The apex court has suggested to Parliament to amend the POCSO Act so that child pornography can be referred to as child sexually abusive and exploitative material
In a landmark verdict, the Supreme Court on Monday, September 23 held that held that watching, and even mere storage of child pornographic material is also an offence under the POCSO (Protection of Children from Sexual Offences) while setting aside the Madras High Court order that held that ‘only watching child porn’ is not an offence under the POCSO.
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The Madras High Court judgment had quashed a criminal case against a 28-year-old man, charged for downloading and watching on his mobile phone some pornographic content involving children. The top court today restored the criminal proceedings against the accused, according to reports.
The Supreme Court said that the high court had committed “egregious error" in closing the criminal proceedings and the bench, comprising Chief Justice of India (CJI) DY Chandrachud and Justice JB Pardiwala, set aside the decision while restoring the criminal prosecution.
The court held that from the failure on the part of accused in the present case in deleting, destroying or reporting the material, the foundational facts necessary to invoke the statutory presumption of culpable mental state could be said to have been prima facie established.
The order focused on Section 15 of the POCSO Act which lays down punishment for the storage of pornographic material involving children.
"Any person who stores any pornographic material involving a child and fails to report or destroy it is punishable with a fine of not less than five thousand rupees., and repeat offence will be punishable with fine of not less than ten thousand rupees. If the material is stored for further transmitting or propagating, then along with fine, it is punishable with upto three years of imprisonment. For storing child pornographic material for commercial purpose is punishable with three to five years of imprisonment, and in subsequent conviction, upto seven years of imprisonment," the Section says.
Justice Pardiwala said that in this case, mens rea is to be gathered from actus rea -- mens rea refers to the intent behind the crime and actus rea is the actual criminal act.
"We have said on the lingering impact of child pornography on the victimisation and abuse of children... We have suggested to the Parliament to bring an amendment to POCSO... so that child pornography can be referred to as child sexually abusive and exploitative material. We have suggested an ordinance can be brought in. We have asked all courts not to refer to child pornography in any order," the bench said.
The Chief Justice called it a "landmark judgment" and thanked Justice Pardiwala.