of NCT of Delhi 
reported in (2017) 2 SCC 18 held that Chapter XI of the IT Act, more 
particularly Section(s) 67 through 67B are a complete code in itself 
when it comes to offences relating to electronic forms of obscene and 
pornographic material. The relevant observations read as under: -
“31. Having noted the provisions, it has to be recapitulated 
that Section 67 clearly stipulates punishment for publishing, 
transmitting obscene materials in electronic form. The said 
provision read with Sections 67-A and 67-B is a complete 
code relating to the offences that are covered under the 
IT Act. [...]”
(Emphasis supplied) 
153.	Thus, Section(s) 67, 67A and 67B of the IT Act being a complete code, 
ought to be interpreted in a purposive manner that suppresses the 
mischief and advances the remedy and ensures that the legislative 
intent of penalizing the various forms
of cyber-offences relating to 
children and the use of obscene / pornographic material through 
electronic means is not defeated by a narrow construction of these 
provisions. 
iii.	
The Presumption of Culpable Mental State under Section 
30 of the POCSO. 
154.	As discussed earlier, the POCSO is a special legislation that was 
specifically enacted to punish aggravated forms of offences related 
to sexual abuse and exploitation of children as well as including 
the well-being of the children. Its nuanced provisions have been 
deliberately designed to provide stringent measures in order to 
secure the dignity protection and interest of children. It was in this 
backdrop, that the legislature in its wisdom specifically provided for 
certain statutory presumptions as regards commission of certain
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specified offences as-well as presumption of the existence of a 
culpable mental state on the part of the person accused so as to 
ensure that the legislation is effective in addressing the increasing 
number of child sexual abuse cases.
155.	The provisions pertaining to statutory presumptions under the POCSO 
are contained in Section(s) 29 and 30 which provide for presumption 
as to certain offences and presumption of culpable mental state 
respectively. In the case at hand we are concerned with Section 30 
of the POCSO which at the cost of repetition is being reproduced 
hereunder: -
“30. Presumption of culpable mental state. – 
(1) In any prosecution for any offence under this Act 
which requires a culpable mental state on the part of the 
accused, 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.
(2) For the purposes of this section, a fact is said to 
be proved only when the Special Court believes it to 
exist beyond reasonable doubt and not merely when its 
existence is established by a preponderance of probability. 
Explanation. – In this section, “culpable mental state” 
includes intention, motive, knowledge of a fact and the 
belief in, or reason to believe, a fact.”
156.	Section 30, sub-section (1)
provides that where any offence under the 
POCSO requires a culpable mental state on the part of the accused, 
the Special Court shall presume the existence of such mental state. 
It further provides that the accused may as a defence prove that 
he had no such mental state with respect to any act being sought 
to be punished under the Act. Thus, Section 30(1), makes it clear 
that the presumption of culpable mental state applies to any offence 
under the said Act that requires such mental state, and the use of 
the word “shall” makes it mandatory for the Special Court to presume 
the existence of such mental state. However, the said provision also 
clarifies that, although the said presumption is mandatory yet it is 
rebuttable inasmuch as the person accused is permitted to prove any 
fact to establish the contrary i.e., to show that no such mental state
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existed on his part. Section 30 sub-section (2) further explains the 
manner and the circumstances under which the said presumption 
can be rebutted, insofar as it stipulates that in order to prove any 
fact to show that no such mental state existed, the person accused 
has to prove the same beyond a reasonable doubt and not on a 
mere preponderance of probability. Thus, the standard prescribed 
for rebutting the said statutory presumption of culpable mental state 
is beyond a reasonable doubt. Lastly, the Explanation appended to 
the said provision provides that ‘culpable mental state’ shall include 
intention, motive, knowledge of a fact and the belief in, or the reason 
to believe a fact. 
a.	
Concept of Statutory Presumption and Principle of 
Foundational Facts.
157.	In Attorney General (supra) this Court while considering the aforesaid 
Section(s) 29 and 30 of the POCSO observed that the same had 
been specifically incorporated by the legislature in view of the serious 
nature of the offences punishable under the POCSO and the object 
behind the enactment of the said legislation. Furthermore, this Court 
in view of the importance of the aforesaid provisions, held that any 
offence under the Act pertaining to sexual, assault, harassment etc., 
ought to be construed viz-a-viz the other provision (sic Section(s) 29 
and 30) of the POCSO. The relevant observations read as under: -
“36. It may also be pertinent to note that
having regard to 
the seriousness of the offences under the POCSO Act, the 
Legislature has incorporated certain statutory presumptions. 
Section 29 permits the Special Court to presume, when 
a person is prosecuted for committing or abetting or 
attempting to commit any offence under Section 3, 5, 7 
and Section 9 of the Act, that such person has committed 
or abetted or attempted to commit the offence, as the case 
may be, unless the contrary is proved. Similarly, Section 
30 thereof permits the Special Court to presume for any 
offence under the Act which requires a culpable mental 
state on the part of the accused, the existence of such 
mental state. Of course, the accused can take a defence 
and prove the fact that he had no such mental state with 
respect to the act charged as an offence in that prosecution. 
It may further be noted that though as per sub section (2)
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of Section 30, for the purposes of the said section, a fact is 
said to be proved only when the Special Court believes it 
to exist beyond reasonable doubt and not merely when its 
existence is established by a preponderance of probability, 
the Explanation to Section 30 clarifies that “culpable mental 
state” includes intention, motive, knowledge of a fact and 
the belief in, or reason to believe, a fact. Thus, on the 
conjoint reading of Section 7, 11, 29 and 30, there remains 
no shadow of doubt that though as per the Explanation 
to Section 11, “sexual intent” would be a question of fact, 
the Special Court, when it believes the existence of a fact 
beyond reasonable doubt, can raise a presumption under 
Section 30 as regards the existence of “culpable mental 
state” on the part of the accused.
37. This takes the Court to the next argument of Mr. Luthra 
that there being an ambiguity, due to lack of definition of 
the expressions - “sexual intent”, “any other act”, “touching” 
and “physical contact”, used in Section 7, coupled with 
the presumptions under Sections 29 and 30 of the Act, 
the reverse burden of proof on the accused would make 
it difficult for him to prove his innocence and, therefore, 
the POCSO Act must be strictly interpreted. In the opinion 
of the Court, there cannot be any disagreement with the 
said submission of Mr. Luthra. In fact it has been laid 
down by this
Court in catena of decisions that the Penal 
Statute enacting an offence or imposing a penalty has to 
be strictly construed. A beneficial reference of the decisions 
in the case of Sakshi v. Union of India reported in (2004) 
5 SCC 518, in the case of R. Kalyani v. Janak C. Mehta 
reported in (2009) 1 SCC 516 and in the case of State of 
Punjab v. Gurmeet Singh, (2014) 9 SCC 632 be made in 
this regard. However, it is equally settled legal position that 
the clauses of a statute should be construed with reference 
to the context vis-a-vis the other provisions so as to make 
a consistent enactment of the whole Statute relating to 
the subject matter. The Court can not be oblivious to the 
fact that the impact of traumatic sexual assault committed 
on children of tender age could endure during their whole 
life, and may also have an adverse effect on their mental
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state. The suffering of the victims in certain cases may be 
immeasurable. Therefore, considering the objects of the 
POCSO Act, its provisions, more particularly pertaining 
to the sexual assault, sexual harassment etc. have to be 
construed vis-a-vis the other provisions, so as to make the 
objects of the Act more meaningful and effective.”
(Emphasis supplied)
158.	The statutory presumption of culpable mental state is neither a concept 
which is alien to the law nor is it something which is exclusive to the 
POCSO alone. In fact, there are several legislations which also contain 
similar provisions relating to the statutory presumption of culpable 
mental state, such as Section 35 of the Narcotic Drugs and Psychotropic 
Substances Act, 1985 (for short, the “NDPS Act”), Section 138A of the 
Customs Act, 1962 (for short, the “Customs Act”), Section 278E of 
the Income Tax Act, 1961 (for short, the “Act, 1961”) to name a few. 
Since all of the aforesaid provisions are pari materia with Section 30 
of the POCSO, it would be apposite to refer to the various decisions 
of this Court interpreting these analogous provisions. 
159.	In Bhanabhai Khalpabhai v. Collector of Customs reported in 
1994 Supp. (2) SCC 143, this Court whilst examining the scope of 
Section 138A of the Customs Act which relates to presumption of 
culpable mental state observed that the said statutory presumption 
had been incorporated by the legislature in
view of the difficulty 
that the prosecution often faces in proving every link in respect of 
commission of certain offences by way of direct evidence. It further 
observed that such statutory presumption is an exception to the 
general criminal jurisprudence that the onus never shifts on the 
accused and he has only to raise a doubt in the mind of the court, 
in respect of the correctness of the prosecution version. The relevant 
observation reads as under: -
“9. In the facts and circumstances of the case, it can also 
be held that the appellant was concerned with the specified 
goods in connection with ‘fraudulent evasion or attempt 
at evasion’ of duty chargeable on the specified goods. It 
is well known, that it is very difficult for the prosecution, 
to prove every link, in respect of the commission of the 
offence under the Act by direct evidence. The whole 
process of smuggling, for evading payment of custom duty
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consists of different links. The links aid and abate each 
other, sometimes through a remote control. That is why, 
Parliament has introduced Section 138-A in the Act. [...] 
The provision relates only to burden and nature of proof 
at the trial, as such it was applicable in the present case. 
In view of the aforesaid section, a presumption has to be 
drawn, in respect of existence of the alleged mental state. 
An option has been given to the accused to prove by way 
of defence the fact, that he did not have any such mental 
state with respect to the act charged which is an offence. 
It can be said that the provision aforesaid is an exception 
to the general criminal jurisprudence that onus never 
shifts on the accused and he has only to raise a doubt 
in the mind of the court, in respect of the correctness of 
the prosecution version. It is different from Sections 106 
and 114 of the Evidence Act. In view of Section 138-A, 
once a presumption is raised about a culpable mental 
state on the part of the accused, that he had stored the 
silver ingots, to export them outside the country evading 
payment of custom duties, the accused has to prove as 
a defence that no such mental state with respect to the 
act charged, did exist. [...]”
(Emphasis supplied)
160.	In another decision of this Court in Devchand Kalyan Tandel v. 
State of Gujarat reported in (1996) 6 SCC 255, it was reiterated 
that
the statutory presumption engrafted in Section 138A of the 
Customs Act was out of necessity in view of the growing number 
of cases pertaining to evasion of duty or prohibitions or other alike 
economic offences and the inherent difficulty of the prosecution 
in establishing ingredients of such offences. It held that, once the 
recovery of prohibited goods from the accused person has been duly 
established by the prosecution, the statutory presumption would arise. 
It further held, that the question in such cases would be whether in the 
proved facts and circumstances, could the recourse of the statutory 
presumption be taken. The relevant observations read as under: -
“10. [...] It is no doubt true that in a charge for violation of 
the provisions of Section 135(1)(a) it is required for the 
prosecution to establish that the accused have fraudulently 
evaded or attempted to evade any duty chargeable on
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the goods or have violated the prohibition imposed under 
the Act in respect of the goods. But if the prosecution 
establishes the aforesaid facts then there is no necessity 
of attracting the statutory presumption under Section 138-A 
and without such presumption an accused can be convicted 
under Section 135(1)(a). But the legislature having found 
it difficult to establish the necessary ingredients of such 
evasion of duty or prohibitions and the economic offences 
having grown in proportion beyond the control, came 
forward with the presumption available under Section 138-A 
of the Act. The main object of Section 138 A is to raise a 
presumption as to the culpable mental state on the part 
of the accused when he is prosecuted in a court of law. 
In other words, if a recovery is made from the accused 
of any prohibited goods within the notified area then the 
statutory presumption would arise that he was knowingly 
concerned in the fraudulent evasion or attempted evasion of 
any duty chargeable on the goods in question. In the case 
of Bhanabhai Khalpabhai v. Collector of Customs [1994 
Supp (2) SCC 143 : 1994 SCC (Cri) 882] this Court has 
held that in view of Section 138-A a presumption has to 
be drawn in respect of the existence of the alleged mental 
state. An option has been given to the accused to prove 
by way of defence the fact, that he did not have any such 
mental state with respect to the act charged which
is an 
offence. The question, therefore, arises as to whether in 
the proved facts and circumstances the courts below were 
justified in taking recourse to the statutory presumption 
under Section 138-A of the Act. [...]
(Emphasis supplied)
161.	In State of Punjab v. Baldev Singh reported in (1999) 6 SCC 172 
a Constitution Bench of this Court held that a presumption is an 
inference of fact drawn from the facts which are known as proved 
and as such the statutory presumption under Section 54 of NPDS Act 
that an accused has committed an offence under the Act will only get 
attracted once the prosecution has established that the accused was 
found to be in possession of the contraband in a search conducted 
in accordance with the procedure laid down in the Act. The relevant 
observations read as under: -
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“54. Thus, even if it be assumed for the sake of argument 
that all the material seized during an illegal search may 
be admissible as relevant evidence in other proceedings, 
the illicit drug or psychotropic substance seized in an 
illegal search cannot by itself be used as proof of unlawful 
conscious possession of the contraband by the accused. 
An illegal search cannot also entitle the prosecution to 
raise a presumption under Section 54 of the Act because 
presumption is an inference of fact drawn from the facts 
which are known as proved. A presumption under Section 
54 of the Act can only be raised after the prosecution has 
established that the accused was found to be in possession 
of the contraband in a search conducted in accordance 
with the mandate of Section 50.”
(Emphasis supplied)
162.	In Seema Silk Sarees v. Directorate of Enforcement reported in 
(2008) 5 SCC 580, although the provision involved therein is not 
pari materia with Section 30 of the POCSO, yet the observations 
made by this Court are relevant to the issue involved in the case at 
hand. Therein this Court whilst upholding the constitutional validity 
of Section 18 of the Foreign Exchange Regulation Act, 1973 which 
inter-alia provided for a statutory presumption of contravening the 
provisions of the said Act, held that such a statutory presumption 
would stand attracted once certain foundational facts are
established 
by the prosecution. The relevant observation read as under: -
“19. A legal provision does not become unconstitutional 
only because it provides for a reverse burden. The question 
as regards burden of proof is procedural in nature. [...]
20. The presumption raised against the trader is a rebuttable 
one. Reverse burden as also statutory presumptions can be 
raised in several statutes as, for example, the Negotiable 
Instruments Act, Prevention of Corruption Act, TADA, etc. 
Presumption is raised only when certain foundational facts 
are established by the prosecution. The accused in such 
an event would be entitled to show that he has not violated 
the provisions of the Act. [...]
(Emphasis supplied)
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163.	Similarly in Noor Aga v. State of Punjab & Anr. reported in (2008) 
16 SCC 417, the constitutional validity of Section 35 of the NDPS Act 
was challenged which as aforestated provided for the presumption 
of culpable mental state. This Court speaking through Justice S.B. 
