[Cites 17, Cited by 0]
Delhi High Court
Court On Its Own Motion vs State And Ors on 4 April, 2026
Author: Swarana Kanta Sharma
Bench: Swarana Kanta Sharma
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 05.01.2026
Judgment pronounced on: 04.04.2026
Judgment uploaded on: 04.04.2026
+ CRL.REV.P. 691/2024
COURT ON ITS OWN MOTION .....Petitioner
Through: Ms. Aasha Tiwari, Advocate/
Amicus Curiae with Mr.
Puneet Narula, Advocate.
Versus
STATE AND ORS. .....Respondents
Through: Mrs. Anubha Bhardwaj, SPP
for CBI along with Ms. Anchal
Kashyap and Mr. Vijay Misra,
Advocates.
Mr. Nitin Chaudhary and Mr.
Abhishek Singh, Advocates for
R-2.
CORAM:
HON'BLE DR. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
Index to the Judgment
INTRODUCTION ................................................................................. 2
FACTUAL BACKGROUND .................................................................. 3
SUBMISSIONS BEFORE THE COURT ............................................. 6
ANALYSIS & FINDINGS ..................................................................... 8
A. Section 15(2) of POCSO Act ..................................................................... 9
B. Meaning of 'Child' under POCSO Act .................................................. 11
C. Interpretation of 'Child' in the Context of Child Pornographic
Material under the POCSO Act .................................................................... 13
D. Application of the Test of Subjective Satisfaction to the Material on
Record ............................................................................................................... 18
E. The Decision ............................................................................................. 20
DR. SWARANA KANTA SHARMA, J
INTRODUCTION
1. A Public Interest Litigation (PIL) was filed by one Tulir
Charitable Trust, assailing the order dated 01.09.2023 [hereafter
‗impugned order'] passed by the learned Additional Sessions Judge
(Special Court-POCSO), Shahdara District, Karkardooma Courts
[hereafter ‗Sessions Court'] in SC 18/2022, whereby the respondent
nos. 3 and 4 herein were discharged of offences under Section 15(2)
of the Protection of Children from Sexual Offences Act, 2012
[hereafter ‗POCSO Act']. Guidelines were also sought with respect to
cases involving Child Sexual Abuse Material of unidentified
child/children online or offline. The PIL came to be listed before the
Division Bench-I.
2. By way of judgment dated 09.05.2024, the Division Bench-I
observed that the prayer seeking formulation of guidelines for the
benefit of POCSO Special Courts dealing with cases involving Child
Sexual Abuse Material of unidentified child/children was not
required to be considered in the present case, as sufficient legal
provisions already exist to deal with such situations. It was further
noted that, vide the impugned order, the learned Sessions Court had
held that the provisions of Section 15(2) of the POCSO Act could not
be invoked against the accused persons in the absence of any criteria
for determining the age of the children appearing in the pornographic
videos and photographs. On that basis, the learned Sessions Court
had discharged the said respondents of the offence under Section
15(2) of the POCSO Act. Division Bench-I, after taking note of the
scheme of the POCSO Act and certain judicial precedents, expressed
a prima facie view that the findings recorded in the impugned order
suffered from manifest illegalities and had resulted in miscarriage of
justice.
3. Accordingly, the PIL was converted into the present suo motu
revision petition and was thereafter listed before this Court. During
the course of proceedings, the Union of India was deleted from the
array of parties, and an amended memo of parties was placed on
record. The trial court proceedings were stayed vide order dated
21.05.2024.
FACTUAL BACKGROUND
4. The facts of the case, in brief, are that upon receiving
information from a reliable source, an FIR bearing No. RC-
20(S)/2021/CBI/SC-III/New Delhi was registered by the Central
Bureau of Investigation (CBI) against Raman Gautam (respondent
no. 2), one Rakesh Kumar, and other unknown persons for
commission of offences under Section 67B of the Information
Technology Act, 2000 [hereafter ‗IT Act'] read with Section 120B of
the Indian Penal Code, 1860 [hereafter ‗IPC']. It was alleged that the
said accused persons were involved in transmitting, storing, and
viewing Child Sexual Exploitation Material [hereafter ‗CSEM'] by
sharing links, videos, pictures, texts, and posts, and by hosting such
content on social media groups/platforms and third-party storage or
hosting platforms.
