2024 Supreme(SC) 808

SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, CJI, J.B. PARDIWALA, J.
Just Rights For Children Alliance & Anr. – Appellants
Versus
S. Harish & ors. – Respondents
Criminal Appeal Nos. 2161-2162 OF 2024 (Arising Out Of Special Leave Petition (Crl) Nos. 3665-3666 OF 2024)
Decided on : 23-09-2024

IMPORTANT POINTS
(1) Child Pornography – Sexual exploitation of children is a pervasive and deeply rooted issue that has plagued societies worldwide and has been a matter of serious concern in India – Increasing incidence of child sexual abuse in India and growing awareness of long-term psychological impact on victims underscored need for a dedicated law.
(2) Inchoate crimes represent a critical aspect of criminal law, embodying legal system's proactive and deterrent approach to crime itself – Law does not merely respond to offences already committed but also intervenes when a crime is in process of being committed, thereby protecting public order and safety.
(3) Child Pornography – Downloading and watching – Criminal prosecution – 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 POCSO, if he exercised an invariable degree of control over such material, applying doctrine of constructive possession.
(4) Section(s) 67, 67A and 67B respectively of IT Act being a complete Code, ought to be interpreted in a purposive manner that suppresses mischief and advances remedy and ensures that legislative intent of penalizing various forms of cyber-offences relating to children and use of obscene / pornographic material through electronic means is not defeated by a narrow construction of these provisions.
(5) Length of punishment is not only indicator of gravity of offence and it is to be judged by a totality of factors, especially keeping in mind background in which offence came to be recognized by legislature in the specific international context.

Headnote:

(A) Protection of Children from Sexual Offences Act, 2012 – Section 15(1) – Child Pornography – Sexual exploitation of children is a pervasive and deeply rooted issue that has plagued societies worldwide and has been a matter of serious concern in India – Increasing incidence of child sexual abuse in India and growing awareness of long-term psychological impact on victims underscored need for a dedicated law – 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 – POCSO is a ‘self-contained comprehensive legislation’ for the purpose of enforcing 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 – POCSO is a manifestation of unique scheme formed by Article(s) 15 and 39 respectively of Constitution and obligation cast by United Nations Convention on Rights of Children that was ratified by India. (Paras 41, 42, 44 and 45)

(B) Protection of Children from Sexual Offences Act, 2012 – Sections 15 and 30 – Child Pornography – Downloading and watching – Criminal prosecution – Presumption of culpable mental state – What is sought to be penalized under Section 15 of POCSO is storage or possession of any child pornographic material – There is no requirement whatsoever for an actual transmission of any child pornographic material in order to fall within ambit of Section 15 of POCSO Act – It is intention which is being punished and not the commission of any criminal act in traditional sense – This in criminal jurisprudence is known as ‘Inchoate Crime’ or ‘Inchoate Offence’. (Para 81)

(C) Criminal Law – ‘Inchoate Crime’ – Doctrine of Inchoate Crimes is a cornerstone of criminal jurisprudence – It is aimed at addressing legal culpability of those who engage in a conduct that is preparatory to commission of any substantive offence – Inchoate crimes are often referred to and described as an incomplete or preliminary offence, that capture essence of criminal intent and preparatory actions that precede commission of a criminal act – It underscores the principle that law does not merely respond to offences already committed but also intervenes when a crime is in the process of being committed, thereby protecting public order and safety – Inchoate crimes represent a critical aspect of criminal law, embodying legal system's proactive and deterrent approach to crime itself – An inchoate offence requires towing a delicate balance between need for prevention of potential threat to society and risk of undoing sacrosanct fundamental principle of ‘actus non facit reum nisi mens sit rea’ in order to ensure that law remains a powerful tool in maintenance of public order – Critical or central component of any inchoate crime is preliminary or preparatory actus reus that sufficiently reflects essence or existence of a criminal intent. (Paras 83, 84, 85 and 86)

(D) Protection of Children from Sexual Offences Act, 2012 – Sections 15 and 30 – Information Technology Act, 2000 – Section 67B – Criminal Procedure Code, 1973 – Section 482 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 528] – Child Pornography – Downloading and watching – Criminal prosecution – 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 POCSO, if he exercised an invariable degree of control over such material, applying 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 POCSO in terms of Doctrine of Constructive Possession – There is no requirement of physical or tangible “storage” or “possession” of such material in Section 15 of POCSO – Where any child pornographic material is in constructive possession of an accused, there failure or omission to report the same would constitute requisite actus-reus for the purposes of Section 15(1) of POCSO – There is no requirement under Section 15 of POCSO that ‘storage’ or ‘possession’ must continue to exist at the time of initiation of criminal proceeding – Offence can be made out under Section 15 if it is established that person accused had ‘stored’ or ‘possessed’ of any child pornographic material with specified intention at any particular point of time even if it was before such initiation or registration of criminal proceedings – For any offence under POCSO that relates to child pornographic material, such as Section 15, courts would only be required to form a prima facie subjective satisfaction that material appears to depict a child from perspective of any ordinary prudent person. (Paras 118, 122, 124 and 131)