Sinha (as he then was) whilst upholding the validity of the aforesaid 
provision observed that although the presumption of innocence being 
a human right cannot be thrown aside, yet the same would still be 
subject to exceptions. The court held that where a statute raises a 
presumption with regard to the culpable mental state on the part of 
the accused and also places the burden of proof on the accused to 
prove the contrary, the said presumption would be constitutionally 
valid and can be raised provided that the foundational facts pertaining 
to the establishing the actus reus of the requisite offence has been 
proved. It further held that despite such statutory presumption, the 
initial burden would always lie upon the prosecution to prove certain 
foundational facts clearly establishing the actus reus in respect of the 
offence that is sought to be punished. It is only after the prosecution 
has proved the foundational facts, that the statutory presumption 
gets attracted, whereafter the burden would shift onto the accused 
to prove otherwise. In the last it also held that the extent of burden 
to prove the foundational facts pertaining to the
actus reus by the 
prosecution would depend upon the seriousness of the offence. The 
relevant observations read as under: -
“35.  A right to be presumed innocent, subject to the 
establishment of certain foundational facts and burden of 
proof, to a certain extent, can be placed on an accused. It 
must be construed having regard to the other international 
conventions and having regard to the fact that it has 
been held to be constitutional. Thus, a statute may be 
constitutional but a prosecution thereunder may not be 
held to be one. Indisputably, civil liberties and rights of 
citizens must be upheld.
xxx xxx xxx
51. The Act specifically provides for the exceptions. It is 
a trite law that presumption of innocence being a human 
right cannot be thrown aside, but it has to be applied 
subject to exceptions.
xxx xxx xxx
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56. The provisions of the Act and the punishment prescribed 
therein being indisputably stringent flowing from elements 
such as a heightened standard for bail, absence of any 
provision for remissions, specific provisions for grant of 
minimum sentence, enabling provisions granting power to 
the court to impose fine of more than maximum punishment 
of Rs 2,00,000 as also the presumption of guilt emerging 
from possession of narcotic drugs and psychotropic 
substances, the extent of burden to prove the foundational 
facts on the prosecution i.e. “proof beyond all reasonable 
doubt” would be more onerous. A heightened scrutiny 
test would be necessary to be invoked. It is so because 
whereas, on the one hand, the court must strive towards 
giving effect to the parliamentary object and intent in the 
light of the international conventions, but, on the other, it 
is also necessary to uphold the individual human rights 
and dignity as provided for under the UN Declaration of 
Human Rights by insisting upon scrupulous compliance 
with the provisions of the Act for the purpose of upholding 
the democratic values. It is necessary for giving effect to 
the concept of “wider civilisation”. The court must always 
remind itself that it is a well-settled principle of criminal 
jurisprudence that more serious the offence, the stricter is 
the degree of proof. A higher degree of assurance, thus, 
would be
necessary to convict an accused. [...]
xxx xxx xxx
58.  Sections 35 and 54 of the Act, no doubt, raise 
presumptions with regard to the culpable mental state on 
the part of the accused as also place the burden of proof 
in this behalf on the accused; but a bare perusal of the 
said provision would clearly show that presumption would 
operate in the trial of the accused only in the event the 
circumstances contained therein are fully satisfied. An 
initial burden exists upon the prosecution and only when 
it stands satisfied, would the legal burden shift. Even then, 
the standard of proof required for the accused to prove 
his innocence is not as high as that of the prosecution. 
Whereas the standard of proof required to prove the guilt of 
the accused on the prosecution is “beyond all reasonable
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doubt” but it is “preponderance of probability” on the 
accused. If the prosecution fails to prove the foundational 
facts so as to attract the rigours of Section 35 of the Act, 
the actus reus which is possession of contraband by the 
accused cannot be said to have been established.
(Emphasis supplied)
164.	In Bhola Singh v. State of Punjab reported in (2011) 11 SCC 653 
this Court while placing reliance on the decision in Noor Aga (supra) 
reiterated that the statutory presumption envisaged in Section 35 
of the NDPS Act will only come into play after the prosecution had 
discharged its initial burden to prove certain foundational facts. 
It observed that the applicability of such statutory presumption is 
dependent upon the facts as spelt out by the prosecution, after which 
the burden would shift onto the accused to establish otherwise. 
It held that in the absence of any foundational facts pertaining to 
the alleged offence, no presumption can be drawn. The relevant 
observations read as under: -
“10. While dealing with the question of possession in terms 
of Section 54 of the Act and the presumption raised under 
Section 35, this Court in Noor Aga v. State of Punjab while 
upholding the constitutional validity of Section 35 observed 
that as this section imposed a heavy reverse burden on 
an accused, the condition for the applicability of this and 
other related sections would have to be spelt out on facts 
and it was
only after the prosecution had discharged the 
initial burden to prove the foundational facts that Section 
35 would come into play.
11. Applying the facts of the present case to the cited 
one, it is apparent that the initial burden to prove that 
the appellant had the knowledge that the vehicle he 
owned was being used for transporting narcotics still 
lay on the prosecution, as would be clear from the word 
“knowingly”, and it was only after the evidence proved 
beyond reasonable doubt that he had the knowledge 
would the presumption under Section 35 arise. Section 
35 also presupposes that the culpable mental state of an 
accused has to be proved as a fact beyond reasonable 
doubt and not merely when its existence is established by
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a preponderance of probabilities. We are of the opinion that 
in the absence of any evidence with regard to the mental 
state of the appellant no presumption under Section 35 
can be drawn. [...]”
(Emphasis supplied)
165.	In Baldev Singh v. State of Haryana reported in (2015) 7 SCC 
554 this Court held that the presumption of culpable mental state 
contained in Section 35 of the NDPS Act would come into play once 
the possession of the contraband in question by the accused has 
been established by the prosecution, whereafter, the onus would be 
on the accused to rebut the said presumption. It further held, that 
such presumption may be rebutted by the accused by either raising 
doubts in the prosecution’s case and the material relied upon it for 
establishing the possession or that it may adduce any other evidence 
to rebut the same. In the last, it also held that where the prosecution 
is unable to establish the possession or where the court has doubts 
over the prosecution’s case, the said presumption would automatically 
be discharged. The relevant observations read as under: -
“12. [...] Once the physical possession of the contraband 
by the accused has been proved, Section 35 of the NDPS 
Act comes into play and the burden shifts on the appellant-
accused to prove that he was not in conscious possession 
of the contraband. [...]The Explanation to sub-section (1) 
of Section 35 expanding
the meaning of “culpable mental 
state” provides that “culpable mental state” includes 
intention, knowledge of a fact and believing or reason 
to believe a fact. Sub-section (2) of Section 35 provides 
that for the purpose of Section 35, a fact is said to be 
proved only when the court believes it to exist beyond a 
reasonable doubt and not merely when its existence is 
established by a preponderance of the probability. Once 
the possession of the contraband by the accused has been 
established, it is for the accused to discharge the onus of 
proof that he was not in conscious possession. Burden of 
proof cast on the accused under Section 35 of the NDPS 
Act can be discharged through different modes. One of 
such modes is that the accused can rely on the materials 
available in the prosecution case raising doubts about the
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prosecution case. The accused may also adduce other 
evidence when he is called upon to enter on his defence. 
If the circumstances appearing in the prosecution case 
give reasonable assurance to the court that the accused 
could not have had the knowledge of the required intention, 
the burden cast on him under Section 35 of the NDPS 
Act would stand discharged even if the accused had not 
adduced any other evidence of his own when he is called 
upon to enter on his defence.”
(Emphasis supplied)
166.	What can be discerned from the above is that the idea behind 
providing for a statutory presumption of culpable mental state is 
in view of the exigency posed by the difficulty that often exists in 
establishing certain types of offences such as inchoate offences 
due to its clandestine nature. Such presumptions are in essence 
an exception to the cardinal principle of criminal jurisprudence that 
the act does not make a person guilty unless the mind is also guilty. 
167.	Traditionally, it is the prosecution who bears the burden of proving 
every element in a particular offence, including the accused’s mental 
state, beyond a reasonable doubt. In order to establish the commission 
of any offence, the prosecution must stand on its own legs i.e., the 
onus lies on the prosecution to prove beyond reasonable doubt not 
just the wrongful act but also the wrongful intention of the person in 
doing such an act. However, in certain
offences particularly economic 
offences or inchoate offences like possession of child pornography 
where apart from the actus reus there exists no other material to depict 
or demonstrate the mens rea, it is too difficult for the prosecution to 
look into the mind of the accused to cull out with certainty what his 
intention was or could have been for doing a particular act let alone 
cogently establish the same beyond a reasonable doubt. Due to the 
elusive and concealed nature of such offences there is often little 
to no direct evidence available to establish what was in fact in the 
mind of the accused at the time when the particular act in question 
occurred or that the said act was done only with a particular intention. 
168.	It is in such scenarios, the legislature consciously provides for a 
statutory presumption of a culpable mental state to overcome the 
aforesaid hurdles and assist the prosecution to prove its case. This 
presumption of a culpable mental state is neither a conclusive proof
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of guilt for any particular offence nor does it completely replace 
or absolve the prosecution of its burden of proof and should not 
be understood as such, but rather it is a potent tool to assist the 
prosecution in discharging its initial burden and establishing its 
case. It seeks to bridge the evidentiary gap that exists between the 
actus reus and the mens rea in complex clandestine offences which 
otherwise cannot be proved through conventional means. 
169.	One good reason for providing such statutory presumptions in 
different legislations is owed to the fact that at times having regard 
to the peculiar case the prosecution may find it extremely difficult to 
know the mind of the accused so as to establish his intention and 
mental state. In contrast, the accused may not have to face the same 
degree of difficulty because he is fully aware of his mental state and 
can explain his intentions on the basis of his conduct or actions.
170.	However, since the courts were in seisin of the harshness of such 
presumptions and the inherent danger they pose – particularly in 
blurring the line between the presumption of a culpable mental 
state and the presumption of the guilt itself and thereby undoing or 
compromising the fairness of such criminal proceeding, this Court 
for the first time in Baldev Singh (supra) sowed the seeds for a test 
to ascertain as to when such presumption can be
safely attracted 
which was later more fully evolved in Noor Aga (supra) wherein a 
brightline test was laid down in the form of the ‘Rule or Principle of 
Foundational Facts’. 
171.	This ‘Rule or Principle of Foundational Facts’ simpliciter lays down that 
before the statutory presumption of culpable mental state could be 
validly invoked, the prosecution must first establish certain foundational 
facts. These foundational facts typically involve or correspond to 
proving those facts or elements that cogently establish the actus reus 
required for the offence alleged by the prosecution. It is only after 
such foundational facts have been proved beyond a reasonable doubt 
that the prosecution may take recourse of the statutory presumption 
provided by the legislature. The rationale behind the same is two-fold. 
First, in the absence of any actus reus there is no possible way to 
ascertain the corresponding mens rea that is required to be established. 
This is because it is the actus reus which demarcates or delineates 
the mens rea which is to be looked for and established. Without an 
actus reus of any form there arises no question of establishing and
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consequently presuming the mens rea, in view of the fundamental 
principle of criminal jurisprudence, that no one should be punished for 
their thoughts or intention alone unless accompanied by some form 
of act. Secondly, and more importantly it ensures that the statutory 
presumption does not overreach or take the place of proof of guilt 
under the guise of ‘presumption of culpable mental state’. 
172.	It would be too much to shift the entire onus onto the accused and to 
then ask him to prove a negative fact. Thus, any statutory presumption 
would operate only after the prosecution first lays the foundational 
facts necessary for the offences that have been alleged beyond a 
reasonable doubt. This is because a negative cannot be proved in 
the initial threshold, in order to prove a contrary fact, the fact whose 
opposite is sought to be established must be proposed first. Thus, 
in law it is trite that the initial burden always lies on the prosecution. 
This why, the establishment of foundational facts by the prosecution 
is a prerequisite for triggering the statutory presumption for shifting 
the onus on the accused to prove the contrary. It is a delicate 
balance struck between the practical need for such presumption in 
law and the cardinal principles of criminal jurisprudence to ensure 
that the presumption does not cross or transgress the fine line 
that demarcates presumption of ‘culpable mental state’ from the
‘presumption of guilt’ itself.
173.	Since a negative cannot be proved, an accused cannot be asked 
to disprove his guilt even before the foundational allegations with 
supporting material thereof are placed and duly established by the 
prosecution before the court. Unless the prosecution is able to prove 
foundational facts in the context of the allegations made against the 
accused under any specific provision of the POCSO as the case 
may be, the statutory presumption of culpable mental state under 
Section 30 of the POCSO will not come into the picture.
174.	Even if the prosecution establishes such foundational facts and the 
presumption is raised against the accused, he can rebut the same 
either by discrediting prosecution’s case as improbable or absurd or 
the accused could lead evidence to prove his defence, in order to 
rebut the presumption, however the said presumption under Section 
30 of the POCSO will be said to have been rebutted only where 
the accused by way of his defence establishes a fact contrary to 
the presumption and proves the same beyond a reasonable doubt.
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b.	
Foundational Facts required under Section 15 of the POCSO.
175.	Now coming to Section 15 of the POCSO, as discussed earlier, the 
foundational facts ordinarily pertain to the actus reus required under a 
particular offence. However, given the fact that Section 15 penalizes 
three distinct and varying degrees of intention and having regard to 
the mutually exclusive nature of each of the three offences provided 
thereunder, the mere storage or possession of a child pornographic 
material cannot become the foundational facts or basis for attracting 
all three of the said offences all the same.
176.	As discussed by us in the foregoing parts of this judgment, while on a 
plain reading Section 15 sub-section(s) (1), (2) and (3) it might appear 
that all require the same actus reus i.e., the storage or possession 
of the child pornographic material, however, such an interpretation 
is flawed as a closer examination of each of the sub-section would 
reveal that there exists a very fine but pertinent distinction in the 
actus reus which is required to constitute an offence under Section 
15 sub-section(s) (1), (2) or (3) of the POCSO.
177.	Thus, for the purpose of Section 15 sub-section (1), the necessary 
foundational facts which the prosecution would first have to establish 
before it can be allowed to validly raise the statutory presumption of 
culpable mental state would simpliciter be the
storage or possession 
of any child pornographic material and that the person accused had 
failed to delete, destroy or report the same. Once, the aforesaid is 
clearly established by the prosecution, a presumption would be raised 
in terms of Section 30 of the POCSO that the person accused had 
the knowledge of the child pornographic material that was found to 
be stored or possessed by him and that he had the intent to share 
or transmit the same due to which he failed to delete, destroy or 
report it. 
178.	Whereas when it comes to Section 15 sub-section (2), since the 
actus reus required to constitute an offence thereunder requires 
the storage or possession of any pornographic material involving 
a child along with any additional mater to show either the actual 
transmission, propagation, display or distribution of any such material 
or the facilitation of any of the abovementioned acts. Thus, in order 
to invoke the statutory presumption of culpable mental state as 
contained in Section 30 of the POCSO, the prosecution would be 
required to first establish not just the storage or possession of any
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child pornographic material, but also any other material to indicate 
any actual transmission, propagation, display or distribution of any 
such material or any form of an overt act such as preparation or 
setup done for the facilitation of the transmission, propagation, 
display or distribution of such material, whereafter, the statutory 
presumption would stand attracted, and it shall be presumed by 
the courts that the said act was done with the intent of transmitting, 
displaying, propagating or distributing such material and that the 
said act(s) had not been done for the purpose of either reporting 
or for use as evidence. We clarify that, though wherever any actual 
transmission, propagation, display or distribution of such material 
takes place, the offence under Section 15 sub-section (2) would be 
constituted, thereby seemingly not requiring any further to be proved. 
However, due to the two exceptions carved out in sub-section (2) 
namely that transmission, propagation, display or distribution of child 
pornographic material when done for either reporting the same or 
for use as evidence, the statutory presumption in such scenario will 
still continue to serve a useful purpose by aiding the prosecution 
in reinforcing that any of the abovementioned acts had not been 
done with the intention of either reporting the same or for using it 
as evidence, unless the contrary is proven. 
