SRI BINOJ P J vs STATE BY KARNATAKA
- Court
- Karnataka High Court
- Decided on
- 12-01-2026
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
TH
DATED THIS THE 12 DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 17142 OF 2025
BETWEEN:
SRI BINOJ P J
S/O. SRI.JOSE.P.V
AGED ABOUT 38 YEARS,
R/AT PUDUSSERY HOUSE,
CHOTTUPARA KILLANNUR,
THRISSUR DISTRICT,
KERALA STATE-680581
…PETITIONER
(BY SRI. DEENABANDHU RAI N., ADVOCATE)
Digitally signed
by SANJEEVINI
J KARISHETTY
Location: High
Court of
Karnataka
AND:
1.
STATE BY KARNATAKA
COMMERCIAL STREET POLICE STATION
BENGALURU
NOW REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA AT BENGALURU
HIGH COURT COMPLEX
BANGALORE - 560 001
2. SRI.AMBARAYA.M.KAMANAMI,
AGED 48 YEARS
POLICE INSPECTOR /
STATION HOUSE OFFICER,
COMMERCIAL STREET POLICE STATION,
SHIVAJI NAGAR,
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BENGALURU - 560 001
…RESPONDENTS
(BY SRI. VINAY MAHADEVAIAH, HCGP FOR R1)
THIS CRL.P. IS FILED U/S 482 CR.P.C (U/S 528 BNSS) BY
THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS
HONOURABLE COURT MAY BE PLEASED TO QUASH THE ENTIRE
PROCEEDINGS IN SPL.C.NO.2119/2025, FOR THE OFFENCE
P/U/S 67(b) OF I.T. ACT, U/S 15 OF POCSO ACT, PENDING ON
THE FILE OF ADDL. CITY CIVIL AND SESSIONS JUDGE, FTSC-1,
AT BENGALURU AGAINST THE ACCUSED/PETITIONER.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner is before this Court calling in question the
charge sheet in Special Case No.2119 of 2025 registered for
the offences punishable under Section 67B of the Information
Technology Act, 2000 (‘the IT Act’ for short) and Section 15 of
Protection of Children from Sexual Offences Act, 2012 (‘the
POCSO Act’ for short).
2. Heard Sri. Deenabandhu Rai N., learned counsel
appearing for the petitioner and Sri. Vinay Mahadevaiah,
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learned High Court Government Pleader appearing for
respondent No.1.
3. Facts, in brief, germane are as follows:-
The petitioner is the sole accused in the subject crime. In
a strange circumstance, the petitioner is caught in the web of
proceedings. A crime comes to be registered in Crime No.1 of
2025 for several offences against several accused. The
petitioner is one of the accused in the said crime. The mobile
phone of the petitioner is seized and sent for forensic
examination. While the forensic examination was being
conducted, the forensic experts found a plethora of pictures
and videos of child pornography. Therefore, a complaint comes
to be registered against the petitioner for the offences
punishable under Section 67B of the IT Act and Section 15 of
the POCSO Act.
4. The learned counsel appearing for the petitioner
submits that the petitioner was only holding those photos and
videos in his phone and had not circulated them. Therefore, the
act of the petitioner would not amount to the offences
punishable under Section 67B of the IT Act and Section 15 of
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the POCSO Act. The learned counsel further submits that
charges have already been framed in the case at hand.
5. I have given my anxious consideration to the
submissions made by the respective learned counsel and have
perused the material on record. The issue is, whether the
petitioner can be charged of the offence punishable under
Section 15 of the POCSO Act and Section 67B of the IT Act.
6. The facts lie in a narrow compass. The petitioner
becomes the sole accused in Special Case No.2119 of 2025 not
directly, but on ingredients of crime being found out of
serendipity. A crime comes to be registered in Crime No.1/2025
in a different circumstance against several accused. The
petitioner is one of the accused in it. The mobile phone of the
petitioner was seized and sent for forensic examination. The
forensic experts found that the mobile phone was filled with
child pornography containing both pictures and videos. The
submission of the learned counsel for the petitioner is that
merely keeping videos and pictures of child pornography would
not be an offence under the aforesaid sections. The said
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submission is unacceptable and is in violation of the law laid
down by the Apex Court.
7. The Apex Court in the case of JUST RIGHTS FOR
1
CHILDREN ALLIANCE v. S. HARISH , while considering the
entire spectrum of the law and interpretation of Section 67B of
the IT Act and Section 15 of the POCSO Act, punishes storing,
publishing or transmitting of material depicting children in
sexually explicit acts. The Apex Court observes as follows:
“…. …. ….
ii. Scope of Section 15 of the POCSO and
Section 67B of the IT Act.
60. In the case at hand, we are concerned with the
interpretation of Section 15 of the POCSO and Section 67B
of the IT Act, more particularly the scope of these two
provisions and what would constitute an offence under each
of them. In other words, what exactly has been made
punishable under Section(s) 15 of the POCSO and 67B of
the IT Act respectively and what are the necessary
ingredients or elements to establish or make out an offence
under it.
a. Contradictory Views of different High Courts
on the subject.
61. Before proceeding with the analysis of the
aforesaid two provisions, it would be appropriate to refer to
the decisions of various High Courts and the cleavage of
opinion that have been expressed as regards the scope of
Section 15 of the POCSO and Section 67B of the IT Act.
