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
[2024] 10 S.C.R. 154 : 2024 INSC 716
Just Rights for Children Alliance & Anr. 
v. 
S. Harish & Ors.
(Criminal Appeal No(s). 2161-2162 of 2024)
23 September 2024
[Dr. Dhananjaya Y. Chandrachud, CJI, J.B. Pardiwala,* J.]
Issue for Consideration
What is the scope of Section 15 of the Protection of Children 
from Sexual Offences Act, 2012 (POCSO); what is the underlying 
distinction between sub-section(s) (1), (2) and (3) respectively 
of the POCSO; whether, mere viewing, possessing or storing of 
any child pornographic material is punishable under the POCSO; 
what is the true scope of Section 67B of the IT Act; what is the 
scope of Section 30 of the POCSO; what are the foundational 
facts necessary for invoking the statutory presumption of culpable 
mental state in respect of Section 15 of the POCSO; whether, the 
statutory presumption contained in Section 30 of the POCSO can 
be invoked only at the stage of trial by the Special Court alone 
established under the POCSO; whether it is permissible for the 
High Court in a quashing petition filed under Section 482 of the 
Cr.P.C. to resort to the statutory presumption of culpable mental 
state contained in Section 30 of the POCSO.
Headnotes†
Protection of Children from Sexual Offences Act, 2012 –  
s.15 – Scope – Interpretation – Protection of Children from 
Sexual Offences (Amendment) Act, 2019 – Mere viewing, 
possessing or storing of any child pornographic material, if 
punishable under the POCSO:
Held: Yes – Any activity of
viewing, distributing or displaying etc., of 
any child pornographic material by a person over the internet without 
any actual or physical possession or storage of such material in 
any device or in any form or manner would 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 (possession beyond 
physical control, having the power and intention to control the 
contraband) – s.15 provides for three distinct offences that penalize 
* Author
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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 an inchoate 
offence which penalizes the mere storage or possession of any 
pornographic material involving a child when done with a specific 
intent as prescribed, without requiring any actual transmission, 
dissemination etc. – 2019 Amendment Act made three different 
forms of storage or possession of child pornography a punishable 
offence u/s.15, unlike the unamended s.15, which criminalized 
only the storage of child pornography for a commercial purpose – 
s.15(1) penalizes the failure to delete, destroy or report any child 
pornographic material 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., from the manner in which such 
material is stored or possessed and the circumstances in which the 
same was not deleted, destroyed or reported – s.15(2) penalizes 
both the actual transmission, propagation, display or distribution of 
any child pornography as-well as the facilitation of any of the said 
acts – 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 
indicative of any facilitation or actual transmission, propagation, 
display or distribution of such material – Further, s.15(3) penalizes 
the storage or possession of any child pornographic material when 
done for any commercial purpose wherein 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 however, to constitute an offence 
under sub-section (3) there is no requirement to establish that such 
gain or benefit had been actually realized – Sub-section(s) (1), (2) 
and (3) of Section 15 constitute independent and distinct offences 
with distinction between the varying degree of culpable mens-rea 
required under the three sub-sections – The three offences cannot 
co-exist simultaneously in the same set of facts. [Paras 73, 76, 
86, 114, 118, 222]
Information Technology Act, 2000 – s.67B – Scope:
Held: s.67B 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,
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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 – s.67B 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. [Paras 
151, 153, 222]
Protection of Children from Sexual Offences Act, 2012 – s.15 – 
“Punishment for storage of pornographic material involving 
child” – Inchoate Crime/Offence – ‘Actus Reus’; ‘Mens Rea’ – If 
there is any requirement for an actual transmission of any child 
pornographic material in order to fall within the ambit of s.15:
Held: No – s.15 is in the nature and form of an inchoate offence 
wherein it is the intention which is being punished and not the 
commission of any criminal act in the traditional sense – What 
is sought to be penalized under Section 15 is the storage or 
possession of any child pornographic material when done with a 
particular intention or purpose as stipulated in sub-section(s) (1), 
(2) or (3), as the case may be. [Paras 81, 86]
Criminal jurisprudence – Doctrine of Inchoate Crimes – 
Concept and aim – Discussed.
Interpretation of Statutes – Aid of marginal note –
Protection of 
Children from Sexual Offences Act, 2012 – s.15 – “Punishment 
for storage of pornographic material involving child” – 
Interpretation with the aid of marginal note when there is no 
contradiction between marginal note and the substantive parts:
Held: In the absence of any inherent conflict or contradiction 
between the marginal note and the substantive parts of a particular 
provision, the marginal note may be used to aid in the interpretation 
of the provision – s.15 along with the marginal note indicates, that it 
punishes only the storage of pornographic material involving a child 
when done with a specific intent prescribed thereunder and that there 
is no requirement for any actual transmission – Thus, s.15 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 stored with a specific intent prescribed thereunder, without 
requiring any actual transmission, dissemination etc. [Para 86]
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Criminal jurisprudence – Inchoate Crimes – Protection of 
Children from Sexual Offences Act, 2012 – s.15 – Child 
pornographic material – “Possession” – Doctrine of 
constructive possession – “actus-reus”:
Held: Under inchoate crimes possession is sought to be punished – 
Constructive possession extends the concept of possession beyond 
physical control to situations where an individual has the power 
and intention to control the contraband, even if it is not in their 
immediate physical possession – For establishing constructive 
possession both the power to control the material in question 
and the knowledge of exercise of such control are required –  
Wherever a person indulges in any activity such as viewing, 
distributing or displaying etc. pertaining to any child pornographic 
material without actually possessing or storing it in any device 
or in any form or manner, such act would still tantamount to 
‘possession’ in terms of Section 15 of the POCSO, if he exercised 
an invariable degree of control over such material, applying 
the doctrine of constructive possession – Thus, in terms of the 
Doctrine of Constructive Possession, any form of intangible or 
constructive possession of any child pornographic material will 
also amount to “possession” under Section 15 of the POCSO –  
There is no requirement of a physical or tangible “storage” or 
“possession” of such material in Section 15
– Thus, where any 
child pornographic material is in the constructive possession of an 
accused, the failure or omission to report the same would constitute 
the requisite actus-reus for the purposes of Section 15 sub-section 
(1) of POCSO. [Paras 114, 117, 118, 122]
Protection of Children from Sexual Offences Act, 2012 – s.15(1), 
(2), (3) – ‘mens rea’ required under – Distinction between:
Held: Section 15 sub-section (1) requires the existence of the 
requisite mens rea or intention due to which the child pornographic 
material was not deleted, destroyed or reported whereas, Section 
15 sub-section (2) requires the existence of the requisite mens rea 
or intention which propelled or led the person accused to not only 
store or possess the said material but also to take some additional 
steps towards either the actual transmission, propagation, display 
or distribution or the facilitation of the same – In contrast, Section 
15 sub-section (3) requires the existence of the requisite mens 
rea or intention due to which the person accused not only stored 
or possessed the child pornographic material but also compelled 
him to take some additional steps either for any gain or benefit or
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in lieu or expectation of some form of gain or benefit – Distinction 
further explained through examples. [Para 95]
Protection of Children from Sexual Offences Act, 2012 – s.15 – 
Protection of Children from Sexual Offences (Amendment) 
Act, 2019 – ‘Possession’ added to make s.15 more stringent 
to deter the dissemination and use of child pornography:
Held: Word “possession” was originally absent in the unamended 
Section 15 and the legislature specifically added it in the amended 
Section 15 – Hence, now both the storage or the possession of any 
child pornographic material would be liable to be punished when 
done with any of the specified intention thereunder. [Para 112]
Protection of Children from Sexual Offences Act, 2012 – s.15 – 
‘storage’; ‘possession’ of child pornographic material – To 
constitute offence u/s.15, ‘storage’ and ‘possession’ not to 
continue to be there at the time of registration of FIR:
Held: Section 15 does not fixate any particularly time-frame – What 
is simpliciter required to constitute an offence under Section 15 
of the POCSO is the establishment of ‘storage’ or ‘possession’ of 
any child pornographic material with the specified intention under 
sub-section(s) (1), (2) or (3), at any relevant point of time – Thus, 
an offence can be made out under Section 15 even if the said 
‘storage’ or ‘possession’ no longer exists at the time of registration 
of the FIR, if it is established that the
person accused had ‘stored’ 
or ‘possessed’ of any child pornographic material with the specified 
intention at any particular point of time even if it is anterior in time. 
[Para 124]
Protection of Children from Sexual Offences Act, 2012 – 
s.15 – Information Technology Act, 2000 – s.67B – Ingredients 
necessary to constitute offences under – Divergent views of 
different High Courts – Discussed.
Protection of Children from Sexual Offences Act, 2012 vis-à-
vis Protection of Children from Sexual Offences (Amendment) 
Act, 2019 – Statement of Object and Reasons – Discussed.
Information Technology Act, 2000 – ss.67, 67A, 67B – 
Information Technology (Amendment) Act, 2008 – History of 
amendment traced.
Interpretation of Statutes – Information Technology Act,  
2000 – Information Technology (Amendment) Act, 2008 – ss.67, 
67A vis-à-vis s.67B – Purposive interpretation:
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Held: A conjoint reading of Section(s) 67 and 67A vis-a-vis 67B 
would reveal that unlike the former which penalizes only the 
publication or transmission of any obscene material or pornographic 
material,scope and ambit of Section 67B is much wider as it 
recognizes and penalizes five different forms/categories of actus 
reus – s.67B 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 children – ss.67, 67A, s.67B 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. [Paras 150, 153] 
Protection of Children from Sexual Offences Act, 2012 – 
Protection of Children from Sexual Offences (Amendment) Act, 
2019 – ss.15, 2(1)(d), 2(1)(da) – “child”; “child pornography” – 
Pornographic material must prima facie appear to involve 
a Child – “Subjective satisfaction” criteria – “Subjective 
satisfaction” criteria, as existing in various countries 
discussed:
Held: 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’ – 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 such as 
a forensic science laboratory (FSL) report of such material or from 
any expert opinion or by the assessment of such material by the 
courts themselves – Practical difficulties in conclusively establishing 
the age of an individual in a pornographic material through objective 
means or criteria resulting in absurd consequences, enumerated. 
[Paras 131, 222]
Protection of Children from Sexual Offences Act, 2012 – 
Protection of Children from Sexual Offences (Amendment) 
Act, 2019 – ss.15, 2(1)(da), 2(1)(d) – “but appear to depict a
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child” – Purport of s.2(1)(da) – Section 2(1)(da) is a departure 
from the existing objective criterion of determination of age 
in terms of Section 2(1)(d):
Held: Neither Section 15 of the POCSO nor Section 2(1)(da) can 
be interpreted or invoked in isolation from the other – Section 2(1)
(da) of the POCSO, made a conscious departure from the already 
existing objective criterion of determination of age in terms of 
Section 2(1)(d) which is generally applicable to the POCSO, as the 
legislature was alive to inherent difficulty posed by such criteria – 
Section 2(1)(da) of the POCSO was inserted to explicitly define 
and delineate what type of visual depictions would be considered 
‘child pornography’ to remove any ambiguity that existed earlier and 
more importantly, to mitigate the tendency of the courts to refer and 
apply the objective criteria of age determination prescribed under 
Section 2(1)(d) of the POCSO, even when dealing with matters 
involving child pornography – Thus, the legislature in addition to 
explaining the contour of visual depiction in Section 2(1)(da) of the 
POCSO, also specifically added the words “but appear to depict 
a child” in the end – 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), rendering the words “but appear to 
depict a child”
otiose and nugatory – 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, it is the definition of ‘child 
pornography’ which is of relevance while considering whether 
Section 15 of the POCSO can be invoked or not. [Paras 139-143]
Protection of Children from Sexual Offences Act, 2012 – ss.2(1)
(d), 2(1)(da)– Protection of Children from Sexual Offences 
(Amendment) Act, 2019 – “child”; “child pornography” – Whether 
the individual involved is a ‘child’ or not – Determination – 
“but appear to depict a child”:
Held: Under s.2(1)(d), an objective criterion is prescribed based 
on the age of the individual in question which involves ascertaining 
and establishing whether he or she is under eighteen years of age, 
if so, such person would be considered a ‘child’ for the purposes 
of any offence in respect of such child that is punishable under 
the POCSO – Further, under the unamended Section 15, there 
was only one criteria for ascertaining whether the material in
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question can be regarded as ‘child pornography’ or not, which 
was by establishing that the material depicts or involves a person 
who is under the age of eighteen years – “child pornography” was 
specifically defined after the 2019 Amendment Act meaning any 
visual depiction of a child involved in any sexually explicit conduct 
wherein the expression ‘visual depiction’ is inclusive in nature – 
Further, “but appear to depict a child” lays down the test or criteria 
for ascertaining, whether any of the mentioned visual depiction is a 
‘child pornography’ or not, by prescribing a prima facie subjective 
satisfaction that the material appears to depict a child – The use 
of the comma before the words “but appear to depict a child” is 
significant which is used both as a disjunctive and a conjunctive to 
the words preceding it – It has been used as a disjunctive to stress, 
that the subjective criteria that the material in question appears 
to depict a child is not inextricably linked or limited to just one 
category of visual depictions i.e., the last category being “image 
created, adapted, or modified” – At the same time, it has been 
used as a conjunctive in relation to all types of visual depictions 
that have been illustrated in the said provision, to clearly indicate, 
that this subjective criterion applies to the entire provision i.e., to 
all types of visual depictions mentioned therein
or in other words 
to ‘child pornography’. [Paras 126-130]
Protection of Children from Sexual Offences Act, 2012 – s.30 – 
Culpable mental state under – Presumption mandatory yet, 
rebuttable:
Held: 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 rebutted by the accused 
either by discrediting the prosecution’s case or by leading evidence 
to prove the contrary, beyond a reasonable doubt – The standard 
prescribed for rebutting the said statutory presumption of culpable 
mental state is beyond a reasonable doubt. [Paras 156, 222]
Protection of Children from Sexual Offences Act, 2012 – 
s.30 – Statutory presumption of culpable mental state under – 
Reasons therefor, stated – Principle of Foundational Facts:
Held: Statutory presumption of culpable mental state is in view of 
the exigency posed by the difficulty that exists in establishing certain
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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 – Before the statutory 
presumption of culpable mental state could be validly invoked, the 
prosecution must first establish certain foundational facts beyond a 
reasonable doubt – Initial burden always lies on the prosecution – 
Thus, 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 – 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 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. [Paras 166, 171, 172, 174]
Protection of Children from Sexual Offences Act, 2012 – 
s.15(1), (2), (3) – Statutory presumption of culpable mental 
state for offence u/s.15 – Necessary foundational facts to be 
established for invocation thereof:
Held: For the purpose of sub-section (1), the 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 – 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
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said act(s) had not been done for the purpose of either reporting 
or for use as evidence – Further, 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. [Para 222]
Protection of Children from Sexual Offences Act, 2012 – s.30 – 
Code of Criminal Procedure, 1973 – s.482 – Presumption  
u/s.30, if can be resorted to in a quashing proceeding – 
Two videos depicting children involved in a sexual activity 
were recovered from the mobile phone of respondent no.1-
accused – FIR alleged offences u/ss.14(1) of the POCSO and 
67B of the IT Act, however, in the chargesheet, the offence 
u/s.14(1) of the POCSO was substituted and instead offence 
u/s.15(1) of the POCSO was alleged – Criminal proceedings 
quashed by High Court – Correctness:
Held: 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 – 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 – 
Once the investigation is over and chargesheet is filed, the FIR 
pales into insignificance – Child pornographic material that was 
recovered from the personal mobile phone of the accused which 
was regularly in use by him, which prima facie establishes the 
storage or possession of child pornographic material – 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 there was a failure on his part to delete, 
destroy or report such material – High Court failed 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 
and erred in quashing the criminal proceedings – In view of the 
statutory presumption of culpable mental state being attracted, 
any defence of the accused 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 at this stage – Impugned judgment set aside, criminal 
proceedings restored. [Paras 185, 193, 201, 203, 221, 261]
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Code of Criminal Procedure, 1973 – s.482 – Duty of High 
Court – Quashing of criminal proceedings, when justified – 
Discussed.
Protection of Children from Sexual Offences Act, 2012 – s.15 – 
Ignorance of law vis-à-vis incognizance of law – Ignorance of 
law, when can be used as a valid defence – Plea of the accused 
that he was unaware that storing of child-pornography was 
a punishable offence under Section 15 of POCSO along with 
the bona-fide belief that such storage was not an offence:
Held: Rejected – 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 – 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 – 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 and the 
existence of which must be bona-fidely believed – 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 for a valid 
defence is not fulfilled and the defence of ignorance of law by the 
accused fails – 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 – Unawareness 
or incognizance of law should not be conflated with ignorance of 
law. [Paras 212, 214, 217]
Suggestions by Court – Protection of Children from Sexual 
Offences Act, 2012 – Suggestions made to Ministry of Women 
and Child Development, Union of India:
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Held: The term “child pornography” is a misnomer that fails 
to capture the full extent of the crime – Each case of what is 
traditionally termed “child pornography” involves the actual abuse 
of a child, the use of the term “child pornography” trivializes 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 – The term “child sexual exploitation 
and abuse material”(“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 – 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 – Courts forbidden from using the 
term “child pornography” and instead the term CSEAM should 
be used in judicial orders and judgements of all courts across 
the country – Parliament should consider to amend the POCSO 
for substituting the term “child pornography” with “child sexual 
exploitation and abuse material” (CSEAM) –
Further, though, there 
is 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 – Need for and importance of positive 
age-appropriate sex education emphasized – Implementation of 
comprehensive sex education programs – Impact of CSEAM on 
victims; need for legal, social, therapeutic support to the victims 
and rehabilitation programs for the offenders, stated – These 
services should include psychological counselling, therapeutic 
interventions and educational support to address the underlying 
issues and promote healthy development – For those involved in 
viewing or distributing child pornography, CBT has proven effective 
in addressing the cognitive distortions that fuel such behaviour – 
Raising awareness about the realities of child sexual exploitative 
material and its consequences through public campaigns can help 
reduce its prevalence – 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 schools, 
educators, healthcare providers, law enforcement, and child welfare 
services – Union of India may consider constituting an Expert
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Committee for devising a comprehensive program or mechanism 
for health and sex education, as well as raising awareness about 
the POCSO among children – Obligation of the appropriate 
government and the commission under Section(s) 43 and 44 of 
the POCSO does not end at just spreading awareness about the 
provisions of the POCSO – Their efforts must go beyond just the 
textual wording of the said provisions and to earnestly take into 
account the pragmatic necessities for curtailing the issue of child 
abuse, exploitation and addiction to pornography – Collective 
responsibility of the society u/s.19, 20 of the POCSO, specified – 
Parliament to consider amending Section 15(1) of POCSO 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. 