(E) Information Technology Act, 2000 – Section 67B – Child Pornography – Punishment for publishing or transmitting – Section 67B of IT Act is a comprehensive provision designed to address and penalize various electronic forms of exploitation and abuse of children online – It not only punishes electronic dissemination of child pornographic material, but also creation, possession, propagation and consumption of such material as-well as different types of direct and indirect acts of online sexual denigration and exploitation of vulnerable age of children – Section(s) 67, 67A and 67B of IT Act being a complete Code, ought to be interpreted in a purposive manner that suppresses mischief and advances remedy and ensures that legislative intent of penalizing various forms of cyber-offences relating to children and use of obscene / pornographic material through electronic means is not defeated by a narrow construction of these provisions. (Paras 151, 153 and 222)

(F) Protection of Children from Sexual Offences Act, 2012 – Sections 29 and 30 – Statutory presumption of culpable mental state – Idea behind providing for a statutory presumption of culpable mental state is in view of exigency posed by difficulty that often exists in establishing certain types of offences such as inchoate offences due to its clandestine nature – Such presumptions are in essence an exception to cardinal principle of criminal jurisprudence that act does not make a person guilty unless mind is also guilty – In certain offences particularly economic offences or inchoate offences like possession of child pornography where apart from actus reus there exists no other material to depict or demonstrate mens rea, it is too difficult for prosecution to look into mind of accused to cull out with certainty what his intention was or could have been for doing a particular act let alone cogently establish the same beyond reasonable doubt – Presumption of a culpable mental state is neither a conclusive proof of guilt for any particular offence nor does it completely replace or absolve prosecution of its burden of proof – Before statutory presumption of culpable mental state could be validly invoked, prosecution must first establish certain foundational facts – Even if prosecution establishes such foundational facts and presumption is raised against accused, he can rebut the same – Since a negative cannot be proved, accused cannot be asked to disprove his guilt even before foundational allegations with supporting material thereof are placed and duly established by prosecution before court – Unless prosecution is able to prove foundational facts in context of allegations made against accused under any specific provision of POCSO, statutory presumption of culpable mental state under Section 30 of POCSO will not come into picture. (Paras 166, 167, 168, 171, 173 and 174)

(G) Criminal Procedure Code, 1973 – Section 482 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 528] – Protection of Children from Sexual Offences Act, 2012 – Section 30 – Quashing petition – There is no bar for High Court to invoke statutory presumption at the stage of deciding quashing petition in respect to any offence to which such presumption is applicable – Any failure to give due weightage to the same, may result in dire consequences such as premature quashing of criminal proceeding or allowing accused to completely bypass statutory presumption which otherwise would have been applicable in trial – High Courts as a matter of choice should not shy away from referring to statutory presumption that has been incorporated in the Act, whilst deciding quashing petition – High Courts must not deal with a particular offence under any enactment devoid or in disregard of rest of statutory framework, it must recognize and refer to legislation in toto – Statutory presumption may be ignored only where no foundational facts have been established from material on record – Once foundational facts are prima facie established from materials on record, it would be improper for High Court in a quashing petition to conduct intricate evidentiary inquiry into facts and ascertain whether requisite mental elements are present or not – All these aspects should be left to be decided by trial court – When High Court quashes any criminal proceedings without considering legal effect of statutory presumption, it effectively scuttles process of trial. (Paras 185, 186, 188, 189, 190 and 222)

(H) Criminal Procedure Code, 1973 – Section 482 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 528] – Protection of Children from Sexual Offences Act, 2012 – Section 15 – Child Pornography – Quashing petition – During investigation two videos depicting children involved in a sexual activity were recovered from mobile phone of respondent no. 1 – High Court in its Impugned Order whilst quashing criminal proceedings completely failed to advert to actual charge that was alleged therein – High Court could be said to have committed egregious error by quashing criminal proceedings without even properly perusing charge-sheet and other material on record – High Court in exercise of its inherent powers, may be justified in quashing criminal proceedings only where, neither any offence as alleged in FIR or charge-sheet is disclosed nor any other offence is prima facie made out, and continuance of proceedings may be found to amount to abuse of process of law – When 2019 Amendment came into force and later when FIR was registered, two videos were still stored in mobile phone of respondent no. 1 – In such circumstances, Section 15 sub-section (1) could be said to be prima facie attracted – Impugned judgment and order passed by High Court set aside and criminal proceedings restored to court of Sessions Judge. (Paras 194, 195, 201, 202, 205 and 261)