…. …. ….
1
2024 SCC OnLine SC 2611
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72. Thus, it appears from the aforesaid that
there are divergent views expressed by different High
Courts of the country as regards the ingredients
necessary to constitute an offence under Section 15
of the POCSO and Section 67B of the IT Act. The
Kerala High Court has taken the view that mere
possession or viewing of pornographic material
involving a child will not fall within the ambit of
Section 15 of the POCSO, rather what the provision
criminalizes is the actual act of transmission or
sharing of the said material. It has held that where
the allegations are confined only to the possession of
pornographic material and there is nothing to
indicate the actual transmission of the same, the
criminal proceedings shall be liable to be quashed.
Whereas, the Bombay High Court appears to have
taken the view that under Section 15(1) of the
POCSO, what is penalized is the storage of child
pornography and resultant failure to delete or report
the same while under Section 15(2), it is the storage
and consequent transmission of child pornography.
Similarly, with respect to Section 67B, both the
Karnataka High Court and the Kerala High Court have
held that what is criminalized is the intentional
browsing or transmission of child pornography, and
not the mere possession of such material.
b. Three distinct offences punishable under
Section 15 of the POCSO .
…. …. ….
76. A bare perusal of the aforesaid provision
makes it abundantly clear that Section 15 of the
POCSO is in three parts. The legislature by virtue of
the 2019 Amendment Act has now made three
different forms of storage or possession of child
pornography a punishable offence under the said
provision, unlike the erstwhile provision, which had
criminalized only one form of storage of child
pornography.
77. Section 15 sub-section (1) of the POCSO
now provides that any person who either stores or
possesses any pornographic material involving a
child and fails to either delete, destroy or report the
same with the intention to share or transmit such
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material, shall be liable to fine of not less than rupees
five thousand for the first offence, and a fine of not
less than rupees ten thousand for any subsequent
offence.
78. On the other hand, Section 15 sub-section
(2) of the POCSO provides that any person who
either stores or possesses any pornographic material
involving a child for transmitting, displaying,
propagating, or distributing the same in any manner
except for either reporting it or for using it as
evidence shall be punishable with either
imprisonment extending upto three-years or with
fine or both.
79. Whereas, Section 15 sub-section (3) of the
POCSO stipulates that any person who either stores
or possesses any pornographic material involving a
child for commercial purpose shall be punishable with
imprisonment of not less than three-years, which
may extend upto five-years, or with fine, or both for
the first offence, and for any subsequent offence, he
shall be punishable with imprisonment not less than
five-years, that may extend upto seven-years and
along with fine.
I. Concept of an Inchoate Crime - The ‘Actus
Reus’ and ‘Mens Rea’ required under Section 15.
80. Before proceeding further to discuss the scope of
Section 15 of the POCSO and the ingredients necessary to
constitute an offence thereunder, it would be apposite to
first understand the true purpose and the nature of the said
penal provision.
81. A plain reading of Section 15 of the POCSO
and the marginal note appended thereto would reveal
that the common theme permeating across
subsection(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 penalized under Section 15 of
the POCSO is the storage or possession of any child
pornographic material when done with a particular
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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’.
82. Inchoate crimes are defined as criminal acts that
are committed in preparation for a further offence. The
term “inchoate” itself means “undeveloped” or
“incomplete.”
83. The Doctrine of Inchoate Crimes is a cornerstone
of criminal jurisprudence. It is aimed at addressing the
legal culpability of those who engage in a conduct that is
preparatory to the commission of any substantive offence.
Inchoate crimes, are often referred to and described
as an incomplete or preliminary offence, that capture
the essence of criminal intent and the preparatory
actions that precede the commission of a criminal
act. It underscores the principle that the law does not
merely respond to offences already committed but
also intervenes when a crime is in the process of
being committed, thus thereby protecting public
order and safety . Inchoate crimes represent a critical
aspect of criminal law, embodying the legal system's
proactive and deterrent approach to crime itself.
…. …. ….
86. The POCSO as outlined in its Statement of Object
and Reasons was specifically designed to provide
commensurate penalties to serve as a deterrent against the
sexual abuse and exploitation of children. Additionally, the
Statement of Objects and Reasons accompanying the 2019
Amendment Act which inter-alia amended Section 15 of the
Act to provide for three distinct offences punishable under
it, explicitly emphasizes that the said amendments had
been introduced in order to implement stringent measures
aimed at addressing and deterring the alarming increase in
child sexual abuse. The plain reading of sub-section(s)
(1), (2) and (3) respectively of Section 15 of the
POCSO along with the marginal note appended to it
which reads “ Punishment for storage of pornographic
material involving child ” indicates, that the said
provision punishes only the storage of pornographic
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material involving a child when done with a specific
intent prescribed thereunder and that there is no
requirement for any actual transmission. It is trite to
say that, in the absence of any inherent conflict or
contradiction between the marginal note and the
substantive parts of a particular provision, the
marginal note may be used to aid in the
interpretation of the provision. Thus, the aforesaid
leaves no manner of doubt in the mind of this Court,
that the provision of Section 15 of the POCSO 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 stored
with a specific intent prescribed thereunder, without
requiring any actual transmission, dissemination etc.
