The Wire Staff 
New Delhi: The Supreme Court of India on Monday (September 23) has set aside a Madras high court judgment, ruling that storing child pornographic material without deleting or reporting the same implies an intention to transmit.
This decision reverses the high court’s verdict that mere storage of such material without intent to transmit is not an offense under the Protection of Children from Sexual Offences (POCSO) Act, Live Law reported.
The court ruled that the accused’s failure to delete, destroy, or report the child pornographic material provides sufficient evidence to establish a prima facie case of culpable mental state, meeting the necessary conditions for statutory presumption.
The apex court bench comprising of Chief Justice of India D.Y. Chandrachud and Justice J.B. Pardiwala underlined that the high court committed an “egregious error” in quashing the criminal proceedings and restored the criminal prosecution.
The court clarified that Section 15 of the POCSO Act penalises three distinct offenses — storage, possession, or transmission of child pornographic material — with varying degrees of culpable mental state required for each offense.
“Section 15 of the POCSO provides for three distinct offences that penalise either the storage or possession of any child pornographic material when done with any intention to transmit, display etc as specified in sub-sections of the Section. It is in the nature and form of an inchoate offence, which penalises the mere storage or possession of any pornographic material involving a child when done with the specific intent prescribed thereunder without requiring any actual transmission, dissemination etc,” Justice Pardiwala was quoted reading the conclusion of the judgment by Live Law.
Additionally, the court emphasised that storage or possession does not need to continue at the time of registration of an FIR or criminal proceeding to constitute an offense. This interpretation aims to prevent individuals from evading liability by deleting or destroying evidence before legal action is taken.
“We clarify that there is no requirement under Section 15 of the POCSO that ‘storage’ or ‘possession’ must continue to exist at the time of initiation of the criminal proceeding, and no such requirement can be read into the said provision. An offence can be made out under Section 15 if it is established that the person accused had ‘stored’ or ‘possessed’ of any child pornographic material with the specified intention at any particular point of time even if it was before such initiation or registration of criminal proceedings,” the bench observed, as per the report.
The judgment, authored by Justice Pardiwala, suggested the parliament to amend the term “child pornography” to “child sexual exploitative and abusive material” and requested the Union government to bring an Ordinance to bring about the amendment, as per the report. This recommended change acknowledges the severe harm caused by such content and aligns with international standards.
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The case pertains to an accused individual who downloaded child pornographic material on their mobile phone. The Madras high court had initially quashed the criminal proceedings, citing that mere downloading and watching child pornography is not an offense under the POCSO Act. However, the Supreme Court’s decision restores the criminal prosecution.
The Just Rights for Children alliance had expressed concerns that the initial judgment could encourage child pornography by giving the impression that individuals downloading and possessing such material would not face prosecution.