5. Pursuant to the registration of the FIR, a search under Section
165 of the Code of Criminal Procedure, 1973 [hereafter ‗Cr.P.C.']
was conducted on 16.11.2021 at the residence of respondent no. 2
herein. During the search, a hard disk and a mobile phone ‗Realme 3
Pro' were seized. Upon scrutiny of the mobile phone, it was revealed
that one Sandeep Singh @ Lovely (respondent no. 3 herein) had been
transmitting CSEM to respondent no. 2. On the same day, i.e.,
16.11.2021, respondent no. 3 was also traced, and two mobile phones
recovered from him were searched. The examination of these devices
revealed that he had stored pornographic material involving children
and had also shared/transmitted the same with two other WhatsApp
users. During the course of investigation, upon scrutiny conducted in
the presence of independent witnesses, it was established that mobile
number 9540026597 was being used by respondent no. 2, which had
been issued in his name. It was further revealed that he had become a
member of various WhatsApp groups wherein CSEM, along with
other pornographic material, was being shared. The said material was
received by him from respondent no. 3, who was using WhatsApp
with mobile number 7827167203.
6. As per the charge-sheet, 34 videos from the mobile phone of
respondent no. 2 and 14 videos from the hard disk seized from him
were collected, which depicted children in a sexually explicit manner.
During investigation, it was also established that the user of three
mobile numbers, i.e. 9540067545, 8882301205, and 7827167203,
was respondent no. 3. It was further revealed that 23 videos and 2
videos were recovered from his two mobile phones respectively, and
these videos also depicted children in a sexually explicit manner.
7. After collection of the evidence against respondent nos. 2 and
3, both of them were chargesheeted for offences under Section 15(2)
of the POCSO Act, Section 67B of the IT Act, and Section 120B of
the IPC.
8. The learned Sessions Court, by way of the impugned order,
discharged both the accused persons of the offence under Section
15(2) of the POCSO Act.
9. The learned Sessions Court, inter alia, observed that the
child/children appearing in the alleged pornographic videos were
unidentified, i.e., their names, parentage, and place of residence were
not known. It was further observed that no documents were available,
for obvious reasons, to establish the age of the victims since the
children were unidentified. The learned Sessions Court also noted
that no scientific or medical test had been conducted to determine the
age of the child/children visible in the photos/videos. The learned
Sessions Court further observed that had the victims been identifiable
in the present case, then even in the absence of age-related
documents, their age could have been determined through methods
such as bone age test, examination of wisdom teeth, radiographic
techniques, or any other scientific test. In such a situation, the
provisions of Section 15(2) of the POCSO Act could have been
invoked. However, in the absence of any such determination of age,
the learned Sessions Court held that the mandatory criteria for
establishing that the persons depicted were children had not been
satisfied, and therefore the provisions of Section 15(2) of the POCSO
Act could not be invoked.
10. These findings of the learned Sessions Court, in the context of
Section 15(2) of the POCSO Act, are presently under consideration
and scrutiny before this Court.