87. Under Section 15 sub-section (1), where a
person either stores or possesses any child
pornography and does not delete or report the same,
in order to share or transmit the same, he will be
liable under the said provision. The use of the words
“ with an intention to share or transmit child
pornography ” in the said provision makes it clear
that no actual sharing or transmission is required to
occur, rather what is required is only the intention to
share or transmit because of which the said material
was neither deleted, destroyed, or reported. In other
words, the actus reus that is penalized under Section
15 sub-section (1) is the failure to delete, destroy or
report any child pornography that was stored or in
possession of any person with an intention to share
or transmit the same. Had the intent of the
legislature been otherwise, it would have clearly
used the words “ transmits ” or “ shares ” instead.
88. Similarly, Section 15 sub-section (2) penalizes
the storage or possession of any child pornographic
material when done for the purpose of either transmitting,
propagating, displaying or distributing the same in any
manner. The use of the words “ for transmitting or
propagating or displaying or distributing in any manner at
any time ” clearly suggests that again no actual act of
transmission, propagation, display or distribution is
required to take place. Had the intent of the legislature
been otherwise, it would have explicitly stated “ any person,
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who stores or possesses pornographic material in any form
involving a child and transmits or propagates or displays or
distributes in any manner at any time ”. The use of the
words “ for transmitting or propagating or displaying or
distributing in any manner ” in Section 15 sub-section (2)
makes it crystal clear that the said provision deals with two
kinds of actus reus being (I) first , the storage or possession
of a pornographic material involving a child when done with
an intention to either transmit it or to propagate it or to
display or distribute it though no actual transmission,
propagation, display or distribution might have
occurred OR (II) secondly , the storage or possession of a
pornographic material involving a child which was actually
transmitted, propagated, displayed or distributed in any
form or manner. In other words, the actus reus that is
required under Section 15 sub-section (2) is that a
pornographic material involving a child must be found to
have been stored or in possession with an intention to
either transmit it or to propagate it or to display or
distribute it or the same must have been transmitted,
propagated, displayed or distributed in any form or manner.
89. The underlying difference in the actus
reus under Section 15 sub-section(s) (1) and (2) is
that in the former the storage or possession of any
such material is due to the omission to delete,
destroy or report the same whereas in the latter, the
storage or possession of any such material is in order
to facilitate the transmission, propagation, display or
distribution of the same. To further put the
distinction into perspective, the actus reus under
sub-section (1) must be such that indicates that the
child pornographic material found in storage or
possession was only due to an omission to delete or
destroy. Whereas under sub-section (2) it must be shown
that such material had been stored or in possession for a
reason more than just mere omission i.e., for the reason of
transmitting, propagating, displaying or distributing the
same. The use of the words “ any manner ” in sub-section
(2) makes it clear that apart from the storage or possession
of such pornographic material, there must be something
more to show 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
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preparation or setup done that would enable that person to
transmit it or to display it.Thus, Section 15 sub-section (2)
of the POCSO would cover both the actual transmission,
propagation, display or distribution of any child
pornography as-well as the facilitation of any of the
abovementioned acts.
90. On the other hand, the mens rea which is
required to constitute an offence under Section 15(1)
is the intent to share or transmit a pornographic
material involving a child, and the said intention is to
be gathered or gauged from the actus reus itself i.e.,
by culling out the manner in which there was an
omission to delete, destroy or report such a material
or the reason behind the same. This is evinced from
the construction of the expression “ but fails to delete
or destroy or report the same to the designated
authority, as may be prescribed, with an intention to
share or transmit child pornography ” which makes it
clear that the scope of discerning the intent to share
or transmit has been both limited AND tied to only
the omission to delete, destroy or report i.e.,
the actus reus . The expression “ with an intention to
share or transmit ” cannot be singled out and
construed devoid of its context. Thus, it is the
manner in which along with the attending
circumstances attributable to the failure to delete,
destroy or report that must sufficiently be indicative
of the intent to share or transmit any material.
91. In Section 15 sub-section (1) of the POCSO
the legislature by qualifying and linking the
expression “ intent to share or transmit ” to the
omission to delete, destroy or report, has in its
wisdom made the intention or mens rea under the
said provision a matter of inference, to be
ascertained from the actus reus itself. The degree of
probability for inferring such intention would largely depend
upon the manner in which the actus reus i.e., how the
omission took place. It is for the courts to ascertain
whether the manner in which the material was found in
storage or possession, the attending circumstances to the
omission and the conduct of the person accused sufficiently
refutes or displaces the inference of an intention to share or
transmit or not.
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92. The underlying reason behind tying the
inference of intention to the omission alone is
because the legislature was alive to the practical
difficulty that exists in establishing an intention to
share or transmit any child pornographic material
from just the mere possession of such material. In
offences pertaining to or involving the possession of
any contraband, it is too uphill a task for the courts
to peer through and look into the mind of the person
accused and then cull out the intention of that person
behind possessing or storing such material. Thus, in
such cases instead of directly establishing the
intention from the mental state of the person
accused, it is established indirectly by inferring it
from the manner in which the contraband was found
to have been stored or in possession. Here again due
to the infeasibility or difficulty in cogently
establishing an inference of intention often due to the
lack of any material and the very private and
clandestine nature of the offence, the courts instead
try to look for some material or circumstances that
might displace the inference of such an intention, and
wherever there is nothing to show the same, the
courts may without hesitation proceed to infer the
existence of such an intention .
