LexJUST RIGHTS FOR CHILDREN ALLIANCE & ANR. versus S. HARISH & ORS.
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[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 [2024] 10 S.C.R. 155 Just Rights for Children Alliance & Anr. v. S. Harish & Ors. 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
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