179.	Lastly, for the purpose of
Section 15 sub-section (3) of the POCSO, 
the actus reus required therein is the storage or possession of any 
child pornographic material and any other material to indicate that 
such storage or possession was done in lieu or in expectation of some 
form of gain or benefit. Thus, where the prosecution established the 
storage or possession of such material and further shows anything 
else that might indicate that the same had been done for some 
form of gain or benefit or the expectation of some gain or benefit, 
the foundational facts would be said to have been proved, and the 
statutory presumption envisaged under Section 30 of the POCSO 
can be validly raised. Then the onus would lie on the accused to 
prove that the storage or possession of such material had not been 
done with intention of any commercial purpose. 
c.	
Whether the Presumption under Section 30 of the POCSO 
can be resorted to in a Quashing Proceeding?
180.	The last aspect which remains to be examined is whether the said 
statutory presumption of culpable mental state provided in Section
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30 of the POCSO can be resorted to in a quashing proceeding by 
the High Courts in exercise of their inherent powers under Section 
482 of the Cr.P.C. (corresponding Section 530 of the Bhartiya Nagrik 
Suraksha Sanhita, 2023, for short, the “BNSS”). In other words, at 
what stage can the aforesaid said statutory presumption be invoked 
at. Before proceeding with the analysis of the said aspect, it would 
be appropriate to refer to a few decisions of this Court on this issue.
181.	In State of M.P. v. Harsh Gupta reported in (1998) 8 SCC 630, this 
Court held that the statutory presumption contained in Section 69 
of the Indian Forest Act, 1927 could not have been ignored by the 
High Court in deciding the quashing petition under Section 482 of 
the Cr.P.C. The relevant observations read as under: -
“3. It is rather surprising that at a stage when the only 
question to be considered was whether the complaint and 
its accompaniments disclosed any or all of the offences 
alleged against the respondent, the learned Judge not 
only went into a detailed discussion about his defence but 
recorded a conclusive finding that he was not guilty of the 
offences alleged against him. More surprising is that the 
learned Judge ignored the provisions of Section 69 of the 
Act which expressly raises a statutory presumption against 
a person arraigned that the forest produce recovered from 
him was a property
of the Government, until the contrary 
is proved; and needless to say, the question of proof of 
the contrary can be answered after evidence is led.
4. For the foregoing discussion, we allow this appeal, set 
aside the impugned judgment and direct the Magistrate 
to proceed with the case in accordance with law, without 
in any way being influenced by any of the observations 
made by the High Court in the impugned order.”
(Emphasis supplied)
182.	This Court in Prakash Nath Khanna v. CIT reported in (2004) 9 
SCC 686 examined the scope of Section 278E of the Act, 1961. 
It held that where there is a statutory presumption as regards the 
existence of a culpable mental state on the part of the accused in 
respect of any offence alleged, any defence in respect of the absence 
of such mental state can only be pleaded in the trial. It further held
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that in such scenario, it will not be open for the High Court to delve 
into the aspect of the absence of such mental state in a quashing 
proceeding. The relevant observations read as under: -
“23. There is a statutory presumption prescribed in Section 
278-E. The court has to presume the existence of culpable 
mental state, and absence of such mental state can be 
pleaded by an accused as a defence in respect to the act 
charged as an offence in the prosecution. Therefore, the 
factual aspects highlighted by the appellants were rightly 
not dealt with by the High Court. This is a matter for trial. 
It is certainly open to the appellants to plead absence of 
culpable mental state when the matter is taken up for trial.”
(Emphasis supplied)
183.	In another decision of this Court in R. Kalyani v. Janak C. Mehta 
& Ors. reported in (2009) 1 SCC 516 although the issue therein did 
not pertain to the applicability of any statutory presumption, yet the 
observations made therein are significant. This Court held that the 
High Court in a quashing petition in exercise of its inherent jurisdiction 
cannot go into the aspect of either the existence or absence of any 
mens rea or actus reus for a particular offence to pass an order in 
favour of the accused. The relevant observations read as under: -
“15.  Propositions of law which emerge from the said 
decisions are:
(1) The High Court ordinarily would not exercise its inherent
jurisdiction to quash a criminal proceeding and, in particular, 
a first information report unless the allegations contained 
therein, even if given face value and taken to be correct 
in their entirety, disclosed no cognizable offence.
(2) For the said purpose the Court, save and except in 
very exceptional circumstances, would not look to any 
document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If 
the allegations made in the FIR disclose commission of 
an offence, the Court shall not go beyond the same and 
pass an order in favour of the accused to hold absence 
of any mens rea or actus reus.
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(4) If the allegation discloses a civil dispute, the same 
by itself may not be a ground to hold that the criminal 
proceedings should not be allowed to continue.”
(Emphasis supplied)
184.	In a recent decision of this Court in Rathis Babu Unnikrishnan v. 
The State (Govt. of NCT of Delhi) & Anr. reported in 2022 INSC 
480 it was held that when there is a statutory presumption, it would 
not be judicious of the quashing court to carry out a detailed enquiry 
on the facts alleged before first permitting the trial court to evaluate 
the evidence. It further observed that where a accused moves the 
court for quashing even before the commencement of trial, the High 
Courts in such cases should be slow and circumspect in prematurely 
extinguishing by discarding the legal presumption all together. The 
relevant observation reads as under: - 
“11. The legal presumption of the cheque having been 
issued in the discharge of liability must also receive due 
weightage. In a situation where the accused moves Court 
for quashing even before trial has commenced, the Court’s 
approach should be careful enough to not to prematurely 
extinguish the case by disregarding the legal presumption 
which supports the complaint.
xxx xxx xxx
13. Bearing in mind the principles for exercise of jurisdiction 
in a proceeding for quashing, let us now turn to the materials 
in this case. On careful reading of the complaint
and the 
order passed by the Magistrate, what is discernible is that 
a possible view is taken that the cheques drawn were, in 
discharge of a debt for purchase of shares. In any case, 
when there is legal presumption, it would not be judicious 
for the quashing Court to carry out a detailed enquiry on 
the facts alleged, without first permitting the trial Court to 
evaluate the evidence of the parties. The quashing Court 
should not take upon itself, the burden of separating the 
wheat from the chaff where facts are contested. To say 
it differently, the quashing proceedings must not become 
an expedition into the merits of factual dispute, so as to 
conclusively vindicate either the complainant or the defence.
xxx xxx xxx
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16. The proposition of law as set out above makes it 
abundantly clear that the Court should be slow to grant 
the relief of quashing a complaint at a pre-trial stage, 
when the factual controversy is in the realm of possibility 
particularly because of the legal presumption, as in this 
matter. What is also of note is that the factual defence 
without having to adduce any evidence need to be of an 
unimpeachable quality, so as to altogether disprove the 
allegations made in the complaint.
17. The consequences of scuttling the criminal process at 
a pre-trial stage can be grave and irreparable. Quashing 
proceedings at preliminary stages will result in finality 
without the parties having had an opportunity to adduce 
evidence and the consequence then is that the proper 
forum i.e., the trial Court is ousted from weighing the 
material evidence. If this is allowed, the accused may be 
given an un-merited advantage in the criminal process. 
Also because of the legal presumption, when the cheque 
and the signature are not disputed by the appellant, the 
balance of convenience at this stage is in favour of the 
complainant/prosecution, as the accused will have due 
opportunity to adduce defence evidence during the trial, 
to rebut the presumption.”
(Emphasis supplied)
185.	From the above exposition of law, it is clear that there is no bar for 
the High Court to invoke the statutory presumption at the stage of 
deciding the
quashing petition in respect to any offence to which such 
a presumption is applicable. Rather, any failure to give due weightage 
to the same, may result in dire consequences such as premature 
quashing of the criminal proceeding or allowing the accused to 
completely bypass the statutory presumption which otherwise would 
have been applicable in the trial. In light of our earlier discussion 
and without again referring to a plethora of decisions in this regard, 
it is clear how the statutory presumption plays a vital role when it 
comes to offences such as those under the POCSO.
186.	This Court in Attorney General (supra) specifically held that 
considering the objects of POCSO, its provisions, more particularly, 
pertaining to sexual assault etc should be construed viz-a-viz the other
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provisions of the Act more meaningful and effective. Any selective 
reference to a particular provision in complete ignorance of the 
other provision would result in a mutilation of the entire scheme and 
purport of the legislation and thereby defeat the purpose with which 
it was enacted. The High Courts as a matter of choice should not 
shy away from referring to the statutory presumption that has been 
incorporated in the Act, whilst deciding a quashing petition. The High 
Courts must not deal with a particular offence under any enactment 
devoid or in disregard of the rest of the statutory framework, it must 
recognize and refer to the legislation in toto.
187.	Otherwise, it would give an undue advantage to an accused by 
allowing him to mischievously prefer a quashing petition before the 
trial commences and completely bypass the statutory presumption 
provided by the legislature and walk right away from the criminal 
proceedings, thereby setting the entire legislation at naught. It is 
imperative for the courts to discourage any such attempts on part of 
the accused to short circuit the statutory provisions and procedure 
laid in a particular Act and evade trial entirely. In such situations, the 
statutory presumption becomes all the more important to effectively 
ensure that criminal process is not manipulated by any devious 
accused. 
188.	As has been held in Prakash Nath Khanna
(supra) and Rathis 
Babu Unnikrishnan (supra), any defence of the accused for the 
purpose of rebutting the said statutory presumption should ordinarily 
be left to the trial court to be looked into at-least when it comes to 
quashing petitions. Though, in certain exceptional circumstances, 
the High Court may entertain such defence to quash the criminal 
proceedings where it appears from the facts itself that the allegations 
themselves are completely false and bogus and by no stretch of 
imagination said to be established. But in doing so, the High Court 
must be slow and circumspect & must exercise some restraint. The 
statutory presumption may be ignored only where no foundational 
facts have been established from the material on record. 
189.	Once the foundational facts are prima facie established from the 
materials on record, it would be improper for the High Court in a 
quashing petition to conduct an intricate evidentiary inquiry into the 
facts and ascertain whether the requisite mental elements are present 
or not. All these aspects should be left to be decided by the trial
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court which is the appropriate forum for the evaluation of the same, 
especially where the statutory presumption has been attracted prima 
facie from the material on record.
190.	When the High Court quashes any criminal proceedings without 
considering the legal effect of the statutory presumption, it effectively 
scuttles the process of trial and thereby denies the parties the 
opportunity to adduce appropriate evidence and the right to a fair 
trial. This would not only defeat the very case of the prosecution 
but would also thwart the very object of a particular legislation and 
thereby undermine the public confidence in the criminal justice system.
191.	We are conscious of the fact that in Noor Aga (supra) this Court had 
held that the statutory presumption under Section 35 of the NDPS 
Act would only operate in the trial of the accused. However, a close 
reading of the said decision would reveal that this Court in Noor Aga 
(supra) only went so far as to say that before a statutory presumption 
could be invoked, the foundational facts must have been established 
by the prosecution. We may at the cost of repetition again reproduce 
the relevant observations of Noor Aga (supra) in this regard: -
“58.  Sections 35 and 54 of the Act, no doubt, raise 
presumptions with regard to the culpable mental state on 
the part of the accused as also place the burden of proof 
in this behalf on the accused; but a bare perusal of the
said provision would clearly show that presumption would 
operate in the trial of the accused only in the event the 
circumstances contained therein are fully satisfied. An 
initial burden exists upon the prosecution and only when 
it stands satisfied, would the legal burden shift. Even then, 
the standard of proof required for the accused to prove 
his innocence is not as high as that of the prosecution. 
Whereas the standard of proof required to prove the guilt of 
the accused on the prosecution is “beyond all reasonable 
doubt” but it is “preponderance of probability” on the 
accused. If the prosecution fails to prove the foundational 
facts so as to attract the rigours of Section 35 of the Act, 
the actus reus which is possession of contraband by the 
accused cannot be said to have been established.
(Emphasis supplied)
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192.	What has been conveyed by this Court in so many words in 
the aforesaid paragraph of Noor Aga (supra) is that despite the 
statutory presumption of culpable mental state, the initial burden 
to establish the foundational facts will still lie on the prosecution. 
This Court by no stretch of imagination could be said to have held 
that the statutory presumption of culpable mental state would only 
be applicable in trial. Even otherwise, since the decision of Noor 
Aga (supra) arose from a criminal appeal against conviction, this 
Court by no extent had the occasion to examine the applicability 
of the statutory presumption to proceedings other than the trial and 
appeal thereof. 
193.	We are also in seisin of the fact that Section 30 sub-section (1) 
specifically provides that “the Special Court shall presume the 
existence of such mental state”. Similarly, Section 30 sub-section 
(2) also uses the words “Special Court”. However, this in no manner 
can be construed to hold that it is the Special Court alone which has 
been vested with the power to raise the presumption under Section 
30 of the POCSO. We say so, because: -
(i)	
First, the use of the words “the Special Court shall presume 
the existence of such mental state” in sub-section (1) and other 
mention of Special Courts in the provision is only explanatory 
in nature inasmuch as the legislature has used the said word 
to only
explain how such presumption would ordinarily operate 
in a trial. It by no stretch can be understood as a bar on the 
applicability of such presumption to other proceedings, as the 
said provision does not in any manner delineate or lay down 
the scope of such presumption and rather only elucidates the 
nature of the presumption (i.e., presumption of culpable mental 
state), the manner in which it would operate (i.e., applicable 
to any offence under the POCSO which requires any culpable 
mental state) and the standard of proof required to prove 
anything contrary (i.e., beyond a reasonable doubt). By no 
means it could be said that the legislature by the use of the 
words “Special Court” in Section 30 of the POCSO intended 
to curtail the application of the said statutory provision only in 
trial. Any such interpretation would completely render the other 
penal provisions meaningless, wherever the accused at the 
earlier stages moves for a quashing petition.
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(ii)	 Secondly, the statutory presumption under Section 30 of the 
POCSO operates or gets attracted not by virtue of the court 
before which the matter happens to be at, but by the offence 
itself, for which the legislature specifically provides such 
presumption in the first place. Since, the presumption in essence 
is in respect of mens rea required for any offence under the 
POCSO, this presumption is inextricably linked to the offence 
alone and not the power conferred upon a particular court. 
This is evinced by Section 30 sub-section (1), more particularly 
the expression “In any prosecution for any offence under this 
Act which requires a culpable mental state on the part of the 
accused”. Furthermore, the aforesaid expression is of wide 
import and the words “prosecution for any offence under this Act” 
occurring therein would subsume and include any proceeding 
in respect of an offence under the POCSO would. 
(iii)	 Thirdly, even otherwise, the mere usage of words “Special 
Court” in the said provision can by no extent defeat or override 
the inherent powers that have been vested in the High Court 
by virtue of Section(s) 482 and 530 of the Cr.P.C. and BNSS, 
respectively.
As such, the statutory presumption envisaged under Section 30 of 
the POCSO is applicable and can be invoked in any proceeding 
which involves an offence under the said Act that requires a culpable 
mental state, irrespective of the court where
such proceeding is 
taking place.
194.	It is a settled position of law that a statute is an edict of the legislature, 
the elementary principle of interpreting or construing a statute is 
to gather the mens or sententia legis i.e., the true intention of the 
legislature. It is trite saying that while interpreting a statute, the 
courts should strive to ascertain the intention of the Legislature 
enacting it, and it is the duty of the Courts to accept an interpretation 
or construction which promotes the object of the legislation and 
prevents its possible abuse. Thus, we are of the considered view 
that any other interpretation of the provisions of the POCSO and of 
the various issues that have been discussed by us in the foregoing 
paragraphs, would frustrate the very avowed and salutary object of 
the POCSO and its provisions.