[Paras 227-229, 248, 260] 
Protection of Children from Sexual Offences Act, 2012 – 
Information Technology Act, 2000 – ss.2(w), 79 – Protection 
of Children from Sexual Offences Rules, 2020 – Role and 
obligations of “intermediaries”:
Held:Significance of role of “intermediaries” as defined under 
Section 2(w) of the IT Act in checking the proliferation of child 
pornography; obligation on the intermediaries under Protection of 
Children from Sexual Offences Rules, 2020, enumerated – 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) 
are also obligated to report the same to authorities specified under 
Section 19 of POCSO – Courts to refrain from showing any 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 fail 
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 – In 
view of the the mandatory character of Sections 19 and 20 of the 
POCSO read with Rule 11 of the POCSO Rules, 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
[2024] 10 S.C.R. 
167
Just Rights for Children Alliance & Anr. v. S. Harish & Ors.
by it and compliance is made of these provisions of the POCSO – 
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. [Paras 254-256, 258-260]
Words and Phrases – Protection of Children from Sexual 
Offences Act, 2012 – s.2(da) – “child pornography”; 
‘Possession’, ‘Constructive Possession’; ‘Immediate Control’ 
u/s.15 – Concept.
Case Law Cited
Chandi Kumar Das Karmarkar v. Abanidhar Roy AIR (1965) SC 
585; Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. [1979] 
2 SCR 641 : (1979) 2 SCC 409 - held inapplicable.
Independent Thought v. Union of India & Anr. [2017] 13 SCR 821 
: (2017) INSC 1030; Attorney General for India v. Satish [2021] 10 
SCR 955 : (2021) INSC 762; Eera through Dr. Manjula Krippendorf 
v. State (Govt. of NCT of Delhi) & Anr. [2017] 7 SCR 924 : (2017) 
INSC 658; Nawabuddin v. State of Uttarakhand [2022] 1 SCR 1083 
: (2022) INSC 162; Sharat Babu Digumarti v. Govt. of NCT of Delhi 
[2016] 8 SCR 1015 : (2017) 2 SCC 18; State of M.P. v. Harsh 
Gupta (1998) 8 SCC 630; Prakash Nath Khanna v. CIT [2004] 
2 SCR 434 : (2004) 9 SCC 686; R. Kalyani v. Janak C. Mehta 
& Ors. [2008] 14 SCR 1249 : (2009) 1 SCC 516; Rathis Babu 
Unnikrishnan v. The State (Govt. of NCT of Delhi) & Anr. [2022] 
4 SCR 989 :
(2022) INSC 480; R.P. Kapur v. State of Punjab AIR 
(1960) SC 866; State of Haryana v. Bhajan Lal (1992) AIR SC 604; 
S.M. Datta v. State of Gujarat [2001] Supp. 2 SCR 140 :(2001) 7 
SCC 659; National Spot Exchange Ltd. v. Anil Kohli, Resolution 
Professional for Dunar Foods Ltd. [2021] 7 SCR 1024 : (2022) 
11 SCC 761; M. Siddiq v. Mahant Suresh Das (2020) 1 SCC 1; 
Shankar Kisanrao Khade v. State of Maharashtra [2013] 6 SCR 
949 : (2013) 5 SCC 546; State of Maharashtra & Anr. v. Maroti 
[2022] 8 SCR 821 : (2023) 4 SCC 298 – relied on.
Bhanabhai Khalpabhai v. Collector of Customs [1994] 2 SCR 348 
: (1994) Supp. (2) SCC 143; Devchand Kalyan Tandel v. State of 
Gujarat [1996] Supp. 4 SCR 382 : (1996) 6 SCC 255; State of 
Punjab v. Baldev Singh [1999] 3 SCR 977 : (1999) 6 SCC 172; 
Seema Silk Sarees v. Directorate of Enforcement [2008] 8 SCR 
201 : (2008) 5 SCC 580; Noor Aga v. State of Punjab & Anr. [2008]
168
[2024] 10 S.C.R.
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10 SCR 379 : (2008) 16 SCC 417; Bhola Singh v. State of Punjab 
[2011] 2 SCR 642 : (2011) 11 SCC 653; Baldev Singh v. State of 
Haryana [2015] 12 SCR 969 : (2015) 7 SCC 554 – referred to.
Nupur Ghatge v. State of Madhya Pradesh (MCRC No. 52596 of 
2020); P.G. Sam Infant Jones v. State represented by Inspector 
of Police (2021) SCC OnLine Mad 2241; Ajin Surendran v. State 
of Kerala & Anr. (2022) KER 7207; Manuel Benny v. State of 
Kerala (2022) KER 9730; Lakshya v. State of Maharashtra & Anr. 
(Criminal Writ Petition No. 479 of 2022); Shantheeshlal T. v. 
State of Kerala (2024) KER 35968; Akash Vijay v. State of Kerala 
(2024) KER 42626; Akhil Johny v. State of Kerala (2024) KER 
53767; Inayathulla N (1) v. State (2024) KHC 26513; Inayathulla 
N (2) v. State (2024) KHC 28204 – referred to.
U.S. v. Tucker 150 F. Supp. 2d 1263 (D. Utah. 2001); U.S. v. Romm 
455 F. 3d. 990 (9th Cir., 2006); Regina v. Michael Land (1997) 
EWCA Crim J1010-15; John Leadbetter v. Her Majesty’s Advocate 
(2020) HCJAC 51; United States v. Katz 178 F.3rd 368 (5th Cir. 
1999); Commonwealth v. Robert (829 A.2d. 127) – referred to. 
Books and Periodicals cited
50th Report of the Standing Committee on Information Technology 
on the ‘Information Technology (Amendment) Bill, 2007; Eva J. 
Klain, Heather J Davies, Molly A. Hicks Et. Al., Child Pornography: 
The Criminal Justice-System Response, 8 (Penn State University 
Press, 2001); Philip Jenkins, Beyond
Tolerance: Child Pornography 
on the Internet (New York University Press, 2003); Burgess, Ann 
W. & C.R. Hartman, Child Abuse Aspects of Child Pornography, 7 
PSYCHIATRIC ANNALS, 248 (1987); 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); Tali Gal, Child Victims and Restorative 
Justice – A Needs Rights Model, 17 (Oxford University Press, 
2011); Jonah R. Rimmer, Child Sexual Exploitation, (Oxford 
Research Encyclopaedia Criminology, 2024); 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); Danijela Frangež, Anton Toni Klančnik, Mojca Žagar Karer 
Et. Al., The Importance of Terminology Related to Child Sexual
[2024] 10 S.C.R. 
169
Just Rights for Children Alliance & Anr. v. S. Harish & Ors.
Exploitation, 66(4) REV. ZA. KRIM. KRIMINOL. 291 (2015); 
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); Vaughn I. Rickert & Owen Ryan, Is the Internet the 
Source, 40 J. ADOLESC. HEALTH 104 (2007); 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); 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); Dr. Ethel Quayle Et. Al., The role of sexual 
images in online and offline sexual bheaviour with minors, 17(6) 
CURR. PSYCHIATRY REP. 1 (2019); Melissa Hamilton, The 
Child Pornography Crusade and Its Net- Widening Effect, 33 
CARDOZO L. REV. 1694 (2012); Esposito & Lesli C., Regulating 
the Internet: The Battle Against Child Pornography, 30 CASEW. 
RES. J. INT’L. L. 5 (1998); Jason S. Carrol Et Al., Generation 
XXX, Pornography Acceptance and Use Among Emerging Adults, 
23 J. ADOLESCENT RES. 6 (2008); Clare McGlynn & Dr. Hannah
Bows, Possessing Extreme Pornography: policing, prosecutions 
and the need for reform, 83(6) J. CRIM. LAW., 473 (2019); Dr. 
Ethel Quayle, Lars Loof and Tink Palmer, Child Pornography and 
Sexual Exploitation of Children Online, 64 (ECPAT International, 
2008); 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); Paul G. 
Cassel, James Marsh & Jeremy M. Christiansen, The Case for 
Full Restitution for Child Pornography Victims, 82 GEO. WASH. L. 
REV. 61 (2013); Padminin Iyer & Peter Aggleton, Seventy years 
of sex education – A Critical Review, 74(1) HEALTH EDUC. J. 3 
(2015); Udaan Adolescent Education Program by the Centre for 
Catalyzing Change in Jharkhand in India; Cortney Lollar, Child 
Pornography and the Restitution Revolution, 103 J. CRIM. L. & 
CRIMINOLOGY 343 (2013); Jagdish Khubchandani, Jeffrey Clark 
& Raman Kumar, Beyond Controversies: Sexuality Education for 
Adolescents in India, 3(3) J. FAMILY MED. PRIM. CARE. 175 
(2014) – referred to.
170
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List of Acts
Protection of Children from Sexual Offences Act, 2012; Protection of 
Children from Sexual Offences (Amendment) Act, 2019; Information 
Technology Act, 2000; Information Technology (Amendment) Act, 
2008; Protection of Children from Sexual Offences Rules, 2020.
List of Keywords
Section 15 of the Protection of Children from Sexual Offences 
Act, 2012; Section 67B of the Information Technology Act, 2000; 
POCSO; Child pornography; Child; Pornographic content; Child 
pornographic material; Child sexual exploitation; Child sexual 
abuse; Exploitation and abuse of children; Use of obscene/
pornographic material through electronic means; Online sexual 
denigration and exploitation of children; Cyber-offences relating 
to children; Videos showing children involved in a sexual activity; 
Statutory presumption of culpable mental state; Quashing;  
Storage or possession; Mere storage or possession; Intangible 
possession; Constructive possession; “Deleted, destroyed, reported”; 
Failure or omission to report; Transmission; Propagation; Display 
or distribution; Foundational facts; Marginal note; Commercial 
purpose; Inchoate offence; Mens-rea; Culpable mens-rea; 
Requisite mens rea; Intention; Actus reus; Purposive interpretation;  
“Subjective satisfaction” criteria; Ignorance of Law; Incognizance of 
Law; Suggestions by Court; Due diligence; Intermediaries; “Child 
Sexual Exploitation and Abuse Material”(CSEAM).
Case
Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 2161-
2162 of 2024
From the Judgment and Order dated 11.01.2024 of the High Court 
of Judicature at Madras in CRLOP No. 37 of 2024 and CRLMP No. 
79 of 2024
Appearances for Parties
H.S. Phoolka, Sr. Adv., Jagjit Singh Chhabra, Bhuwan Ribhu, Ms. 
Rachna Tyagi, Saksham Maheshwari, Ms. Shashi, Ms. Taruna 
Panwar, Ms. Tanvi Chaudhry, Advs. for the Appellants.
Ms. Swarupama Chaturvedi, Sr. Adv., Prashant S. Kenjale, Amol 
Nirmalkumar Suryawanshi, Ms. Srishty Pandey, Ashutosh Chaturvedi, 
M/s. Juristrust Law Offices, Abhaid Parikh, Ms. Katyayani Anand, 
Ms. Saumya Kapoor, Aayush Shivam, D. Kumanan, Sheikh F. Kalia, 
Advs. for the Respondents.
[2024] 10 S.C.R. 
171
Just Rights for Children Alliance & Anr. v. S. Harish & Ors.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.:
For the convenience of exposition, this judgment is divided into the 
following parts: -
INDEX*
A.
FACTUAL MATRIX...........................................................................
4
B.
IMPUGNED ORDER.......................................................................
10
C.
SUBMISSIONS OF THE PARTIES................................................
16
i.
Submissions on behalf of the Appellants.............................
16
ii.
Submissions on behalf of the National Commission for 
Protection of Child Rights (NCPCR)....................................
18
iii.
Submissions on behalf of the respondent no. 1 / the Sole 
Accused...................................................................................
20
iv.
Submissions on behalf of the respondent nos. 2 & 3 / the 
State.........................................................................................
22
D.
ISSUES FOR DETERMINATION....................................................
24
E.
ANALYSIS........................................................................................
25
i.
Relevant Statutory Scheme and Provisions.......................
25
a.
Legislative History and Scheme of the POCSO................
25
b.
Relevant Provisions of the IT Act.......................................
38
ii.
Scope of Section 15 of the POCSO and Section 67B of
the IT Act.................................................................................
40
a.
Contradictory Views of different High Courts on the subject..
40
b.
Three distinct offences punishable under Section 15 of 
the POCSO..........................................................................
55
I.
Concept of an Inchoate Crime – The ‘Actus Reus’ 
and ‘Mens Rea’ required under Section 15.................
60
II.
Concept of ‘Possession’, ‘Constructive Possession’ 
and ‘Immediate Control’ under Section 15 of the 
POCSO........................................................................
78
c.
Pornographic Material must prima facie appear to involve a 
Child...................................................................................
86
d.
Scope of Section 67B of the IT Act....................................
95
* Ed. Note: Pagination as per the original Judgment.
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iii.
Presumption of Culpable Mental State under Section 30 
of the POCSO..........................................................................
108
a.
Concept of Statutory Presumption and Principle of 
Foundational Facts............................................................
110
b.
Foundational Facts required under Section 15 of the 
POCSO...............................................................................
126
c.
Whether the Presumption under Section 30 of the POCSO 
can be resorted to in a Quashing Proceeding?................
130
iv.
Whether the case at hand was one fit for the High Court 
to quash?................................................................................
141
a.
Plea of Ignorance of Law: Ignorance of Law viz-a-viz 
Incognizance of Law..........................................................
147
v.
Summary of our conclusion..................................................
161
F.
FEW MEANINGFUL SUGGESTIONS.............................................
167
i.
The Lingering Impact of Child Pornography on the 
Victimization & Abuse of Children.......................................
167
a.
Obligation to report under Section(s) 19 & 20 respectively of 
the POCSO and Role of the Society and all Stakeholders...
180
ii.
Suggestions to the Union of India and to the courts.........
195
G.
FINAL ORDER.................................................................................
198
1.
Since the issues raised in both the captioned appeals are same and 
the challenge is also to a self-same judgment and order passed by 
the High Court those were taken up for hearing analogously and are 
being disposed of by this common judgment and order. 
2.	
The present appeals arise out of the final judgment and order 
passed by the High Court of Judicature at Madras dated 11.01.2024 
in Criminal Original Petition (Crl. O.P.) No. 37 of 2024 (“Impugned 
Order”) filed by the respondent no. 1 (accused) herein under Section 
482 of the Code of Criminal Procedure, 1973 (for short, the “Cr.P.C.”) 
by which the High Court allowed the petition and thereby quashed 
the chargesheet dated 19.09.2023 filed for the offences punishable 
under Section 67B of the Information Technology Act, 2000 (for short, 
the “IT Act”) and Section 15(1) of the Protection of Children from 
Sexual Offences Act, 2012 (for short, the “POCSO”) arising out of 
the FIR No. 03 of 2020, P.S. Ambattur, Chennai. As a consequence, 
the criminal proceedings in Special Sessions Case No. 170 of 2023 
stood terminated.
[2024] 10 S.C.R. 
173
Just Rights for Children Alliance & Anr. v. S. Harish & Ors.
3.	
It may be necessary to clarify that the appellant no. 1 herein, ‘Just 
Rights for Children Alliance’ is a collation comprising of five different 
NGOs that work in unison against child trafficking, sexual exploitation 
and other allied causes. Whereas the appellant no. 2 is a child rights 
organization working towards protecting children from exploitation and 
one of the partner NGOs to the aforesaid collation. The appellants 
herein were not a party to the proceedings before the High Court. 
However, having regard to the serious issue of public importance 
involved in the matter they sought leave of this Court to challenge 
the impugned judgment of the High Court. The respondent nos. 2 & 3 
are the State of Tamil Nadu and the Inspector of Police, All-Women’s 
Police Station Ambattur, Chennai, respectively.
A.	
FACTUAL MATRIX
4.	
On 29.01.2020, the All-Women’s Police Station Ambattur, Chennai, 
Tamil Nadu i.e., the respondent no. 3 herein, received a letter from 
the Additional Deputy Commissioner of Police (Crime against women 
and children Branch) wherein it was mentioned that as per the Cyber 
Tipline Report of the National Crimes Record Bureau (NCRB), the 
respondent no. 1 herein is an active consumer of pornography and 
has allegedly downloaded pornographic material involving children 
in his mobile phone. 
5.	
Accordingly, in view of the aforesaid letter an FIR was registered
against the respondent no. 1 herein on the very same day i.e., 
29.01.2020 at the All-Women’s Police Station Ambattur, Chennai, 
Tamil Nadu as Crime No. 03 of 2020 for the offence punishable 
under Section(s) 67B of the IT Act and 14(1) of the POCSO. The 
relevant portion of the FIR reads as under: -
“Today on 29.01.2020 at 12.00 noon, I, the Inspector of 
W28, All Women Police Station was on duty, received 
letter RC. No. 03/ADC CWC/West/Camp/2020 dated 
28.01.2020 from Thirumathi S. Megalina, Additional Deputy 
Commissioner of Police, Prevention of Crimes against 
Women and Children Division, Chennai, West Zone. 
On perusal of the same, 4 References were mentioned 
therein viz.
Ref: 1.	 DO.Lr.No.05/ADGP-CWC/NCMEC/2020
2.	 C. No.30/COP/CO/2020
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3.	 R.C. No. 228 VIII/DC CWC/Genl/2020 (CTR 
No. 49303278)
4.	 RC No. 68 /Japu – ii/NCMEC/2020
As per the notice issued in CTR No. 49303278 by National 
Crime Record Bureau, it is seen that Harris, resident of 
Door No.2, 1st Main Road, VPC Nagar, Kallikuppam, 
Ambattur, Mobile No. 99406 87836, has for the past 
more than two years, been watching child pornographic 
films. Details have also been obtained with regard to child 
pornographic films which were made by using children who 
have been exploited, children who have gone missing, 
and by collecting information from centres which deal with 
missing children, and details have been provided with 
regard to the persons who have downloaded such child 
pornographic films. When those notices were perused, it 
was seen that the above said person had downloaded those 
films through Old Site ID-KALLI/OLD/ Chm ID-CHM2307, 
with a view to indulge in sexual activities, and these films 
were made at the address ‘Gopalsamy, No.2, Gangai 
Amman Kovil 3rd Main Road, Kallikuppam, Ambattur’ by 
exploiting children in this area. Since this bad activity is 
a crime against good social order, it was directed to take 
appropriate action against the said person, and therefore, 
Crime No. 03/2020 U/S 67B IT ACT r/w 14(1) POCSO Act 
2012 was registered, and the original FIR has been sent 
to the concerned Court of learned Judicial Magistrate, 
and copies have been sent to the concerned superior
officers of police without any delay, and investigation has 
been taken up.
13. Action Taken: Since the above information reveals 
commission of offence(s) u/s as mentioned at Item No. 2, 
registered the case and took up the investigation.
FIR read over to the complainant/Informant, admitted to be 
correctly recorded and a copy given to the Complainant/
Informant free of cost.”
6.	
During the course of the investigation, the mobile phone belonging 
to the respondent no. 1 was seized and sent to the Forensic Science
[2024] 10 S.C.R. 
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Just Rights for Children Alliance & Anr. v. S. Harish & Ors.