93. Whereas, under Section 15 sub-section (2)
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 storage that would be
indicative of any facilitation or actual transmission,
propagation, display or distribution of such material.
Thus, wherever in addition to the storage or
possession of any child pornographic material, there
exists any material or attending circumstances that
would either show or indicate the facilitation or
actual commission of any of the acts enumerated in
Section 15 sub-section (2) of the POCSO, the said
provision would get attracted in place of Section 15
sub-section (1) . We say so because, the presence of such
additional material may demonstrate that the intention of
the person accused has gone beyond the contours of
Section 15 sub-section (1). It evinces a more significant
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manifestation of the intention of the person accused, which
moved from what is required in sub-section (1) to a much
higher degree of intention that is required under sub-
section (2). In other words, the existence of such additional
material strengthens the inference of that intention which is
required and made punishable under Section 15 sub-section
(2).
94. Section 15 sub-section (3) penalizes the storage
or possession of any child pornographic material when done
for any commercial purpose. The term ‘commercial
purpose’ refers to and encompasses any activity or
transaction that is carried out or undertaken as a means of
any commercial enterprise i.e., with the object or intention
of any gain, irrespective of whether it was in monetary
terms or not. Thus, to constitute an offence under this
provision, the requirement is that the storage or possession
of any child pornography must be in lieu of any monetary
gain or for receiving any other valuable consideration.
Again, the words “ any commercial purpose ” indicate that
the storage or possession must be with an intention to
generate or acquire any monetary gain or any other form of
valuable consideration, irrespective and regardless of
whether such monetary gain or valuable consideration is
actually generated or acquired. Thus, it is immaterial
whether any monetary gain or any other benefit was
actually realized or not. To establish an offence under
Section 15 sub-section (3), besides the storage or
possession of the pornographic material involving a child,
there must be some additional material or attending
circumstances that may sufficiently indicate that the said
storage or possession was done with the intent of any form
of gain or benefit. As soon as there is any material to
indicate that the storage or possession of any child
pornographic material was done in lieu or in expectation of
some form of gain or benefit, it would constitute an offence
under Section 15 sub-section (3) of the POCSO
notwithstanding whether such gain was actually realized.
95. Thus, while Section 15 sub-section (1)
requires the existence of the requisite mens rea or
intention due to which the child pornographic
material was not deleted, destroyed or reported,
Section 15 sub-section (2) requires the existence of
the requisite mens rea or intention which propelled
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or led the person accused to not only store or
possess the said material but also to take some
additional steps towards either the actual
transmission, propagation, display or distribution or
the facilitation of the same. In contrast, Section 15 sub-
section (3) requires the existence of the requisite mens
rea or intention due to which the person accused not only
stored or possessed the child pornographic material but
also compelled him to take some additional steps either for
any gain or benefit or in lieu or expectation of some form of
gain or benefit.
96. For the sake of clarity, it would be apposite to
give few illustrations as a guiding example to further
demonstrate the fine but pertinent distinction that exists
between sub-section (1), (2) and (3) of Section 15 of the
POCSO.
97. For illustration; say certain child
pornographic material was found stored in the
personal mobile phone of ‘A’ and the same was
neither deleted, destroyed nor reported. Here though
there is possession or storage of child pornographic
material but since there is nothing to show any
facilitation of transmission, propagation, display or
distribution of the said material, this would attract
the provision of Section 15(1). At the same time,
since the material in question was found in the
personal mobile of ‘A’ the same is indicative that the
omission to either delete, destroy or report in all
likelihood was due to the intent to share or transmit.
Here the manner in which the omission has occurred
is sufficiently indicative of the intent to share or
transmit, as there is nothing apart to show that the
omission was attributable to any other reason but the
intent to share or transmit, and thus it would
constitute an offence under Section 15(1) of the
POCSO.
98. Conversely, say for example certain child
pornographic material was found stored in a broken
mobile phone of ‘A’ and the said material had never
been deleted, destroyed or reported. Now again,
there is nothing to show that there was either any
actual transmission, propagation, display or
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distribution nor anything to show that something
apart from and in addition to the storage or
possession had been done by ‘A’ for facilitation of the
transmission, propagation, display or distribution of
such material. This would again attract the provision
of Section 15(1) instead of 15(2) of the POCSO.
However, since the material was found in a broken
phone, it is likely that the failure to delete, destroy or
report the same was attributable to the inability of ‘A’
to operate the broken mobile rather than the intent
to share or transmit, thus, no offence would be made
out under Section 15(1) of the POCSO. This is
because, the manner in which the omission has
occurred is not sufficiently indicative of the intent to
share or transmit. Thus, no offence could be said to
have been constituted under Section 15 sub-section
(1) of the POCSO.
99. Take for instance, certain child
pornographic material was found stored in the mobile
phone of ‘A’ but this time, the said material had
found its way in the device due to an automatic
download of media of which ‘A’ had no knowledge
whatsoever. Here although there is possession or
storage of such material, yet the omission to delete,
destroy or report is clearly shown and established by
‘A’ that it was due to lack of knowledge about the
existence of such material on his parts. Here the
manner in which the omission has occurred is not
sufficiently indicative of the intent to share or
transmit, thus no offence could be said to have been
made out under Section 15(1) of the POCSO.