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iv.	
Whether the case at hand was one fit for the High Court 
to quash?
195.	The undisputed facts are that, during investigation two videos 
depicting children involved in a sexual activity were recovered from 
the mobile phone of the respondent no. 1. As per the FSL Report, 
the aforesaid two videos were last modified in the memory of the 
accused person’s phone on 05.09.2016 and 14.06.2019 respectively. 
The respondent no. 1 himself admitted before the High Court as 
recorded in the impugned order that he was addicted to watching 
pornography. In what circumstances such statement come to be 
recorded by the High court is a mystery. Although, the FIR dated 
29.01.2020 alleged offences under Section(s) 14(1) of the POCSO 
and 67B of the IT Act, yet in the chargesheet, the aforesaid offence 
under Section 14(1) of the POCSO was substituted and instead 
offence under Section 15(1) of the POCSO was alleged to have 
been committed.
196.	The High Court in its Impugned Order whilst quashing the criminal 
proceedings arising out of the aforesaid chargesheet dated 
19.09.2023 completely failed to advert to the actual charge that was 
alleged therein more particularly Section 15 sub-section (1) of the 
POCSO. Instead, the High Court appears to have just relied upon 
the FIR and premised its findings on Section 14 of the POCSO, 
even though the said offence had been dropped in the chargesheet. 
Thus,
there appears to be a serious lapse on part of the High Court 
in failing to advert to Section 15 of the POCSO especially when the 
chargesheet had already been filed at the time of passing of the 
Impugned Order. It is no longer res-integra that once the investigation 
is over and chargesheet is filed, the FIR pales into insignificance. The 
court, thereafter, owes a duty to look into all the materials collected 
by the investigating agency in the form of chargesheet.
197.	It is no longer res-integra, that the High Court in exercise of its inherent 
powers under Section(s) 482 of the Cr.P.C. or 530 of the BNSS as 
the case must not conduct a mini trial or go into the truthfulness 
of the allegations while dealing with a quashing petition. The High 
Court may be justified in quashing the chargesheet if it appears to it 
that continuance of criminal proceedings would be nothing but gross 
abuse of the process of law.
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198.	In R.P. Kapur v. State of Punjab reported in AIR 1960 SC 866, this 
Court summarised some categories of cases where inherent power 
can, and should be exercised to quash the proceedings: -
(i)	
where it manifestly appears that there is a legal bar 
against the institution or continuance e.g. want of 
sanction; 
(ii)	
where the allegations in the first information report 
or complaint taken at its face value and accepted in 
their entirety do not constitute the offence alleged; 
(iii)	 where the allegations constitute an offence, but there 
is no legal evidence adduced or the evidence adduced 
clearly or manifestly fails to prove the charge.
199.	This Court in State of Haryana v. Bhajan Lal reported in 1992 AIR 
SC 604 held that the power of quashing must be used very sparingly 
and with circumspection. It must only be used in the rarest of the 
rare cases. While laying down the principles relating to quashing of 
criminal proceedings, this Court held that while examining a complaint 
or FIR, the quashing of which is sought, the Court cannot embark 
upon an enquiry as to the reliability or genuineness or otherwise of 
the allegations made in the FIR or in the complaint. The relevant 
observations read as under: -
“102. In the backdrop of the interpretation of the various 
relevant provisions of the Code under Chapter XIV and of 
the principles of law enunciated by this Court in a series 
of decisions relating to the
exercise of the extraordinary 
power under Article 226 or the inherent powers under 
Section 482 of the Code which we have extracted and 
reproduced above, we give the following categories of 
cases by way of illustration wherein such power could be 
exercised either to prevent abuse of the process of any 
court or otherwise to secure the ends of justice, though it 
may not be possible to lay down any precise, clearly defined 
and sufficiently channelised and inflexible guidelines or 
rigid formulae and to give an exhaustive list of myriad 
kinds of cases wherein such power should be exercised. 
(1) Where the allegations made in the first information 
report or the complaint, even if they are taken at their
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face value and accepted in their entirety do not prima 
facie constitute any offence or make out a case against 
the accused. 
(2) Where the allegations in the first information report 
and other materials, if any, accompanying the FIR do not 
disclose a cognizable offence, justifying an investigation 
by police officers under Section 156(1) of the Code except 
under an order of a Magistrate within the purview of Section 
155(2) of the Code. 
(3) Where the uncontroverted allegations made in the FIR 
or complaint and the evidence collected in support of the 
same do not disclose the commission of any offence and 
make out a case against the accused. 
(4) Where, the allegations in the FIR do not constitute a 
cognizable offence but constitute only a non-cognizable 
offence, no investigation is permitted by a police officer 
without an order of a Magistrate as contemplated under 
Section 155(2) of the Code. 
(5) Where the allegations made in the FIR or complaint 
are so absurd and inherently improbable on the basis of 
which no prudent person can ever reach a just conclusion 
that there is sufficient ground for proceeding against the 
accused. 
(6) Where there is an express legal bar engrafted in any 
of the provisions of the Code or the concerned Act (under 
which a criminal proceeding is instituted) to the institution 
and continuance of the proceedings and/or where there 
is a specific
provision in the Code or the concerned Act, 
providing efficacious redress for the grievance of the 
aggrieved party. 
(7) Where a criminal proceeding is manifestly attended 
with mala fide and/or where the proceeding is maliciously 
instituted with an ulterior motive for wreaking vengeance 
on the accused and with a view to spite him due to private 
and personal grudge.”
200.	In S.M. Datta v. State of Gujarat reported in (2001) 7 SCC 659 
this Court again cautioned that criminal proceedings ought not to be
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scuttled at the initial stage. Quashing of a complaint or FIR should 
rather be an exception and a rarity than an ordinary rule. This Court 
also held that if a perusal of the first information report leads to 
disclosure of an offence even broadly, law courts are barred from 
usurping the jurisdiction of the police, since the two organs of the 
State operate in two specific spheres of activities and one ought not 
to tread over the other sphere.
201.	In view of the aforesaid consistent line of decisions of this Court, the 
High Court in our considered view could be said to have committed 
an egregious error by quashing the criminal proceedings without even 
properly perusing the chargesheet and the other material on record.
202.	The High Court should neither be picky nor remain oblivious in 
deciding which provision to advert to while considering a quashing 
petition. When dealing with a quashing petition, there lies a duty 
on the High Court to properly apply its mind to all the material on 
record. The least which is expected of High Court in such situation 
is to carefully go through the allegations contained in the FIR and 
the charge-sheet, and to ascertain (i) whether, the offences alleged 
therein could be said to have been prima facie established from the 
material on record? or (ii) whether, apart from the offences alleged in 
the FIR or the charge-sheet, there is possibility of any other offence 
prima facie
being made out? The High Court in exercise of its inherent 
powers, may be justified in quashing the criminal proceedings only 
where, neither any offence as alleged in the FIR or charge-sheet 
is disclosed nor any other offence is prima facie made out, and the 
continuance of the proceedings may be found to amount to abuse 
of process of law.
203.	In the case at hand, there is no dispute by either side that, the two 
videos infact depicted children in a sexual activity. It is also not the 
case of the respondent no. 1 that the said videos were not recovered 
from his mobile phone. In such circumstances, the child pornographic 
material that was recovered from the personal mobile phone of the 
accused which was regularly in use by him, prima facie establishes 
the storage or possession of child pornographic material at his hand. 
Further, since the aforesaid child pornographic material was found 
to have been stored in the said personal mobile phone since 2016 
and 2019, prima facie it could be said there was a failure on the part 
of the respondent no.1 to delete, destroy or report such material.
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204.	It was also sought to be contended on behalf of the respondent 
no. 1 that the 2019 Amendment Act whereby and whereunder, the 
three distinct offences pertaining to the storage or possession of 
child pornography were made punishable under Section 15 of the 
POCSO came into force with effect from 16.09.2019. Whereas the 
both the videos in question had been allegedly stored in the device 
before the 2019 Amendment Act came into force. Since, the present 
Section 15(1) of the POCSO was not in operation at the relevant 
time when the videos were allegedly stored, the respondent no. 1 
cannot be punished under the said provision which did not exist at 
the time of storage of such video.
205.	However, we are not impressed with the aforesaid submission. What 
is sought to be punished under Section 15 is not the time when such 
material was stored or came to be possessed but rather the storage 
or possession itself, which may be continuous, wherein the relevant 
point of time of such storage or possession for constituting any offence 
under the POCSO more particularly Section 15 would be reckoned 
from the date of registration of the FIR. In the present case, it is not 
in dispute that when 2019 Amendment came into force and later when 
the FIR was registered, the aforesaid two videos were still stored in 
the mobile phone of the respondent no. 1. In such circumstances, 
Section 15 sub-section
(1) could be said to be prima facie attracted.
a.	
Plea of Ignorance of Law: Ignorance of Law viz-a-viz 
Incognizance of Law.
206.	At this juncture, we may address yet another submission that was 
canvassed on behalf of the accused as regards the plea of bona-
fide ignorance of law. It was contended that the accused was not 
aware of the fact that storing of child-pornography was a punishable 
offence under Section 15 of POCSO and that the child pornographic 
material which was found stored in his mobile phone was due to his 
unawareness of the law accompanied by a bona-fide belief that such 
storage was not an offence, and as such he ought not to be held 
liable. In this regard, reliance has been placed on two decisions of 
this Court in Chandi Kumar Das Karmarkar (supra) and Motilal 
Padampat Sugar Mills (supra).
207.	In Chandi Kumar Das Karmarkar (supra), the facts of the case are 
as follows; there was a civil dispute inter-alia between the accused 
persons therein and the complainant as regards the ownership of a
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water tank where fishes had been reared. The complainant therein 
had acquired possession of the said tank on the strength of an ex-
parte decree against the accused persons. Eventually, that ex-parte 
decree was set-aside, however the final decision on the title was 
still pending. Although no application for restitution was preferred yet 
the accused, due to a bona-fide ignorance of law, was under the 
impression that he had regained possession of the said tank and 
again started catching fishes in the tank. The complainant lodged an 
FIR against the accused persons inter-alia alleging theft of fish from 
his tank. The accused therein in his defence pleaded ignorance of 
law stating that he was unaware that, the said tank and the fishes in 
that expanse of water under the law continued to be deemed to be 
the property of the complainant in the absence of any restitution or 
that the possession of the water reservoir had not reverted back to 
him. He further pleaded that; he was under a bona-fide belief that he 
had a right of possession of the said tank by virtue of the ex-parte 
decree being set-aside. This Court held that any claim of right due 
to a bona-fide ignorance of law, if reasonable will not constitute an 
act of theft. It further explained that a claim to such right means one 
which is not a false pretence but a fair pretence, and not a complete 
absence of claim but a bona-fide claim, however weak. The
relevant 
observations read as under: -
“6. The offence of theft consists in the dishonest taking of 
any moveable property out of the possession of another 
with his consent. Dishonest intention exists when the 
person so taking the property intends to cause wrongful 
gain to himself or wrongful loss to the other. This intention 
is known as animus furandi and without it the offence of 
theft is not complete. Fish in their free state are regarded 
as ferae naturae but they are said to be in the possession 
of a person who has possession of any expanse of water 
such as a tank, where they live but from where they 
cannot escape. Fishes are also regarded as being in the 
possession of a person who owns an exclusive right to 
catch them in a particular spot known as a fishery but only 
within that spot. There can thus be theft of fish from a tank 
which belongs to another and is in his possession, if the 
offender catches them without the consent of the owner 
and without any bona fide claim of right.
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7. Now the ordinary rule that mens rea may exist even with an 
honest ignorance of law is sometimes not sufficient for theft. 
A claim of right in good faith, if reasonable saves the act of 
taking from being theft and where such a plea is raised by 
the accused it is mainly a question of fact whether such belief 
exists or not. This court in Criminal Appeal No. 31 of 1961 
(Suvvari Sanyasi Apparao v. Boddepalli Lakhminarayana 
decided on October 5, 1961 observed as follows:
“It is settled law that where a bona fide claim 
of right exists, it can be a good defence to a 
prosecution for theft. An act does not amount 
to theft, unless there be not only no legal right 
but no appearance or colour of a legal right.”
8. By the expression “colour of a legal right” is meant 
not a false pretence but a fair pretence, not a complete 
absence of claim put a bona-fide claim, however weak. 
This Court observed in the same case that the law was 
stated in 2 East P.C. 659 to be:
“If there be in the prisoner any fair pretence of 
property or right, or if it be brought into doubt 
at all, the court will direct an acquittal.”
and reffered to 1 Hale P.C. 509 that “the best evidence is 
that the goods were taken quite openly”. The law stated by 
East and Hale has always been the law on the subject of 
theft in India and numerous cases decided by Indian Courts 
are to be found in which these principles have been
applied.
Niyogi, J. in his judgment also referred to some of the 
decisions of the Calcutta High Court and we find ourselves 
in particular agreement with the following statement of the 
law in Hamid Ali Bepari v. Emperor : 
 “It is not theft if a person, acting under a 
mistaken notion of law and; believing that certain 
property is his and that he has the right to take 
the same … removes such property from the 
possession of another.”
(Emphasis supplied)
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208.	In Motilal Padampat Sugar Mills (supra) the State Government 
therein had framed a policy for grant of sales tax exemption to new 
industrial units in the State. On the basis of the said policy, the 
appellant therein set-up an industrial unit and approached the State 
Government for claiming the exemption. The State Government 
informed him that he would be granted only partial concession in sales 
tax, to which the appellant was agreeable. However, subsequently, 
the State having second thoughts, rescinded the concession which 
was being granted to the appellant. Aggrieved by which the appellant 
preferred a writ petition claiming exemption from sale tax as per the 
policy. However, the State Government in response submitted that 
the appellant therein by accepting a partial concession on sales tax 
had waived its right to claim full exemption. This Court rejecting the 
said plea of waiver and estoppel held that, the appellant therein 
was unaware about the policy and the extent of the exemption in 
sales tax under the law. Thus, the appellant due to the ignorance 
of law had a bona-fide belief that the policy only provided for a 
partial concession rather than a complete exemption. This Court 
observed that it cannot be presumed that the appellant was fully 
informed about the policy and that he had waived or abandoned his 
right with full knowledge of the said policy. It further observed that 
often the maxim
“ignorantia juris non excusat” i.e., “ignorance of the 
law is no excuse” is often misconstrued to mean that everyone is 
presumed to know the law. Accordingly, this Court rejecting the plea 
of promissory estoppel held that due to the ignorance of law on the 
part of the appellant, it cannot be said that he had full knowledge 
of its right to exemption so as to waive or abandon the same. The 
relevant observations read as under: -
“6. [...] The claim of the appellant to exemption could be 
sustained only on the doctrine of promissory estoppel 
and this doctrine could not be said to be so well defined 
in its scope and ambit and so free from uncertainty in 
its application that we should be compelled to hold that 
the appellant must have had knowledge of its right to 
exemption on the basis of promissory estoppel at the time 
when it addressed the letter dated June 25, 1970. In fact, 
in the petition as originally filed, the right to claim total 
exemption from Sales Tax was not based on the plea of 
promissory estoppel which was introduced only by way of
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amendment. Moreover, it must be remembered that there 
is no presumption that every person knows the law. It is 
often said that everyone is presumed to know the law, but 
that is not a correct statement : there is no such maxim 
known to the law. Over a hundred and thirty years ago, 
Maule, J., pointed out in Martindale v. Falkner:
“There is no presumption in this country that 
every person knows the law : it would be contrary 
to common sense and reason if it were so.”