Laboratory for analysis. The respondent no. 1 was also questioned 
whether he had ever viewed any pornographic content, to which the 
respondent no. 1 admitted that he used to regularly view pornography 
while he was in college.
7.	
As per the Computer Forensic Analysis Report dated 22.08.2020 it 
was found that the mobile phone of the respondent no. 1 contained 
two video files relating to child pornography depicting two underage 
boys involved in sexual activity with an adult woman. The Computer 
Forensic Analysis Report further stated that more than hundred other 
pornographic video files were downloaded and stored in the said 
mobile phone. The relevant portion of the said Computer Forensic 
Analysis Report reads as under: -
“COMPUTER FORENSIC ANALYSIS REPORT
Received from
:
The Sessions Judge, Mahalir 
Neethi Mandram, (Fast Track 
Mahila Court) Tiruvallur.
Crime No. & P.S.
:
03/2020 of Ambattur AWPS
Organization Report No.
:
CF/52/2020
Case received Date
:
28.02.2020
Case received through
:
WHC 43450, Tmt. Poornima
Seals status
:
Correct & Intact
Nature of crime
:
67(B) IT Act and 14(1) of 
POCSO Act 2012
Tools used
:
UFED 4 PC.
Report date
:
22.08.2020
Head of the Division
:
A. Visalakshi, M.Sc, PGDCA
Examiner
:
S. Hemalatha, M.Sc., (FS), 
M.Sc., (CS)
RECEIVED DEVICE DESCRIPTION
One (1) sealed cloth-lined paper parcel marked, “PI No. 
5/2020. Cr. No. 3/2020, Ambattur AWPS …” containing
the following item:
Marked 
as
Name of 
the Item 
received
Details of the Item
Packing / 
Labelling 
details
176
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1
Mobile 
phone
SIM 1
Memory 
Card
Battery
Make: MOTO
Model: XT 1804
IMEI1: 356477088126073
IMEI2: 356477088126081
Airtel 4G 128K
ICCID: 
8991000902533662473U
Strontium 16 GB
Inbuilt
Kept in a 
plastic box 
marked, 
“PI No: 
05/2020”.
Objective
The above item was examined with a view to find if there is 
any facility of viewing video files using YouTube application 
and the details. And also to find if any media files pertaining 
to pornography were found accessed/downloaded/saved. 
EXAMINATION
Mobile Phone : [MOTO]
The internal memory of the mobile phone was acquired 
using file system extraction and examined using the 
forensic software tool “UFED 4 PC”. The retrieved details 
such as contacts, call logs, SMS messages and media files 
are generated as a report and the report (in pdf) is copied 
on to a Compact Disc marked as “CF 52/20”. Selected 
pages from the report are given as Annexure-I. Some of 
the findings from the report are as follows: - [...]
[...] Above findings indicated that the mobile phone 
was found to be equipped with the facility of viewing 
videos through YouTube Application.
4. (a) Video files pertaining to pornography (more than 100 
Nos.) were found downloaded and stored in different paths, 
the details of the same are given as Annexure – II. [...]
(b) Some of the vide files pertaining to pornographic 
nature were found stored under the path “Motorola 
GSM_XT1806 MotoG5SPlus.zip/sdcard/ProgramData/
Android/Language/.fr/Videos/wat up pono”. [...]
[2024] 10 S.C.R. 
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Just Rights for Children Alliance & Anr. v. S. Harish & Ors.
(c) Under the same path two video files which could be 
accounted for Child Pornography content were found 
stored. In the videos boys (under-teen) were found involved 
in sexual activity with a adult woman/girl. The details of 
the same are pasted below: -
S. No.
File Info
Additional File Info
1.
Name: VID-20190614-WA0006.
mp4
Path: Motorola GSM_XT1806 
MotoG5SPlus.zip/sdcard/
ProgramData/Android/Language/.
fr/Videos/wat up pono/ VID-
20190614-WA0006.mp4
Size (bytes): 11256288
Modified: 
6/14/2019 
15:44 (UTC +5:30)
2.
Name: Unmayal sollungal Ennodu 
sellungal with Vadivel Balaji in AIE 
4-8-2012 – Youtube.3GP
Path: Media/Internal shared 
storage/trending/adhu idu/Unmayal 
sollungal Ennodu sellungal with 
Vadivel Balaji in AIE 4-8-2012 – 
Youtube.3GP
Size (bytes): 20467994
Modified: 
9/5/2016 
23:12 (UTC +5:30)
[...] 
Memory Card: [Strontium 16 GB]
The memory card was acquired and examined using the 
forensic software tool “UFED 4 PC”. The retrieved details 
such as document, image and video files are generated as 
a report and the report (in pdf) is copied on to a Compact 
Disc marked as “CF 52/20”. The full report is given as 
Annexure-III.
On perusing the medial files, multiple video snapshot 
images and video files were found related to pornography. 
The representative samples of the same are copied onto 
the CD mentioned earlier under a specified folder. [...]”
8.	
Upon completion of
the investigation, chargesheet dated 19.09.2023 
was filed against the respondent no. 1 for the offences punishable 
under Section(s) 67B of the IT Act and 15(1) of the POCSO
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respectively. It may not be out of place to state at this stage, that 
although the FIR was registered for the offence punishable under 
Section 14(1) of the POCSO yet in light of the materials collected 
in the course of the investigation and the findings recorded in the 
Computer Forensic Analysis Report, the chargesheet was ultimately 
filed for the offence punishable under Section 15(1) of the POCSO. 
The relevant portion reads as under: -
“Final Report
Before the Hon’ble Mahila Fast Track Mahila Court, 
Tiruvallur
Police Final Report under 173(i) W28 Ambattur All Women 
Police Station Crim no- 3/2020 U/s 67(B) IT ACT & 14 (1) 
of POCSO ACT 2012 @67 (B) IT ACT 15(1) of POCSO 
ACT 2012. [...]
Nature of the case
Mrs. Megallina, Additional Deputy Commissioner of Police, 
Women and Child Crime Branch, Chennai, West Zone 
LETTER RC.NO. 03/ADC CWC/West/Camp/2020 Dated: 
28.01.2020 in that mentioned Ref: 1. Do. Lr. No. 05/ 
ADGP- CWC/ camp/ NCMEC/ 2020, 2. C.No.30/ COP/ CO/ 
2020, 3. R.CNO. 228 VIII/ DC CWC/ Genl/ 2020 (CTR No. 
49303278), 4. RC.No. 68/ japu- ii/ NCMEC/ 2020 as per 
the detail, Haris residing at 1st Main Road, Door No.03, 
VPC Nagar, Kallikuppam, Ambattur has reported to NCRB 
(National Crime Record Bureau) that he had seen child 
pornography on his mobile phone number 99406 87836 
for more than two years at CTR No. 49303278 has been 
obtained and a report on child exploitation and missing 
persons and details
of those who have downloaded child 
pornography against children banned by the data collection 
system has been obtained. Aforesaid person OLD Size 
ID- KALLI 4/OLD Chm Id- CHM2307 Downloaded from the 
address No.2 Gopalsamy, 3rd Main Road, Gangaiyamman 
Temple, Ampathur, Kallikuppam, with the malicious 
intention of viewing children’s pornographic films for sexual 
purposes. As this evil act is considered to be a crime of 
disturbance of social morals, after being instructed to
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take appropriate action against the said person, the All 
Women Police Station registered a case in CRIME NO. 
03/20 U/ S 67B IT ACT r/ w 14(1) POCSO Act 2012 and 
the copy of the same was sent to the concerned court 
and the copies to the higher police officers without delay 
for investigation. [...]
In the investigation conducted so far, crime scene no. 2, 
VPC Nagar to Main Road Kallikuppam Ambattur, Chennai is 
within the jurisdiction of Ambattur All Women Police Station. 
On 28.01.2000 Additional Deputy Commissioner, Women 
and Child Prevention Division, Chennai West Zone gone 
through the case received from (NCMEC) According to 
the National Center for Exploited Children in this case 
accused Harish AGE 24/S/o. Santhanam No. 2 VPC Nagar 
First Main Road Kallikuppam Ampathur Chennai has been 
using his phone number ( 99406 87836) for more than two 
years from his mobile phone number OLD Size ID- KALLI 
4/OLD Chm Id- CHM2307 Downloaded from the address 
No.2 Gopalsamy, 3rd Main Road, Gangaiyamman Temple, 
Ampathur, Kallikuppam, with the malicious intention of 
viewing children’s pornographic films for sexual purposes 
As this evil act is considered to be a crime of disturbance 
of social morals, as per CTR NO 49303278 a report of 
the crime has been received by NCRB.
Therefore, the accused in this case is considered to 
have committed an offense of disturbing public morals 
and therefore
has committed a cognizable offense under 
Section 67 (B) IT ACT & 15 (1) of the POCSO Act 2012. [...]”
B.	
IMPUGNED ORDER
9.	
Aggrieved by the aforesaid, the respondent no. 1 went before the 
High Court of Judicature at Madras by way of a quashing petition 
being the Criminal Original Petition (Crl. O.P.) No. 37 of 2024 for 
the purposes of getting the aforesaid chargesheet and the criminal 
proceedings arising therefrom quashed. 
10.	 The impugned judgment of the High Court is in three-parts. In other 
words, the High Court quashed the criminal proceedings essentially 
on three grounds: -
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(i)	
First, the High Court was of the view that to constitute an offence 
under Section 14(1) of POCSO, a child must have been used by 
the person accused for pornographic purposes. It observed that 
although the two videos depicting children engaged in a sexual 
activity were found to have been downloaded and stored in the 
mobile phone belonging to the respondent no. 1, and assuming 
that the accused had watched the same yet the same would 
not constitute an offence under Section 14(1) of the POCSO. 
The relevant observations read as under: -
“9. To make out an offence under Section 14(1) of 
Protection of Child from Sexual Offences Act, 2012, a 
child or children must have been used for pornography 
purposes. This would mean that the accused person 
should have used the child for pornographic purposes. 
Even assuming that the accused person had watched 
child pornography video, that strictly will not fall within 
the scope of Section 14(1) of Protection of Child from 
Sexual Offences Act, 2012. Since he has not used 
a child or children for pornographic purposes, at the 
best, it can only be construed as a moral decay on 
the part of the accused person.”
(ii)	 Secondly, the High Court held that, to constitute an offence 
under Section 67B of the IT Act, the person accused must 
have published, transmitted or created material depicting 
children in sexually explicit act or conduct. It held that although 
the respondent
no. 1 had admitted that he was addicted to 
watching pornography, yet mere watching or downloading of 
child pornography without any transmission or publication of the 
same does not fall within the purview of Section 67B of the IT 
Act. The relevant portion reads as under: -
“6. This Court enquired the petitioner and he stated 
that his date of birth is 13.11.1995 and that he has an 
elder brother. After a lot of persuasion, the petitioner 
admitted that during his teens, he had the habit of 
watching pornography. However, the petitioner made 
it clear that he had never watched child pornography. 
That apart, he also stated that he had never attempted 
to publish or transmit any of the pornographic
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materials to others. He had merely downloaded the 
same and he had watched pornography in privacy. 
xxx xxx xxx
10. In order to constitute an offence under Section 
67-B of Information Technology Act, 2000, the 
accused person must have published, transmitted, 
created material depicting children in sexual explicit 
act or conduct. A careful reading of this provision 
does not make watching a child pornography, per 
se, an offence under Section 67-B of Information 
Technology Act, 2000. Even though Section 67-B of 
Information Technology Act, 2000, has been widely 
worded, it does not cover a case where a person has 
merely downloaded in his electronic gadget, a child 
pornography and he has watched the same without 
doing anything more.”
(iii)	 Lastly, the High Court in light of its aforesaid discussion and 
by placing reliance on Section 292 of the Indian Penal Code, 
1860 (for short, the “IPC”) took the view that although the 
pornographic content was found to have been downloaded 
and stored in the mobile phone of the respondent no. 1 yet in 
the absence of any material to show that the respondent no. 1 
had transmitted or published the same, no offence whatsoever 
could be said to have been made out either under the POCSO, 
IT Act or the IPC and thus quashed the criminal proceedings. 
The relevant observations read as under: -
“8. This Court had the advantage of going through 
the entire
CD file. The mobile phone that was seized 
from the petitioner did contain pornographic materials. 
However, for the purposes of this case, only two 
videos were identified as child pornography. Those 
two videos contain boys (under teen) involved in 
sexual activity with an adult woman/girl. Admittedly, 
those two videos were downloaded and available in 
the mobile phone belonging to the petitioner and it 
was neither published nor transmitted to others and 
it was within the private domain of the petitioner.
xxx xxx xxx
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11. The Kerala High Court had an occasion to deal 
with the scope of Section 292 IPC. That was a case 
where a person was caught watching porn videos 
and a First Information Report came to be registered 
against him. While dealing with this issue, the Kerala 
High Court held that, watching an obscene photo or 
obscene video by a person by itself will not constitute 
an offence under Section 292 IPC. This is in view of 
the fact that this act is done by the concerned person 
in privacy without affecting or influencing anyone else. 
The moment the accused person tries to circulate or 
distribute or publicly exhibits obscene photos or videos, 
then the ingredients of the offence starts kicking in.
11.	 Thus, the High Court vide its impugned judgment and order dated 
11.01.2024 allowed the petition and thereby quashed the criminal 
proceedings in Spl. S.C. No. 170 of 2023 on the ground that no offence 
could be said to have been made out against the respondent no. 1 
either under Section 14(1) of the POCSO or Section 67B of the IT 
Act. The operative portion of the Impugned Order reads as under: -
“12. In the considered view of this Court, the materials 
that have been placed before this Court does not make 
out an offence against the petitioner under Section 67-B 
of Information Technology Act, 2000 and Section 14(1) of 
Protection of Child from Sexual Offences Act, 2012.
xxx xxx xxx
18. In the light of the above discussion,
the continuation of 
the proceedings against the petitioner will amount to abuse 
of process of Court. That apart, it will be a stumbling block 
for the petitioner’s career in future. Therefore, this Court 
is inclined to quash the proceedings in Spl.S.C.No.170 
of 2023 on the file of the Sessions Judge, Mahila Neethi 
Mandram (Fast Track Court), Tiruvallur District.
Accordingly, this Criminal Original Petition stands allowed 
and the proceedings in Spl.S.C.No.170 of 2023 on the file 
of the Sessions Judge, Mahila Neethi Mandram (Fast Track 
Court), Tiruvallur District, is hereby quashed. Consequently, 
connected criminal miscellaneous petition is closed.”
(Emphasis supplied)
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12.	 From the aforesaid it could be said that the High Court laid down 
three propositions of law which are as follows: -
i.	
Mere possession or storage of any pornographic material is 
not an offence under the POCSO. We are mindful of the fact 
that, whilst endorsing the aforesaid proposition of law, the High 
Court in its impugned Order either consciously did not deem it 
necessary to refer to Section 15 of the POCSO or inadvertently 
failed to refer to Section 15 of the POCSO. Nevertheless, in 
either case that may be, the aforesaid proposition of law found 
favour with the High Court.
ii.	
Section 67B of the IT Act only makes the act of transmission, 
publication or creation of material depicting children in sexually 
explicit manner an offence. Mere watching or downloading of 
child pornography in private domain is not punishable under 
the same.
iii.	
In the absence of any material to indicate any transmission or 
publication of pornographic content involving child, no offence 
could be said to have been committed under the POCSO or 
the IT Act, and the criminal proceedings would be liable to be 
quashed. In other words, to attract the provisions of the POCSO 
or the IT Act it is not sufficient to merely establish storage 
or possession of child pornography and that transmission or 
publication of the same is also required to be established. In 
the absence of the same the criminal
proceedings are liable 
to be quashed.
13.	 In such circumstances referred to above, the appellants being 
aggrieved with the Impugned Order passed by the High Court have 
come up before this Court with the present appeal.
C.	
SUBMISSIONS OF THE PARTIES
i.	
Submissions on behalf of the Appellants.
14.	 Mr. H.S. Phoolka, the learned Senior Counsel appearing for the 
appellants submitted that the interpretation of the relevant provisions 
of POCSO by the High Court for the purpose of holding that mere 
storage or possession of any child pornographic material does not 
amount to an offence, poses a significant threat to the well-being of 
children and may result in proliferation of child pornography, posing 
a significant threat to the very social fabric of the society at large.
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In support of his submissions, Mr. Phoolka relied on the Convention 
on Cybercrime and the United Nations Convention on the Rights of 
the Child, 1989.
15.	 He further submitted that the chargesheet filed by the investigating 
agency specifically records that, as per the information received 
from the National Commission for Missing and Exploited Children, 
USA (NC-MEC), the accused had been watching child pornographic 
videos for the past two years.
16.	 He further contended that the High Court erroneously proceeded 
under Section 14(1) of the POCSO, which deals with the use of 
children for pornographic purposes, without giving due consideration 
to Section 15(1) of the Act.
17.	 He further submitted that Section 15(1) explicitly penalizes the 
downloading and failure to delete child pornography. In the present 
case, the respondent’s stance that he had received two files containing 
child pornography via WhatsApp is falsified by the NC-MEC report. 
Furthermore, there is nothing on record to substantiate that the 
videos were received on WhatsApp. 
18.	 It was further argued that the High Court committed a serious error 
in quashing the criminal proceedings without addressing itself on 
Section 15 of the POCSO. He submitted that the impugned judgment 
poses a significant threat to child welfare and is contrary to several 
national and international commitments.
19.	 He further submitted that the High Court also failed to
distinguish 
between adult pornography and child pornography, as Sections 
67 and 67A of the IT Act deal with adult pornography, while 
Section 67B was specifically introduced in 2009 to provide more 
stringent punishment for collecting, downloading, or watching child 
pornographic material.
20.	 He further submitted that in view of Section 30 of the POCSO the 
High Court was legally obliged to presume the existence of a culpable 
mental state on the part of the accused for having committed any 
offence under the Act that requires such a mental state. 
21.	 In the last, Mr. Phoolka submitted that a conjoint reading of Section 
67B of the IT Act, Section 15, and Section 30 of the POCSO leaves no 
manner of doubt as regards the culpability of persons in possession 
of child pornography.
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ii.	
Submissions on behalf of the National Commission for 
Protection of Child Rights (NCPCR).
22.	 Ms. Swarupama Chaturvedi, the learned Senior Counsel appearing 
for the National Commission for Protection of Child Rights (NCPCR), 
submitted that there was a serious lapse on the part of the State in 
failing to register the FIR for the offence punishable under Section 
15 of the POCSO, 2012, as the possession of pornographic material 
involving a child in any form by itself is an offence under Section 
15(1) of the Act. It was also argued that the State as a Prosecuting 
agency failed in its duty to bring it to the notice of the High Court 
that chargesheet was ultimately filed for the offence under Section 
15(1) of the POCSO & not Section 14.
23.	 She further submitted that the accused had downloaded pornographic 
material involving a child onto his mobile phone, retained possession 
of it, and failed to take any steps to delete the same for two years, 
as mandated under Section 19 of the POCSO, 2012.
