Supreme Court set aside the Judgment of High Court acquitting the accused who stored and watched child pornography on mobile phone.
Judgment dated 23rd September 2024
Cause title : JUST RIGHTS FOR CHILDREN ALLIANCE & ANR. VS S. HARISH & ORS.
Case No: Criminal Appeal No. 2161-2162 of 2024
A Bench of Supreme Court Hon'ble Chief Justice Mr. Dr. Dhananjaya Y. Chandrachud and Hon'ble Justice J.B. Pardiwala set aside the Judgment of High Court acquitting the accused who stored and watched child pornography on mobile phone in a Judgment passed against the appeals filed by 'Just Rights for Children Alliance' is a collation comprising of five different NGOs that work in unison against child trafficking, sexual exploitation and other allied causes and another child rights organization working towards protecting children from exploitation and one of the partner NGOs to the aforesaid collation.
The appeals were filed against the final judgment and order passed by the High Court of Madras dated 11.01.2024 in Criminal Original Petition No. 37 of 2024 filed by the accused under Section 482 of the Code of Criminal Procedure, 1973 by which the High Court allowed the petition and thereby quashed the charge sheet dated 19.09.2023 filed for the offences punishable under Section 67B of the Information Technology Act, 2000 and Section 15(1) of the Protection of Children from Sexual Offences Act, 2012 (POCSO) arising out of the FIR No. 03 of 2020, P.S. Ambattur, Chennai. As a consequence, the criminal proceedings in Special Sessions Case No. 170 of 2023 stood terminated.
In the Judgment the Hon'ble Supreme Court said that:
"We further caution the courts to refrain from showing any form of leniency or leeway in offences under Section 21 of the POCSO, particularly to schools/educational institutions, special homes, children's homes, shelter homes, hostels, remand homes, jails, etc. who failed to discharge their obligation of reporting the commission or the apprehension of commission of any offence or instance of child abuse or exploitation under the POCSO. Section(s) 19, 20 and 21 of the POCSO are mandatory in nature, and there can be no dilution of the salutary object and purport of these provisions. Merely because Section 21 prescribes a lesser threshold of punishment, the same in no way derogates or detracts from the gravity or severity of the offence which has been sought to be punished as held in Maroti (supra). It is a settled position of law that the length of punishment is not the only indicator of the gravity of the offence and it is to be judged by a totality of factors, especially keeping in mind the background in which the offence came to be recognized by the legislature in the specific international context i.e., the United Nations Convention on Rights of Children, particularly Article(s) 3(2) and 34 of the said Convention."
While allowing the appeals the Hon'ble Supreme Court issued the following suggestions to the Union of India and to the Courts.
"260. We propose to suggest the following to the Union of India in its Ministry of Women and Child Development: -
(i) The Parliament should seriously consider to bring about an
amendment to the POCSO for the purpose of substituting the term
"child pornography" that with "child sexual exploitative and abuse
material" (CSEAM) with a view 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.
(ii) We put the courts to notice that the term "child pornography"
shall not be used in any judicial order or judgment, and instead the
term "child sexual exploitative and abuse material" (CSEAM) should
be endorsed.
(iii) Implementing comprehensive sex education programs that include
information about the legal and ethical ramifications of child
pornography can help deter potential offenders. These programs
should address common misconceptions and provide young people with a
clear understanding of consent and the impact of exploitation.
(iv) Providing support services to the victims and rehabilitation
programs for the offenders is essential. These services should
include psychological counselling, therapeutic interventions, and
educational support to address the underlying issues and promote
healthy development. For those already involved in viewing or
distributing child pornography, CBT has proven effective in
addressing the cognitive distortions that fuel such behaviour.
Therapy programs should focus on developing empathy, understanding
the harm caused to victims, and altering problematic thought
patterns.
(v) Raising awareness about the realities of child sexual
exploitative material and its consequences through public campaigns
can help reduce its prevalence. These campaigns should aim to
destigmatize reporting and encourage community vigilance.