Scrutton, L.J., also once said:
“It is impossible to know all the statutory law, and 
not very possible to know all the common law.”
But it was Lord Atkin who, as in so many other spheres, 
put the point in its proper context when he said 
in Evans v. Bartlam
“… the fact is that there is not and never has 
been a presumption that every one knows the 
law. There is the rule that ignorance of the law 
does not excuse, a maxim of very different scope 
and application.”
It is, therefore, not possible to presume, in the absence of 
any material placed before the Court, that the. appellant had 
full knowledge of its right to exemption so as to warrant an 
inference that the appellant waived such right by addressing 
the letter dated June 25, 1970. We accordingly reject the 
plea of waiver raised on behalf of the State Government.
(Emphasis supplied)
209.	Thus, from the aforesaid, we are of the considered view that the 
reliance on
the part of the accused on the two decisions of this Court 
in Chandi Kumar Das Karmarkar (supra) and Motilal Padampat 
Sugar Mills (supra) is completely misplaced. In Chandi Kumar Das 
Karmarkar (supra) the question before this Court was whether the 
accused therein due to the ignorance of law could be said to have 
a bona-fide belief of a right or claim to possession of the fish tank 
or in other words whether a plea of ignorance is a valid defence to 
any acts done pursuant to a bona-fide belief of existence of a right
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under the mistaken notion of law. Whereas in Motilal Padampat 
Sugar Mills (supra) the issue for consideration before this Court 
was whether the appellant therein due to the ignorance of law could 
be said to have wilfully waived his right, or in other words whether 
a plea of ignorance is a valid defence to any promissory estoppel 
to a right.
210.	 Thus, both the aforesaid decisions in Chandi Kumar Das Karmarkar 
(supra) Motilal Padampat Sugar Mills (supra) are not applicable. 
We say so, because this Court in the aforesaid decisions has only 
gone so far as to say that a plea of ignorance of law can be used as 
a valid defence for either showing that the purported act was done or 
not done (as the case may be) due to a consequent bona-fide belief 
as to the existence of such a right or claim. In other words, a plea 
of ignorance of law can be a valid defence if it consequently gives 
rise to a legitimate and bona-fide mistake of fact as to the existence 
(or non-existence) of a particular right or claim. 
211.	This may be better understood through a four-prong test wherein for 
a valid defence, there must exist (1) an ignorance or unawareness 
of any law and (2) such ignorance or unawareness must give rise 
to a corresponding reasonable and legitimate right or claim (3) the 
existence of such right or claim must be believed bonafide and (4) 
the purported act sought to be punished must take place on the 
strength of
such right or claim. It is only when all the four of the above 
conditions are fulfilled, that the person would be entitled to take a 
plea of ignorance of law as a defence from incurring any liability.
212.	As held in Chandi Kumar Das Karmarkar (supra) a plea of ignorance 
of law is a valid defence only to the acts said to have been done on 
the basis of a right or a claim, the existence of which was bona-fidely 
believed or entertained on the basis of ignorance of law or mistaken 
notion of law. Thus, for a plea of ignorance of law, the ignorance 
or mistake of law must be such which legitimately gives rise to a 
bona-fide belief of the existence of a right or a claim, and the said 
person commits any act on the strength of such right or claim. This 
is fortified from the following observation “A claim of right in good 
faith, if reasonable saves the act [...] where such a plea is raised” 
in paragraph 7 of Chandi Kumar Das Karmarkar (supra). Thus, a 
plea of ignorance of law is only valid for the defence of a bona-fide 
claim of right and any acts done thereunder. As such, where a person
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commits any act on the assertion of a right, the existence of which 
was bona-fidely believed due to a mistaken notion of law, such person 
will not be liable due to the honest but mistaken factum of such right 
or claim stemming from or accompanied by ignorance of law.
213.	Similarly, in Motilal Padampat Sugar Mills (supra) this Court only 
held that a plea of ignorance of law may be a valid defence for bona-
fidely believing the existence of a wrong or incorrect right i.e., the 
right to only a partial concession of sale tax exemption. Accordingly, 
this Court held that where a person due to ignorance of law was 
not fully informed about a particular right, there can be no waiver 
of such right unless it is shown that such person was indeed aware 
of the said right. 
214.	Thus, the aforesaid decisions of this Court in Chandi Kumar Das 
Karmarkar (supra) Motilal Padampat Sugar Mills (supra) are 
distinguishable for the simple reason that storage or possession of 
child pornographic material cannot be equated or traced to any right or 
assertion even if it was a mistaken one. Even if a person is unaware 
that the possession or storage of such material is punishable, it by 
no stretch can be considered to give rise to any right or assertion as 
there exists no such right to either store or possess such material, 
and thus it is not a valid defence. We say so because, no person 
of an ordinary
prudent mind with the same degree of oblivion or 
unawareness as to the law, more particularly Section 15 of POCSO 
could as a natural corollary be led to a belief of existence of a right 
to store or possess any child pornographic material. The ignorance 
or unawareness must have a reasonable nexus with the right or 
assertion claimed i.e., the ignorance or unawareness must be such 
which could legitimately and reasonably give rise to a corresponding 
right or claim the and the existence of which must be bona-fidely 
believed. Otherwise, anyone could make a bald or blanket claim of 
having a bonafide belief of any right to wriggle out of any liability 
arising out of its actions on the touchstone of unawareness of any 
particular law. Thus, even if the accused was unaware about Section 
15 of POCSO, this by itself does not give rise to a corresponding 
legitimate or reasonable ground to believe that there was any right 
to store or possess child pornographic material. As such the four-
prong test is not fulfilled and the defence of ignorance of law by the 
accused must fail.
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215.	Even otherwise, one must be mindful to the fact that such a plea 
is not a statutory defence with any legal backing, but rather a by-
product of the doctrine of equity. Whether such a defence is to be 
accepted or not, largely depends upon the extant of equity in the 
peculiar facts and circumstances of each individual cases. It is an 
equally settled cannon of law that equity cannot supplant the law, 
equity has to follow the law if the law is clear and unambiguous.
216.	This Court in National Spot Exchange Ltd. v. Anil Kohli, 
Resolution Professional for Dunar Foods Ltd. reported in (2022) 
11 SCC 761 after referring to a catena of its other judgments, had 
held that where the law is clear the consequence thereof must follow. 
The High Court has no option but to implement the law. The relevant 
observations made in it are being reproduced below: -
“15.1. In Mishri Lal [BSNL v. Mishri Lal, (2011) 14 SCC 
739 : (2014) 1 SCC (L&S) 387], it is observed that the 
law prevails over equity if there is a conflict. It is observed 
further that equity can only supplement the law and not 
supplant it.
15.2. In Raghunath Rai Bareja [Raghunath Rai Bareja v. 
Punjab National Bank, (2007) 2 SCC 230] , in paras 30 
to 37, this Court observed and held as under : (SCC pp. 
242-43) 
“30. Thus, in Madamanchi Ramappa v. Muthaluru 
Bojjappa [AIR 1963 SC 1633] (vide para 12) this 
Court observed: (AIR p. 1637) 
‘12. … [W]hat is
administered in Courts is justice 
according to law, and considerations of fair 
play and equity however important they may 
be, must yield to clear and express provisions 
of the law.’
31. In Council for Indian School Certificate Examination 
v. Isha Mittal [(2000) 7 SCC 521] (vide para 4) this 
Court observed: (SCC p. 522) 
‘4. … Considerations of equity cannot prevail 
and do not permit a High Court to pass an order 
contrary to the law.’
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32. Similarly, in P.M. Latha v. State of Kerala [(2003) 
3 SCC 541 : 2003 SCC (L&S) 339] (vide para 13) 
this Court observed: (SCC p. 546) 
‘13. Equity and law are twin brothers and law 
should be applied and interpreted equitably but 
equity cannot override written or settled law.’ 
33. In Laxminarayan R. Bhattad v. State of 
Maharashtra [(2003) 5 SCC 413] (vide para 73) this 
Court observed: (SCC p. 436) 
‘73. It is now well settled that when there is 
a conflict between law and equity the former 
shall prevail.’ 
34. Similarly, in Nasiruddin v. Sita Ram Agarwal 
[(2003) 2 SCC 577] (vide para 35) this Court observed: 
(SCC p. 588) 
‘35. In a case where the statutory provision 
is plain and unambiguous, the court shall 
not interpret the same in a different manner, 
only because of harsh consequences arising 
therefrom.’ 
35. Similarly, in E. Palanisamy v. Palanisamy [(2003) 
1 SCC 123] (vide para 5) this Court observed: (SCC 
p. 127)
‘5. Equitable considerations have no place where 
the statute contained express provisions.’
36. In India House v. Kishan N. Lalwani [(2003) 9 SCC 
393] (vide para 7) this Court held that: (SCC p. 398)
‘7. … The period of limitation statutorily 
prescribed has to be strictly adhered to and 
cannot be relaxed or departed from for equitable 
considerations.’…”
(Emphasis supplied)
217.	Unawareness or incognizance of law should not be conflated with 
ignorance of
law. This Court in Motilal Padampat Sugar Mills 
(supra) duly acknowledged that a plea of unawareness of law is
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fundamentally different in scope and application from the rule that 
ignorance of the law does not excuse anyone. The former as explained 
above, is a byproduct of the doctrine of equity whereas the latter is 
a cardinal rule of criminal jurisprudence and no person can claim to 
be absolved of any criminal offence or liability on a plea of ignorance 
of law. Thus, where something is specifically made punishable under 
the law, then in such cases the law would prevail over equity, and 
no plea of ignorance of law can be taken as a defence to absolve 
or dilute any liability arising out of such punishable offences. Thus, 
even if all four preconditions are satisfied, the courts are not bound 
to accept such a plea, if it is in negation or derogation of any law 
or the idea of justice.
218.	Equity modifies the applicable law or ensures its suitability to address 
the particular circumstances before a court to produce justice. The 
modification of general rules to the circumstances of the case is 
guided by equity, not in derogation or negation of positive law, but 
in addition to it. It supplements positive law but does not supplant 
it. In a second sense however, where positive law is silent as to 
the applicable legal principles, equity assumes a primary role as 
the source of law itself. Equity steps in to fill the gaps that exist in 
positive law. Thus, where no positive law is discernible, courts turn 
to equity as a
source of the applicable law. However, where positive 
law exists, equity will always yield to it. [See M. Siddiq v. Mahant 
Suresh Das, reported in 2020 1 SCC 1]
219.	It was further contended by the respondent no. 1 that although the 
said child pornographic material was found stored in his mobile phone, 
yet he had no knowledge of the same. He would submit that, the 
aforesaid videos that were found stored in his mobile as revealed by 
the FSL Report had been automatically downloaded into his mobile 
phone without his knowledge or volition. 
220.	Even, assuming that the respondent no. 1 did not actually store 
the aforesaid two videos in his mobile phone, and that he had no 
knowledge of the existence of those videos, nonetheless, the aforesaid 
aspect cannot be looked into by us at the stage of quashing, more 
particularly while deciding whether a prima-facie case is said to be 
made out. Even otherwise, since the material on record adduced by 
the prosecution clearly establishes the possession or storage of child 
pornographic material and the failure on the part of the respondent
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no. 1 in deleting, destroying or reporting the same, the foundational 
facts necessary to invoke the statutory presumption of culpable 
mental state could be said to have been prima facie established. 
221.	In view of the statutory presumption of culpable mental state being 
attracted, any defence of the respondent no. 1 such as the absence 
of knowledge or intention would be a matter of trial. Absence of 
culpable mental state has to be established before the trial court by 
leading cogent evidence in that regard. Such defences should not 
be looked into by us at this stage. All that should be ascertained is 
whether a prima facie case is said to have been made out.
v.	
Summary of our conclusion 
222.	We summarize our final conclusion as under: -
(I)	
Section 15 of the POCSO provides for three distinct offences 
that penalize either the storage or the possession of any child 
pornographic material when done with any particular intention 
specified under sub-section(s) (1), (2) or (3) respectively. It is 
in the nature and form of an inchoate offence which penalizes 
the mere storage or possession of any pornographic material 
involving a child when done with a specific intent prescribed 
thereunder, without requiring any actual transmission, 
dissemination etc.
(II)	
Sub-section (1) of Section 15 penalizes the failure to delete, 
destroy or report any child pornographic material that has
been found to be stored or in possession of any person with 
an intention to share or transmit the same. The mens-rea or 
the intention required under this provision is to be gathered 
from the actus reus itself i.e., it must be determined from the 
manner in which such material is stored or possessed and the 
circumstances in which the same was not deleted, destroyed 
or reported. To constitute an offence under this provision the 
circumstances must sufficiently indicate the intention on the 
part of the accused to share or transmit such material.
(III)	
Section 15 sub-section (2) penalizes both the actual 
transmission, propagation, display or distribution of any 
child pornography as-well as the facilitation of any of the 
abovementioned acts. To constitute an offence under Section 
15 sub-section (2) apart from the storage or possession of
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such pornographic material, there must be something more 
to show i.e., either (I) the actual transmission, propagation, 
display or distribution of such material OR (II) the facilitation 
of any transmission, propagation, display or distribution of 
such material, such as any form of preparation or setup done 
that would enable that person to transmit it or to display it. 
The mens rea is to be gathered from the manner in which the 
pornographic material was found to be stored or in possession 
and any other material apart from such possession or storage 
that is indicative of any facilitation or actual transmission, 
propagation, display or distribution of such material.
(IV)	
Section 15 sub-section (3) penalizes the storage or possession 
of any child pornographic material when done for any 
commercial purpose. To establish an offence under Section 
15 sub-section (3), besides the storage or possession of the 
pornographic material involving a child, there must be some 
additional material or attending circumstances that may 
sufficiently indicate that the said storage or possession was 
done with the intent to derive any gain or benefit. To constitute 
an offence under sub-section (3) there is no requirement to 
establish that such gain or benefit had been actually realized. 
(V)	
Sub-section(s) (1), (2) and (3) respectively of Section 15 
constitute independent and distinct offences. The three offences 
cannot coexist
simultaneously in the same set of facts. They 
are distinct from each other and are not intertwined. This is 
because, the underlying distinction between the three sub-
sections of Section 15 lies in the varying degree of culpable 
mens rea that is required under each of the three provisions. 
(VI)	
The police as well as the courts while examining any matter 
involving the storage or possession of any child pornography, 
finds that a particular sub-section of Section 15 is not attracted, 
then it must not jump to the conclusion that no offence at all 
is made out under Section 15 of the POCSO. If the offence 
does not fall within one particular sub-section of Section 15, 
then it must try to ascertain whether the same falls within the 
other sub-sections or not.
(VII)	 Any act of viewing, distributing or displaying etc., of any child 
pornographic material by a person over the internet without
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any actual or physical possession or storage of such material 
in any device or in any form or manner would also amount to 
‘possession’ in terms of Section 15 of the POCSO, provided the 
said person exercised an invariable degree of control over such 
material, by virtue of the doctrine of constructive possession.
(VIII)	 Any visual depiction of a sexually explicit act which any 
ordinary person of a prudent mind would reasonably believe 
to prima facie depict a child or appear to involve a child, would 
be deemed as ‘child pornography’ and the courts are only 
required to form a prima facie opinion to arrive at the subjective 
satisfaction that the material appears to depict a child from 
the perspective of any ordinary prudent person for any offence 
under the POCSO that relates to child pornographic material, 
such as Section 15. Such satisfaction may be arrived at from 
any authoritative opinion like a forensic science laboratory 
(FSL) report of such material or opinion of any expert on the 
material in question, or by the assessment of such material 
by the courts themselves.
