Possession or storage of child pornographic material constitutes an offence under Section 15 of POCSO, regardless of actual transmission.

This criminal miscellaneous case has been filed under Section 482 of the Code of Criminal Procedure , by the sole accused in S.C.No.821/2022 on the files of Special Court for trial of Protection of Children from Sexual Offences (`POCSO' for short) Act cases, seeking to quash the proceedings therein arising out of Crime No.963 of 2020 of Mannanthala Police Station, Thiruvananthapuram..Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail.

Perused the records.

3.The prosecution allegation as against the prohibition of reading, downloading or transmitting sex videos of children below 18 years. The accused downloaded and stored porn videos and the same were detected and crime was registered alleging offences punishable under Section 67 (B)b of the Information Technology Act (`I.T Act’ for short) and Section 15 of the POCSO Act. On investigation, final report also was filed alleging the same offences. While seeking quashment of the proceedings, the learned counsel for the petitioner argued at length to convince this Court that the materials collected by the prosecution in no way disclose commission of the offences alleged and therefore the entire prosecution is unwarranted.

4.Whereas the learned Public Prosecutor would submit that as per the prosecution records it is discernible that the accused herein downloaded and stored porn videos as against the prohibition contained in Section 67B of the IT Act as well as Section 15 of the POCSO Act.

Therefore, quashment of the proceedings could not be considered.

5.While addressing the argument, it is relevant to refer a recent decision of the Apex Court reported in [2024 SCC OnLine SC 2611] , Just Rights For Children Alliance and Another v. S.Harish and others . The Apex Court considered the offences under Sections 67, 67A and 67B of the IT Act as well as Section 15 of the POCSO Act and held as under:

“222. We summarize our final conclusion as under:— (I) Section 15 of the POCSO provides for three distinct offences that penalize either the storage or the possession of any child pornographic material when done with any particular intention specified under subsection(s) (1), (2) or (3) respectively. It is in the nature and form of an inchoate offence which penalizes the mere storage or possession of any pornographic material involving a child when done with a specific intent prescribed thereunder, without requiring any actual transmission, dissemination etc.

(II) 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.

(III) Section 15 sub-section (2) penalizes both the actual transmission, propagation, display or distribution of any child pornography as-well as the facilitation of any of the above mentioned acts. To constitute an offence under Section 15 sub-

section (2) apart from the storage or possession of such pornographic material, there must be something more to show i.e., either (I) the actual transmission, propagation, display or distribution of such material OR (II) the facilitation of any transmission, propagation, display or distribution of such material, such as any form of preparation or setup done that would enable that person to transmit it or to display it. 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