24.	 She contended that the High Court failed to appreciate the mandate 
of Section 30, which raises a presumption of a culpable mental 
state on the part of the accused for any offence under the Act that 
necessitates such a mental state. The provision, therefore, shifts 
the burden of proving the absence of a culpable mental state onto 
the accused.
25.	 She would further submit that
Section 19 of the POCSO imposes 
mandatory reporting of an offence under the Act if there was an 
apprehension that such offence is likely to be committed or knowledge 
that such an offence has been committed. It was pointed out that 
the failure to discharge this obligation by itself is punishable under 
Section 21 of the POCSO. She pointed out that the social media 
platforms claim to report such instances to the National Center for 
Missing and Exploited Children (NCMEC), a US-based NGO, which 
then reports them to the National Crime Records Bureau (NCRB). 
However, Section 19 mandates reporting such cases to the Special 
Juvenile Police Unit (SJPU) or the Special Police. Therefore, reporting 
to an NGO cannot absolve the social media platforms of its liability 
under Section 21 of the POCSO. 
26.	 In the last, it was submitted that the issue as regards the plight of 
minors involved or used in child pornography is a matter of serious
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concern for one and all. She prayed for issuance of appropriate 
directions. She submitted that in an age when children require 
internet access for educational purposes, it has become imperative 
to provide them with a safe online environment in accordance with 
Article 12 of the United Nations Convention on the Rights of the 
Child (UNCRC).
iii.	
Submissions on behalf of the respondent no. 1 / the Sole 
Accused.
27.	 Mr. Prashant S. Kenjale, the learned Counsel appearing for the 
respondent no. 1 / the accused, submitted that the FIR was lodged 
for the offence under Section 14(1) of the POCSO and Section 67B 
of the IT Act, and thus, no error not to speak of any error of law 
could be said to have been committed by the High Court in passing 
the impugned order.
28.	 He further submitted that the date of the receipt of the videos 
recovered from the mobile phone of the respondent no. 1 phone is 
14.06.2019, at which point the 2019 amendment to Section 15 was 
not yet in force. 
29.	 He further contended that the two files found from the Respondent’s 
phone were named (a.) VID-20190614-WA005.mp4 and (b.) VID-
20190823-WA0020.mp4. The use of “WA” in the file names indicates 
that they were automatically downloaded by WhatsApp, which 
has an auto-download feature, as shown in a research study. He 
would submit that in such circumstances, the said videos had been 
automatically downloaded onto his phone and that the
respondent 
no. 1 was unaware of their existence. He argued that the forensic 
evidence clearly indicates both the creation and modification date as 
14.06.2019, thereby indicating that the files were never accessed.
30.	 He further submitted that the mere possession of the aforesaid videos 
does not constitute an offence under Section 15(1) of the POCSO, 
as the respondent never had any intention to share or distribute 
them. He also argued that even if it is assumed that the respondent 
no. 1 had watched the said videos once and then failed to delete 
it, he cannot be charged under Section 15(1) of the POCSO, as 
he was unaware of its presence due to the government’s failure to 
publicize the law.
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31.	 He submitted that ignorance of law on the part of the respondent 
no. 1 was accompanied by a bona fide belief, and as such it would 
not constitute an offence under Section(s) 15 of the POCSO and 
67B of the IT Act. In support of this argument, he placed reliance 
on the decisions of this Court in Chandi Kumar Das Karmarkar v. 
Abanidhar Roy, reported in AIR 1965 SC 585, and Motilal Padampat 
Sugar Mills Co. Ltd. v. State of U.P., reported in (1979) 2 SCC 409.
iv.	
Submissions on behalf of the respondent nos. 2 & 3 / the 
State.
32.	 Mr. D. Kumanan, the learned Counsel appearing for the State, 
submitted that the High Court, whilst passing the Impugned Order 
proceeded on an erroneous footing that an offence under Section 
14 of the POCSO had been alleged against the accused, even-
though both the chargesheet as-well as the quashing petition clearly 
mentioned that the indictment against the accused was under Section 
15(1) of the POCSO.
33.	 He further submitted that the High Court in its Impugned Order 
failed to look into Section 67B of the IT Act. The High Court whilst 
quashing the criminal proceedings neither discussed nor gave any 
due consideration to Section 67B, eventhough chargesheet had 
been filed for an offence under it. 
34.	 It was submitted that both Section 15 of the POCSO and Section 67B 
of the IT Act had been enacted with the salutary object of curtailing 
child
abuse by penalizing any form of use of child pornography, 
including watching of such pornographic content in order to tackle 
the larger problem of creation and dissemination of such material 
by the perpetrators. 
35.	 He submitted that more than hundred pornographic videos were 
found stored in the mobile phone of the respondent no. 1 / accused 
herein. Furthermore, the accused had himself admitted before the 
High Court that he along with his friends would regularly watch such 
pornographic material. In such circumstances it was argued that the 
accused had stored such material in his phone with the intention of 
sharing it with his friends. 
36.	 It was further submitted that the marginal note of Section 15 of 
the POCSO i.e. “Punishment for storage of pornographic material 
involving child” is self-explanatory and that sub-section (1) of the
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said provision punishes the storage or possession of any such 
pornographic material when done with an intention to share or transmit 
it. Reliance was placed on Section 30 of the POCSO to argue that 
the said provision specifically provides for presumption of a culpable 
mental state on part of the accused for any offence under the Act 
which requires such mental state, and as such the onus was on 
the accused to prove that he had no intention to share the material 
that was found stored in his phone, which was also overlooked by 
the High Court.
37.	 In the last, it was submitted that once the chargesheet and the other 
materials on record prima-facie disclosed the commission of an 
offence, more particularly the pornographic videos that were found 
stored in the mobile phone of the accused, it was not proper for the 
High Court to exercise its inherent powers under Section 482 of the 
Cr.P.C to quash the criminal proceedings.
D.	
ISSUES FOR DETERMINATION
38.	 Having heard the learned counsel appearing for the parties and 
having gone through the materials on record, the following questions 
of law fall for our consideration: -
I.	
What is the scope of Section 15 of the POCSO? In other words, 
what is the underlying distinction between sub-section(s) (1), 
(2) and (3) respectively of the POCSO? 
II.	
Whether, mere viewing, possessing or storing of any child 
pornographic material is punishable under the POCSO? 
III.	
What
is the true scope of Section 67B of the IT Act?
IV.	
What is the scope of Section 30 of the POCSO? In, other 
words, what are the foundational facts necessary for invoking 
the statutory presumption of culpable mental state in respect 
of Section 15 of the POCSO? 
V.	
Whether, the statutory presumption contained in Section 30 of 
the POCSO can be invoked only at the stage of trial by the 
Special Court alone established under the POCSO? In other 
words, whether it is permissible for the High Court in a quashing 
petition filed under Section 482 of the Cr.P.C. to resort to the 
statutory presumption of culpable mental state contained in 
Section 30 of the POCSO?
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E.	
ANALYSIS
i.	
Relevant Statutory Scheme and Provisions.
a.	
Legislative History and Scheme of the POCSO.
39.	 Before adverting to the rival submissions canvassed on either side, 
it would be apposite to first look into the statutory scheme and refer 
to the relevant provisions of the POCSO. 
40.	 As the long title, ‘Protection of Children from Sexual Offences Act, 
2012’ suggests, the POCSO was enacted by the Parliament to 
address the urgent need for a comprehensive law to protect children 
from sexual abuse and exploitation.
41.	 Sexual exploitation of children is a pervasive and deeply rooted issue 
that has plagued the societies worldwide and has been a matter of 
serious concern in India. Prior to the enactment of the POCSO, India 
lacked a specific legal framework dedicated to dealing with sexual 
offenses against children. While the provisions related to sexual 
offenses existed in the IPC, they were not adequately tailored to 
address the unique vulnerabilities and the needs of children. 
42.	 The inadequacy of the existing laws to effectively deal and combat 
with the sexual abuse of children was starkly evident. The IPC, though 
equipped to handle sexual offences, did not explicitly recognize the 
various forms of sexual abuse that children might face. Under the 
IPC there was no distinction between an adult and a child victim 
for the purposes of the offences punishable under
the Code nor did 
it account for the specific psychological and developmental needs 
of such child victims. Moreover, the procedural laws were not child-
friendly, often resulting in secondary victimization during the legal 
process. The increasing incidence of child sexual abuse in India and 
the growing awareness of the long-term psychological impact on the 
victims underscored the need for a dedicated law. The POCSO was 
introduced to fill this gap and provide a robust legal mechanism to 
safeguard children from sexual crimes and protect them from offences 
of sexual assault, sexual harassment and pornography.
43.	 The Statement of Objects and Reasons for the enactment of the 
POCSO makes it abundantly clear that since the sexual offences 
against children were not adequately addressed by the existing 
laws and a large number of such offences were neither specifically
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provided for nor were they adequately penalized, the POCSO has 
been enacted to protect the children from the offences of sexual 
assault, sexual harassment and pornography and to provide for 
establishment of Special Courts for trial of such offences and for 
matters connected therewith and incidental thereto. 
44.	 It further states that the POCSO is a ‘self-contained comprehensive 
legislation’ for the purpose of enforcing the rights of all children to 
safety, security and protection from sexual abuse and exploitation 
countered through commensurate penalties as an effective deterrence 
for sexual offences and pornography and has been enacted keeping 
in mind Articles 15 and 39 of the Constitution respectively and 
the United Nations Convention on the Rights of the Children. The 
Statement of Objects and Reasons of the POCSO reads as under: -
“STATEMENT OF OBJECTS AND REASONS
Article 15 of the Constitution, inter alia, confers upon 
the State powers to make special provision for children. 
Further, Article 39, inter alia, provides that the State shall in 
particular direct its policy towards securing that the tender 
age of children are not abused and their childhood and 
youth are protected against exploitation and they are given 
facilities to develop in a healthy manner and in conditions 
of freedom and dignity. 
The United Nations Convention on Rights of Children, 
ratified by India on 11th December,1992, requires
the State 
Parties to undertake all appropriate National, By-lateral 
and Multi lateral measures to prevent (a) the inducement 
or coercion of a child to engage in any unlawful sexual 
activity; (b) the exploitative use of children in prostitution or 
other unlawful sexual practices; and (c) the exploitative use 
of children in pornographic performances and materials. 
The data collected by the National Crime Records Bureau 
shows that there has been increase in cases of sexual 
offences against children. This is corroborated by the ‘study 
on child abuse: India 2007’ conducted by the Ministry of 
Women and Child Department. Moreover, sexual offences 
against children are not adequately addressed by the 
extent laws. A large number of such offences are neither
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specifically provided for nor are they adequately penalized. 
The interests of the child, both as a victim as well as a 
witness, need to be protected. It is felt that offences against 
children need to be defined explicitly and countered through 
commensurate penalties as an effective deterrence. 
It is, therefore, proposed to enact a self-contained 
comprehensive legislation inter-alia to provide for protection 
of children from the sexual offences and pornography 
with due regard for safeguarding the interest and well 
being of the child at every stage of the Judicial process, 
incorporating child friendly procedures for reporting, 
recording of evidence, investigation and trial of offences 
and provision for establishment of Special Courts for 
speedy trial of such offences.
(Emphasis supplied)
45.	 The primary legislative intent behind the enactment of the POCSO 
was to create a comprehensive legal framework that would not 
only punish offenders but also provide a child-friendly system for 
the recording of evidence, investigation, and trial of offenses. The 
POCSO was designed to cover all forms of sexual abuse against 
children, including sexual harassment, child pornography, and 
aggravated sexual assault, among others. It aimed to ensure the 
safety and dignity of child victims during the legal process, with 
specific provisions that mandate in-camera trials, the presence of a
trusted adult during the proceedings, and the prohibition of aggressive 
questioning of child victims.
46.	 The POCSO is a manifestation of the unique scheme formed by 
Article(s) 15 and 39 respectively of the Constitution and the obligation 
cast by the United Nations Convention on Rights of Children that 
was ratified by India. Article 15 more particularly sub-article (3) read 
with Article 39(f) of the Constitution i) enables the State to make 
special provisions for children AND ii) at the same time obligates 
the State to direct its policy towards ensuring that the tender and 
vulnerable age of children is not exploited or abused and to secure 
a dignified and healthy childhood and youth, free from any moral or 
material abandonment or exploitation. The UN Convention on Rights 
of Children prescribes a set of standards that have to be ensured
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by all State parties including India to secure the best interest of the 
child and to specifically undertake preventive measures against any 
form of exploitation of children such as prostitution, unlawful sexual 
activity or pornographic performances and depictions. The POCSO is 
a legislative manifestation towards realization of these constitutional 
provisions, by providing a specialized framework to combat and 
prevent any and all forms of sexual abuse and exploitation as stated 
in its long Preamble. The relevant portion of the long Preamble of 
the POCSO reads as under: -
“An Act to protect children from offences of sexual assault, 
sexual harassment and pornography and provide for 
establishment of Special Courts for trial of such offences 
and for matters connected therewith or incidental thereto.
Whereas clause (3) of article 15 of the Constitution, inter 
alia, empowers the State to make special provisions for 
children;
And whereas, the Government of India has acceded on 
the 11th December, 1992 to the Convention on the Rights 
of the Child, adopted by the General Assembly of the 
United Nations, which has prescribed a set of standards 
to be followed by all State parties in securing the best 
interests of the child;
And whereas it is necessary for the proper development of 
the child that his or her right to privacy and confidentiality 
be protected and respected by every person by all means 
and through all
stages of a judicial process involving the 
child;
And whereas it is imperative that the law operates in a 
manner that the best interest and well being of the child 
are regarded as being of paramount importance at every 
stage, to ensure the healthy physical, emotional, intellectual 
and social development of the child;
And whereas the State parties to the Convention on 
the Rights of the Child are required to undertake all 
appropriate national, bilateral and multilateral measures 
to prevent –
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(a)	 the inducement or coercion of a child to engage in 
any unlawful sexual activity;
(b)	 the exploitative use of children in prostitution or other 
unlawful sexual practices;
(c)	
the exploitative use of children in pornographic 
performances and materials;
And whereas sexual exploitation and sexual abuse of 
children are heinous crimes and need to be effectively 
addressed.”
47.	 Section 2(1) sub-clause (d) of the POCSO defines the term “child” 
to mean any person below the age of eighteen years. Thus, the 
definition of the term “child” used under the POCSO is denuded of 
any gender i.e., the term is both gender neutral and gender fluid and 
as such will include any person who is below the age of 18-years. 
The relevant provision reads as under: -
“2. Definitions. – 
(1) In this Act, unless the context otherwise requires, –
(d) “child” means any person below the age of eighteen 
years;”
48.	 Section 2(1)(da) defines the term “child pornography” to mean and 
include any visual depiction of a child involved in any sexually explicit 
conduct such as photograph, video, image generated digitally or by 
a computer which is indistinguishable from an actual child i.e., any 
self-generated image of an actual child or any other image that has 
been created, adapted or modified, that appears to depict a child. 
The relevant provision reads as under: -
“2. Definitions. – 
(1) In this Act, unless the
context otherwise requires, –
(da) “child pornography” means any visual depiction of 
sexually explicit conduct involving a child which include 
photograph, video, digital or computer generated image 
indistinguishable from an actual child and image created, 
adapted, or modified, but appear to depict a child;”
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49.	 Section 15 of the POCSO delineates and provides when the storage 
or possession of pornographic material involving a child shall be a 
punishable offence under the POCSO and further prescribes the 
punishment for such storage or possession of pornographic material 
involving a child. The relevant provision reads as under: -
“15. Punishment for storage of pornographic material 
involving child. – 
(1) Any person, who stores or possesses pornographic 
material in any form involving a child, but fails to delete 
or destroy or report the same to the designated authority, 
as may be prescribed, with an intention to share or 
transmit child pornography, shall be liable to fine not less 
than five thousand rupees and in the event of second or 
subsequent offence, with fine which shall not be less than 
ten thousand rupees. 
(2) Any person, who stores or possesses pornographic 
material in any form involving a child for transmitting or 
propagating or displaying or distributing in any manner 
at any time except for the purpose of reporting, as may 
be prescribed, or for use as evidence in court, shall be 
punished with imprisonment of either description which 
may extend to three years, or with fine, or with both. 
(3) Any person, who stores or possesses pornographic 
material in any form involving a child for commercial 
purpose shall be punished on the first conviction with 
imprisonment of either description which shall not
be less 
than three years which may extend to five years, or with 
fine, or with both and in the event of second or subsequent 
conviction, with imprisonment of either description which 
shall not be less than five years which may extend to 
seven years and shall also be liable to fine.”
50.	 It would be worthwhile to note that Section 15 of the POCSO had 
undergone a significant change by virtue of the Protection of Children 
from Sexual Offences (Amendment) Act, 2019 (for short, the “2019 
Amendment Act”), whereby several key changes were introduced. 
We shall discuss the said provision viz-à-viz the unamended provision 
of Section 15 along with the object and purpose behind the 2019 
Amendment Act in more detail in the latter part of this judgment.
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51.	 Section 30 of the POCSO provides for the presumption of culpable 
mental state and provides that where any offence under the POCSO 
requires a culpable mental state on the part of the accused, the 
existence of such mental state on the part of the accused shall be 
presumed by the Special Court, and that it shall be open for the 
accused to rebut this presumption. In other words, the accused can 
prove that he had no such mental state with respect to any offence 
under the Act. The relevant provision reads as under: -
“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.”
52.	 This Court in its decision in Independent Thought v. Union of India 
& Anr. reported in 2017 INSC
1030 held that the preamble to the 
POCSO recognizes and mandates that the Act and its provisions 
ought to operate and be interpreted in a manner that would be in the 
best interest and well-being of the child. It should i) ensure that the 
sexual exploitation and abuse of children are addressed effectively 
and ii) induce a healthy physical, emotional, intellectual and social 
development of the child. The relevant observations read as under: -
“42. [...] The Preamble to the POCSO Act also recognizes 
that it is imperative that the law should operate “in a 
manner that the best interest and well being of the 
child are regarded as being of paramount importance at 
every stage, to ensure the healthy, physical, emotional, 
intellectual and social development of the child”. Finally,
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the Preamble also provides that “sexual exploitation and 
sexual abuse of children are heinous crimes and need to 
be effectively addressed”. [...]”
(Emphasis supplied)
53.	 In Attorney General for India v. Satish reported in 2021 INSC 762 
this Court had the occasion to examine the entire legislative scheme 
of the POCSO. It held that each provision of the POCSO should be 
construed viz-a-viz the other provisions of the Act and with reference to 
the context or background with which the legislation was enacted, so 
as to make the Act and its provisions more meaningful and effective. 