(IX)	
Section 67B of the IT Act is a comprehensive provision 
designed to address and penalize the various electronic forms 
of exploitation and abuse of children online. It not only punishes 
the electronic dissemination of child pornographic material, but 
also the creation, possession, propagation and
consumption 
of such material as-well as the different types of direct and 
indirect acts of online sexual denigration and exploitation of 
the vulnerable age of children. Section(s) 67, 67A and 67B 
respectively of the IT Act being a complete code, ought to be 
interpreted in a purposive manner that suppresses the mischief 
and advances the remedy and ensures that the legislative intent 
of penalizing the various forms of cyber-offences relating to 
children and the use of obscene / pornographic material through 
electronic means is not defeated by a narrow construction of 
these provisions.
(X)	
The statutory presumption of culpable mental state on the 
part of the accused as envisaged under Section 30 of the 
POCSO can be made applicable provided the prosecution is 
able to establish the foundational facts necessary to constitute 
a particular offence under the POCSO that may have been 
alleged against the accused. Such presumption can be
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rebutted by the accused either by discrediting the prosecution’s 
case or by leading evidence to prove the contrary, beyond a 
reasonable doubt.
(XI)	
The foundational facts necessary for the purpose of invoking the 
statutory presumption of culpable mental state for an offence 
under Section 15 of POCSO are as follows: -
(a)	 For the purpose of sub-section (1), the necessary 
foundational facts that the prosecution may have to 
first establish is the storage or possession of any child 
pornographic material and that the person accused had 
failed to delete, destroy or report the same. 
(b)	 In order to invoke the statutory presumption of culpable 
mental state for an offence under sub-section (2) the 
prosecution would be required to first establish the storage 
or possession of any child pornographic material, and also 
any other fact to indicate either the actual transmission, 
propagation, display or distribution of any such material 
or any form of an overt act such as preparation or setup 
done for the facilitation of the transmission, propagation, 
display or distribution of such material, whereafter it shall 
be presumed by the court that the said act was done 
with the intent of transmitting, displaying, propagating 
or distributing such material and that the said act(s) had 
not been done for the purpose of either reporting or for 
use as evidence.
(c)	 For the purpose of sub-section (3) the prosecution must
establish the storage or possession of such material and 
further prove any fact that might indicate that the same 
had been done to derive some form of gain or benefit or 
the expectation of some gain or benefit.
(XII)	 The statutory presumption of culpable mental under Section 30 
of POCSO can be made applicable in a quashing proceeding 
pertaining to any offence under the POCSO. 
F.	
FEW MEANINGFUL SUGGESTIONS.
223.	Before, we close this matter, we must address ourselves on a very 
important aspect, as regards the need to effectively address the 
growing number of dissemination and use of child pornography.
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i.	
The Lingering Impact of Child Pornography on the 
Victimization & Abuse of Children.
224.	A child’s victimization begins with the sexual act, continues through 
its recording, and perpetuates as photographs and videos that float 
through cyberspace, freely accessible to anyone who has the ability 
to surf the internet.1 Child sexual exploitation is one of the most 
heinous crimes imaginable, and the offence of Child Pornography is 
equally as heinous, if not more, as in the latter the victimization and 
exploitation of the child does not end with the initial act of abuse.2 
The creation or dissemination of such pornographic material further 
extends and compounds the harm infinitely and at a far larger scale.3 
It in essence turns the singular incident of an abuse into a ripple 
of trauma inducing acts where the rights and dignity of the child is 
continuously violated each time such material is viewed or shared. 
This is why it is imperative that we collectively as a society address 
this issue with the utmost seriousness.
225.	The impact of such continuous victimization is profound. Any act 
of sexual abuse inherently inflicts lasting physical and emotional 
trauma on the child. However, the dissemination of this act of abuse 
through pornographic material further accentuates and deepens the 
trauma into a psychological scar. The knowledge that their abuse is 
being watched by countless
strangers, sometimes years after the 
actual event, exacerbates the psychological wounds on top of the 
trauma that was already induced by the act in the first place.4 This 
perpetuating violation deprives the victim of any remaining hope or 
chance to heal, recover from the abuse and find closure. 5
226.	One must also be mindful of the fact that the term “child pornography” 
is a misnomer that fails to capture the full extent of the crime. It is 
important to recognize that each case of what is traditionally termed 
1	
Eva J. Klain, Heather J Davies, Molly A. Hicks Et. Al., Child Pornography: The Criminal Justice-System 
Response, 8 (Penn State University Press, 2001).
2	
Philip Jenkins, Beyond Tolerance: Child Pornography on the Internet (New York University Press, 2003)
3	
Burgess, Ann W. & C.R. Hartman, Child Abuse Aspects of Child Pornography, 7 Psychiatric Annals, 248 
(1987).
4	
Audrey Rogers, The Dignity Harm of Child Pornography – From Producers to Possessors, in Carissa 
Byrne Hessick (Eds.), Refining Child Pornography Law – Crime, Language and Social Consequences 
(University of Michigan Press, 2016).
5	
Tali Gal, Child Victims and Restorative Justice – A Needs Rights Model, 17 (Oxford University Press, 
2011)
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“child pornography” involves the actual abuse of a child. The use 
of the term “child pornography” can lead to a trivialization of the 
crime, as pornography is often seen as a consensual act between 
adults. It undermines the victimization because the term suggests 
a correlation to pornography — conduct that may be legal, whose 
subject is voluntarily participating in, and whose subject is capable 
of consenting to the conduct.6
227.	The term “child sexual exploitation and abuse material” or “CSEAM” 
more accurately reflects the reality that these images and videos 
are not merely pornographic but are records of incidents, where a 
child has either been sexually exploited and abused or where any 
abuse of children has been portrayed through any self-generated 
visual depiction.7
228.	The term “child sexual exploitation and abuse material” (CSEAM) 
rightly places the emphasis on the exploitation and abuse of the 
child, highlighting the criminal nature of the act and the need for a 
serious and robust response. We are conscious that in the preceding 
parts of this judgment, we have used the term “child pornography”, 
however the same has been done only for the purposes of giving a 
better understanding of the nuances involved in the present matter. 
We further forbid the courts from using the term “child pornography” 
and instead the term “child sexual exploitation and abuse material” 
(CSEAM) should be used in judicial
orders and judgements of all 
courts across the country.
229.	Although, there exists a tangible difference between the act of viewing 
CSEAM and the act of engaging in sexual abuse of children, yet the 
latter desire is always inherent in the former.8 Both the use of CSEAM 
and the act of child sexual abuse share a common, malevolent intent: 
6	
Jonah R. Rimmer, Child Sexual Exploitation, (Oxford Research Encyclopaedia Criminology, 2024).
7	
Mary Graw Leary, The Language of Child Sexual Abuse and Exploitation, in Carissa Byrne Hessick 
(Eds.), Refining Child Pornography Law – Crime, Language and Social Consequences (University of 
Michigan Press, 2016); see also, Danijela Frangež, Anton Toni Klančnik, Mojca Žagar Karer Et. Al., 
The Importance of Terminology Related to Child Sexual Exploitation, 66(4) Rev. za. Krim. Kriminol. 291 
(2015); see also, Kathryn C. Seigfried Spellar & Virginia Soldino, Child Sexual Exploitation: Introduction to 
a Global Problem, in Thomas J. Holt & Adam M. Bossler (Eds.), The Palgrave Handbook of International 
Cybercrime and Cyberdeviance, (Palgrave Macmillian, Cham, 2020)
8	
Vaughn I. Rickert & Owen Ryan, Is the Internet the Source?, 40 J. Adolesc. Health 104 (2007); see also, 
Dr. Ethel Quayle, Assessment issues with young people who engage in problematic sexual behaviour 
through the Internet, in M.C. Calder (Ed.), New Developments with young people who sexually abuse 
(Russel House Publishing, Lyme Regis, UK, 2007).
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the exploitation and degradation of a child for the sexual gratification 
of the abuser. The production of child sexual exploitative material 
is inherently linked to the act of sexual abuse. In both cases, the 
intent is clear: to sexually exploit and harm a child. The creation of 
such material is not a passive act but a deliberate one, where the 
abuser intentionally engages in the exploitation of a child, knowing 
full well the harm it causes.9
230.	This intent is what makes these crimes particularly heinous. The abuser 
is not only violating the child’s body but is also reducing them to an 
object for their own gratification, with little regard for the child’s dignity 
or well-being. This dehumanization is evident in the production and 
distribution of CSEAM, where the child is treated not as a person but 
as a commodity to be consumed. Those who consume such material 
may develop an increased desire to engage in further acts of child 
exploitation. The viewing of CSEAM can desensitize individuals to 
the horrors of child abuse, leading them to seek out more extreme 
forms of exploitation or even to commit acts of abuse themselves.10
231.	Moreover, the demand for such material will always incubate a 
corresponding production and distribution of CSEAM.11 Abusers may 
be motivated to create and distribute these materials to satisfy the 
demand, leading to the abuse of more children.12 This
cycle of abuse 
and exploitation underscores the need for stringent measures to 
not only punish those who create and distribute CSEAM but also to 
deter potential consumers and reduce the demand for such material.
232.	Child sexual exploitative material is deeply degrading to the dignity of 
children. It reduces them to objects of sexual gratification, stripping 
them of their humanity and violating their fundamental rights. Children 
are entitled to grow up in an environment that respects their dignity 
and protects them from harm. However, CSEAM violates this right 
in the most egregious manner possible.
9	
Matthew L Long, Laurence A. Alison & Michelle A McManus, Child pornography and likelihood of contact 
abuse: a comparison between contact child sexual offenders and noncontact offenders, 25(4) Sex Abuse, 
370 (2013).
10	
Dr. Ethel Quayle Et. Al., The role of sexual images in online and offline sexual behaviour with minors, 
17(6) Curr. Psychiatry Rep. 1 (2019).
11	
 Melissa Hamilton, The Child Pornography Crusade and Its Net- Widening Effect, 33 Cardozo L. Rev. 
1694 (2012).
12	
 Esposito & Lesli C., Regulating the Internet: The Battle Against Child Pornography, 30 Casew. Res. J. 
Int’l. L. 5 (1998).
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233.	The existence and circulation of CSEAM are affronts to the dignity of 
all children, not just the victims depicted in the material. It perpetuates 
a culture in which children are seen as objects to be exploited, 
rather than as individuals with their own rights and agency. This 
dehumanization is particularly dangerous because it can lead to a 
broader societal acceptance of child exploitation, further endangering 
the safety and well-being of children.13
234.	Given the severity and far-reaching consequences of child sexual 
exploitation, there is a clear legal and moral imperative to take 
strong action against those who produce, distribute, and consume 
CSEAM. This includes not only criminal penalties for those involved 
in CSEAM but also preventative measures, such as education and 
awareness campaigns. Laws must be robust and strictly enforced 
to ensure that perpetrators are brought to justice and that children 
are protected from further harm. The courts ought to be loathe in 
showing any form of leniency in such matters.14 
235.	The impact of CSEAM on its victims is devastating and far-reaching, 
affecting their mental, emotional, and social well-being. Victims of 
such heinous exploitation often endure profound psychological trauma 
that can manifest as depression, anxiety, and post-traumatic stress 
disorder (PTSD).15 The relentless reminder that images and videos 
of their abuse are circulating online can
lead to a persistent sense 
of victimization and helplessness, further exacerbating feelings 
of shame, guilt, and worthlessness. This awareness can make it 
highly challenging for victims to move forward, as the fear of being 
recognized and judged by others remains ever-present.16
236.	In our society, where social stigma and notions of honour and shame 
are deeply entrenched, the social repercussions for victims are 
particularly severe. Many victims face intense social stigmatization 
and isolation, finding it difficult to form and maintain healthy 
13	
Jason S. Carrol Et Al., Generation XXX, Pornography Acceptance and Use Among Emerging Adults, 23 
J. Adolescent Res. 6 (2008).
14	
Clare McGlynn & Dr. Hannah Bows, Possessing Extreme Pornography: policing, prosecutions and the 
need for reform, 83(6) J. Crim. Law., 473 (2019).
15	
Dr. Ethel Quayle, Lars Loof and Tink Palmer, Child Pornography and Sexual Exploitation of Children 
Online, 64 (ECPAT International, 2008).
16	
See, Michael C. Seto, Kailey Roche, Nicole C Rodrigues Et. Al., Evaluating Child Sexual Abuse 
Perpetration Prevention Efforts: A Systematic Review, 33 J. Child Sex. Abus. 22 (2024).
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relationships due to trust issues and trauma-related challenges. The 
stigma attached to being a victim of CSEAM can create significant 
barriers in social interactions, causing victims to withdraw and feel 
alienated from their communities. The continuous re-victimization 
through the sharing and viewing of these materials perpetuates the 
victims’ suffering. Each instance of someone viewing or distributing 
the material represents a new violation, making it harder for victims 
to heal. This ongoing trauma can severely impact their self-esteem 
and self-worth, leading to long-term emotional and psychological 
damage. Furthermore, the impact extends to their education and 
employment opportunities. Many victims struggle to concentrate 
on their studies or work due to the overwhelming emotional burden 
they carry. This can lead to academic underachievement, difficulty in 
securing employment, and economic hardships, compounding their 
sense of insecurity and instability.17 
237.	Providing compassionate and comprehensive support is crucial to 
help victims heal and reclaim their lives. Therapeutic interventions, 
including trauma-informed counselling and support groups, can offer a 
safe space for victims to process their experiences and begin to heal. 
Legal and social support services are also essential to help victims 
navigate the complexities of their situation and rebuild their lives.
238.	In India, the misconceptions about sex education are widespread 
and contribute to its limited implementation and effectiveness. Many 
people, including parents and educators, hold conservative views 
that discussing sex is inappropriate, immoral, or embarrassing. This 
societal stigma creates a reluctance to talk openly about sexual 
health, leading to a significant knowledge gap among adolescents.
239.	One prevalent misconception is that sex education encourages 
promiscuity and irresponsible behaviour among youth. Critics often 
argue that providing information about sexual health and contraception 
will lead to increased sexual activity among teenagers. However, 
research has shown that comprehensive sex education actually 
delays the onset of sexual activity and promotes safer practices 
among those who are sexually active.18
17	
Paul G. Cassel, James Marsh & Jeremy M. Christiansen, The Case for Full Restitution for Child 
Pornography Victims, 82 Geo. Wash. L. Rev. 61 (2013).
18	
Padminin Iyer & Peter Aggleton, Seventy years of sex education – A Critical Review, 74(1) Health Educ.
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240.	Another common belief is that sex education is a Western concept 
that does not align with traditional Indian values. This view has led to 
resistance from various state governments, resulting in bans on sex 
education in schools in some states. This type of opposition hinders 
the implementation of comprehensive and effective sexual health 
programs, leaving many adolescents without accurate information. 
This is what causes teenagers and young adults to turn to the 
internet, where they have access to unmonitored and unfiltered 
information, which is often misleading and can plant the seed for 
unhealthy sexual behaviours. 
241.	Additionally, there is a misconception that sex education only 
covers biological aspects of reproduction. Effective sex education 
encompasses a wide range of topics, including consent, healthy 
relationships, gender equality, and respect for diversity. Addressing 
these topics is crucial for reducing sexual violence and promoting 
gender equity. 
242.	Despite some of these challenges, there are successful sex education 
programs in India, such as the Udaan program in Jharkhand. 
