{"id":6455,"date":"2024-09-30T07:31:00","date_gmt":"2024-09-30T02:01:00","guid":{"rendered":"https:\/\/lawfultalks3.selfst.art\/sc-pocso-cases-exhaustive-guidelines-issued\/"},"modified":"2026-07-21T17:20:56","modified_gmt":"2026-07-21T11:50:56","slug":"sc-pocso-cases-exhaustive-guidelines-issued","status":"publish","type":"post","link":"https:\/\/lawfultalks3.selfst.art\/?p=6455","title":{"rendered":"SC: POCSO Cases – Exhaustive Guidelines Issued"},"content":{"rendered":"\n

Landmark Judgement In POCSO Case<\/span><\/span><\/p>\n \n \n \n

The Supreme Court Division Bench comprising <\/span>Chief Justice of India DY Chandrachud and Justice JB Pardiwala<\/strong> gave a landmark judgement and set aside the judgment passed by the Madras High Court to quash criminal proceedings in POCSO case and restored the criminal proceedings in Special Court.<\/span><\/em><\/p>\n \n \n \n

The Appellants in the matter are Child Rights Organization and NGOs working against Child Trafficking, Sexual Exploitation and other allied causes. The Appellants were not a party in the proceedings before the High Court but since the matter involved serious issue of public importance, the Court allowed them to challenge the Impugned Judgement of the Madras High Court.<\/span><\/span><\/p>\n \n \n \n

The Factual matrix is that FIR was registered against the Accused on January 29, 2020 for allegedly being an active consumer of pornographic material involving children. Chargesheet came to be filed on September 19, 2023 under s.67B of IT Act and s.15(1) POCSO which came to be quashed by Madras High Court on January 11, 2024 on the following grounds:<\/span><\/p>\n \n \n \n

1. Charge as per FIR of s.14(1) would not be attracted since the accused person should have used the child for pornographic purposes. he has not used a child or children for pornographic purposes, at the best, it can only be construed as a “moral decay on the part of the accused person”<\/span><\/span><\/p>\n \n \n \n

2. To constitute offense u\/s 67B IT Act, the Accused must have published, transmitted or created material depicting children in sexually explicit act or conduct. The same is not the case.<\/span><\/span><\/p>\n \n \n \n

3. Placed reliance on s.292 IPC and took view that absence of any material to indicate any transmission or publication of pornographic content involving child, no offence could be said to have been committed under the POCSO or the IT Act.<\/span><\/span><\/p>\n \n \n \n

The Ld. Senior Counsel for Appellants submitted that this interpretation of the High Court poses a threat to the well-being of the children and may result in proliferation of child pornography. He also placed reliance on Convention on Cybercrime and the United Nations Convention on the Rights of the Child, 1989. He also contended that s.15(1) POCSO was not given due consideration and was not addressed. Also, that the s.67B IT Act was specifically introduced for stringent punishment for collecting, downloading, or watching child pornographic material unlike Adult Pornography u\/s 67 & 67A IT Act. He further stated that presumption of existence of Culpable Mental state u\/s 30 POCSO was not considered.<\/span><\/span><\/p>\n \n \n \n

Senior Counsel for NCPCR submitted that the State failed to registered the FIR u\/s 15(1) and the Prosecuting Agency failed to bring into the Court’s notice that Chargesheet was filed u\/s 15(1) POCSO not 14(1). Also, that the Accused failed to take steps u\/s 19 POCSO of deleting the pornographic material stored by him for two years. Further contended that s.19 POCSO mandates reporting to Special Juvenile Police Unit and if not done, is punishable u\/s 21. So, reporting to an NGO cannot absolve social media platforms of its liability u\/s 21. Finally, she submitted that it is imperative to provide children, a safe online environment for educational purposes, as per Art.12 of UNCRC.<\/span><\/span><\/p>\n \n \n \n

Counsel for the Accused submitted that FIR was lodged u\/s 14(1) POCSO and 67B IT Act. Thus, no error of law in the Judgement. Receipt of videos recovered were dated before the 2019 amendment of s.15 was in force. Forensic Evidence clearly shows creation and modification date to be the same depicting that the videos were never accessed. Research study shows that “WA” in the name of the videos meant that those were auto-downloaded. Mere possession doesn’t constitute u\/s 15(1) as the Accused had no intention to share or distribute them. Also, contended ignorantia juris of s.15 due to government’s failure to publicize the law with bona fide belief. He placed reliance on Chandi Kumar Das Karmarkar v. Abanidhar Roy, AIR 1965 SC 585 and Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409.<\/span><\/span><\/p>\n \n \n \n

Ld. Counsel for State submitted that Impugned order was erroneous as both chargesheet and Quashing Petition mentioned s.15(1) POCSO but that was not considered while indictment. Impugned Order doesn’t give due consideration to s.67B IT Act. Objective of s.15 & s.67B included tackling creation and dissemination of such material by the perpetrators. Impugned Order itself admits that Accused a\/w his friends would regularly watch such material. There was presence of more than 100 pornographic videos on the phone of the Accused. Marginal note of s.15 self-explanatory (punishable for storage or possession). Chargesheet prima facie disclosed commission of Offense so quashing of proceedings were not proper.<\/span><\/span><\/p>\n \n \n \n

The Issues Raised and held the following:<\/span><\/span><\/p>\n \n \n \n

I. What is the scope of Section 15 of the POCSO and underlying distinction between sub-section(s) (1), (2) and (3)?<\/strong><\/span><\/span><\/p>\n \n \n \n

The court observed that Section 15 of the POCSO provides to penalize mere storage or possession of any pornographic material involving a child when done with any particular intention without requiring any actual transmission, dissemination etc. specified under subsection(s) (1), (2) or (3) respectively.<\/span><\/span><\/p>\n \n \n \n