SUBMISSIONS BEFORE THE COURT
11. The learned Amicus Curiae submits that respondent nos. 2 and
3 were erroneously discharged of the offence under Section 15(2) of
the POCSO Act solely on account of absence of documentary proof
or physical verification of the age of the children depicted in the
recovered pornographic videos and images. It is submitted that the
said respondents were actively involved in circulating, storing, and
viewing CSEM, including by sharing links, videos, pictures, text, and
posts, and by hosting such content on various social media groups
and platforms. It is pointed out that 34 pornographic videos were
retrieved from the mobile phone of respondent no. 2 and 14 videos
from the hard disk seized from him, all depicting children engaged in
sexually explicit acts. Similarly, 23 videos were recovered from one
mobile phone of respondent no. 3 and 2 videos from another mobile
phone, which also depicted children in sexually explicit conduct. It is
further submitted that respondent no. 3 had been transmitting such
material to other WhatsApp users through his account. It is contended
that the learned Sessions Court discharged the respondents on the
premise that the applicability of the POCSO Act depends upon
establishing whether the persons appearing in the videos qualify as a
‗child', and that in the absence of documentary proof or physical
presence of the victims for age verification, such determination could
not be made. The learned Amicus Curiae submits that such reasoning
defeats the very object of the POCSO Act, since discharging accused
persons merely because the children depicted in such material are
unidentified and their age cannot be determined through conventional
methods would result in grave miscarriage of justice in cases
involving unidentified child victims exploited in pornographic
material. It is further submitted that the learned Sessions Court failed
to duly consider the expert opinions of two doctors who had opined
that the persons appearing in certain videos appeared to be children
below the age of 18 years. It is also submitted that conducting
medical or scientific age determination tests was not feasible in the
present case since the victims were unidentified and had not appeared
before the Court.
12. The learned SPP appearing for the CBI supports the
submissions advanced on behalf of the petitioner and submits that the
order passed by the learned Sessions Court is perverse. It is argued
that the law does not mandate the identification or physical presence
of the child for the purpose of invoking Section 15(2) of the POCSO
Act, and that the definition of ‗child' under Section 2(d) of the
POCSO Act cannot be applied in such a rigid manner so as to defeat
the purpose of the statute.
13. Conversely, the learned counsel appearing for respondent no. 2
vehemently opposes the present petition and submits that there is no
infirmity in the detailed and reasoned order passed by the learned
Sessions Court. It is argued that there is no material on record to
establish that the individuals depicted in the alleged CSEM are
children, i.e., below the age of 18 years. It is contended that in the
absence of any such proof or material, the offence under Section
15(2) of the POCSO Act cannot be invoked or charges framed
against the accused persons.
14. This Court has heard arguments addressed by the learned
amicus curiae, the learned SPP for the CBI and the learned counsel
for respondent no. 2, and has perused the material placed on record.
ANALYSIS & FINDINGS
15. In the present case, respondent nos. 2 and 3 were
chargesheeted for commission of offences under Section 15(2) of the
POCSO Act, Section 67B of the IT Act, and Section 120B of the
IPC. However, the learned Sessions Court subsequently discharged
respondent nos. 2 and 3 in respect of the offence under Section 15(2)
of the POCSO Act.
A. Section 15(2) of POCSO Act
16. At the outset, it would be appropriate to examine the
circumstances in which Section 15(2) of the POCSO Act is attracted.
Section 15(2) of the POCSO Act reads as under:
―15. Punishment for storage of pornographic material
involving child.--
(1) x x x
(2) Any person, who stores or possesses pornographic material
in any form involving a child for transmitting or propagating or
displaying or distributing in any manner at any time except for
the purpose of reporting, as may be prescribed, or for use as
evidence in court, shall be punished with imprisonment of
either description which may extend to three years, or with
fine, or with both.‖
17. A reading of the aforesaid provision indicates that the
following essential ingredients must be satisfied for the purpose of
attracting Section 15(2) of the POCSO Act:
(i) First, the person must store or possess pornographic
material in any form which depicts a child in a sexually
explicit manner.
(ii) Second, such storage or possession must be for the
purpose of transmitting, propagating, displaying, or
distributing such material in any manner.
(iii) Third, the provision carves out an exception where such
material is stored or possessed solely for the purpose of
reporting the matter, as may be prescribed, or for use as
evidence before a court of law.
18. In the present case, it is noteworthy that during the course of
investigation, the mobile phones of respondent nos. 2 and 3 were
examined and data was recovered therefrom. The material collected
during investigation prima facie indicates the possession and storage
of pornographic material depicting children engaged in sexually
explicit acts. Specifically, 34 such videos were retrieved from the
mobile phone of respondent no. 2 and 14 videos from the hard disk
seized from him. It was also revealed during investigation that
respondent no. 2, using mobile number 95******97, was a member
of multiple WhatsApp groups wherein such CSEM was being
circulated.
