Unidentified Minors No Ground To Drop POCSO Charges In Cases Involving Child Sexual Exploitation Material: Delhi High Court

The Delhi High Court has held that the absence of identifiable child victims or conclusive proof of their age cannot be a ground to discharge accused persons under POCSO Act in cases involving child sexual abuse material (CSEM).

Justice Swarana Kanta Sharma observed noted that in majority of CSEM cases, children remain unidentified and untraceable, and cannot be produced before the Court, which makes it practically impossible to obtain documentary proof of age or to conduct any medical or scientific test for age determination.

“If, on this ground alone, accused persons are discharged of offences under Section 15(2) of the POCSO Act, it would have far-reaching consequences and would leave countless children unprotected – children who may not even be aware that sexually explicit videos depicting them are circulating online and being viewed by numerous individuals,” the Court said.

“Such an approach would defeat the very object and purpose of Section 15 of the POCSO Act, since the prosecution would fail at the very threshold merely due to the inability to conclusively determine the age of the child depicted,” it added.

Justice Sharma set aside a Sessions Court order which had discharged two accused of offences under Section 15(2) of the Protection of Children from Sexual Offences (POCSO) Act, on the ground that the children depicted in the pornographic material were unidentified and their age could not be determined.

The case was decided by Justice Sharma after a suo motu case was registered by a division bench on a PIL challenging the impugned order, as well as seeking guidelines with respect to cases involving Child Sexual Abuse Material of unidentified child or children online or offline. Accordingly, the PIL was converted into the suo motu revision petition and was thereafter listed before the single judge.

The FIR alleged that the accused persons were involved in transmitting, storing, and viewing CSEM by sharing links, videos, pictures, texts, and posts, and by hosting such content on social media groups or platforms and third-party storage or hosting platforms.

Both the accused persons were discharged by the trial court observing that the children appearing in the alleged pornographic videos were unidentified and that no documents were available to establish the age of the victims since they were unidentified.

Setting aside the impugned order, Justice Sharma said that the Sessions Court erred in adopting the said approach, as it failed to take into consideration the scope and import of Section 2(1)(da) of the POCSO Act, which specifically defines what constitutes child pornography.

“The introduction of Section 2(1)(da) reflects a clear legislative intent that rigid or strictly objective standards for determining the precise age of a person visually depicted in a sexually explicit act should not impede the operation of Section 15. Any interpretation to the contrary would defeat the very purpose for which the provision was enacted,” the Court said.

It added that the legislature was conscious of the practical difficulty involved in ascertaining the exact age of individuals appearing in such visual depictions.

The Court said that had strict age-determination criteria been insisted upon in every case, the application of Section 15 would have been rendered largely ineffective.

“Section 2(1)(da) was therefore incorporated to ensure that offences relating to CSEM are not frustrated merely because the age of the person depicted cannot be established through conventional or objective means,” the judge held.

The Court concluded that the Sessions Court failed to give due consideration to the opinions of two experts, who had categorically opined that the pornographic videos depicted children engaged in sexually explicit acts.

It added that the expert opinions clearly satisfied the test of “subjective satisfaction”, which was not properly appreciated by the Sessions Court.

“Further, this Court is of the considered view that upon a perusal of the material placed on record along with the chargesheet, it prima facie emerges that respondent nos. 2 and 3 had stored and possessed CSEM and had also transmitted the same through various WhatsApp groups,” the Court observed, while ordering the trial court to frame charges against the accused persons.

Title: COURT ON ITS OWN MOTION v. STATE AND ORS

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