This program’s success highlights the importance of community 
involvement, transparency, and government support in overcoming 
resistance and creating a supportive environment for sex education.19 
243.	Positive age-appropriate sex education plays a critical role in 
preventing youth from engaging in harmful sexual
behaviours, 
including the distribution, and viewing of CSEAM.20 Positive sex 
education focuses on providing accurate, age-appropriate information 
about sexuality, consent, and respectful relationships. Research 
indicates that comprehensive sex education can significantly reduce 
risky sexual behaviours, increase knowledge, enable healthy decision-
making, reduce misinformation, delay sexual debut, decrease the 
number of sexual partners, and increase contraceptive use. The 
research done in India has shown the need for comprehensive sex 
education programs. A study of over 900 adolescents in Maharashtra 
J. 3 (2015).
19	
See, the Udaan Adolescent Education Program by the Centre for Catalyzing Change in Jharkhand in 
India.
20	
Cortney Lollar, Child Pornography and the Restitution Revolution, 103 J. Crim. L. & Criminology 343 
(2013).
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found that students not exposed to scientific literature on reproductive 
and sexual health were more likely to initiate sex early.21
244.	Furthermore, positive sex education promotes healthy attitudes 
towards sexuality and relationships, which can counteract the 
distorted perceptions often associated with the consumption of child 
pornography. It can also help foster greater empathy and respect for 
others, reducing the likelihood of engaging in exploitative behaviours. 
Comprehensive sex education programs also teach youth about the 
importance of consent and the legal implications of sexual activities, 
helping them understand the severe consequences of viewing and 
distributing child pornography. 
245.	It is of paramount importance that we begin to address misconceptions 
around sexual health, and promoting a comprehensive understanding 
of sex education’s benefits is essential for improving sexual health 
outcomes and reducing the incidence of sexual crimes in India. This 
is especially crucial given India’s growing population.
246.	Section 43 of the POCSO obligates the Central Government and 
the State Government to undertake measures and ensure that the 
provisions of the said Act are given wide publicity through media 
including the television, radio and the print media at regular intervals 
to make the general public, children as well as their parents and 
guardians aware of the
legislation. It further requires the appropriate 
government to also impart proper training at tegular intervals to all 
government offices such as police on the implementation of the 
provisions of this Act. The relevant provision reads as under: -
“43. Public awareness about Act.—
The Central Government and every State Government, 
shall take all measures to ensure that— 
(a)	 the provisions of this Act are given wide publicity 
through media including the television, radio and the 
print media at regular intervals to make the general 
public, children as well as their parents and guardians 
aware of the provisions of this Act; 
21	
Jagdish Khubchandani, Jeffrey Clark & Raman Kumar, Beyond Controversies: Sexuality Education for 
Adolescents in India, 3(3) J. Family Med. Prim. Care. 175 (2014).
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(b)	 the officers of the Central Government and the State 
Governments and other concerned persons (including 
the police officers) are imparted periodic training on 
the matters relating to the implementation of the 
provisions of the Act.”
247.	Section 44 of the POCSO on the other hand obligates the National 
Commission for Protection of Child Rights and the State Commission 
for Protection of Child Rights constituted under the Act to regularly 
monitor and assist in the implementation of the provisions of this 
Act. The relevant provision reads as under: -
“44. Monitoring of implementation of Act.—
(1) The National Commission for Protection of Child Rights 
constituted under section 3, or as the case may be, the 
State Commission for Protection of Child Rights constituted 
under section 17, of the Commissions for Protection of 
Child Rights Act, 2005 (4 of 2006) shall, in addition to the 
functions assigned to them under that Act, also monitor 
the implementation of the provisions of this Act in such 
manner as may be prescribed. 
(2) The National Commission or, as the case may be, the 
State Commission, referred to in sub-section (1), shall, 
while inquiring into any matter relating to any offence 
under this Act, have the same powers as are vested in 
it under the Commissions for Protection of Child Rights 
Act, 2005 (4 of 2006). 
(3) The National Commission or, as the case may be, the 
State Commission, referred to in
sub-section (1), shall, 
also include, its activities under this section, in the annual 
report referred to in section 16 of the Commissions for 
Protection of Child Rights Act, 2005 (4 of 2006).”
248.	We are of the considered view that the obligation of the appropriate 
government and the commission under Section(s) 43 and 44 of the 
POCSO respectively, does not end at just spreading awareness 
about the provisions of the POCSO. Since, one of the salutary and 
avowed object of the POCSO was the deterrence of offences of 
child sexual abuse and exploitation, thus, as a natural corollary, the 
obligation of the appropriate government and the commission under
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the aforesaid provisions will also entail imparting of sex education 
and awareness amongst the general public, children as well as 
their parents and guardians, particularly in schools and places of 
education. The steps and efforts of the appropriate government and 
the commission towards the compliance of Section(s) 43 and 44 must 
go beyond just the textual wording of the said provisions and ought 
to earnestly take into account the pragmatic necessities for curtailing 
the issue of child abuse, exploitation and addiction to pornography.
249.	Ultimately, it is our collective responsibility to ensure that victims of 
child pornography receive the care, support, and justice they deserve. 
By fostering a compassionate and understanding society, we can 
help them find their path to recovery and regain a sense of safety, 
dignity, and hope. This includes changing societal attitudes towards 
victims, improving legal frameworks to protect them, and ensuring 
that perpetrators are held accountable.
a.	
Obligation to report under Section(s) 19 & 20 respectively 
of the POCSO and Role of the Society and all Stakeholders. 
250.	Section 19 read with 20 & 21 of the POCSO is one such step towards 
recognizing this collective responsibility of the society in curtailing 
the issue of abuse and exploitation of children. Section 19 places an 
obligation on any person who has an apprehension that an offence
under POCSO is likely to be committed or has knowledge that such 
an offence has been committed, to report and provide information 
about the same to the Special Juvenile Police Unit or the local police. 
Section 19 further delineates the process and procedure in which 
such information or report has to be recorded by the authorities, 
and the course of action to be adopted. Section 20 extends such 
obligation to any and all personnel of media, hotels, hospitals, clubs or 
studios etc., to mandatorily report and provide information about any 
material or object which is sexually exploitative of a child (including 
pornographic, sexually-related or making obscene representation of 
a child or children) through the use of any medium to the authorities 
mentioned above. Any failure to do so, either in terms of Section 19 
or 21 of POCSO shall be liable to be punished with imprisonment 
upto 6-months or fine or both. Further, any failure on the part of any 
employer or supervisor in reporting the commission of any offence 
or its apprehension in respect of a subordinate under his control, will 
also be liable to be punished with imprisonment which may extend 
to 1-year and also fine. The relevant provisions read as under: -
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“19. Reporting of offences.— 
(1) Notwithstanding anything contained in the Code of 
Criminal Procedure, 1973 (2 of1974) any person (including 
the child), who has apprehension that an offence under 
this Act is likely to be committed or has knowledge that 
such an offence has been committed, he shall provide 
such information to,— 
(a) the Special Juvenile Police Unit; or 
(b) the local police. 
(2) Every report given under sub-section (1) shall be — 
(a) ascribed an entry number and recorded in writing; 
(b) be read over to the informant; 
(c) shall be entered in a book to be kept by the Police Unit. 
(3) Where the report under sub-section (1) is given by a 
child, the same shall be recorded under sub-section (2) in 
a simple language so that the child understands contents 
being recorded. 
(4) In case contents are being recorded in the language 
not understood by the child or wherever it is deemed 
necessary, a translator or an interpreter, having such 
qualifications, experience and on payment of such fees 
as may be prescribed, shall be provided to the child if he 
fails to understand the same.
(5) Where the Special Juvenile Police Unit or local police is 
satisfied that the child against whom an offence has been 
committed is in need of care and protection, then, it shall, 
after recording the reasons in writing, make immediate 
arrangement to give him such care and protection including 
admitting the child into
shelter home or to the nearest 
hospital within twenty-four hours of the report, as may 
be prescribed. 
(6) The Special Juvenile Police Unit or local police shall, 
without unnecessary delay but within a period of twenty-four 
hours, report the matter to the Child Welfare Committee 
and the Special Court or where no Special Court has been
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designated, to the Court of Session, including need of the 
child for care and protection and steps taken in this regard. 
(7) No person shall incur any liability, whether civil or 
criminal, for giving the information in good faith for the 
purpose of sub-section (1).
20. Obligation of media, studio and photographic 
facilities to report cases.—
Any personnel of the media or hotel or lodge or hospital or 
club or studio or photographic facilities, by whatever name 
called, irrespective of the number of persons employed 
therein, shall, on coming across any material or object which 
is sexually exploitative of the child (including pornographic, 
sexually-related or making obscene representation of a 
child or children) through the use of any medium, shall 
provide such information to the Special Juvenile Police 
Unit, or to the local police, as the case may be.
21. Punishment for failure to report or record a case.—
(1) Any person, who fails to report the commission of an 
offence under sub-section (1) of section 19 or section 
20 or who fails to record such offence under sub-section 
(2) of section 19 shall be punished with imprisonment of 
either description which may extend to six months or with 
fine or with both. 
(2) Any person, being in-charge of any company or an 
institution (by whatever name called) who fails to report 
the commission of an offence under sub-section (1) of 
section
19 in respect of a subordinate under his control, 
shall be punished with imprisonment for a term which may 
extend to one year and with fine. 
(3) The provisions of sub-section (1) shall not apply to a 
child under this Act.”
251.	Thus, it is evident that, to achieve the avowed purpose, a legal 
obligation has been imposed under the POCSO Act on any person 
to report an offence to the relevant authorities specified therein if they 
have knowledge that an offence under the Act has been committed. 
This obligation also extends to individuals who have reason to believe 
that an offence under the Act is likely to be committed. In addition
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to imposing this legal duty under Section 19, the legislature being 
in seisin of the paramount importance in collectively addressing the 
problems of child abuse and exploitation, deemed it expedient to make 
the failure to discharge this obligation punishable under Section 21 
of the Act. Such provisions have been inserted with a view to ensure 
strict compliance of the provisions under the POCSO and thereby to 
ensure that the tender age of children is not being abused and their 
childhood and youth is protected against exploitation.
252.	In Shankar Kisanrao Khade v. State of Maharashtra, reported in 
(2013) 5 SCC 546, this Court expressing its anguish over the large 
number of cases of abuse and exploitation of children, held that such 
issues must be collectively dealt by all stakeholders in a child-centric 
manner by applying the best interest of child standard, since best 
interest of the child is paramount and not the interest of perpetrator 
of the crime. It further inter-alia laid down the manner in which all 
persons in charge of the schools/educational institutions, special 
homes, children homes, shelter homes, hostels, remand homes, 
jails, etc. or wherever children are housed have to comply with the 
obligation(s) envisaged under Section(s) 19 & 21 of the POCSO. 
The relevant observations read as under: -
“72. I may also point out that, in large numbers of cases, 
children are abused by persons known to them
or who 
have influence over them. Criminal courts in this country 
are galore with cases where children are abused by 
adults addicted to alcohol, drugs, depression, marital 
discord, etc. Preventive aspects have seldom been given 
importance or taken care of. Penal laws focus more on 
situations after commission of offences like violence, 
abuse, exploitation of the children. Witnesses of many such 
heinous crimes often keep mum taking shelter on factors 
like social stigma, community pressure, and difficulties of 
navigating the criminal justice system, total dependency on 
the perpetrator emotionally and economically and so on. 
Some adult members of family including parents choose 
not to report such crimes to the police on the plea that it 
was for the sake of protecting the child from social stigma 
and it would also do more harm to the victim. Further, 
they also take shelter pointing out that in such situations
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some of the close family members having known such 
incidents would not extend medical help to the child to 
keep the same confidential and so on, least bothered about 
the emotional, psychological and physical harm done to 
the child. Sexual abuse can be in any form like sexually 
molesting or assaulting a child or allowing a child to be 
sexually molested or assaulted or encouraging, inducing 
or forcing the child to be used for the sexual gratification 
of another person, using a child or deliberately exposing 
a child to sexual activities or pornography or procuring or 
allowing a child to be procured for commercial exploitation 
and so on.
73. In my view, whenever we deal with an issue of child 
abuse, we must apply the best interest of child standard, 
since best interest of the child is paramount and not the 
interest of perpetrator of the crime. Our approach must 
be child-centric. Complaints received from any quarter, of 
course, have to be kept confidential without casting any 
stigma on the child and the family members. But, if the 
tormentor is the family member himself, he shall not go 
scot-free. Proper and sufficient safeguards also have to 
be given to the persons who come forward to report such 
incidents to the police or to the Juvenile Justice Board.
74. The conduct of the police for not registering a case 
under Section 377 IPC against the accused, the agony 
undergone by
a child of 11 years with moderate intellectual 
disability, non-reporting of offence of rape committed on her, 
after having witnessed the incident either to the local police 
or to the Juvenile Justice Board compel us to give certain 
directions for compliance in future which, in my view, are 
necessary to protect our children from such sexual abuses. 
This Court as parens patriae has a duty to do so because 
the Court has guardianship over minor children, especially 
with regard to the children having intellectual disability, since 
they are suffering from legal disability. Prompt reporting of 
the crime in this case could have perhaps, saved the life 
of a minor child of moderate intellectual disability.
xxx xxx xxx
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76. Considering the entire facts and circumstances of the 
case, I am inclined to convert death sentence awarded to 
the accused to rigorous imprisonment for life and that all 
the sentences awarded will run consecutively.
77.  In my opinion, the case in hand calls for issuing 
the following directions to various stakeholders for due 
compliance:
77.1. The persons in charge of the schools/educational 
institutions, special homes, children homes, shelter homes, 
hostels, remand homes, jails, etc. or wherever children are 
housed, if they come across instances of sexual abuse or 
assault on a minor child which they believe to have been 
committed or come to know that they are being sexually 
molested or assaulted are directed to report those facts 
keeping upmost secrecy to the nearest Special Juvenile 
Police Unit (SJPU) or local police, and they, depending 
upon the gravity of the complaint and its genuineness, 
take appropriate follow-up action casting no stigma to the 
child or to the family members.
77.2.  Media personnel, persons in charge of hotels, 
lodges, hospitals, clubs, studios and photograph facilities 
have to duly comply with the provision of Section 20 of 
Act 32 of 2012 and provide information to the SJPU, or 
local police. Media has to strictly comply with Section 23 
of the Act as well.
77.3. Children with intellectual disability are more vulnerable 
to physical, sexual and emotional abuse. Institutions
which 
house them or persons in care and protection, if come 
across any act of sexual abuse, have a duty to bring to the 
notice of the Juvenile Justice Board/SJPU or local police 
and they in turn be in touch with the competent authority 
and take appropriate action.
77.4. Further, it is made clear that if the perpetrator of the 
crime is a family member himself, then utmost care be 
taken and further action be taken in consultation with the 
mother or other female members of the family of the child, 
bearing in mind the fact that best interest of the child is 
of paramount consideration.
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77.5. If hospitals, whether government or privately-owned 
or medical institutions where children are being treated 
come to know that children admitted are subjected to 
sexual abuse, the same will immediately be reported to 
the nearest Juvenile Justice Board/SJPU and the Juvenile 
Justice Board, in consultation with SJPU, should take 
appropriate steps in accordance with the law safeguarding 
the interest of the child.
77.6. The non-reporting of the crime by anybody, after 
having come to know that a minor child below the age of 
18 years was subjected to any sexual assault, is a serious 
crime and by not reporting they are screening the offenders 
from legal punishment and hence be held liable under the 
ordinary criminal law and prompt action be taken against 
them, in accordance with law.
