The Supreme Court on Monday ruled storing and watching child pornographic material is a punishable offence under the Protection of Children from Sexual Offences (POCSO) Act if the person concerned has the intention to take advantage of it. The top court has set aside a Madras High Court judgment, which earlier stated that merely downloading and watching child porn was not an offence.
CJI DY Chandrachud-led bench rebuked the High Court for its “egregious error” as the latter had quashed a criminal proceeding against a man accused in the aforementioned case.
"There must be intention on the part of the accused to share such material. To constitute an offence under section 15(2) of POCSO, there must be something more to show that the actual transmission or distribution of such material. Facilitation of such transmission, preparation, set up to enable transmit etc has to be there. Mens rea has to be found from the storage of such pornographic material. To establish offence under Section 15(3), apart from storage of child pornographic material, it has to be shown that such storage was done to make some gain or advantage," the Court held, as per the Bar and Bench.
The Court also criticised the term "child pornography" and recommended that Parliament must amend the POCSO Act to refer to such material 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 it as 'child pornography' in any orders," the apex court said.
The Madras High Court had on January 11 quashed criminal proceedings against a 28-year-old man, who was accused of downloading pornographic content involving children on his mobile phone. It also said that children these days were addicted to watching porn the focus of society should be on educating them instead of seeking punishment for them.