New Delhi, Sep 23 In a landmark judgment, the Supreme Court on Monday held that mere storage of child pornographic material is an offence under the Protection of Children from Sexual Offences Act (POCSO Act), reversing Madras High Court’s “egregious” verdict which had decriminalised watching and downloading such videos.
The top court also suggested that Parliament issue an ordinance to replace the term “child pornography” with “Child Sexual Exploitative and Abuse Material”.
It has also directed all courts not to use the term “child pornography” anymore.
The bench comprising Chief Justice of India D Y Chandrachud and Justice J B Pardiwala set aside a recent decision of the Madras High Court in which it declared that mere downloading and viewing child pornography, without any intention to transmit, is not an offence.
The Apex Court set aside the High Court judgment and said the court had committed an “egregious error” in quashing the criminal proceedings against a 28-year-old man and restored the criminal prosecution.
The Court’s order came while hearing a plea filed by Just Rights for Children Alliance, a coalition of NGOs that raised concerns over the potential impact of High Court ruling on child welfare.
Senior Advocate H S Phoolka appeared for the petitioner.
The Supreme Court is also considering another petition challenging a similar judgment passed by the Kerala High Court.
The present case is based on a letter received by the Additional Deputy Commissioner of Police (Crime against women and children) following which a case was registered against the accused for downloading child pornographic material on his mobile.
During the investigation, the mobile phone was seized and a forensic analysis was conducted which confirmed that the mobile phone had two files which contained child pornography content involving teen boys.
The court took cognizance of the offence under Section 67 B of the Information Technology Act 2000 and Section 14(1) of the POCSO Act.
The accused had approached the Madras High Court seeking to quash the criminal proceedings.
The Madras High Court had said that the accused had only downloaded the material for private viewing, it was not published or transmitted, and it was argued that merely downloading and watching child pornography is not an offence under Section 67-B of the Information Technology Act, 2000.
The single bench of the High Court noted that to attract the offences under the POCSO Act, a child or children must have been used for pornography purposes.
The court noted that the accused had watched pornography videos but had not used a child or children for pornographic purposes.
This could only be construed as a moral decay on the part of the accused person, the High Court held.
The NGO, however, argued that the High Court order might encourage child pornography by giving the impression that individuals downloading and possessing such material will not face prosecution.
The NGO asserted that the High Court judgment contains the potential to harm innocent children and harm child welfare.
The Supreme Court thus quashed the High Court order and directed the court to continue the criminal prosecution against the accused.
The Apex Court set aside the High Court judgment and said the court had committed an “egregious error” in quashing the criminal proceedings. The Court restored the criminal prosecution.
The present case is based on a letter received by the Additional Deputy Commissioner of Police (Crime against women and children), a case was registered against the accused for downloading child pornographic material on his mobile.
During the investigation, the mobile phone was seized and a forensic analysis was conducted which confirmed that the mobile phone had two files which contained child pornography content involving teen boys.
The court took cognizance of the offence under Section 67 B of the Information Technology Act 2000 and Section 14(1) of the POCSO Act.
The accused had approached the Madras High Court seeking to quash the criminal proceedings.
The High Court had said that the accused had only downloaded the material for private viewing, it was not published or transmitted, and it was argued that merely downloading and watching child pornography is not an offence under Section 67-B of the Information Technology Act, 2000.
The single bench of the High Court noted that to attract the offences under the POCSO Act, a child or children must have been used for pornography purposes.
The court noted that the accused had watched pornography videos but had not used a child or children for pornographic purposes.
This could only be construed as a moral decay on the part of the accused person, the High Court held.
The NGO, however, argued that the High Court order might encourage child pornography by giving the impression that individuals downloading and possessing such material will not face prosecution.
The NGO asserted that the High Court judgment contains the potential to harm innocent children and harm child welfare.
The Supreme Court quashed the High Court order and directed the court to continue the criminal prosecution against the accused.
