Mere storage of child pornography attracts POCSO Act: HC rejects quashing plea

Culpable enough to attract punishment under the POCSO Act is the mere storing of sleazy child pornographic material on a mobile phone, the Karnataka High Court has observed while rejecting the plea of a man who sought the criminal case against him to be annulled, even as the argument that the material had not been transmitted was held untenable.

In an order, Justice M Nagaprasanna of the high court refused to quash the criminal case pending before a special court in Bengaluru, observing that the petitioner’s attempt to evade liability by asserting that the material had not been circulated could not withstand the legal position settled by the apex court.

The judge noted that the mere fact that the petitioner had not transmitted the material from his device could not absolve him of criminal culpability if the ingredients of the offences alleged under the relevant statutes were otherwise satisfied.

The court rejected the submission advanced by the petitioner’s counsel that merely retaining videos and photographs depicting child pornography would not constitute an offence under the statutory provisions invoked in the case, remarking that such an interpretation would run counter to the binding precedent laid down by the Supreme Court of India.

The high court relied upon the ruling delivered in the case of Just Rights for Children Alliance v Harish, wherein the apex court had undertaken an expansive examination of the legal framework governing offences relating to child sexual exploitation in electronic form.

The judgment had interpreted the provisions of Section 67B of the Information Technology Act 2000 and Section 15 of the POCSO Act, clarifying that the law does not confine criminal liability solely to acts of publication or transmission but also extends to the storage or possession of sexually explicit material involving children.

The apex court had emphasised that the statutory scheme intends to penalise the entire spectrum of conduct that perpetuates the circulation and consumption of such abhorrent content.

The high court further noted that Section 15 of the POCSO Act is structured as an inchoate offence, thereby criminalising even preparatory conduct such as the storage or possession of such material when accompanied by the intention to share or transmit it.

In such circumstances, the court observed, the law does not require proof of actual dissemination, since the culpable intent may be inferred from the manner in which the material is preserved, retained, or concealed, as well as from the failure to delete, destroy, or report it.

According to the case records, the petitioner was among several individuals against whom a criminal case had been registered, during which the investigating authorities seized his mobile phone and forwarded it for forensic examination.

The forensic analysis allegedly uncovered a large number of sexually explicit images and videos involving children stored on the device, prompting the registration of offences under Section 67B of the IT Act and Section 15 of the POCSO Act.