Recently, the Delhi High Court held that the absence of identifiable victims or conclusive proof of age cannot be a ground to discharge accused persons in cases involving Child Sexual Exploitation Material (CSEM). The Court set aside the discharge order passed by the Sessions Court and emphasised that a rigid insistence on age determination would defeat the very purpose of the POCSO Act, observing that such an approach could leave “countless children unprotected.”
Brief Facts:
The case stemmed from a suo motu revision arising out of a challenge to a Special Court’s order discharging accused persons of offences under Section 15(2) of the Protection of Children from Sexual Offences Act, 2012. The proceedings originated from an FIR registered under Section 67B of the Information Technology Act, 2000, read with Section 120B IPC, alleging storage and circulation of child sexual exploitation material through digital platforms. During the investigation, electronic devices were seized, and multiple videos depicting children in sexually explicit acts were recovered. However, the trial court discharged the accused on the grounds that the victims were unidentified and their age could not be conclusively established, leading to the present scrutiny before the High Court.
Contentions of the Petitioner:
The Petitioner contended that the Sessions Court adopted an overly technical and legally flawed approach by insisting on conclusive age determination. The Counsel argued that in most CSEM cases, victims are unidentified and untraceable, making traditional methods of age verification impractical. The prosecution emphasised that the accused were found in possession and active transmission of sexually explicit material involving children, as evidenced by the recovery of multiple videos and expert opinions. The Petitioner further submitted that such discharge defeats the object of the POCSO Act and allows offenders to escape liability due to procedural impossibilities.
Contentions of the Respondent:
The Counsel for the accused argued that the applicability of Section 15(2) of the POCSO Act hinges on proving that the individuals depicted are “children” under the statute, i.e., below 18 years of age. The Respondent contended that in the absence of documentary evidence, medical examination, or identifiable victims, such a determination could not be made. Therefore, the Sessions Court’s order discharging the accused was justified, as the essential ingredients of the offence were not established.
Observation of the Court:
Justice Swarana Kanta Sharma observed that “If, on this ground alone, accused persons are discharged of offences under Section 15(2) of the POCSO Act, it would have far-reaching consequences and would leave countless children unprotected – children who may not even be aware that sexually explicit videos depicting them are circulating online and being viewed by numerous individuals.”
The Court emphasised that Section 15(2) of the POCSO Act must be interpreted in light of its object, to effectively combat the storage, transmission, and circulation of child sexual exploitation material. It observed that the provision is not merely punitive but preventive, aimed at disrupting the ecosystem that perpetuates the exploitation of children through digital means. The Court clarified that once material prima facie depicts children engaged in sexually explicit acts and is found to be stored or transmitted, the statutory ingredients stand attracted at the stage of charge. It further held that a narrow or hyper-technical interpretation would defeat the legislative purpose.
The Court held that the Sessions Court erred in adopting a rigid approach by insisting on conclusive proof of age through documentary or medical evidence. It observed that such a requirement may be feasible in cases involving identifiable victims, but becomes impractical in cases of CSEM where victims are often unidentified and untraceable. The Bench emphasised that the law cannot be rendered ineffective due to procedural impossibilities, particularly in offences of this nature. It noted that insistence on strict age determination would allow offenders to evade prosecution at the threshold.
The Court observed that the definition of “child pornography” under Section 2(1)(da) of the POCSO Act is deliberately broad and includes even those depictions which “appear to depict a child.” It held that this legislative design reflects a conscious departure from rigid evidentiary standards for age determination. The Bench clarified that courts are empowered to assess the material itself and form a prima facie view based on how a reasonable person would perceive it. This interpretation ensures that the protective intent of the statute is not undermined.
The Court emphasised the application of the “test of subjective satisfaction” in determining whether the material depicts a child. It observed that courts are not required to conclusively establish the age of the individual through objective criteria at the initial stage. Instead, reliance can be placed on expert opinions, forensic reports, and even judicial assessment of the material. The Bench noted that such an approach is both practical and necessary in dealing with digital offences involving unidentified victims, where conventional methods of proof are unavailable.
The Court held that the Sessions Court failed to properly appreciate the evidentiary value of expert opinions and forensic findings placed on record. It observed that two experts had categorically opined that the material depicted children engaged in sexually explicit acts, which satisfied the threshold for proceeding further. The Bench emphasised that at the stage of framing charges, the Court is only required to examine whether a prima facie case exists, and not to conduct a detailed evaluation of evidence. Ignoring such material amounted to a serious error in law.
The Court observed that discharging accused persons solely on the ground that the victims are unidentified would have grave consequences for the enforcement of the POCSO Act. It emphasised that such an approach would leave a vast number of exploited children without legal protection, particularly in the digital age, where anonymity is inherent. The Bench cautioned that the law must adapt to technological realities and cannot insist on impractical standards that defeat its purpose. It reiterated that the focus must remain on protecting children rather than creating technical barriers for prosecution.
The decision of the Court:
In light of the foregoing discussion, the Court set aside the Sessions Court’s discharge order and directed that charges be framed against the accused under Section 15(2) of the POCSO Act, along with offences under the IT Act and IPC.
Case Title: Court On Its Own Motion Vs. State and Ors.
Case No.: Crl.Rev.P. 691/2024
Coram: Hon’ble Mr. Justice Swarana Kanta Sharma
Advocate for the Petitioner: Adv. Aasha Tiwari, Adv. Puneet Narula
Advocate for the Respondent: SPP Anubha Bhardwaj, Adv. Anchal Kashyap, Adv. Vijay Misra, Adv. Nitin Chaudhary, Adv. Abhishek Singh
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