This Court further emphasized that, while construing the provisions 
of the POCSO, the impact of sexual assault and exploitation on the 
children should not be ignored and further the courts should avoid 
a narrow or pedantic interpretation that would the defeat the statute; 
rather, where the intention of the legislature cannot be given effect 
to or cannot be realized, a meaningful construction of the statute 
should be adopted to bring about a more effective result. The relevant 
observations read as under: -
“33. [...] As per the rule of construction contained in 
the maxim “Ut Res Magis Valeat Quam Pereat”, the 
construction of a rule should give effect to the rule rather 
than destroying it. Any narrow and pedantic interpretation 
of the provision which would defeat the object of the 
provision, cannot be accepted. It is also needless to
say 
that where the intention of the Legislature cannot be given 
effect to, the courts would accept the bolder construction 
for the purpose of bringing about an effective result. [...]
xxx xxx xxx
37. [...] 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 
state. The suffering of the victims in certain cases may be 
immeasurable. Therefore, considering the objects of the
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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)
54.	 Justice S. Ravindra Bhat in his concurring opinion in Attorney General 
for India (supra) further observed that the POCSO and its nuanced 
provisions were designed keeping in mind the need to protect the 
autonomy and dignity of children. It was enacted to criminalize those 
acts and behaviour that have the propensity to harass, discomfit or 
demean minors, and as such it is the duty of the courts to ensure 
that the provisions of the POCSO are not interpreted in a manner 
that would undermine its purpose or the pressing needs of the times. 
The relevant observations read as under: -
“11. The limitations in law in dealing with acts that undermined 
the dignity and autonomy of women and children, ranging 
from behaviour that is now termed “stalking” to pornography, 
or physical contact, and associated acts, which were not 
the subject matter of any penal law, were recognized 
and appropriate legislative measures adopted, in other 
countries. These have been alluded to in Trivedi, J’s 
judgment, in detail. These laws contain nuanced provisions 
criminalizing behaviour that involve unwanted physical 
contact of different types and hues, have the
propensity to 
harass and discomfit women and minors (including minors 
of either sex), or demean them.
xxx xxx xxx
33. In the end, I cannot resist quoting Benjamin Cardozo 
that “the great tides and currents which engulf the rest of 
men do not turn aside in their course and pass the judges 
by.” It is, therefore, no part of any judge’s duty to strain 
the plain words of a statute, beyond recognition and to 
the point of its destruction, thereby denying the cry of the 
times that children desperately need the assurance of a 
law designed to protect their autonomy and dignity, as 
POCSO does.”
(Emphasis supplied)
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55.	 Similarly in Eera through Dr. Manjula Krippendorf v. State (Govt. of 
NCT of Delhi) & Anr. reported in 2017 INSC 658, this Court observed 
that the POCSO had been brought with the purpose of protecting 
the children from sexual exploitation and harassment. It had been 
designed to secure the well-being and the best interests of the child 
with the protection of the child’s dignity being the backbone of the 
legislation. The dignity, protection and interest form the bedrock of 
the POCSO. The relevant observations read as under: -
“18. The purpose of referring to the Statement of Objects 
and Reasons and the Preamble of the POCSO Act is to 
appreciate that the very purpose of bringing a legislation 
of the present nature is to protect the children from the 
sexual assault, harassment and exploitation, and to 
secure the best interest of the child. On an avid and 
diligent discernment of the preamble, it is manifest that 
it recognizes the necessity of the right to privacy and 
confidentiality of a child to be protected and respected 
by every person by all means and through all stages of a 
judicial process involving the child. Best interest and well 
being are regarded as being of paramount importance at 
every stage to ensure the healthy physical, emotional, 
intellectual and social development of the child. There 
is also a stipulation that sexual exploitation and sexual 
abuse are heinous offences and need to be
effectively 
addressed. The statement of objects and reasons provides 
regard being had to the constitutional mandate, to direct 
its policy towards securing that the tender age of children 
is not abused and their childhood is protected against 
exploitation and they are given facilities to develop in 
a healthy manner and in conditions of freedom and 
dignity. There is also a mention which is quite significant 
that interest of the child, both as a victim as well as a 
witness, needs to be protected. The stress is on providing 
child-friendly procedure. Dignity of the child has been 
laid immense emphasis in the scheme of legislation. 
Protection and interest occupy the seminal place in the 
text of the POCSO Act.
xxx xxx xxx
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63. [...] The POCSO Act, as I have indicated earlier, 
comprehensively deals with various facets that are likely 
to offend the physical identity and mental condition of a 
child. The legislature has dealt with sexual assault, sexual 
harassment and abuse with due regard to safeguard the 
interest and well being of the children at every stage 
of judicial proceeding in an extremely detailed manner. 
The procedure is child friendly and the atmosphere as 
commanded by the provisions of the POSCO Act has to 
be congenial. The protection of the dignity of the child is 
the spine of the legislation. [...]”
(Emphasis supplied)
56.	 In Nawabuddin v. State of Uttarakhand reported in 2022 INSC 
162 this Court held that any act of sexual assault, exploitation or 
harassment of the children should be dealt with in a stringent manner 
and that no leniency should be shown when dealing with an offence 
under the POCSO in view of the object that is sought to be achieved 
by the Act. The relevant observations read as under: -
“10. Keeping in mind the aforesaid objects and to achieve 
what has been provided under Article 15 and 39 of the 
Constitution to protect children from the offences of 
sexual assault, sexual harassment, the POCSO Act, 2012 
has been enacted. Any act of sexual assault or sexual 
harassment to the children should be viewed very seriously 
and all such offences of sexual assault, sexual
harassment 
on the children have to be dealt with in a stringent manner 
and no leniency should be shown to a person who has 
committed the offence under the POCSO Act. By awarding 
a suitable punishment commensurate with the act of sexual 
assault, sexual harassment, a message must be conveyed 
to the society at large that, if anybody commits any offence 
under the POCSO Act of sexual assault, sexual harassment 
or use of children for pornographic purposes they shall 
be punished suitably and no leniency shall be shown to 
them. Cases of sexual assault or sexual harassment on 
the children are instances of perverse lust for sex where 
even innocent children are not spared in pursuit of such 
debased sexual pleasure.”
(Emphasis supplied)
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b.	
Relevant Provisions of the IT Act.
57.	 For better and effective adjudication of the issues involved in the 
case at hand, it would be apposite to refer to the IT Act which also 
contains several provisions, more particularly Section(s) 67, 67A and 
67B respectively, that penalize the use, transmission and publication 
of obscene materials including child pornography. These provisions 
together encompass and collectively form the umbrella scheme of 
comprehensive penal provisions contained in the IT Act in this regard. 
58.	 Section 67 of the IT Act is the principal provision that criminalizes the 
publication or transmission of “obscene material” in any electronic 
form and constitutes an offence. Section 67A of the IT Act, is a 
more aggravated offence, prescribing enhanced punishment than 
the preceding provision. It does so by further amplifying the scope 
of ‘obscene material’ by stipulating that any obscene material that 
contains or depicts any sexually explicit act or conduct, when 
published or transmitted shall be punishable under the said provision. 
59.	 Section 67B of the IT Act specifically deals with child pornographic 
materials. It provides for an even more severe form of offence by 
bringing within its ambit those obscene materials in any electronic 
form that depict a child in any sexually explicit act or conduct and 
by further expanding the scope of ‘actus reus’ which is punishable 
under the
provision to include not just publication or transmission 
but also the browsing, creation, collection, online facilitation or 
enticement of children into any sexual act or conduct etc. The said 
provision reads as under: -
“67B. 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
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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 
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.”
ii.	
Scope of Section 15 of the POCSO and Section 67B of 
the IT Act.
60.	 In the case at hand, we are concerned with
the interpretation of Section 
15 of the POCSO and Section 67B of the IT Act, more particularly 
the scope of these two provisions and what would constitute an 
offence under each of them. In other words, what exactly has been 
made punishable under Section(s) 15 of the POCSO and 67B of 
the IT Act respectively and what are the necessary ingredients or 
elements to establish or make out an offence under it.
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a.	
Contradictory Views of different High Courts on the subject.
61.	 Before proceeding with the analysis of the aforesaid two provisions, it 
would be appropriate to refer to the decisions of various High Courts 
and the cleavage of opinion that have been expressed as regards the 
scope of Section 15 of the POCSO and Section 67B of the IT Act.
62.	 In Nupur Ghatge v. State of Madhya Pradesh (MCRC No. 52596 
of 2020), the accused therein was alleged to have uploaded child 
pornographic videos and photographs on his social media account, 
and thus, a case was registered against him under Section 67B of 
the IT Act. The Gwalior Bench of the Madhya Pradesh High Court 
held that Section 67B penalizes various forms of acts including the 
act of watching or transmitting any child pornographic material in 
electronic form. It further held that any defence of the accused as to 
the absence of any involvement in transmission or sharing of such 
material or the mental state of the accused cannot be looked into at 
the stage of quashing under Section 482 of the Cr.P.C. The relevant 
observations read as under: -
“From the whats-app chats filed by the applicant, it appears 
that the applicant himself was involved in porn activities, 
therefore, the provision of Section 67B of the Act, 2000 
would be applicable as Section 67-B of the Act, 2000 also 
includes records in any electronic form own abuse or that 
of others pertaining to
sexually explicit act with children.
xxx xxx xxx
The burden is on the applicant to prove his defence which 
cannot be decided by this Court in exercise of powers 
under Section 482 of CrPC.”
63.	 In P.G. Sam Infant Jones v. State represented by Inspector 
of Police reported in 2021 SCC OnLine Mad 2241 the accused 
therein was alleged to have browsed, downloaded and transmitted 
child pornographic material through his e-mail and social media 
account. Accordingly, a case was registered against him for the 
offences under Section 15(1) of POCSO and Section 67B of the IT 
Act, whereupon the accused therein preferred an anticipatory bail 
application before the Madurai Bench of the Madras High Court. 
The Madras High Court observed that while viewing of pornography 
in private domain may not be an offence in view of an individual’s
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right to expression and privacy, child pornography falls outside the 
ambit of such individual rights and stands on a different footing. It 
held that Section 67B penalizes various kinds of acts pertaining to 
child pornography including the act of viewing such material. The 
relevant observations read as under: -
3.The case of the prosecution is that on 27.06.2020 at 
17.38:51 hours, the petitioner browsed, downloaded and 
transmitted child pornographic material by using Airtel Sim 
bearing No.9787973370 through his e-mail and Facebook 
Account.
xxx xxx xxx
5. Viewing pornography privately will not constitute an 
offence. Offence is an act that is forbidden by law and 
made punishable. That is the definition found in Section 
40 of IPC. As on date, there is no provision prohibiting 
such private acts. There are some who even elevate it as 
falling within one’s right to free expression and privacy. 
But child pornography falls outside this circle of freedom. 
Section 67-B of the Information Technology Act, 2000 
penalises every kind of act pertaining to child pornography. 
[...] Therefore, even viewing child pornography constitutes 
an offence.
(Emphasis supplied)
64.	 In Ajin Surendran v. State of Kerala & Anr. reported in 2022 KER 
7207 child pornographic videos were found stored in the mobile 
phone of the accused therein. The High Court of Kerala at Ernakulam 
observed that Section 15 of
POCSO gets attracted when any person 
stores or possesses pornographic material in any form involving a 
child, with an intention to share or transmit it, whereas Section 67B 
of the IT Act gets attracted when a person browses or downloads 
any such material in any electronic form. Accordingly, it held that in 
view of the videos that were found stored in the accused’s mobile 
phone, prima-facie both of the aforesaid provisions are said to be 
squarely attracted, and thus the power under Section 482 cannot 
be invoked for quashing the criminal proceedings. The relevant 
observations read as under: -
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“3. I have gone through the first information statement as 
well as the final report. It would show that the mobile phone 
belongs to the petitioner and the sim card was examined 
and it was found that in the memory card, pornographic 
video of children were stored. Section 15 of POCSO Act 
gets attracted when any person stores or possesses 
pornographic material in any form involving a child, 
with an intention to share or transmit child pornography. 
Section 67B(b) of the IT Act gets attracted when a person 
among other things, browses or downloads material in any 
electronic form depicting children in obscene or indecent 
or sexually explicit manner. Thus, both the sections are 
squarely attracted. When prima facie case is made out, 
power under Section 482 cannot be invoked.”
(Emphasis supplied)
65.	 In Manuel Benny v. State of Kerala reported in 2022 KER 9730 it 
was found that the accused person therein had downloaded and stored 
pornographic videos depicting children in a sexually explicit manner 
in his mobile phone from a messaging app; ‘Telegram’ for private 
viewing. Accordingly, a case was registered against the accused 
therein under Section 15 of the POCSO and Section 67B of the IT 
Act. When the final report came to be filed, the offence under Section 
15 of the POCSO was dropped, and chargesheet was filed only for 
the offence under Section 67B of the IT Act. The accused preferred 
a quashing petition before
the High Court of Kerala at Ernakulam on 
the ground that even if the materials in the chargesheet were taken 
at their face value, no ingredients were made out to constitute the 
offence under Section 67B of the IT Act. A learned Single Judge of 
the High Court whilst quashing the criminal proceedings held that 
in order to attract the offence under Section 67B of the IT Act, the 
pornographic material in question must be voluntarily downloaded. 
It held that there should be an intention on the part of the accused 
to download any pornographic content in order to view it so as to 
constitute an offence under Section 67B of the IT Act. The learned 
Single Judge further observed that as per the FSL report, the child 
pornographic videos had been accessed through the messaging app 
‘Telegram’ wherein there is a possibility of automatic download of 
videos. Since there was no material to show that the accused therein 
had voluntarily downloaded or browsed the pornographic material in
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question, no prima facie offence had been made out under Section 
67B of the IT Act, and thus the High Court quashed the criminal 
proceedings. The relevant observations read as under: -
“5. A perusal of the final report would show that the only 
allegation against the petitioner is that he downloaded and 
enjoyed material depicting children in obscene, indecent 
and sexually explicit manner from the application called 
‘Telegram’. In order to attract the offence under Section 67B 
of the IT Act, the videos or material has to be voluntarily 
downloaded into any device. In other words, there should 
be intention on the part of the petitioner to download the 
material in order to view it. The definite case of the petitioner 
is that he did not download any offensive material. Even in 
Annexure A3 FSL report it is seen that the path of those 
images is from Android backup and the child pornographic 
videos were accessed through ‘Telegram’. The learned 
Additional DGP submitted that the contents transmitted 
in the ‘Telegram’ can be automatically downloaded in the 
mobile phone by default. Hence, it cannot be said that 
the petitioner has intentionally downloaded the material, 
considering the features of the ‘Telegram’ App.
Since there is no material to show that the petitioner has 
browsed or downloaded child pornographic material, the 
offence under Section 67B of the IT Act is not attracted.
Hence, no purpose will be served in proceedings with 
the matter further. Accordingly, the Crl.M.C is allowed. All 
further proceedings pursuant to Annexure A2 final report 
in Crime No.531/2020 of Melukavu Police Station now 
pending as C.C.No.257/2021 on the files of the Judicial 
Magistrate of the First Class, Erattupetta stands hereby 
quashed.”
(Emphasis supplied)
66.	 In Lakshya v. State of Maharashtra & Anr. (Criminal Writ Petition 
No. 479 of 2022), the accused therein had viewed and stored a child 
pornographic video in his mobile, which he subsequently showed 
to his other friends and co-accused therein. On the basis of the 
aforesaid, a case was registered against the accused persons under 
Section(s) 15(1) and (3) of the POCSO along with Section 67B of the
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IT Act. The accused preferred a discharge application which came to 
be rejected by the Trial Court whereafter the accused therein went 
in appeal before the High Court of Judicature at Bombay, Nagpur 
Bench. The learned Single Judge of the High Court dismissed the 
appeal and upheld the rejection of the discharge application by the 
Trial Court. The High Court held that merely because the accused 
therein was not the creator of the pornographic material in question 
it cannot be said that no offence had been made out. It held that the 
act of the accused to store and forward the pornographic material and 
the failure on his part to delete or report the same would squarely 
fall within the ambit of Section(s) 15(1) and (2) of the POCSO and 
Section 67B of the IT Act. However, the High Court chose not to 
advert to the offence under Section 15(3) of the POCSO that was 
contained in the chargesheet as a prima facie case had already been 
established against the accused therein for the other offences with 
which they were charged. The relevant observation reads as under: -
“8. With the assistance of the learned Advocate for the 
accused and the learned APP for the State, I have gone 
through the provisions of Section 67-B of the I. T. Act 
and Section 15 of the POCSO Act. The main allegation 
against the accused is that they stored, forwarded and 
shared with each other porn video. Even if it is assumed 
for the sake of
argument that they are not creators of the 
porn video, in my view, the benefit of discharge cannot 
be granted to them. [...]
9. In my view, perusal of Section 15 of the POCSO Act in 
entirety would show that the act of the accused persons to 
store, forward and possess pornographic material involving 
a child is squarely covered under Section 15(1) and (2) of 
the POCSO Act. They failed to delete or destroy or report 
the same to the designated authority. As per the case of 
the prosecution, they stored, possessed and circulated the 
said porn video. Therefore, in my view, at this stage, it is 
very difficult for the accused to come out of the tentacles 
of Section 15(1) and (2) of the POCSO Act.
10. Section 67-B of the I.T. Act provides a punishment for 
publishing or transmitting the material depicting children 
in Sexually explicit act, etc., in an electronic form. If the
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basic ingredient of Section 67-B, prima facie, are applied 
to the facts of the case on hand, it would show beyond 
doubt that the act of the accused is squarely covered within 
the ambit of Section 67-B of the I. T. Act. In my view, in 
the teeth of the allegations against the accused and the 
material collected during the course of investigation and 
compiled in the charge-sheet, it would be very difficult to 
accept the contention of the accused persons. It is true 
that the applicants are young. They are students. They 
are from reputed family. However, while deciding the 
discharge application this could not be the consideration. If 
this submission is accepted on this ground then this would 
be nothing short of showing misplaced sympathy to the 
persons who are prima facie accused of the commission 
of offence.”
(Emphasis supplied)
67.	 In Shantheeshlal T. v. State of Kerala reported in 2024 KER 35968, 
during investigation certain pornographic videos involving a child 
had been recovered from the device of the accused thereunder. 
Accordingly, chargesheet was submitted against the accused therein 
for the offences punishable under Section(s) 15(1) of the POCSO 
and 67B of the IT Act. The accused thereunder preferred a quashing 
petition before the High Court of Kerala at Ernakulam, wherein the 
learned Single Judge quashed the aforesaid chargesheet and the 
criminal proceedings taking
the view as under: -
(i)	
First, the learned Single Judge held that in order to attract 
the provision of Section 15(1) of the POCSO there must be 
a storage or possession of child pornographic material and 
further such material should be shown to have been shared 
or transmitted by the person accused. Mere possession or 
storage of pornographic material by itself is not an offence 
under Section 15(1) of the POCSO unless it is shown that the 
accused person had indeed shared or transmitted such material. 