100. Take a case where certain child pornographic
material was found stored in the mobile phone of ‘A’ but
this time in addition to the aforesaid material few chats
were also recovered wherein ‘A’ told his friend ‘B’ that he
had some child pornographic material which he could share
with him. Here, since there is additional material to show
that ‘A’ had taken some overt steps in order to propagate
the said material, he would be liable under Section 15(2) of
the POCSO.
101. For another illustration, say for example, again
certain child pornographic material was found stored in the
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mobile phone of ‘A’ but this time ‘A’ creates a chat group
consisting of several of his friends, and sends a message
therein stating that he has some child pornographic
material which he would forward on the group. Here, since
there is additional material to show that ‘A’ had taken some
overt steps in order to distribute the said material, he
would be liable under Section 15(2) of the POCSO.
102. Conversely, say ‘A’ who has certain child
pornographic material in his phone, again creates a group
consisting of several of his friends, but this time he sends a
message stating that he has some child pornographic
material which he would send in exchange of some amount
of money. Here, since there is additional material to show
that ‘A’ had taken some overt steps in respect of the said
material for some monetary gain, he would now be liable
under Section 15(3) of the POCSO instead.
103. We may at the cost of repetition clarify
that there may be situations where the possession or
storage of the pornographic material is found to be in
a such a manner that the same by itself would be
indicative of an intention to either transmit, display,
propagate or distribute such material or that it was
done in lieu or expectation of any gain. In such cases
the storage or possession of child pornographic
material itself would sufficiently be indicative of the
requisite intention either under Section 15 sub-
section(s) (2) or (3) as the case may be, and there
would be no requirement to adduce any additional
material as long as the manner of storage or
possession of such material or the attending
circumstances itself is sufficiently indicative of such
intention.
…. …. ….
106. The aforesaid illustrations have been provided
only as a guiding example to highlight the distinction
between sub-section(s) (1), (2) and (3) of Section 15 of the
POCSO. These illustrations should not be mechanically
applied or construed by any court in any proceeding while
dealing with any matter involving Section 15 of the POCSO
devoid of the context in which these illustrations have been
given and without applying its mind as to whether the
necessary ingredients have been established or not in the
individual facts and circumstances of the matter. Any
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matter involving Section 15 sub-section (1), (2) or (3) of
the POCSO, must be dealt with independent of the
illustrations narrated above and stricto-sensu in accordance
with only the ratio of this decision.
107. Lastly, we must also caution the police and the
courts to be mindful of the fact that wherever in a given
case a particular sub-section of Section 15 is found to be
applicable, the other two remaining sub-sections of the said
provision will cease to be applicable. Section 15 sub-
section(s) (1), (2) and (3) respectively of the POCSO are
independent and distinct offences. The three offences
cannot coexist simultaneously in the same set of facts.
They are distinct from each other and are not intertwined
that they cannot survive without each other. This is
because, the underlying distinction between Section 15
sub-section(s) (1), (2) and (3) respectively lies in the
different degree of culpable mens rea that is required under
each of the three provisions. The inception of the requisite
culpable mens rea begins and takes shape from the
intention specified under sub-section (1), then gradually
continues to transform into the intention stipulated under
sub-section (2) and finally culminates into the intention
prescribed under sub-section (3). Under Section 15 sub-
section (1) of the POCSO, the requisite intention therein is
still in fieri i.e., in process of developing and culminating
into either the intention under sub-section(s) (2) or (3).
Whenever, the said intention ultimately crystalizes into the
intention either under sub-section(s) (2) or (3), the other
provisions would automatically become inapplicable.
108. Yet one another important aspect, that the
police and the courts should be mindful of is 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 Section
15 of the POCSO. 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.
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II. Concept of ‘Possession’, ‘Constructive
Possession’ and ‘Immediate Control’ under Section
15 of the POCSO.
…. …. ….
111. One another subtle but significant change
that was made to all three subsections of Section 15
was the inclusion of the word “possession” in
addition to storage, which was earlier not there in
the erstwhile provision of Section 15 of the POCSO.
112. Thus, while the word “ possession ” was
originally absent in the unamended Section 15 of the
POCSO, the legislature in its wisdom, specifically
added the said word in the amended Section 15,
whereby now both the storage or the possession of
any child pornographic material would be liable to be
punished when done with any of the specified
intention thereunder.
…. …. ….
114. An important aspect of the jurisprudence
on possession as an inchoate crime is the doctrine of
constructive possession. Constructive possession
extends the concept of possession beyond physical
control to situations where an individual has the
power and intention to control the contraband, even
if it is not in their immediate physical possession.
This doctrine is particularly relevant in cases where
contraband is found in a location that is not directly
under the physical control of the accused, but where
the accused has access to and control over the area
where the contraband is found.
…. …. ….
117. Thus, for establishing constructive
possession both the power to control the material in
question and the knowledge of exercise of such
control are required. The doctrine of constructive
possession, is a crucial development in the criminal
jurisprudence, especially pertaining to inchoate
crimes where possession is sought to be punished, as
it ensures that no person can evade liability by simply
distancing themselves from the physical possession
of contraband while retaining the ability to control it.
118. We are of the considered view, that
wherever a person indulges in any activity such as
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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 invariable degree of control over
such material, applying the aforesaid doctrine of
constructive possession.
