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D. Y. CHANDRACHUD, J. B. PARDIWALA
Just Rights For Children Alliance – Appellant
Versus
S. Harish – Respondent
In the context of the case Just Rights For Children Alliance vs S. Harish, the Court has emphasized that before the statutory presumption of culpable mental state can be validly invoked under the relevant legislation, the prosecution is required to establish certain foundational facts. These foundational facts serve as the essential basis upon which the presumption is triggered. Specifically, the prosecution must first demonstrate that the accused engaged in the actus reus—such as storage or possession of child pornographic material—at a particular point in time, and that this act was committed with a certain intent or purpose as prescribed under the relevant provisions. Only upon establishing these initial facts can the court then presume the existence of the culpable mental state, shifting the burden to the accused to rebut such presumption (!) (!) (!) (!) (!) .
JUDGMENT :
J.B. PARDIWALA, J.
For the convenience of exposition, this judgment is divided into the following parts:
| INDEX |
| A. FACTUAL MATRIX |
| B. IMPUGNED ORDER |
| C. SUBMISSIONS OF THE PARTIES |
| i. Submissions on behalf of the Appellants. |
| ii. Submissions on behalf of the National Commission for Protection of Child Rights (NCPCR). |
| iii. Submissions on behalf of the respondent no. 1/the Sole Accused |
| iv. Submissions on behalf of the respondent nos. 2 & 3/the State. |
| D. ISSUES FOR DETERMINATION |
| E. ANALYSIS |
| i. Relevant Statutory Scheme and Provisions. |
| a. Legislative History and Scheme of the POCSO. |
| b. Relevant Provisions of the IT Act |
| ii. Scope of Section 15 of the POCSO and Section 67B of the IT Act. |
| a. Contradictory Views of different High Courts on the subject |
| b. Three distinct offences punishable under Section 15 of the POCSO. |
| I. Concept of an Inchoate Crime – The ‘Actus Reus’ and ‘Mens Rea’ required under Section 15. |
| II. Concept of ‘Possession’, ‘Constructive Possession’ and ‘Immediate Control’ under Section 15 of the POCSO. |
| c. Pornographic Material must pri |
(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 inci....
Possession of child pornographic material requires proof of intent to transmit; mere downloading without intent does not constitute an offence under applicable laws.
The non-obstante clause in Section 19 of the POCSO Act mandates reporting of offences without excluding the applicability of Section 197 of the Cr.P.C. for public servants acting in their official ca....
Mandatory reporting of offences under the POCSO Act is crucial, and failure to report is punishable, emphasizing the seriousness of non-compliance.
(1) Provision of Section 23 of POCSO which protects child victims of sexual abuse from unwarranted intrusion into privacy, harassment and mental agony has to be strictly enforced – Provision cannot b....
Prompt and proper reporting of commission of offence under POCSO Act is of utmost importance – Non-reporting of sexual assault against a minor child despite knowledge is a serious crime and more ofte....
The main legal point established in the judgment is the application of Section 227 of the Code of Criminal Procedure and the interpretation of Section 15 of the POCSO Act before and after the amendme....
(1) Courts must follow and implement law – Courts cannot commit violence against law.(2) Kidnapping and rape of minor girl – When such offences of rape and aggravated penetrative sexual assault are c....
Failure to promptly report knowledge of a sexual offence against a child constitutes an offence under the Protection of Children from Sexual Offences Act, 2012, and is punishable under Section 21.
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