Storage Of Child Pornography Without Deletion Or Reporting Indicates Intention To Transmit, Constitutes POCSO Act Offence :Supreme Court

Setting aside a Madras High Court judgment which held that mere storage of child pornographic material without any intention to transmit the same was not an offence under the Protection of Children from Sexual Offences Act (POCSO Act), the Supreme Court on Monday (September 23) held that the storage of such material, without deleting or without reporting the same, would indicate an intention to transmit.Observing that the High Court committed an "egregious error" in quashing the criminal proceedings, the bench comprising CJI DY Chandrachud and Justice JB Pardiwala set aside the decision set it aside and restored the criminal prosecution.The Court held that from the failure on the part of accused in the present case in deleting, destroying or reporting the material, the foundational facts necessary to invoke the statutory presumption of culpable mental state could be said to have been prima facie established.Intention must be gathered from the circumstancesJustice Pardiwala read out the conclusions of the judgment as follows :Section 15 of the POCSO provides for three distinct offences that penalise either the storage or possession of any child pornographic material when done with any intention to transmit, display etc as specified in sub-sections of the Section. It is in the nature and form of an inchoate offence, which penalises the mere storage or possession of any pornographic material involving a child when done with the specific intent prescribed thereunder without requiring any actual transmission, dissemination etc.Regarding Section 15(1) of POCSO - Failure to delete, destroy or report indicates intention to transmitThe judgment held :Sub-section (1) of Section 15 penalizes the failure to delete, destroy or report any child pornographic material that has been found to be stored or in possession of any person with an intention to share or transmit the same. The mens-rea or the intention required under this provision is to be gathered from the actus reus itself i.e., it must be determined from the manner in which such material is stored or possessed and the circumstances in which the same was not deleted, destroyed or reported. To constitute an offence under this provision the circumstances must sufficiently indicate the intention on the part of the accused to share or transmit such material.For the purpose of sub-section (1), the necessary foundational facts that the prosecution may have to first establish is the storage or possession of any child pornographic material and that the person accused had failed to delete, destroy or report the same.Just because material was deleted before FIR registration, it cannot be said that no offence is made outThe Court clarified that 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."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"The Court observed that a contrary interpretation can lead to disastrous consequences."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."Regarding Section 15(2) As regards sub-section (2) of Section 15, the Court note that it penalizes both the actual transmission, propagation, display or distribution of any child pornography as-well as the facilitation of any of the abovementioned 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...

Storage Of Child Pornography Without Deletion Or Reporting Indicates Intention To Transmit, Constitutes POCSO Act Offence :Supreme Court

Anmol Kaur Bawa

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