(vi) Identifying at-risk individuals early and implementing
intervention strategies for youth with problematic sexual behaviours
(PSB) involves several steps and requires a coordinated effort among
various stakeholders, including educators, healthcare providers, law
enforcement, and child welfare services. Educators, healthcare
professionals, and law enforcement officers should be imparted
training to identify signs of PSB. Awareness programs can help these
professionals recognize early warning signs and understand how to
respond appropriately.
(vii) Schools can also play a crucial role in early identification
and intervention. Implementing school-based programs that educate
students about healthy relationships, consent, and appropriate
behaviour can help prevent PSB.
(viii) To give meaningful effect to the above suggestions and work
out the necessary modalities, the Union of India may consider
constituting an Expert Committee tasked with devising a
comprehensive program or mechanism for health and sex education, as
well as raising awareness about the POCSO among children across the
country from an early age, for ensuring a robust and well-informed
approach to child protection, education, and sexual well-being."
Facts of the case are:
On 29.01.2020, the All-Women's Police Station Ambattur, Chennai,
Tamil Naidu i.e. received a letter from the Additional Deputy
Commissioner of Police (Crime against women and children Branch)
wherein it was mentioned that as per the Cyber Tipline Report of the
National Crimes Record Bureau (NCRB), the respondent no. 1 is an
active consumer of pornography and has allegedly downloaded
pornographic material involving children in his mobile phone.
Accordingly, in view of the aforesaid letter an FIR was registered
against the respondent no. 1 on the very same day i.e., 29.01.2020
at the AllWomen's Police Station Ambattur, Chennai, Tamil Naidu as
Crime No. 03 of 2020 for the offence punishable under Section(s) 67B
of the IT Act and 14(1) of the POCSO.
During the course of the investigation, the mobile phone belonging
to the respondent no. 1 was seized and sent to the Forensic Science
Laboratory for analysis. The respondent no. 1 was also questioned
whether he had ever viewed any pornographic content, to which the
respondent no. 1 admitted that he used to regularly view pornography
while he was in college.
As per the Computer Forensic Analysis Report dated 22.08.2020 it was
found that the mobile phone of the respondent no. 1 contained two
video files relating to child pornography depicting two underage
boys involved in sexual activity with an adult woman. The Computer
Forensic Analysis Report further stated that more than hundred other
pornographic video files were downloaded and stored in the said
mobile phone.
Upon completion of the investigation, chargesheet dated 19.09.2023
was filed against the respondent no. 1 for the offences punishable
under Section(s) 67B of the IT Act and 15(1) of the POCSO
respectively. It may not be out of place to state at this stage,
that although the FIR was registered for the offence punishable
under Section 14(1) of the POCSO yet in light of the materials
collected in the course of the investigation and the findings
recorded in the Computer Forensic Analysis Report, the chargesheet
was ultimately filed for the offence punishable under Section 15(1)
of the POCSO.
Aggrieved by the aforesaid, the respondent no. 1 filed quashing
petition Criminal Original Petition No. 37 of 2024 before the High
Court of Madras for the purposes of getting the aforesaid
chargesheet and the criminal proceedings arising therefrom quashed.
The High Court quashed the criminal proceedings. The appellants had
filed appeal before the Supreme Court against the said Judgment of
the High Court.
Final order of the Hon'ble Supreme Court:
"261. For all the foregoing reasons, we have reached the conclusion
that 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 in Spl. S.C. No. 170 of 2023 to the
court of Sessions Judge, Mahila Neethi Mandram (Fast Track Court),
Tiruvallur District. We accordingly pass such order.
262. We direct the Registry to send one copy each of this judgment
to the Principal Secretary, Ministry of Law & Justice, Union of
India and to the Principal Secretary, Ministry of Women and Child
Development, Union of India, for undertaking appropriate course of
action."
Download Judgment dated 23rd September 2024 in JUST RIGHTS FOR CHILDREN ALLIANCE & ANR. VS S. HARISH & ORS, Criminal Appeal No. 2161-2162 of 2024.