77.7. Complaints, if any, received by Ncpcr, Scpcr, Child 
Welfare Committee (CWC) and Child Helpline, NGOs or 
women’s organisations, etc., they may take further follow-
up action in consultation with the nearest Juvenile Justice 
Board, SJPU or local police in accordance with law.
77.8. The Central Government and the State Governments 
are directed to constitute SJPUs in all the districts, if not 
already constituted and they have to take prompt and 
effective action in consultation with the Juvenile Justice 
Board to take care of the child and protect the child and 
also take appropriate steps
against the perpetrator of the 
crime.
77.9. The Central Government and every State Government 
should take all measures as provided under Section 43 of 
Act 32 of 2012 to give wide publicity to the provisions of 
the Act through media including television, radio and print 
media, at regular intervals, to make the general public, 
children as well as their parents and guardians, aware of 
the provisions of the Act.”
253.	This Court in its decision in State of Maharashtra & Anr. v. Maroti 
reported in (2023) 4 SCC 298 examined and explained the true 
purport of the obligations envisaged under Section(s) 19 & 21 of
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the POCSO. It held that prompt and proper reporting of offences 
under the POCSO is the bedrock of the obligations that have been 
cast under the said provisions, and any other view would defeat the 
very purpose and object of the Act. It further observed that merely 
because the failure to discharge the obligation under Section(s) 19 
& 21 is punishable with imprisonment for a short duration, does not 
mean that such an offence is not to be taken seriously. Accordingly, 
it held that strict compliance of such provisions must be ensured to 
protect the tender age and youth of children against exploitation. 
The relevant observations read as under: -
“11. To achieve the avowed purpose, a legal obligation for 
reporting of offence under the POCSO Act is cast upon 
on a person to inform the relevant authorities specified 
thereunder when he/she has knowledge that an offence 
under the Act had been committed. Such obligation is also 
bestowed on person who has apprehension that an offence 
under this Act is likely to be committed. Besides casting 
such a legal obligation under Section 19, the Legislature 
thought it expedient to make failure to discharge the 
obligation thereunder as punishable, under Section 21 
thereof. True that under Section 21 (1), failure to report the 
commission of an offence under Sub Section 1 of Section 
19 or Section 20 or failure to report such offence under 
Sub Section 2 of Section 19 has been
made punishable 
with imprisonment of either description which may extend 
to six months or with fine or with both. Sub section 2 of 
Section 21 provides that any person who being in-charge 
of any company or an institution (by whatever name called) 
who fails to report the commission of an offence under 
Sub-Section 1 of Section 19 in respect of a subordinate 
under his control, shall be punishable with imprisonment 
with a term which may extend to one year or with fine. 
Certainly, such provisions are included in with a view 
to ensure strict compliance of the provisions under the 
POCSO Act and thereby to ensure that the tender age 
of children is not being abused and their childhood and 
youth is protected against exploitation.
12. Looking at the penal provisions referred above, making 
failure to discharge the obligation under Section 19 (1)
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punishable only with imprisonment for a short duration 
viz., six months, one may think that it is not an offence to 
be taken seriously. However, according to us that by itself 
is not the test of seriousness or otherwise of an offence 
of failure to discharge the legal obligation under Section 
19, punishable under Section 21 of POCSO Act. We are 
fortified in our view, by the decisions of a three Judge 
Bench of this Court in Vijay Madanlal Choudhary & Ors. v. 
Union of India & Ors. and a two Judge-Bench in Shankar 
Kisanrao Khade v. State of Maharashtra.
xxx xxx xxx
14. [...] the length of punishment is not only the indicator 
of the gravity of offence and it is to be judged by a totality 
of factors, especially keeping in mind the background in 
which the offence came to be recognized by the Legislature 
in the specific international context. In this context, it is 
also relevant to note that the United Nations Convention 
on Rights of Children, which was ratified by India on 
11.12.1992, requires the State parties to undertake all 
appropriate national, bilateral and multilateral measures 
to prevent the inducement or coercion of child to engage 
in any unlawful sexual activity, the exploitative use of 
children in prostitution or other unlawful sexual practices 
etc. Articles 3 (2) and 34 of the Convention have placed 
a specific duty on the State to protect the child from all 
forms
of sexual exploitation and abuse.
15. Prompt and proper reporting of the commission of 
offence under the POCSO Act is of utmost importance and 
we have no hesitation to state that its failure on coming 
to know about the commission of any offence thereunder 
would defeat the very purpose and object of the Act. We say 
so taking into account the various provisions thereunder. 
Medical examination of the victim as also the accused 
would give many important clues in a case that falls under 
the POCSO Act. [...] We refer to the aforesaid provisions 
only to stress upon the fact that a prompt reporting of the 
commission of an offence under POCSO Act would enable 
immediate examination of the victim concerned and at the
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same time, if it was committed by an unknown person, it 
would also enable the investigating agency to commence 
investigation without wasting time and ultimately to secure 
the arrest and medical examination of the culprit. There 
can be no two views that in relation to sexual offences 
medical evidence has much corroborative value.”
(Emphasis supplied) 
254.	The role of “intermediaries” as defined under Section 2(w) of the IT 
Act in checking the proliferation of child pornography is significant. 
Section 79 of the IT Act, 2000 which relates to due diligence that is to 
be observed by an intermediary, provides an exemption from liability 
to such intermediaries in certain cases if they are in compliance with 
the due-diligence requirements prescribed under the said provision, 
more particularly sub-section (3)(b), this is known as the “safe harbour” 
protection or provision. “Safe Harbour” protection means that an 
intermediary will not be held liable for any third-party information, 
data, or communication link made available or hosted by him. As per 
sub-section (2), in order to avail such protection, the intermediary 
foremost must not in any manner be involved in either initiating the 
transmission, or the receipt or the modification of the third-party 
data or information in question, and further is required to observe 
due diligence while discharging his duties under the IT Act and to 
also observe such other
guidelines as the Central Government may 
prescribe in his behalf. Sub-section (3) (b) of the above-mentioned 
provision stipulates that if an intermediary receives actual knowledge 
or is notified by the appropriate government or its agency that any 
information, data, or communication link residing in or connected to 
a computer resource controlled by the intermediary is being used 
to commit an unlawful act, the intermediary must expeditiously 
remove or disable access to that material on that resource without 
compromising the evidence in any manner. It further states that 
the protection under Section 79 lapses and does not apply if the 
intermediary has conspired or abetted or aided or induced, whether 
by threats or promise or otherwise in the commission of the unlawful 
act, or if upon receiving “actual knowledge”, or if the intermediary 
fails to expeditiously remove or disable access to that material on 
that resource without vitiating the evidence in any manner on being 
notified by the appropriate Government or its agency that any
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information, data or communication link residing in or connected to 
a computer resource controlled by the intermediary is being used 
to commit the unlawful act. The relevant provision reads as under: -
“79. Exemption from liability of intermediary in certain 
cases.—
(1) Notwithstanding anything contained in any law for the 
time being in force but subject to the provisions of sub-
sections (2) and (3), an intermediary shall not be liable 
for any third-party information, data, or communication link 
made available or hosted by him.
(2) The provisions of sub-section (1) shall apply if—
(a)	
the function of the intermediary is limited to 
providing access to a communication system over 
which information made available by third parties 
is transmitted or temporarily stored or hosted; or
(b)	
the intermediary does not—
(i)	
initiate the transmission;
(ii)	
select the receiver of the transmission; and
(iii)	 select or modify the information contained 
in the transmission;
(c)	
the intermediary observes due diligence while 
discharging his duties under this Act and also 
observes such other guidelines as the Central 
Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if—
(a)	
the intermediary has conspired or abetted or 
aided or induced, whether by threats or promise 
or otherwise in the commission of the unlawful act;
(b)	
upon receiving actual
knowledge, or on being 
notified by the appropriate Government or its 
agency that any information, data or communication 
link residing in or connected to a computer 
resource controlled by the intermediary is being 
used to commit the unlawful act, the intermediary
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fails to expeditiously remove or disable access to 
that material on that resource without vitiating the 
evidence in any manner.
Explanation.—For the purposes of this section, the 
expression ‘third-party information’ means any information 
dealt with by an intermediary in his capacity as an 
intermediary.”
255.	Rule 11 of the Protection of Children from Sexual Offences Rules, 
2020 (for short, the “POCSO Rules”), places an obligation on the 
intermediaries to not only report offences under POCSO but also to 
hand over the necessary material including the source from which 
such material may have originated to the Special Juvenile Police Unit 
or the local police, or the cyber-crime portal. As per a MOU between 
the National Crime Records Bureau (NCRB) under the Ministry of 
Home Affairs (MHA) and the National Centre for Missing & Exploited 
Children (NCMEC), a US based NGO, all social media intermediaries 
are required to report cases of child abuse and exploitation to the 
NCMEC, which in turn reports these cases to the NCRB and the 
NCRB forwards this to the concerned State authorities in India 
through the national cybercrime reporting portal. 
256.	It has been brought to the notice of this Court that social media 
intermediaries do not report such cases of child abuse and exploitation 
to the local authorities specified under POCSO and rather only comply 
with the requirements stipulated in the MOU. In view of the
salutary 
object and the mandatory character of the provisions of Sections 19 
and 20 of the POCSO read with Rule 11 of the POCSO Rules, we are 
of the considered view, that an intermediary cannot claim exemption 
from the liability under Section 79 of the IT Act for any third-party 
information, data, or communication link made available or hosted by 
it, unless due diligence is conducted by it and compliance is made 
of these provisions of the POCSO. We are also of the view that 
such due diligence includes not only removal of child pornographic 
content but also making an immediate report of such content to the 
concerned police units in the manner specified under the POCSO 
Act and the Rules thereunder. 
257.	Section 42A of the POCSO provides that the Act shall be in addition 
to and not in derogation of the provisions of any other law and further 
provides that it shall have overriding effect on the provisions of any
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such law to the extent of the inconsistency. The relevant provision 
reads as under: -
“42A. Act not in derogation of any other law.—
The provisions of this Act shall be in addition to and not 
in derogation of the provisions of any other law for the 
time being in force and, in case of any inconsistency, 
the provisions of this Act shall have overriding effect 
on the provisions of any such law to the extent of the 
inconsistency.”
258.	In view of the overriding effect of the POCSO Act and the rules 
thereunder, merely because an intermediary is in compliance of 
the requirements specified under Section 79 of the IT Act, will not 
absolve it of any liability under the POCSO, unless it duly complies 
with the requirements and procedure set out under it, particularly 
Section 20 of POCSO Act and Rule 11 of the POCSO Rules. It is 
a settled position of law, that when a statute describes or requires 
a thing to be done in a particular manner; it should be done in that 
manner or not at all. Thus, social media intermediaries in addition to 
reporting the commission or the likely apprehension of commission 
of any offence under POCSO to the National Centre for Missing & 
Exploited Children (NCMEC) is also obligated to report the same to 
authorities specified under Section 19 of POCSO i.e., the Special 
Juvenile Police Unit (SJPU) or the local police.
259.	We endorse the view and the directions
issued by this Court in 
Shankar Kisanrao Khade (supra) and are of the considered view 
that a meaningful effect to the provisions of the POCSO can only 
be given if such directions are complied with to the letter and spirit. 
We further caution the courts to refrain from showing any form of 
leniency or leeway in offences under Section 21 of the POCSO, 
particularly to schools/educational institutions, special homes, 
children’s homes, shelter homes, hostels, remand homes, jails, etc. 
who failed to discharge their obligation of reporting the commission 
or the apprehension of commission of any offence or instance of 
child abuse or exploitation under the POCSO. Section(s) 19, 20 and 
21 of the POCSO are mandatory in nature, and there can be no 
dilution of the salutary object and purport of these provisions. Merely 
because Section 21 prescribes a lesser threshold of punishment,
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the same in no way derogates or detracts from the gravity or 
severity of the offence which has been sought to be punished as 
held in Maroti (supra). It is a settled position of law that the length 
of punishment is not the only indicator of the gravity of the offence 
and it is to be judged by a totality of factors, especially keeping in 
mind the background in which the offence came to be recognized 
by the legislature in the specific international context i.e., the United 
Nations Convention on Rights of Children, particularly Article(s) 3(2) 
and 34 of the said Convention.
ii.	
Suggestions to the Union of India and to the courts.
260.	We propose to suggest the following to the Union of India in its 
Ministry of Women and Child Development: -
(i)	
The Parliament should seriously consider to bring about an 
amendment to the POCSO for the purpose of substituting the 
term “child pornography” that with “child sexual exploitation 
and abuse material” (CSEAM) with a view to reflect more 
accurately on the reality of such offences. The Union of India, 
in the meantime may consider to bring about the suggested 
amendment to the POCSO by way of an ordinance. 
(ii)	
We put the courts to notice that the term “child pornography” 
shall not be used in any judicial order or judgment, and instead 
the term “child sexual exploitation and abuse material” (CSEAM) 
should be endorsed.
(iii)	 Implementing comprehensive sex education
programs that 
include information about the legal and ethical ramifications of 
child pornography can help deter potential offenders. These 
programs should address common misconceptions and provide 
young people with a clear understanding of consent and the 
impact of exploitation.
(iv)	 Providing support services to the victims and rehabilitation 
programs for the offenders is essential. These services should 
include psychological counselling, therapeutic interventions, 
and educational support to address the underlying issues and 
promote healthy development. For those already involved in 
viewing or distributing child pornography, CBT has proven 
effective in addressing the cognitive distortions that fuel such 
behaviour. Therapy programs should focus on developing
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empathy, understanding the harm caused to victims, and altering 
problematic thought patterns.
(v)	
Raising awareness about the realities of child sexual exploitative 
material and its consequences through public campaigns can 
help reduce its prevalence. These campaigns should aim to 
destigmatize reporting and encourage community vigilance.
(vi)	 Identifying at-risk individuals early and implementing intervention 
strategies for youth with problematic sexual behaviours (PSB) 
involves several steps and requires a coordinated effort among 
various stakeholders, including educators, healthcare providers, 
law enforcement, and child welfare services. Educators, 
healthcare professionals, and law enforcement officers should be 
imparted training to identify signs of PSB. Awareness programs 
can help these professionals recognize early warning signs and 
understand how to respond appropriately.
(vii)	 Schools can also play a crucial role in early identification and 
intervention. Implementing school-based programs that educate 
students about healthy relationships, consent, and appropriate 
behaviour can help prevent PSB.
(viii)	 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, as well as raising
awareness about the POCSO 
among children across the country from an early age, for 
ensuring a robust and well-informed approach to child protection, 
education, and sexual well-being.
(ix)	 We urge the Parliament to consider amending Section 15 
sub-section (1) of POCSO so as to make it more convenient 
for the general public to report by way of an online portal, any 
instance of storage or possession of CSEAM to the specified 
authorities for the purpose of the said provision.
G.	
FINAL ORDER
261.	For all the foregoing reasons, we have reached the conclusion 
that the High Court committed an egregious error in passing the 
impugned judgment. We are left with no other option but to set aside 
the impugned judgment and order passed by the High Court, and

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restore the criminal proceedings in Spl. S.C. No. 170 of 2023 to the 
court of Sessions Judge, Mahila Neethi Mandram (Fast Track Court), 
Tiruvallur District. We accordingly pass such order.
262.	We direct the Registry to send one copy each of this judgment to the 
Principal Secretary, Ministry of Law & Justice, Union of India and to 
the Principal Secretary, Ministry of Women and Child Development, 
Union of India, for undertaking appropriate course of action. 
263.	Pending application(s) if any, also stand disposed of.
Result of the Case: Appeals disposed of.
†Headnotes prepared by: Divya Pandey