…. …. ….
122. Thus, we are of the considered view that
any form of intangible or constructive possession of
any child pornographic material will also amount to
“possession” under Section 15 of the POCSO in terms
of the Doctrine of Constructive Possession. There is
no requirement of a physical or tangible “storage” or
“possession” of such material in Section 15 of the
POCSO. We may clarify with a view to obviate any
confusion that, where any child pornographic
material is in the constructive possession of an
accused, there the failure or omission to report the
same would constitute the requisite actus-reus for
the purposes of Section 15 sub-section (1) of POCSO.
…. …. ….
124. At this juncture we may also address
ourselves on another pertinent aspect for
constituting an offence under Section 15 of the
POCSO. The term ‘storage’ and ‘possession’ that has
been used in the said provision does not require that
such ‘storage’ or ‘possession’ must continue to be
there at the time of registration of an FIR or any
criminal proceeding. The provision of Section 15 is
not fixated any particularly time-frame. What
is simpliciter required to constitute an offence under
Section 15 of the POCSO is the establishment of
‘storage’ or ‘possession’ of any child pornographic
material with the specified intention under sub-
section(s) (1), (2) or (3), at any relevant point of
time. Even, if the said ‘storage’ or ‘possession’ no
longer exists at the time of registration of the FIR,
nonetheless 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 is anterior in time. We say so
because, any other view aside from the above, in our
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opinion would lead to a chilling effect with drastic
consequences, whereby the provisions of the POCSO
may be defeated by a devious person. If for instance,
a person immediately after storing and watching
child pornography in his mobile phone deletes the
same before an FIR could be registered, could it be
said that the said person is not liable under Section
15, because at the time of registration of the FIR,
such material no longer existed on the device of the
person accused? The answer to the aforesaid, must
be an emphatic “no”. Thus, 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.
c. Pornographic Material must prima
facie appear to involve a Child.
125. At this stage, we may explain one another
crucial aspect concerning Section 15 of the POCSO,
more particularly the criteria for determining
whether the material in question involves or depicts
a ‘child’, or in other words whether such material can
be considered a ‘child pornography’ or not. The
determination of whether the individual involved is a
‘child’ or not, in terms of the POCSO is a crucial
foundational element for constituting various
offences under the Act.
…. …. ….
129. A plain reading of the above would
indicate that the term “child pornography” means
any visual depiction of a child involved in any
sexually explicit conduct. It further explains that the
expression ‘visual depiction’ means and includes the
following:—
i. A photograph or video, which may be either
in actual or any electronic form.
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ii. An image generated digitally or by a
computer which is indistinguishable from an actual
child i.e., any self-generated image which appears to
depict a lifelike child indistinguishable from an actual
child, and will not include any artistic or cartoon
based depiction.
iii. Any other image (including any video-based
imagery) that has been created, adapted or modified.
The above list of material mentioned is
inclusive in nature i.e., the different types, form and
manner of visual depiction that has been enumerated
therein is not exhaustive in any manner. In the last,
the said provision, more particularly the words “ but
appear to depict a child ” lays down the test or
criteria for ascertaining, whether any of the above
mentioned visual depiction is a ‘child pornography’ or
not, by prescribing a prima facie subjective
satisfaction that the material appears to depict a
child.
130. The use of the comma before the words
“ but appear to depict a child ” is significant. The
legislature has used the aforesaid comma both as a
disjunctive and a conjunctive to the words preceding
it. It has been used as a disjunctive to stress, that
the subjective criteria that the material in question
appears to depict a child is not inextricably linked or
limited to just one category of visual depictions i.e.,
the last category being “ image created, adapted, or
modified ”. At the same time, it has been used as a
conjunctive in relation to all types of visual
depictions that have been illustrated in the said
provision, to clearly indicate, that this subjective
criterion applies to the entire provision i.e., to all
types of visual depictions mentioned therein or in
other words to ‘child pornography’.
131. Thus, any visual depiction of a sexually
explicit act which any ordinary person of a prudent
mind would reasonably believe to prima facie depict a
child or appear to involve a child, would be deemed
as ‘child pornography’ for the purposes of the POCSO.
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Therefore, for any offence under the POCSO that
relates to child pornographic material, such as
Section 15, the courts would only be required to form
a prima facie subjective satisfaction that the material
appears to depict a child from the perspective of any
ordinary prudent person. Such satisfaction may be
arrived at from any authoritative and definitive
opinion such as through a forensic science laboratory
(FSL) report of such material or from any expert
opinion on the material in question, or by the
assessment of such material by the courts
themselves, depending on the peculiar facts and
circumstances of each case.
…. …. ….
142. If the courts while dealing with any matter
involving child pornography, continue to refer and rely on
Section 2(1)(d) of the POCSO, then the same will frustrate
the intention behind Section 2(1)(da) more particularly the
words “ but appear to depict a child ” in the statute book,
thereby render that portion of the aforesaid
provision otiose and nugatory.