In other words, to constitute an offence under Section 15(1) 
there must be an actual act of transmission or sharing of the 
pornographic material depicting a child in a sexually explicit act 
or conduct that was found to be stored or in possession of the 
accused. The relevant observation reads as under: -
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“9. Reading the provision, it is emphatically clear that storing 
or possessing pornographic materials in any form involving 
a child and failure to delete or destroy or report the same 
to the designated authority, as may be prescribed, with an 
intention to share or transmit child pornography, shall be 
an offence. So mere storing or possessing pornographic 
material is not an offence under Section 15(1) of POCSO 
Act, if the said storing or possession is without any 
intention to share or transmit the same. Therefore, mere 
storing or possessing pornographic materials by itself is 
not an offence. Thus, in order to attract an offence under 
Section 15(1) of the POCSO Act, the stored or possessed 
pornographic materials should be shared or transmitted. 
In the instant case, there is no material available to hold 
that the accused either shared or transmitted pornographic 
materials, though storing of the same was detected. 
Therefore, the offence under Section 15(1) of the POCSO 
Act is not made out in the instant case.”
(Emphasis supplied)
(ii)	 Secondly, it observed that, even for the purposes of Section 
67B of the IT Act there must be some material to show that the 
accused person had either browsed, downloaded, published, 
transmitted or created any material in electronic form depicting 
a child in a sexually explicit act or conduct. To constitute an 
offence under Section 67B of the IT Act the accused person 
must
have intentionally either downloaded, browsed, recorded 
or transmitted a pornographic material involving a child. In the 
absence of any material to show or establish specific intention 
on the part of the accused to share or transmit the pornographic 
material found, no offence could be said to have been made out 
under Section 67B of the IT Act. Any accidental or automatic 
download of such material will not fall within the purview of 
the said provision. The relevant observations read as under: -
“11. Publishing, transmitting or causing any material in 
electronic form which depicts children engaged in sexually 
explicit act or conduct or creation of text or digital images 
etc. are the ingredients under Section 67B of the IT Act also.
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13. Therefore, going by the decision, automatic or 
accidental downloading of children engaged in sexually 
explicit act or conduct is not an offence under Section 67B, 
once the specific intention to do so is not established, by 
the materials which form part of the prosecution records.
14. In the present case, the materials collected during 
investigation would show that some pornographic 
messages, which would depict children engaged in 
sexually explicit act or conduct were found in the devise 
of the accused. But there are no materials to show that 
the petitioner intentionally downloaded or browsed or 
recorded the same. More particularly there are no materials 
to show that the petitioner had either shared, transmitted 
or published the same in any manner. 
15. Thus, the materials available do not suggest the 
ingredients to find prima facie, commission of offence 
under Section 67B of the IT Act.”
(Emphasis supplied)
As besides the recovery of the pornographic material from the device 
of the accused there was nothing to show that he had either shared 
or transmitted or intentionally downloaded the same in the first place. 
In such circumstances, the learned Single Judge held that no prima 
facie offence had been made out either under Section(s) 15(1) of 
the POCSO or 67B of the IT Act and thus, proceeded to quash the 
criminal proceedings.
68.	 Similarly, in Akash Vijay v. State of
Kerala reported in 2024 KER 
42626, the Kerala High Court placing reliance on the decision of 
Shantheeshlal T (supra) held that mere storage or possession of 
any pornographic material involving a child will not constitute an 
offence under Section(s) 15 of the POCSO or 67B of the IT Act in 
the absence of any material to show that the accused person either 
intentionally downloaded or browsed the said material or that he 
shared or transmitted the same. The relevant observations read as 
under: -
“6. On perusal of the prosecution records, no materials 
collected during investigation to show that the petitioner 
intentionally downloaded or browsed or recorded the
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same and there are no materials available to show that 
the petitioner had either shared, transmitted or published 
the video, in any manner. The allegation is confined to 
that of presence of porn video in the mobile phone of the 
accused alone.
xxx xxx xxx
8. Reading the facts of this case, the same is similar 
to the facts dealt in Shantheeshlal T.’s case (supra). 
Therefore, applying the same ratio, this Crl.M.C. is liable 
to be allowed.”
(Emphasis supplied)
69.	 In Akhil Johny v. State of Kerala reported in 2024 KER 53767, 
the learned Single Judge of the Kerala High Court held that where 
the allegations are limited only to the presence of pornographic 
material involving a child in the mobile phone or hard disk of the 
accused, no offence could be said to have been made out under 
Section(s) 15 of the POCSO or 67B of the IT Act and as such the 
criminal proceedings would be liable to be quashed. The relevant 
observations read as under: -
“6. On perusal of the prosecution records, no materials collected during 
investigation to show that the petitioner intentionally downloaded or 
browsed or recorded the same and there are no materials available 
to show that the petitioner had either shared, transmitted or published 
the video, in any manner. The allegation is confined to that of presence 
of porn video in the mobile phone of the accused alone.
xxx xxx xxx
8. Reading the facts of this case, the same is similar to
the facts 
dealt in Shantheeshlal T.’s case (supra). Therefore, applying the 
same ratio, this Crl.M.C. is liable to be allowed.”
(Emphasis supplied)
70.	 In Inayathulla N (1) v. State reported in 2024 KHC 26513, the 
accused therein was charged for browsing a website and viewing 
pornographic materials involving a child. Accordingly, a case was 
registered against him under Section(s) 67B of the IT Act. A learned 
Single Judge of the High Court of Karnataka held that the soul and
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essence of Section 67B lies in the act of publication or transmission 
of any material depicting a child in any sexually explicit conduct, 
and that mere browsing or watching of such material would not 
attract the aforesaid provision. It further held that in such cases 
even investigation should not be permitted to be continued and 
thus, proceeded to quash the criminal proceedings. The relevant 
observations read as under: -
“7. [...] Section 67B of the IT Act punishes those persons 
who would publish, transmit the material depicting children 
in sexually explicit acts in electronic form. The soul of the 
provision is publishing or transmitting of material depicting 
children in sexually explicit act.
8. The allegation against the petitioner is that he has 
watched a pornographic website. This, in the considered 
view of the Court, would not become publishing or 
transmitting of material, as is necessary under Section 67B 
of the IT Act. At best, as contended, the petitioner could 
be a porn addict, who has watched pornographic material. 
Nothing beyond this, is alleged against the petitioner. If the 
facts are pitted against the ingredients necessary to drive 
home Section 67B of the IT Act, what would unmistakably 
emerge is, further proceedings cannot be permitted to 
be continued, as it would become an abuse of process 
of law. [...] 
9. The Apex Court in the afore laid postulates holds
that 
even if the facts that forms the complaint is accepted as 
true, it would not make out any offence. In such cases, 
even investigation should not be permitted to be continued. 
Therefore, the impugned proceedings cannot be permitted 
to be continued, as it does not make out an offence under 
Section 67B of the IT Act.”
(Emphasis supplied)
71.	 We are conscious of the fact that the aforesaid decision of Inayathulla 
N (1) (supra) was subsequently taken in review by the learned Single 
Judge of the Karnataka High Court under the nomenclature “recall” 
upon realising that Section 67B of the IT Act had been misinterpreted 
more particularly the failure to advert to sub-section (b) of the said 
provision which criminalizes the browsing of child pornographic sites.
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Consequently, in Inayathulla N (2) v. State reported in 2024 KHC 
28204 the learned Single Judge set aside its earlier order in Inayathulla 
N (1) (supra) by observing that although Section 67B sub-section (a) 
of the IT Act may not apply in the absence of any transmission or 
publication of any child pornography, yet sub-section (b) of the said 
provision would indeed be applicable where the allegations involve 
browsing or viewing of any child pornographic material. It is relevant 
to note that although the court was apprised of the fact that even 
Section 15 of the POCSO was being contemplated to be added in 
the chargesheet, yet the High Court in view of the limited question 
before it did not deem it necessary to go into the applicability of the 
said provision at that stage. The relevant observations read as under: -
“5. This Court accepting the facts had allowed the petition 
in terms of its order dated 10-07-2024. [...] After release 
of the order, the State appears to have noticed the short 
assistance rendered by it, as also the fact that the cyber 
tipline/2nd respondent was not heard in the matter. The 
further fact is that the State has filed an application before 
the Court to bring in Section 15 of the Protection of Children 
from Sexual Offices Act, 2012 (‘POCSO Act’ for short). [...] 
By a separate order passed on 19-07-2024, the I.A. filed 
by the State stood answered and the order dated 10-07-
2024, by
accepting the reasons indicated in the affidavit 
was recalled and the matter was restored to file.
xxx xxx xxx
8. [...] The reliance placed by the petitioner is on Section 
67B(a) of the Act which was relied on and proceedings 
quashed. What becomes applicable to the case at hand 
is Section 67B(b). Section 67B(b) open up prosecution 
against a person who 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. It is not in dispute that the petitioner, in the case 
at hand, has browsed child pornographic material for about 
50 minutes. Browsing child pornographic material makes 
it an offence under Section 67B(b) of the Act.”
(Emphasis supplied)
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72.	 Thus, it appears from the aforesaid that there are divergent views 
expressed by different High Courts of the country as regards the 
ingredients necessary to constitute an offence under Section 15 of 
the POCSO and Section 67B of the IT Act. The Kerala High Court 
has taken the view that mere possession or viewing of pornographic 
material involving a child will not fall within the ambit of Section 15 of 
the POCSO, rather what the provision criminalizes is the actual act 
of transmission or sharing of the said material. It has held that where 
the allegations are confined only to the possession of pornographic 
material and there is nothing to indicate the actual transmission of 
the same, the criminal proceedings shall be liable to be quashed. 
Whereas, the Bombay High Court appears to have taken the view 
that under Section 15(1) of the POCSO, what is penalized is the 
storage of child pornography and resultant failure to delete or report 
the same while under Section 15(2), it is the storage and consequent 
transmission of child pornography. Similarly, with respect to Section 
67B, both the Karnataka High Court and the Kerala High Court 
have held that what is criminalized is the intentional browsing or 
transmission of child pornography, and not the mere possession of 
such material. 
b.	
Three distinct offences punishable under Section 15 of 
the POCSO.
73.	 Prior to the 2019
Amendment Act, Section 15 of the POCSO as 
originally enacted, stipulated that any person who stores any 
pornographic material involving a child for commercial purposes shall 
be punishable under the said provision. Thus, under the erstwhile 
Section 15 of the POCSO only one act was criminalized; in other 
words, only the storage of child pornography for a commercial 
purpose was made a punishable offence. Storage of such material 
for any other purpose was outside the scope and purview of the 
said provision. The said provision as it then stood, reads as under: -
“15. Punishment for storage of pornographic material 
involving child. – 
Any person, who stores, for commercial purposes any 
pornographic material in any form involving a child shall 
be punished with imprisonment of either description which 
may extent to three years or with fine or with both.”
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74.	 Over a period of time, the legislature realized that despite the 
enactment of POCSO, there had been an increase rather than a 
decline in the number of cases pertaining to child sexual abuse. 
The legislature noted that some of the provisions of the POCSO 
were not proving to be effective in addressing the various forms of 
sexual degradation, abuse and exploitation of children in the country. 
The Protection of Children from Sexual Offences (Amendment) Act, 
2019 earmarked a significant step by the legislature in response 
to the aforesaid problem, by introducing several new offences and 
further making the existing offences more stringent with enhanced 
punishments, as a form of deterrence to sexual predators and to 
combat the sexual exploitation of children in order to safeguard a 
secure and dignified environment for them. The Statement of Objects 
and Reasons of the 2019 Amendment Act read as under: -
“STATEMENT OF OBJECTS AND REASONS
“1. The Protection of Children from Sexual Offences Act, 
2012 (the said Act) has been enacted to protect children 
from offences of sexual assault, sexual harassment and 
pornography and provide for establishment of Special 
Courts for trial of such offences and for matters connected 
therewith or incidental thereto. 
2. The said Act is gender neutral and regards the best 
interests and welfare of the child as a matter of paramount 
importance at every stage so as to ensure the
healthy 
physical, emotional, intellectual and social development 
of the child. 
3. However, in the recent past incidences of child sexual 
abuse cases demonstrating the inhumane mind-set of 
the abusers, who have been barbaric in their approach 
towards young victims, is rising in the country. Children are 
becoming easy prey because of their tender age, physical 
vulnerabilities and inexperience of life and society. The 
unequal balance of power leading to the gruesome act 
may also detriment the mind of the child to believe that 
might is right and reported studies establish that children 
who have been victims of sexual violence in their childhood 
become more abusive later in their life. The report of the 
National Crime Records Bureau for the year 2016 indicate
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increase in the number of cases registered under the said 
Act from 44.7 per cent. in 2013 over 2012 and 178.6 per 
cent. in 2014 over 2013 and no decline in the number of 
cases thereafter. 
4. The Supreme Court, in the matter of Machhi Singh vs. 
State of Punjab [1983 (3) SCC 470], held that when the 
community feels that for the sake of self-preservation the 
killer has to be killed, the community may well withdraw 
the protection by sanctioning the death penalty. But the 
community will not do so in every case. It may do so in 
rarest of rare cases when its collective conscience is so 
shocked that it will expect the holders of the judicial power 
centre to inflict death penalty irrespective of their personal 
opinion as regards desirability or otherwise of retaining 
death penalty. The same analogy has been reiterated by 
the Supreme Court in the matter of Devender Pal Singh 
vs. State (NCT of Delhi)[AIR 2002 SC 1661] wherein it was 
held that when the collective conscience of the community 
is so shocked, the court must award death sentence. 
5. In the above backdrop, as there is a strong need to take 
stringent measures to deter the rising trend of child sex 
abuse in the country, the proposed amendments to the 
said Act make provisions for enhancement of punishments 
for various offences so as to deter the perpetrators and 
ensure safety, security and dignified childhood for a child.
It also empowers the Central Government to make rules 
for the manner of deleting or destroying or reporting about 
pornographic material in any form involving a child to the 
designated authority. 
6. The Protection of Children from Sexual Offences 
(Amendment) Bill, 2019, for the aforementioned purpose, 
which was introduced and pending consideration and 
passing in the Lok Sabha, lapsed on the dissolution of the 
Sixteenth Lok Sabha. Hence, the present Bill. 
7. The Bill seeks to achieve the above objectives. NEW 
DELHI; The 12th July, 2019.”
(Emphasis supplied)
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75.	 Pursuant to the aforesaid 2019 Amendment Act, a slew of amendments 
were brought within the POCSO, which inter alia included i) the 
insertion of Section 2(da) by which “child pornography” came to be 
defined under the Act AND ii) the amendment of Section 15 of the 
Act whereby now three distinct offences are made punishable under 
the said provision. Again, at the cost of repetition, the amended 
Section 15 of the POCSO is reproduced hereunder: -
“15. Punishment for storage of pornographic material 
involving child. – 
(1) Any person, who stores or possesses pornographic 
material in any form involving a child, but fails to delete 
or destroy or report the same to the designated authority, 
as may be prescribed, with an intention to share or 
transmit child pornography, shall be liable to fine not less 
than five thousand rupees and in the event of second or 
subsequent offence, with fine which shall not be less than 
ten thousand rupees. 
(2) Any person, who stores or possesses pornographic 
material in any form involving a child for transmitting or 
propagating or displaying or distributing in any manner 
at any time except for the purpose of reporting, as may 
be prescribed, or for use as evidence in court, shall be 
punished with imprisonment of either description which 
may extend to three years, or with fine, or with both. 
(3) Any person, who stores or possesses pornographic 
material in any form involving a
child for commercial 
purpose shall be punished on the first conviction with 
imprisonment of either description which shall not be less 
than three years which may extend to five years, or with 
fine, or with both and in the event of second or subsequent 
conviction, with imprisonment of either description which 
shall not be less than five years which may extend to 
seven years and shall also be liable to fine.”
(Emphasis supplied)
76.	 A bare perusal of the aforesaid provision makes it abundantly clear 
that Section 15 of the POCSO is in three parts. The legislature by 
virtue of the 2019 Amendment Act has now made three different forms
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of storage or possession of child pornography a punishable offence 
under the said provision, unlike the erstwhile provision, which had 
criminalized only one form of storage of child pornography. 
77.	 Section 15 sub-section (1) of the POCSO now provides that any 
person who either stores or possesses any pornographic material 
involving a child and fails to either delete, destroy or report the same 
with the intention to share or transmit such material, shall be liable to 
fine of not less than rupees five thousand for the first offence, and a 
fine of not less than rupees ten thousand for any subsequent offence. 
78.	 On the other hand, Section 15 sub-section (2) of the POCSO provides 
that any person who either stores or possesses any pornographic 
material involving a child for transmitting, displaying, propagating, or 
distributing the same in any manner except for either reporting it or 
for using it as evidence shall be punishable with either imprisonment 
extending upto three-years or with fine or both. 
79.	 Whereas, Section 15 sub-section (3) of the POCSO stipulates that 
any person who either stores or possesses any pornographic material 
involving a child for commercial purpose shall be punishable with 
imprisonment of not less than three-years, which may extend upto 
five-years, or with fine, or both for the first offence, and for any 
subsequent offence, he shall be punishable
with imprisonment not 
less than five-years, that may extend upto seven-years and along 
with fine.
I.	
Concept of an Inchoate Crime – The ‘Actus Reus’ and ‘Mens 
Rea’ required under Section 15. 
80.	 Before proceeding further to discuss the scope of Section 15 of 
the POCSO and the ingredients necessary to constitute an offence 
thereunder, it would be apposite to first understand the true purpose 
and the nature of the said penal provision. 
81.	 A plain reading of Section 15 of the POCSO and the marginal note 
appended thereto would reveal that the common theme permeating 
across sub-section(s) (1), (2) and (3) respectively is that there is 
no requirement whatsoever for an actual transmission of any child 
pornographic material in order to fall within the ambit of the said 
provision. What is sought to be penalized under Section 15 of the 
POCSO is the storage or possession of any child pornographic 
material when done with a particular intention or purpose as stipulated
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in sub-section(s) (1), (2) or (3), as the case may be. Thus, the bare 
textual reading of the said provision makes it clear that it is the 
intention which is being punished and not the commission of any 
criminal act in the traditional sense. This in the criminal jurisprudence 
is known as an ‘Inchoate Crime’ or ‘Inchoate Offence’.
82.	 Inchoate crimes are defined as criminal acts that are committed in 
preparation for a further offence. The term “inchoate” itself means 
“undeveloped” or “incomplete.” 
83.	 The Doctrine of Inchoate Crimes is a cornerstone of criminal 
jurisprudence. It is aimed at addressing the legal culpability of those 
who engage in a conduct that is preparatory to the commission of 
any substantive offence. Inchoate crimes, are often referred to and 
described as an incomplete or preliminary offence, that capture the 
essence of criminal intent and the preparatory actions that precede 
the commission of a criminal act. It underscores the principle that 
the law does not merely respond to offences already committed but 
also intervenes when a crime is in the process of being committed, 
thus thereby protecting public order and safety. Inchoate crimes 
represent a critical aspect of criminal law, embodying the legal 
system’s proactive and deterrent approach to crime itself.
