The Supreme Court also called upon Parliament to “seriously consider to bring about an amendment to the Pocso" to substitute the term “child pornography” with “child sexual exploitative and abuse material”.

The Supreme Court on Monday set aside the Madras High Court order which said that merely storing child pornographic material without any intention to transmit it would not constitute an offence under the Protection of Children from Sexual Offences (Pocso) Act.

A bench of Chief Justice D Y Chandrachud and Justices J B Pardiwala and Manoj Misra, which went into the various aspects of the Act, said the High Court “committed an egregious error in passing the impugned judgment.” “We are left with no other option but to set aside the impugned judgment and order passed by the High Court, and restore the criminal proceedings…to the court of Sessions Judge, Mahila Neethi Mandram (Fast Track Court), Tiruvallur District,” said the bench.

The judgement also called upon Parliament to “seriously consider to bring about an amendment to the Pocso for the purpose of substituting the term “child pornography” with “child sexual exploitative and abuse material” (CSEAM) to “reflect more accurately on the reality of such offences”. “The Union of India, in the meantime may consider to bring about the suggested amendment to the POCSO by way of an ordinance,” read the judgement.

Writing for the bench, Justice Pardowala said, the expression “child pornography is a misnomer that fails to capture the full extent of the crime’. The judgement said the “use of the term “child pornography” can lead to a trivialisation of the crime, as pornography is often seen as a consensual act between adults. It “undermines the victimisation because the term suggests a correlation to pornography — conduct that may be legal, whose subject is voluntarily participating in, and whose subject is capable of consenting to the conduct,” said the bench.

Setting aside the Madras High Court order, the SC said, “A plain reading of Section 15 of the Pocso and the marginal note appended thereto would reveal that the common theme permeating across sub-section(s) (1), (2) and (3) respectively is that there is no requirement whatsoever for an actual transmission of any child pornographic material in order to fall within the ambit of the said provision. What is sought to be penalised under Section 15 of the Pocso is the storage or possession of any child pornographic material when done with a particular intention or purpose as stipulated in sub-section(s) (1), (2) or (3), as the case may be. Thus, the bare textual reading of the said provision makes it clear that it is the intention which is being punished and not the commission of any criminal act in the traditional sense. This in the criminal jurisprudence is known as an ‘Inchoate Crime’ or ‘Inchoate Offence’.”

The bench said the term CSEAM more accurately reflects the reality that these images and videos are “not merely pornographic but are records of incidents, where a child has either been sexually exploited and abused or where any abuse of children has been portrayed through any self-generated visual depiction”. The bench also directed courts to not use the term “child pornography” in any judicial order or judgment, and asked them to use CSEAM instead.

It asked the police and courts to be “mindful…that while examining any matter involving the storage or possession of any child pornography, it finds that particular sub-section of Section 15 is not attracted, it must not jump to the conclusion that no offence at all is made out” under this section of the Pocso Act. “The police at the time of investigation and the courts at the time of taking cognizance, should keep this aforesaid aspect in mind. In other words, both should try to ascertain that if offence is not made out in one particular sub-section, whether the same is made out in the other two sub-sections or not”.

“We are of the considered view, that 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 the Pocso, if he exercised an variable degree of control over such material…” said the bench.

Illustrating this, the ruling said, “Say for instance, ‘A’ routinely watches child pornography over the internet, but never downloads or stores the same in his mobile. Here ‘A’ would still be said to be in possession of such material, as while watching he exercises a considerable degree of control over such material including but not limited to sharing, deleting, enlarging such material, changing the volume etc. Furthermore, since he himself on his own volition is viewing such material, he is said to have knowledge of having control over such material.”

“In the case at hand, there is no dispute by either side that, the two videos in fact depicted children in sexual activity. It is also not the case of respondent No 1 that the said videos were not recovered from his mobile phone. In such circumstances, the child pornographic material that was recovered from the personal mobile phone of the accused which was regularly in use by him, prima facie establishes the storage or possession of child pornographic material at his hand. Further, since the aforesaid child pornographic material was found to have been stored in the said personal mobile phone since 2016 and 2019, prima facie it could be said there was a failure on the part of respondent No 1 to delete, destroy or report such material”.

Source: indianexpress