143. The true purport of Section 2(1)(da) of the
POCSO, is to ensure that for offences pertaining to child
pornography, it is Section 2(1)(da) that is given due regard
and not Section 2(1)(d). Thus, in any offence pertaining
to child pornography the definition of ‘child’ in
Section 2(1)(d) would pale in comparison to the
definition of ‘child pornography’ under Section
2(1)(da) of the POCSO. As such, the court while
dealing with an offence under Section 15 of the
POCSO, must be mindful of the fact, that it is Section
2(1)(da) of the POCSO, which has to be referred to
and relied upon and not Section 2(1)(d). In other
words, it is the definition of ‘child pornography’
which is of relevance while considering whether
Section 15 of the POCSO can be invoked or not.
d. Scope of Section 67B of the IT Act.
144. The IT Act was originally enacted with the
object of providing a legal framework for inter-
alia recognizing electronic records & digital
signatures, facilitating electronic commerce, and
providing a legal sanctity to e-contracts. While the IT
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Act did include certain provisions to penalize
cybercrimes, they were rudimentary and did not
comprehensively address issues like creation and
facilitation of sexual abuse of children, the online
publication, transmission and distribution of child
pornography or the sexual inducement, enticement
and exploitation of children over the internet.
…. …. ….
148. From the aforesaid, it can be seen that the
Standing Committee whilst making its
recommendation, underscored that no useful purpose
would be served if the publication or transmission of
any child pornography is punished all the same as
any other pornographic material. It highlighted, that
while the IT Act had originally been enacted keeping
in mind the requirements that existed then, yet now
with the march of the age of internet, it has become
imperative to undertake a fresh approach to the
provisions of the IT Act particularly those relating to
cyber-crime in light of the new emerging forms of
misuse of the internet. It opined that, merely
criminalizing the publication or transmission of child
pornography will not be sufficient, and that other
various forms of online sexual abuse and exploitation
also need to be recognized and adequately punished,
on par with the laws prevailing in various other
countries.
149. It was in the aforesaid backdrop that the
legislature by virtue of the Information Technology
(Amendment) Act, 2008 inter-alia amended Section
67 of the IT Act and introduced Section 67A along
with Section 67B. This was for the first time, that a
specific provision had been made, to recognize and
protect the vulnerable and tender age of children by
criminalizing various forms of online sexual
degradation, abuse and exploitation with enhanced
punishment . At the cost of repetition, Section 67B of the
IT Act is being reproduced below:—
…. …. ….
150. A conjoint reading of Section(s) 67 and
67A viz-a-viz 67B would reveal that unlike the former which
penalizes only the publication or transmission of any
obscene material or pornographic material, the scope and
ambit of Section 67B is much wider inasmuch as it
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recognizes and penalizes five different
forms/categories of actus reus , being:—
(i) Section 67B sub-section (a):—
a. Section 67B sub-section (a) of the IT Act
pertains to the dissemination of child pornography
and penalizes the publication or transmission of any
material involving a child in any sexually explicit act
or conduct, and the direct or indirect involvement in
aiding or facilitating the dissemination of such
material.
b. In order, to constitute an offence under this
provision, there must be an actual publication or
transmission of any child pornographic material,
though the said publication or transmission may be
done either by the accused himself or be caused
through someone else at the instance or behest of
the accused. In other, words Section 67B subsection
(a) punishes any person who is involved in a process,
in any manner that leads to the publication or
transmission of any child pornographic material.
c. Thus, twin-conditions as prescribed under
Section 67B(a) of the IT Act, need to be satisfied in
order to constitute an offence : - (I) the actual
publication or transmission of any child pornographic
material AND (II) the involvement of the accused in
such publication or transmission process in any
manner.
(ii) Section 67B sub-section (b):—
a. It penalizes the creation of any text or
image-based content in any electronic form, that
depict children in any obscene or indecent or sexually
explicit manner. It further penalizes the collection,
solicitation, browsing i.e., online viewing, or
downloading of such material. Thus, even the mere
viewing of any child pornographic material that is
stored in a mobile phone would tantamount to
‘browsing’ of such material in electronic form. Lastly,
it also penalizes the advertising, promotion,
exchange or distribution of any such material. Here
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again, what is punishable is only the actual
commission of any of the above-mentioned acts.
b. The scope of Section 67B sub-section (b), is
more expansive than the preceding sub-section
because, (i) first , the term ‘material’ here includes
any electronic content depicting children in sexually
explicit acts as well as in obscene or indecent
contexts, and (ii) secondly , the actus
reus encompasses not just the act of disseminating
but also the acts of creating, propagating, or
engaging with or using such material.
c. In other words, Section 67B sub-section (b)
penalizes the actual commission of any of the
following:—
i. the act of producing or creating any text or
digital image based electronic material (incl. videos)
that depict children in any obscene, indecent or
sexually explicit manner;
ii. the act of engaging or using such material by
way of collecting, browsing, accessing, downloading,
saving, seeking, actively searching such material
from any computer resource, and;
iii. the act of facilitating or propagating the
circulation or dissemination of such material by
advertising, promoting, exchanging or sharing,
distributing or offering for sale such material from
any computer resource on the internet.