84.	 The primary rationale for the existence of inchoate crimes within 
the legal framework is the prevention of harm by
intervening at an 
early stage i.e before the potential damage is caused. It recognizes 
that though certain actions do not result in an offence, nonetheless 
those actions pose a sufficient threat to society to warrant legal 
intervention. The jurisprudence surrounding inchoate crimes has 
evolved as a balance struck between i) the need for early intervention 
on the one hand with ii) the cardinal principle of criminal law that 
no one should be punished merely for their thoughts or intentions 
on the other, by criminalizing only those actions of an individual 
that demonstrate a clear movement towards the commission of a 
criminal offense. It is deeply rooted in the preventive or deterrent 
nature or approach of a particular law by criminalizing those conduct, 
actions or intentions that pose a significant risk of harm. An inchoate 
offence requires towing a delicate balance between the need for 
prevention of potential threat to the society and the risk of undoing 
the sacrosanct fundamental principle of ‘actus non facit reum nisi 
mens sit rea’ in order to ensure that the law remains a powerful tool
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in the maintenance of public order. This inherent tension between 
respecting the autonomy of an individual’s thought and state of 
mind with the societal interest and safety is often balanced and 
resolved by carefully shaping and defining the point at which any 
particular action or preparatory step becomes sufficiently proximate 
to the commission of an offence. In other words, the law would only 
intervene at the point where an individual has acquired the means 
to commit a further offence, and will not punish the mere thought of 
committing an offence in the absence of any overt steps towards the 
same. Thus, the critical or central component of any inchoate crime 
is the preliminary or preparatory actus reus that sufficiently reflects 
the essence or existence of a criminal intent.
85.	 Offence pertaining to the possession of any contraband is a prime 
example and one of the facets of an inchoate crime, as they involve 
the possession of items that are prohibited by law due to their 
inherent dangerousness or their use in the commission of further 
criminal offences. The criminalization of possession as an inchoate 
crime is predicated on the idea that possession is not an innocuous 
act but a preparatory step towards more significant criminal conduct. 
This is because, first, it allows intervention at an early stage, before 
the contraband can be used to cause harm. Secondly, it acts
as 
a deterrent by penalizing individuals who engage in activities that 
are likely to lead to more serious offenses. Thirdly, it reflects the 
societal interest in preventing the accumulation and availability of 
dangerous items that have no legitimate purpose except for the further 
perpetuation of a more severe offence and harm to society at large.
86.	 The POCSO as outlined in its Statement of Object and Reasons was 
specifically designed to provide commensurate penalties to serve 
as a deterrent against the sexual abuse and exploitation of children. 
Additionally, the Statement of Objects and Reasons accompanying 
the 2019 Amendment Act which inter-alia amended Section 15 of 
the Act to provide for three distinct offences punishable under it, 
explicitly emphasizes that the said amendments had been introduced 
in order to implement stringent measures aimed at addressing and 
deterring the alarming increase in child sexual abuse. The plain 
reading of sub-section(s) (1), (2) and (3) respectively of Section 15 
of the POCSO along with the marginal note appended to it which 
reads “Punishment for storage of pornographic material involving 
child” indicates, that the said provision punishes only the storage of
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pornographic material involving a child when done with a specific 
intent prescribed thereunder and that there is no requirement for 
any actual transmission. It is trite to say that, in the absence of any 
inherent conflict or contradiction between the marginal note and 
the substantive parts of a particular provision, the marginal note 
may be used to aid in the interpretation of the provision. Thus, the 
aforesaid leaves no manner of doubt in the mind of this Court, that 
the provision of Section 15 of the POCSO 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 stored with a 
specific intent prescribed thereunder, without requiring any actual 
transmission, dissemination etc. 
87.	 Under Section 15 sub-section (1), where a person either stores or 
possesses any child pornography and does not delete or report the 
same, in order to share or transmit the same, he will be liable under 
the said provision. The use of the words “with an intention to share 
or transmit child pornography ” in the said provision makes it clear 
that no actual sharing or transmission is required to occur, rather 
what is required is only the intention to share or transmit because of 
which the said material was neither deleted, destroyed, or reported. 
In other words, the actus reus that is penalized under Section 15 
sub-section (1) is the failure
to delete, destroy or report any child 
pornography that was stored or in possession of any person with 
an intention to share or transmit the same. Had the intent of the 
legislature been otherwise, it would have clearly used the words 
“transmits” or “shares” instead. 
88.	 Similarly, Section 15 sub-section (2) penalizes the storage or 
possession of any child pornographic material when done for the 
purpose of either transmitting, propagating, displaying or distributing 
the same in any manner. The use of the words “for transmitting or 
propagating or displaying or distributing in any manner at any time” 
clearly suggests that again no actual act of transmission, propagation, 
display or distribution is required to take place. Had the intent of 
the legislature been otherwise, it would have explicitly stated “any 
person, who stores or possesses pornographic material in any form 
involving a child and transmits or propagates or displays or distributes 
in any manner at any time”. The use of the words “for transmitting or 
propagating or displaying or distributing in any manner” in Section 
15 sub-section (2) makes it crystal clear that the said provision
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deals with two kinds of actus reus being (I) first, the storage or 
possession of a pornographic material involving a child when done 
with an intention to either transmit it or to propagate it or to display 
or distribute it though no actual transmission, propagation, display 
or distribution might have occurred OR (II) secondly, the storage or 
possession of a pornographic material involving a child which was 
actually transmitted, propagated, displayed or distributed in any form 
or manner. In other words, the actus reus that is required under 
Section 15 sub-section (2) is that a pornographic material involving 
a child must be found to have been stored or in possession with 
an intention to either transmit it or to propagate it or to display or 
distribute it or the same must have been transmitted, propagated, 
displayed or distributed in any form or manner. 
89.	 The underlying difference in the actus reus under Section 15 sub-
section(s) (1) and (2) is that in the former the storage or possession 
of any such material is due to the omission to delete, destroy or report 
the same whereas in the latter, the storage or possession of any 
such material is in order to facilitate the transmission, propagation, 
display or distribution of the same. To further put the distinction into 
perspective, the actus reus under sub-section (1) must be such 
that indicates that the child pornographic
material found in storage 
or possession was only due to an omission to delete or destroy. 
Whereas under sub-section (2) it must be shown that such material 
had been stored or in possession for a reason more than just mere 
omission i.e., for the reason of transmitting, propagating, displaying 
or distributing the same. The use of the words “any manner ” in sub-
section (2) makes it clear that apart from the storage or possession 
of such pornographic material, there must be something more to 
show 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. Thus, Section 15 sub-section (2) of the POCSO 
would cover both the actual transmission, propagation, display or 
distribution of any child pornography as-well as the facilitation of any 
of the abovementioned acts.
90.	 On the other hand, the mens rea which is required to constitute 
an offence under Section 15(1) is the intent to share or transmit 
a pornographic material involving a child, and the said intention is
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to be gathered or gauged from the actus reus itself i.e., by culling 
out the manner in which there was an omission to delete, destroy 
or report such a material or the reason behind the same. This is 
evinced from the construction of the expression “but fails to delete 
or destroy or report the same to the designated authority, as may be 
prescribed, with an intention to share or transmit child pornography” 
which makes it clear that the scope of discerning the intent to share 
or transmit has been both limited AND tied to only the omission to 
delete, destroy or report i.e., the actus reus. The expression “with an 
intention to share or transmit ” cannot be singled out and construed 
devoid of its context. Thus, it is the manner in which along with the 
attending circumstances attributable to the failure to delete, destroy 
or report that must sufficiently be indicative of the intent to share or 
transmit any material. 
91.	 In Section 15 sub-section (1) of the POCSO the legislature by 
qualifying and linking the expression “intent to share or transmit ” to 
the omission to delete, destroy or report, has in its wisdom made the 
intention or mens rea under the said provision a matter of inference, 
to be ascertained from the actus reus itself. The degree of probability 
for inferring such intention would largely depend upon the manner in 
which the actus reus i.e., how the omission took place. It is for the 
courts to
ascertain whether the manner in which the material was 
found in storage or possession, the attending circumstances to the 
omission and the conduct of the person accused sufficiently refutes 
or displaces the inference of an intention to share or transmit or not. 
92.	 The underlying reason behind tying the inference of intention to the 
omission alone is because the legislature was alive to the practical 
difficulty that exists in establishing an intention to share or transmit 
any child pornographic material from just the mere possession of 
such material. In offences pertaining to or involving the possession of 
any contraband, it is too uphill a task for the courts to peer through 
and look into the mind of the person accused and then cull out the 
intention of that person behind possessing or storing such material. 
Thus, in such cases instead of directly establishing the intention from 
the mental state of the person accused, it is established indirectly by 
inferring it from the manner in which the contraband was found to have 
been stored or in possession. Here again due to the infeasibility or 
difficulty in cogently establishing an inference of intention often due to 
the lack of any material and the very private and clandestine nature
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of the offence, the courts instead try to look for some material or 
circumstances that might displace the inference of such an intention, 
and wherever there is nothing to show the same, the courts may 
without hesitation proceed to infer the existence of such an intention. 
93.	 Whereas, under Section 15 sub-section (2) 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 would be indicative of any facilitation 
or actual transmission, propagation, display or distribution of such 
material. Thus, wherever in addition to the storage or possession of 
any child pornographic material, there exists any material or attending 
circumstances that would either show or indicate the facilitation or 
actual commission of any of the acts enumerated in Section 15 sub-
section (2) of the POCSO, the said provision would get attracted in 
place of Section 15 sub-section (1). We say so because, the presence 
of such additional material may demonstrate that the intention of 
the person accused has gone beyond the contours of Section 15 
sub-section (1). It evinces a more significant manifestation of the 
intention of the person accused, which moved from what is required 
in sub-section (1) to a much higher degree of intention that is required 
under sub-section (2). In
other words, the existence of such additional 
material strengthens the inference of that intention which is required 
and made punishable under Section 15 sub-section (2). 
94.	 Section 15 sub-section (3) penalizes the storage or possession of any 
child pornographic material when done for any commercial purpose. 
The term ‘commercial purpose’ refers to and encompasses any 
activity or transaction that is carried out or undertaken as a means 
of any commercial enterprise i.e., with the object or intention of any 
gain, irrespective of whether it was in monetary terms or not. Thus, 
to constitute an offence under this provision, the requirement is that 
the storage or possession of any child pornography must be in lieu of 
any monetary gain or for receiving any other valuable consideration. 
Again, the words “any commercial purpose” indicate that the storage 
or possession must be with an intention to generate or acquire 
any monetary gain or any other form of valuable consideration, 
irrespective and regardless of whether such monetary gain or 
valuable consideration is actually generated or acquired. Thus, it 
is immaterial whether any monetary gain or any other benefit was 
actually realized or not. To establish an offence under Section 15 sub-
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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 of any form of 
gain or benefit. As soon as there is any material to indicate that the 
storage or possession of any child pornographic material was done 
in lieu or in expectation of some form of gain or benefit, it would 
constitute an offence under Section 15 sub-section (3) of the POCSO 
notwithstanding whether such gain was actually realized. 
95.	 Thus, while Section 15 sub-section (1) requires the existence of the 
requisite mens rea or intention due to which the child pornographic 
material was not deleted, destroyed or reported, Section 15 sub-
section (2) requires the existence of the requisite mens rea or 
intention which propelled or led the person accused to not only 
store or possess the said material but also to take some additional 
steps towards either the actual transmission, propagation, display 
or distribution or the facilitation of the same. In contrast, Section 
15 sub-section (3) requires the existence of the requisite mens rea 
or intention due to which the person accused not only stored or 
possessed the child pornographic material but also compelled him 
to take some additional steps either for any gain or benefit or in lieu 
or expectation of
some form of gain or benefit.
96.	 For the sake of clarity, it would be apposite to give few illustrations 
as a guiding example to further demonstrate the fine but pertinent 
distinction that exists between sub-section (1), (2) and (3) of Section 
15 of the POCSO.
97.	 For illustration; say certain child pornographic material was found 
stored in the personal mobile phone of ‘A’ and the same was neither 
deleted, destroyed nor reported. Here though there is possession 
or storage of child pornographic material but since there is nothing 
to show any facilitation of transmission, propagation, display or 
distribution of the said material, this would attract the provision of 
Section 15(1). At the same time, since the material in question was 
found in the personal mobile of ‘A’ the same is indicative that the 
omission to either delete, destroy or report in all likelihood was due 
to the intent to share or transmit. Here the manner in which the 
omission has occurred is sufficiently indicative of the intent to share 
or transmit, as there is nothing apart to show that the omission was
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attributable to any other reason but the intent to share or transmit, 
and thus it would constitute an offence under Section 15(1) of the 
POCSO.
98.	 Conversely, say for example certain child pornographic material was 
found stored in a broken mobile phone of ‘A’ and the said material had 
never been deleted, destroyed or reported. Now again, there is nothing 
to show that there was either any actual transmission, propagation, 
display or distribution nor anything to show that something apart 
from and in addition to the storage or possession had been done 
by ‘A’ for facilitation of the transmission, propagation, display or 
distribution of such material. This would again attract the provision 
of Section 15(1) instead of 15(2) of the POCSO. However, since the 
material was found in a broken phone, it is likely that the failure to 
delete, destroy or report the same was attributable to the inability 
of ‘A’ to operate the broken mobile rather than the intent to share or 
transmit, thus, no offence would be made out under Section 15(1) 
of the POCSO. This is because, the manner in which the omission 
has occurred is not sufficiently indicative of the intent to share or 
transmit. Thus, no offence could be said to have been constituted 
under Section 15 sub-section (1) of the POCSO.
99.	 Take for instance, certain child pornographic material was found 
stored in the mobile phone of ‘A’ but
this time, the said material had 
found its way in the device due to an automatic download of media 
of which ‘A’ had no knowledge whatsoever. Here although there is 
possession or storage of such material, yet the omission to delete, 
destroy or report is clearly shown and established by ‘A’ that it was 
due to lack of knowledge about the existence of such material on 
his parts. Here the manner in which the omission has occurred is 
not sufficiently indicative of the intent to share or transmit, thus no 
offence could be said to have been made out under Section 15(1) 
of the POCSO.
100.	Take a case where certain child pornographic material was found 
stored in the mobile phone of ‘A’ but this time in addition to the 
aforesaid material few chats were also recovered wherein ‘A’ told 
his friend ‘B’ that he had some child pornographic material which 
he could share with him. Here, since there is additional material to 
show that ‘A’ had taken some overt steps in order to propagate the 
said material, he would be liable under Section 15(2) of the POCSO.
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101.	For another illustration, say for example, again certain child 
pornographic material was found stored in the mobile phone of ‘A’ 
but this time ‘A’ creates a chat group consisting of several of his 
friends, and sends a message therein stating that he has some 
child pornographic material which he would forward on the group. 
Here, since there is additional material to show that ‘A’ had taken 
some overt steps in order to distribute the said material, he would 
be liable under Section 15(2) of the POCSO.
102.	Conversely, say ‘A’ who has certain child pornographic material in 
his phone, again creates a group consisting of several of his friends, 
but this time he sends a message stating that he has some child 
pornographic material which he would send in exchange of some 
amount of money. Here, since there is additional material to show 
that ‘A’ had taken some overt steps in respect of the said material 
for some monetary gain, he would now be liable under Section 15(3) 
of the POCSO instead.
103.	We may at the cost of repetition clarify that there may be situations 
where the possession or storage of the pornographic material is found 
to be in a such a manner that the same by itself would be indicative 
of an intention to either transmit, display, propagate or distribute such 
material or that it was done in lieu or expectation of any gain. In 
such cases the storage or possession of child pornographic material
itself would sufficiently be indicative of the requisite intention either 
under Section 15 sub-section(s) (2) or (3) as the case may be, and 
there would be no requirement to adduce any additional material 
as long as the manner of storage or possession of such material or 
the attending circumstances itself is sufficiently indicative of such 
intention.
104.	For illustration; say certain child pornographic material was found 
stored in five to six television devices in a hotel run by ‘A’. Here, 
because the pornographic material has been found to be stored in 
multiple devices that too at a place which has easy access for the 
public, the same would be indicative that the ‘A’ was using the hotel 
and the television devices therein as a means for facilitating display 
of such pornographic material, and thus, would be punishable under 
Section 15 sub-section (2) of the POCSO.
105.	For another illustration say again certain child pornographic material 
were found stored in five to six television devices in a hotel run by
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‘A’, but this time some price was mentioned onto the pornographic 
material itself. Here, because some amount of money was found to 
be mentioned on the material itself and the said material was stored 
in a place with easy public access, the same would be indicative 
that the ‘A’ was using the hotel and the television devices therein 
as a means for facilitating display of such pornographic material in 
lieu of monetary gain, thus, would be punishable under Section 15 
sub-section (3) of the POCSO.
106.	The aforesaid illustrations have been provided only as a guiding 
example to highlight the distinction between sub-section(s) (1), (2) 
and (3) of Section 15 of the POCSO. These illustrations should not 
be mechanically applied or construed by any court in any proceeding 
while dealing with any matter involving Section 15 of the POCSO 
devoid of the context in which these illustrations have been given and 
without applying its mind as to whether the necessary ingredients 
have been established or not in the individual facts and circumstances 
of the matter. Any matter involving Section 15 sub-section (1), (2) or 
(3) of the POCSO, must be dealt with independent of the illustrations 
narrated above and stricto-sensu in accordance with only the ratio 
of this decision.
107.	Lastly, we must also caution the police and the courts to be 
mindful of the fact that wherever in a given case a
particular 
sub-section of Section 15 is found to be applicable, the other 
two remaining sub-sections of the said provision will cease to be 
applicable. Section 15 sub-section(s) (1), (2) and (3) respectively 
of the POCSO are 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 that they 
cannot survive without each other. This is because, the underlying 
distinction between Section 15 sub-section(s) (1), (2) and (3) 
respectively lies in the different degree of culpable mens rea that 
is required under each of the three provisions. The inception of 
the requisite culpable mens rea begins and takes shape from the 
intention specified under sub-section (1), then gradually continues 
to transform into the intention stipulated under sub-section (2) and 
finally culminates into the intention prescribed under sub-section 
(3). Under Section 15 sub-section (1) of the POCSO, the requisite 
intention therein is still in fieri i.e., in process of developing and 
culminating into either the intention under sub-section(s) (2) or
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(3). Whenever, the said intention ultimately crystalizes into the 
intention either under sub-section(s) (2) or (3), the other provisions 
would automatically become inapplicable.
108.	Yet one another important aspect, that the police and the courts 
should be mindful of is that while examining any matter involving the 
storage or possession of any child pornography, it finds that particular 
sub-section of Section 15 is not attracted, it must not jump to the 
conclusion that no offence at all is made out under Section 15 of 
the POCSO. The police at the time of investigation and the courts 
at the time of taking cognizance, should keep this aforesaid aspect 
in mind. In other words, both should try to ascertain that if offence 
is not made out in one particular sub-section, whether the same is 
made out in the other two sub-sections or not.