(I) Interpretation of Statute – Rules of Construction – Statute is an edict of Legislature – Elementary principle of interpreting or construing a statute is to gather mens or sententia legis i.e., true intention of legislature – While interpreting a statute, courts should strive to ascertain intention of Legislature enacting it – It is duty of Courts to accept an interpretation or construction which promotes object of legislation and prevents its possible abuse. (Para 194)

(J) Criminal Jurisprudence – Ignorance of law – Unawareness or incognizance of law should not be conflated with ignorance of law – For a plea of ignorance of law, ignorance or mistake of law must be such which legitimately gives rise to a bona-fide belief of existence of a right or a claim, and the said person commits any act on strength of such right or claim – Storage or possession of child pornographic material cannot be equated or traced to any right or assertion even if it was a mistaken one – Where law is clear consequence thereof must follow – High Court has no option but to implement law – Where something is specifically made punishable under law, then in such cases law would prevail over equity and no plea of ignorance of law can be taken as a defence to absolve or dilute any liability arising out of such punishable offences – Even otherwise, such a plea is not a statutory defence with any legal backing, but rather a by-product of doctrine of equity. (Paras 212, 214, 215, 216, 217 and 218)

(K) Equity – Equity cannot supplant the law, equity has to follow law if the law is clear and unambiguous – Equity modifies applicable law or ensures its suitability to address particular circumstances before a court to produce justice – Modification of general rules to circumstances of case is guided by equity, not in derogation or negation of positive law, but in addition to it – It supplements positive law but does not supplant it – However, where positive law is silent as to applicable legal principles, equity assumes a primary role as source of law itself – Equity steps in to fill gaps that exist in positive law – Where no positive law is discernible, courts turn to equity as a source of the applicable law – However, where positive law exists, equity will always yield to it. (Paras 215 and 218)

(L) Protection of Children from Sexual Offences Act, 2012 – Sections 21 and 42A – Protection of Children from Sexual Offences Rules, 2020 – Rule 11 – Information Technology Act, 2000 – Section 79 – Child abuse – Intermediary cannot claim exemption from liability under Section 79 of IT Act for any third-party information, data, or communication link made available or hosted by it, unless due diligence is conducted by it and compliance is made of these provisions of POCSO – When a statute describes or requires a thing to be done in a particular manner; it should be done in that manner or not at all – Merely because an intermediary is in compliance of requirements specified under Section 79 of IT Act, will not absolve it of any liability under POCSO, unless it duly complies with requirements and procedure set out under it – Merely because Section 21 prescribes a lesser threshold of punishment, same in no way derogates or detracts from gravity or severity of offence which has been sought to be punished – Length of punishment is not only indicator of gravity of offence and it is to be judged by a totality of factors, especially keeping in mind background in which offence came to be recognized by legislature in the specific international context. (Paras 256, 258 and 259)

(M) Child Pornography – Malady and Remedy – Meaningful suggestions – Lingering Impact of Child Pornography on victimization abuse of children – Impact of such continuous victimization is profound – Any act of sexual abuse inherently inflicts lasting physical and emotional trauma on child – Given severity and far-reaching consequences of child sexual exploitation, there is a clear legal and moral imperative to take strong action against those who produce, distribute, and consume child sexual exploitative and abuse material (CSEAM) – Laws must be robust and strictly enforced to ensure that perpetrators are brought to justice and that children are protected from further harm – Providing compassionate and comprehensive support is crucial to help victims heal and reclaim their lives – Therapeutic interventions, including trauma-informed counselling and support groups, can offer a safe space for victims to process their experiences and begin to heal – Legal and social support services are also essential to help victims navigate complexities of their situation and rebuild their lives – Parliament should seriously consider to bring about an amendment to POCSO for the purpose of substituting term “child pornography” that with “child sexual exploitative and abuse material” (CSEAM) with a view to reflect more accurately on reality of such offences – Union of India may consider to bring about suggested amendment to POCSO by way of an ordinance – Elaborate suggestions made to Union of India in its Ministry of Women and Child Development, in this direction. (Paras 223, 225, 234, 237 and 260)

Facts of the case:

Present appeals arise out of final judgment and order passed by High Court of Judicature at Madras dated 11.01.2024 in Criminal Original Petition filed by respondent no. 1 (accused) herein under Section 482 of the Code of Criminal Procedure, 1973 by which High Court allowed petition and thereby quashed the charge-sheet dated 19.09.2023 filed for offences punishable under Section 67B of Information Technology Act, 2000 and Section 15(1) of Protection of Children from Sexual Offences Act, 2012.

Findings of Court:

It is a settled position of law that length of punishment is not the only indicator of gravity of offence and it is to be judged by a totality of factors, especially keeping in mind background in which offence came to be recognized by legislature in specific international context i.e., United Nations Convention on Rights of Children, particularly Article(s) 3(2) and 34 of said Convention.

Result : Appeals allowed.