Downloading, watching child porn offence under POCSO, IT law: SC

Child sexual exploitative material deeply degrading to dignity of minors, Parl should amend POCSO Act

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Downloading and watching child pornography is an offence under the Protection of Children from Sexual Offences (POCSO) Act, the Supreme Court ruled on Monday in a landmark judgment on the stringent law to prevent child abuse.

The bench of Chief Justice of India DY Chandrachud and Justice JB Pardiwala set aside the Madras High Court order that had ruled that merely downloading and watching child pornography was not an offence under the POCSO Act. The Supreme Court noted that the high court had committed an "egregious error" in passing the judgement.

On January 11, the High Court had quashed the criminal proceedings against a 28-year-old man charged with downloading pornographic content involving children on his mobile phone, saying mere possession and downloading of such pornographic materials did not constitute offences under the POCSO Act and the Information Technology (IT) Act.

At the outset, Justice Pardiwala thanked the Chief Justice for the opportunity to pen this judgement. The order focused on Section 15 of the POCSO Act which lays down punishment for the storage of pornographic material involving children.

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.

The CJI called it a "landmark judgement" and thanked Justice Pardiwala.

"We have reached the conclusion that the High Court committed an egregious error in passing the impugned judgement. We are left with no other option but to set aside the impugned judgement... and restore the criminal proceedings... to the court of Sessions Judge, Mahila Neethi Mandram (Fast Track Court), Tiruvallur District," the top court said.