II.	
Concept of ‘Possession’, ‘Constructive Possession’ and 
‘Immediate Control’ under Section 15 of the POCSO.
109.	During the course of hearing, our attention was also drawn to a 
recent news article that reported how on social media, links to view 
child pornography were being circulated and sold for anywhere 
between Rs. 40 to Rs. 5,000. The news report indicates, how social 
media platforms are rife with child sexual abuse, and gave certain 
insight about the modus operandi of the distribution of such material 
on these platforms. It explained how the sellers and distributors of
child pornographic material rather than sharing any downloads to 
such material, would ingeniously only share links to such material 
instead in lieu of money, so as to circumvent the penal provisions of 
the POCSO and IT Act, which criminalized only the storage of such 
material. By indefinitely forwarding links, they completely bypass 
the requirement of first storing such material onto any device, and 
similarly those who view such material also only use the links, without 
ever downloading such material onto their device.
110.	As earlier mentioned, prior to the 2019 Amendment Act, Section 15 of 
the POCSO only criminalized the storage of any child pornographic 
material for any commercial purpose. Thereafter, the legislature in 
view of the increasing number of child sexual abuse cases, amended 
Section 15 of the POCSO, to recognize and criminalize three distinct 
forms or manner of storage of child pornographic material, as has 
been discussed in the preceding parts of this judgment.
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111.	 One another subtle but significant change that was made to all three 
sub-sections of Section 15 was the inclusion of the word “possession” 
in addition to storage, which was earlier not there in the erstwhile 
provision of Section 15 of the POCSO.
112.	Thus, while the word “possession” was originally absent in the 
unamended Section 15 of the POCSO, the legislature in its wisdom, 
specifically added the said word in the amended Section 15, whereby 
now both the storage or the possession of any child pornographic 
material would be liable to be punished when done with any of the 
specified intention thereunder.
113.	We believe that the change referred to above was not made 
inadvertently or lightly, but rather was done specifically with the 
intention of making the provisions of Section 15 of the POCSO 
more stringent to effectively deter the dissemination and use of 
child pornography.
114.	An important aspect of the jurisprudence on possession as an 
inchoate crime is the doctrine of constructive possession. Constructive 
possession extends the concept of possession beyond physical 
control to situations where an individual has the power and intention 
to control the contraband, even if it is not in their immediate physical 
possession. This doctrine is particularly relevant in cases where 
contraband is found in a location that is not directly under the physical 
control of the
accused, but where the accused has access to and 
control over the area where the contraband is found.
115.	In U.S. v. Tucker reported in 150 F. Supp. 2d 1263 (D. Utah. 2001), 
the U.S. District Court, Utah, explained and elaborated on the doctrine 
of constructive possession. In the said case, the defendant therein 
used to routinely view child pornography, but he never used to keep 
it stored in his computer, and would often delete any such material 
and its traces from its computer after he was finished viewing them. 
When charged with the offence of possession of child pornographic 
material, he challenged the same, contending that since no material 
had been stored in his disk, he cannot be said to be in possession 
of any child pornography. The court held that wherever a person 
exercises some form or manner of immediate control over any 
particular material, both tangible or intangible, such material would be 
said to be in his constructive possession. It observed that the control 
of a person over such material can be ascertained by seeing whether
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he could manipulate, alter, modify or destroy such material or not, 
if the answer to any of the above is in an affirmative, such material 
would be deemed to be in his conscious or constructive possession.
116.	Similarly in U.S. v. Romm reported in 455 F. 3d. 990 (9th Cir., 2006), 
the defendant therein admitted to viewing images of child pornography 
on the Internet. He would save them to disk, view them for about 5 
minutes, then delete them. The Court held that a person can be said 
to possess child pornography even without downloading or storing 
it, if he or she seeks it out and exercises dominion or control over it. 
It observed that this dominion or control may be evident by factors 
such as when viewing the images on the screen, did the person have 
the ability to print them, save them, forward them or delete them. 
If he did, then he can be said to have knowingly exercised custody 
or control over those images and thus, consequently in possession 
of the same.
117.	Thus, for establishing constructive possession both the power to 
control the material in question and the knowledge of exercise of 
such control are required. The doctrine of constructive possession, 
is a crucial development in the criminal jurisprudence, especially 
pertaining to inchoate crimes where possession is sought to be 
punished, as it ensures that no person can evade liability by simply 
distancing themselves from the physical possession of
contraband 
while retaining the ability to control it.
118.	We are of the considered view, that wherever a person indulges in 
any activity such as viewing, distributing or displaying etc. pertaining 
to any child pornographic material without actually possessing or 
storing it in any device or in any form or manner, such act would still 
tantamount to ‘possession’ in terms of Section 15 of the POCSO, 
if he exercised an invariable degree of control over such material, 
applying the aforesaid doctrine of constructive possession.
119.	Say for instance, ‘A’ routinely watches child pornography over the 
internet, but never downloads or stores the same in his mobile. Here 
‘A’ would still be said to be in possession of such material, as while 
watching he exercises a considerable degree of control over such 
material including but not limited to sharing, deleting, enlarging such 
material, changing the volume etc. Furthermore, since he himself on 
his own volition is viewing such material, he is said to have knowledge 
of having control over such material.
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120.	Conversely, say ‘A’ is sent an unknown link by ‘B’, which upon 
clicking opened a child pornographic video on the phone of ‘A’. Here 
although ‘A’ at the time of opening the link had control over the said 
link, yet he cannot be said to have a knowledge of that control over 
such material as he at that relevant point of time was unaware as 
to what would open from the said link; thus ‘A’ cannot be said to 
be in possession. We say so, because, ‘A’ had no information as 
to what the link pertained to, in order to have knowledge of control 
over such material, a person requires reasonable information such 
as what is involved in the material in question, what is the purpose 
of such material, etc. Without such information no person can decide 
whether he wants to view it, or delete it or further forward it i.e., he 
cannot effectively exercise the control that he has, without a certain 
degree of knowledge.
121.	However, in the aforementioned illustration, if ‘A’ rather than closing 
the link in a reasonable time, continues to view such material he 
would be deemed to be in possession of such material. This is 
because, after a reasonable window of time, he would be said to 
have sufficient information about such material to have knowledge 
for the effective exercise of his control over such material.
122.	Thus, we are of the considered view that any form of intangible 
or constructive
possession of any child pornographic material will 
also amount to “possession” under Section 15 of the POCSO in 
terms of the Doctrine of Constructive Possession. There is no 
requirement of a physical or tangible “storage” or “possession” of 
such material in Section 15 of the POCSO. We may clarify with a 
view to obviate any confusion that, where any child pornographic 
material is in the constructive possession of an accused, there 
the failure or omission to report the same would constitute the 
requisite actus-reus for the purposes of Section 15 sub-section 
(1) of POCSO. 
123.	For instance, say, ‘A’ is sent an unknown link by ‘B’, which upon 
clicking opened a child pornographic video on the phone of ‘A’. Now 
if ‘A’ immediately closes the link, although once the link is closed 
‘A’ is no longer in constructive possession of the child pornography, 
this by itself does not mean that ‘A’ has destroyed or deleted the 
said material by merely closing the link. ‘A’ will only be absolved of
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any liability if he after closing the link further reports the same to the 
specified authorities. Thus, when it comes to constructive possession 
of an accused, it is the failure or omission to report that constitutes 
the requisite actus-reus for the purposes of Section 15 sub-section 
(1) of POCSO.
124.	At this juncture we may also address ourselves on another pertinent 
aspect for constituting an offence under Section 15 of the POCSO. 
The term ‘storage’ and ‘possession’ that has been used in the said 
provision does not require that such ‘storage’ or ‘possession’ must 
continue to be there at the time of registration of an FIR or any 
criminal proceeding. The provision of Section 15 is not fixated any 
particularly time-frame. What is simpliciter required to constitute 
an offence under Section 15 of the POCSO is the establishment 
of ‘storage’ or ‘possession’ of any child pornographic material with 
the specified intention under sub-section(s) (1), (2) or (3), at any 
relevant point of time. Even, if the said ‘storage’ or ‘possession’ 
no longer exists at the time of registration of the FIR, nonetheless 
an offence can be made out under Section 15 if it is established 
that the person accused had ‘stored’ or ‘possessed’ of any child 
pornographic material with the specified intention at any particular 
point of time even if it is anterior in time. We say so because, any 
other view aside from the above, in our opinion
would lead to a 
chilling effect with drastic consequences, whereby the provisions of 
the POCSO may be defeated by a devious person. If for instance, 
a person immediately after storing and watching child pornography 
in his mobile phone deletes the same before an FIR could be 
registered, could it be said that the said person is not liable under 
Section 15, because at the time of registration of the FIR, such 
material no longer existed on the device of the person accused? 
The answer to the aforesaid, must be an emphatic “no”. Thus, we 
clarify that there is no requirement under Section 15 of the POCSO 
that ‘storage’ or ‘possession’ must continue to exist at the time of 
initiation of the criminal proceeding, and no such requirement can 
be read into the said provision. An offence can be made out under 
Section 15 if it is established that the person accused had ‘stored’ 
or ‘possessed’ of any child pornographic material with the specified 
intention at any particular point of time even if it was before such 
initiation or registration of criminal proceedings.
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c.	
Pornographic Material must prima facie appear to involve 
a Child.
125.	At this stage, we may explain one another crucial aspect concerning 
Section 15 of the POCSO, more particularly the criteria for determining 
whether the material in question involves or depicts a ‘child’, or in other 
words whether such material can be considered a ‘child pornography’ 
or not. The determination of whether the individual involved is a ‘child’ 
or not, in terms of the POCSO is a crucial foundational element for 
constituting various offences under the Act.
126.	Section 2(1)(d) of the POCSO stipulates that the term ‘child’ means 
and refers to any person who is below the age of eighteen years. 
Thus, under the POCSO more particularly Section 2(1)(d) an objective 
criterion has been prescribed by the legislature for determining 
whether a person is a ‘child’ or not for the purposes of any offence 
under the Act. The said criteria is based on the age of the individual 
in question, and involves ascertaining and establishing whether he 
or she is under eighteen years of age, if so, such person would be 
considered a ‘child’ for the purposes of any offence in respect of 
such child that is punishable under the POCSO. 
127.	Earlier under the POCSO, there was no specific definition of ‘child 
pornography’. Thus, under the erstwhile Section 15 of the POCSO, 
there was only one criteria for ascertaining whether
the material in 
question can be regarded as ‘child pornography’ or not, which was 
by establishing that the material depicts or involves a person who 
is under the age of eighteen years.
128.	It was only with the enactment of the aforesaid 2019 Amendment 
Act, whereby the term “child pornography” was specifically defined 
under the POCSO by way of insertion of Section 2(1)(da) in the 
Act. At the cost of repetition, Section 2(1)(da) of the POCSO is 
reproduced below: -
“2. Definitions. – 
(1) In this Act, unless the context otherwise requires, –
(da) “child pornography” means any visual depiction of 
sexually explicit conduct involving a child which include 
photograph, video, digital or computer generated image 
indistinguishable from an actual child and image created, 
adapted, or modified, but appear to depict a child;”
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129.	A plain reading of the above would indicate that the term “child 
pornography” means any visual depiction of a child involved in any 
sexually explicit conduct. It further explains that the expression ‘visual 
depiction’ means and includes the following: - 
i.	
A photograph or video, which may be either in actual or any 
electronic form.
ii.	
An image generated digitally or by a computer which is 
indistinguishable from an actual child i.e., any self-generated 
image which appears to depict a lifelike child indistinguishable 
from an actual child, and will not include any artistic or cartoon 
based depiction.
iii.	
Any other image (including any video-based imagery) that has 
been created, adapted or modified. 
The above list of material mentioned is inclusive in nature i.e., the 
different types, form and manner of visual depiction that has been 
enumerated therein is not exhaustive in any manner. In the last, the 
said provision, more particularly the words “but appear to depict a 
child ” lays down the test or criteria for ascertaining, whether any of 
the above mentioned visual depiction is a ‘child pornography’ or not, 
by prescribing a prima facie subjective satisfaction that the material 
appears to depict a child. 
130.	The use of the comma before the words “but appear to depict a child ” 
is significant. The legislature has used the aforesaid comma both 
as a disjunctive and a conjunctive to the words
preceding it. It has 
been used as a disjunctive to stress, that the subjective criteria that 
the material in question appears to depict a child is not inextricably 
linked or limited to just one category of visual depictions i.e., the 
last category being “image created, adapted, or modified ”. At the 
same time, it has been used as a conjunctive in relation to all types 
of visual depictions that have been illustrated in the said provision, 
to clearly indicate, that this subjective criterion applies to the entire 
provision i.e., to all types of visual depictions mentioned therein or 
in other words to ‘child pornography’.
131.	Thus, 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’ for the purposes of the POCSO.
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Therefore, for any offence under the POCSO that relates to child 
pornographic material, such as Section 15, the courts would only 
be required to form a prima facie subjective satisfaction that the 
material appears to depict a child from the perspective of any 
ordinary prudent person. Such satisfaction may be arrived at from 
any authoritative and definitive opinion such as through a forensic 
science laboratory (FSL) report of such material or from any expert 
opinion on the material in question, or by the assessment of such 
material by the courts themselves, depending on the peculiar facts 
and circumstances of each case. 
132.	This aforesaid test or criteria of ‘subjective satisfaction’ is not a 
superfluous or imaginary creation of the legislature, but a well-founded 
test, that exists in various other countries. In this regard, reference 
may be made to the decision of the Court of Appeal of England & 
Wales in Regina v. Michael Land reported in [1997] EWCA Crim 
J1010-15 wherein the court was dealing with an offence of possession 
of indecent photographs of children for the purpose of distribution 
under Section 1(1)(c) of the Protection of Children Act 1978. There 
the question arose whether the individual in the aforesaid photographs 
was under sixteen years of age or not. The court observed that often 
there lies an inherent difficulty in making any positive identification of
the person in question, so as to establish their age conclusively. It 
held that, thus in such situations, the question whether such person is 
a child or not would have to be ascertained as a matter of inference 
from the facts and the material in question, without any need for a 
formal proof of the same. The court further rejected the contention 
that in the absence of any paediatric or other expert evidence, no 
such inference can be drawn. It observed that such fact-based 
questions of age can be assessed by the judge or the jury as the 
case may be by use of their critical faculties and senses such as 
their eyes, supplemented with their own judgement and experience. 
133.	In John Leadbetter v. Her Majesty’s Advocate reported in [2020] 
HCJAC 51, the High Court of Justiciary, Scottland held that no expert 
witness is required for proof of age of any person depicted in an 
obscene material in question. It further held that, such proof of age 
may be established by any witness or a person who demonstrates 
a certain extent of skill or knowledge in determination of the age on 
the basis of a wide range of evidence that may be available.
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134.	In United States v. Katz reported in 178 F.3rd 368 (5th Cir. 1999), 
it was held by the U.S. Court of Appeals, Fifth Circuit, Louisiana, 
that the threshold question whether the age of any person in a child 
pornography may be determined by a ‘lay’ jury without the assistance 
of expert testimony where there is no conflict of opinion as to the age. 
However, it observed that where the individual in question appears 
to have reached puberty, there expert testimony or opinion as to 
proof of age would be necessary. 
135.	In Commonwealth v. Robert reported in (829 A.2d. 127), the Superior 
Court of Pennsylvania observed that proof of age, like proof of any 
material fact, can be accomplished by the use of either direct or 
circumstantial evidence, or both. It held that the proof necessary to 
satisfy the element of age in a dissemination or possession of child 
pornography case is not limited to expert opinion testimony.
136.	What is discernible from the aforesaid is that, although, in the few 
decisions referred to by us, there is a difference of opinion as to 
whether an expert’s testimony or determination is necessary or not 
for the proof of age of an individual depicted in any pornographic 
material, yet in all of the aforementioned decisions it has been 
consistently held that the criteria for such determination is only the 
subjective satisfaction.
137.	The test or criteria of ‘subjective satisfaction’ is in view
of the 
practical difficulty that exists in conclusively establishing the age 
of an individual in any pornographic material through any objective 
means or criteria. This is owed to the fact that often, it is next to 
impossible to establish the identity of the victim, then to trace the 
whereabouts of such person, and then objectively determine their 
age. If such a criterion is adopted, then most of the cases pertaining 
to the possession of any child pornographic material would fail at the 
threshold, due to want of any means or information for conclusively 
proving the age of the victim. 
138.	The aforesaid aspect may be looked at from one another angle. 
Any mandate of an objective determination of the age by conclusive 
means, could possibly result in absurd consequences. For instance, 
say a pornographic material involves an under-teen child who by 
virtue of his built on the face of it appears to be a child, yet such 
material will not be considered child pornographic material in the eyes 
of law, unless an objective determination of the exact age of such
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child is carried out in a conclusive manner. In the absence of any 
such determination, the prosecution of possession of such material 
would have to fail, merely due to technicalities and the inflexible 
character of the criteria or test for determining the age. 
139.	The aforesaid provision of Section 2(1)(da) of the POCSO holds 
significant importance, as the legislature whilst giving teeth to the 
existing provision of Section 15 of the Act, and making three distinct 
offences punishable under it through the 2019 Amendment Act, also 
consciously defined the term ‘child pornography’ under the POCSO 
through the very same amendment. It indicates the legislature’s 
intention of construing both these provisions together as a whole; 
neither Section 15 of the POCSO nor Section 2(1)(da) can be 
interpreted or invoked in isolation from the other. 
140.	The legislature through Section 2(1)(da) of the POCSO, made a 
conscious departure from the already existing objective criterion of 
determination of age in terms of Section 2(1)(d) which is generally 
applicable to the POCSO, as it was alive to aforementioned inherent 
difficulty that is posed by such criteria. The legislature was well aware, 
that if the proof of age in offences pertaining to child pornography 
such as under Section 15 of the POCSO would also have to be 
assessed by the existing objective test, it would lead to a very 
chilling
effect, whereby the entire Section 15 of the POCSO could 
be rendered unworkable merely on account of a hyper-technical 
approach as to determination of age, thereby defeating the very 
object of the POCSO. 
141.	The aforesaid aspect may also be looked at from one more angle. 
Section 2(1)(da) of the POCSO was inserted by the legislature with 
two-fold purpose in mind. While one of the purpose of Section 2(1)
(da) of the POCSO, was to explicitly define and delineate what 
type of visual depictions would be considered ‘child pornography’ to 
remove any ambiguity that existed earlier, the real purpose behind 
insertion of the said provision was to mitigate the tendency of the 
courts to refer and apply the objective criteria of age determination 
prescribed under Section 2(1)(d) of the POCSO, even when dealing 
with matters involving child pornography. Which is why the legislature 
in addition to explaining the contour of visual depiction in Section 2(1)
(da) of the POCSO, also specifically added the words “but appear 
to depict a child ” in the end.