(iii) Section 67B sub-section (c):—
a. Section 67B sub-section (c) of the IT Act
penalizes the act of any person to induce or entice a
child to participate or indulge in any sexually explicit
act or any other act that would offend any adult of
reasonable mind, using any computer resource.
b. In order to constitute an offence under the
said provision, what is required is only the actual
commission of an act of inducement or enticement in
any manner by the accused alone, and there is no
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requirement that such enticement or inducement
must have resulted in the child indulging in any
sexually explicit or any other offensive act.
c. Thus, even where the accused merely
attempts to entice a child to indulge in any such act,
through a computer resource, he would be liable
under this provision, irrespective of whether the child
also indulges in such act or not. Furthermore, such
enticement or inducement may be for having the
child either indulge in any sexually or offensive act
with the accused himself or with any other person at
the instance or persuasion of the accused.
d. In other words, what is penalized under
Section 67B sub-section (c) is the act of enticing or
inducing a child to indulge in any sexually explicit
offensive act or behaviour.
(iv) Section 67B sub-section (d):—
a. Section 67B sub-section (d) penalizes any
form or manner of facilitation of abuse of children,
online i.e., it penalizes any form of degradation,
exploitation, or abuse of children on any online
platform. The actus reus punishable under the said
provision is the doing, aiding or abetting of any act,
either directly or indirectly that would facilitate or
enable the abuse of children online in any indecent,
lascivious or prurient manner.
b. It is pertinent to note, that under Section
67B sub-section (d) there is no requirement that the
act in question must have been done only with an
intention to facilitate the abuse of children online.
What is rather required to constitute an offence
under the said provision is that the act must be such
which likely would facilitate the abuse of children
online.
c. In other words, what is penalized is any act
that has the propensity or likelihood to aid, enable or
support the online abuse of children in any obscene,
indecent, or lewd fashion.
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(v) Section 67B sub-section (e):—
a. Section 67B sub-section (e) of the IT Act
penalizes the act of recording through video or any
other electronic means, the participation of any
sexually explicit act with or in the presence of any
child. The actus reus required is the use of any video
or any other electronic means to record any sexually
explicit act being done either by the accused himself
or by anyone else in the presence of a child.
b. It must be borne in mind, that the sexually
explicit act itself need not be done in the actual
presence of the child, rather what is required is that
the child was made privy to such sexually explicit act,
and the same was recorded by the accused in any
electronic form. Say for instance, that in the presence
of a child, a pornographic video is played, and the
same is then recorded by the accused. Here since, the
recording includes a child being subjected to a
sexually explicit act in the form a pornographic video,
an offence would be constituted under the said
provision, even though no such act was done in the
actual presence of the child.
c. In other words, what is penalized under
Section 67B sub-section (e) is the act of exposing or
subjecting a child to any sexually explicit act by
anyone, and recording the same in any electronic
form.
151. From the aforesaid, it is clear that Section
67B of the IT Act is a comprehensive provision
designed to address and penalize the various
electronic forms of exploitation and abuse of children
online. It not only punishes the electronic
dissemination of child pornographic material, but
also the creation, possession, propagation and
consumption of such material as-well as the different
types of direct and indirect acts of online sexual
denigration and exploitation of the vulnerable age of
children.
152. This Court
in SharatBabuDigumarti v. Govt. of NCT of
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Delhi , (2017) 2 SCC 18 held that Chapter XI of the IT
Act, more particularly Section(s) 67 through 67B are
a complete code in itself when it comes to offences
relating to electronic forms of obscene and
pornographic material. The relevant observations
read as under:—
“31. Having noted the provisions, it has to be
recapitulated that Section 67 clearly stipulates
punishment for publishing, transmitting obscene
materials in electronic form. The said provision
read with Sections 67-A and 67-B is a complete
code relating to the offences that are covered
under the IT Act. […]”
(Emphasis supplied)
153. Thus, Section(s) 67, 67A and 67B of the IT
Act being a complete code, ought to be interpreted in
a purposive manner that suppresses the mischief and
advances the remedy and ensures that the legislative
intent of penalizing the various forms of cyber-
offences relating to children and the use of
obscene/pornographic material through electronic
means is not defeated by a narrow construction of
these provisions. ”
(Emphasis supplied)
The Apex Court in the aforesaid judgment in unambiguous
terms holds that possession or storage of pornographic material
involving a child would attract the rigours of Section 67B of the
IT Act and Section 15 of the POCSO Act. The Apex Court further
holds that Section 15 of the POCSO Act is in the nature and
form of an inchoate offence, which also penalizes the mere
storage or possession of child pornographic material when done
with the specific intent to share or transmit, without requiring
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any actual transmission or dissemination, since the intention
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.
7. Therefore, the contention of the learned counsel that
mere storage of child pornography would not amount to an
offence and only if it is transmitted, it becomes an offence,
does not hold ground in light of the judgment of the Apex Court
in the aforesaid case which clearly observes that it is not
transmission alone, but even storage of child pornographic
content which has the capacity of being transmitted, which
would become an offence under Section 15 of the POCSO Act.
8. The petitioner has admittedly stored sexually explicit
pictures and videos of children, which would amount to storage
of child pornography under Section 15 of the POCSO Act.
Merely because the petitioner has not transmitted anything
from his phone would not mean that he would not be liable for
the ingredients of the said offence.
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9. In light of the aforesaid circumstance, there is no
warrant of interference in the case at hand at this stage,
particularly, after charges have been framed against the
petitioner for the aforesaid offences and when the proceedings
are at the stage of evidence. It is for the petitioner to come out
clean in a full-blown trial. The petition lacking in merit, stands
rejected .
Sd/-
(M.NAGAPRASANNA)
JUDGE
JY
List No.: 1 Sl No.: 154