19. Insofar as respondent no. 3 is concerned, two mobile phones
were seized from him, from which a total of 25 videos were
recovered, which also depicted children engaged in sexually explicit
acts. The investigation further revealed that respondent no. 3 had
transmitted such CSEM to respondent no. 2 and other WhatsApp
users through mobile number 78******03.
20. Thus, the essential ingredients of Section 15(2) of the POCSO
Act appear to be prima facie satisfied, inasmuch as respondent nos. 2
and 3 were allegedly found to be in possession of pornographic
videos depicting children in sexually explicit acts, and were also
involved in transmitting the same to other WhatsApp users.
B. Meaning of 'Child' under POCSO Act
21. At this stage, it would also be appropriate to examine how the
age of a child is determined for the purposes of the POCSO Act.
22. The legislature had enacted the POCSO Act with the object of
safeguarding children from offences of sexual assault, sexual
harassment, and pornography. A foundational requirement for the
applicability of the POCSO Act is that the alleged offence must have
been committed against a child. It is only upon satisfaction of this
essential condition that the provisions of the Act can be invoked.
23. The expression ‗child' has been specifically defined under
Section 2(1)(d) of the POCSO Act, which reads as follows:
―child means any person below the age of eighteen years‖
24. Thus, the definition of ―child‖ under the POCSO Act makes it
clear that any individual who has not attained the age of 18 years is to
be regarded as a child. Consequently, before invoking the provisions
of the POCSO Act, it becomes necessary to determine whether the
alleged offence has been committed against a person who was below
the age of 18 years at the relevant time.
25. The determination of the age of the victim for the purposes of
the POCSO Act is governed by Section 34 of the Act. The said
provision makes it clear that the Special Court is required to satisfy
itself regarding the age of the person concerned and record reasons in
writing for such determination. Section 34 of the POCSO Act reads
as follows:
―34. Procedure in case of commission of offence by child
and determination of age by Special Court.--
(1) Where any offence under this Act is committed by a child,
such child shall be dealt with under the provisions of 1 [the
Juvenile Justice (Care and Protection of Children) Act, 2015 (2
of 2016)].
(2) If any question arises in any proceeding before the Special
Court whether a person is a child or not, such question shall be
determined by the Special Court after satisfying itself about the
age of such person and it shall record in writing its reasons for
such determination.
26. The criteria for determining the age of an individual for the
purpose of ascertaining whether he or she is a child is further
provided under Section 94 of the Juvenile Justice (Care and
Protection of Children) Act, 2015. The said provision lays down the
procedure to be followed for age determination and provides as
follows:
―94. Presumption and determination of age.
(1) x x x
(2) In case, the Committee or the Board has reasonable grounds
for doubt regarding whether the person brought before it is a
child or not, the Committee or the Board, as the case may be,
shall undertake the process of age determination, by seeking
evidence by obtaining --
(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned
examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall
be determined by an ossification test or any other latest
medical age determination test conducted on the orders of
the Committee or the Board:
Provided such age determination test conducted on the order of
the Committee or the Board shall be completed within fifteen
days from the date of such order.
(3) The age recorded by the Committee or the Board to be the
age of person so brought before it shall, for the purpose of this
Act, be deemed to be the true age of that person.
27. However, the aforesaid procedure ordinarily applies in
situations where the victim child is identifiable or traceable before the
Court. In the impugned order, the learned Sessions Court has placed
reliance on the decision of the Hon'ble Supreme Court in
Yuvaprakash v. State of T.N.: (2024) 17 SCC 684, wherein it was
observed that the determination of age must be carried out in terms of
Section 34 of the POCSO Act read with Section 94 of the JJ Act.
However, what the learned Sessions Court has failed to take into
consideration is that the said decision pertained to an offence under
Section 6 of the POCSO Act, which prescribes punishment for
aggravated penetrative sexual assault. In that case, the victim was
identified, traceable, and physically available before the Court, and
therefore the question of determining the age of the victim through
the procedure prescribed under the statute had directly arisen.
C. Interpretation of 'Child' in the Context of Child Pornographic
Material under the POCSO Act
28. In contrast, the present case concerns the applicability of
Section 15(2) of the POCSO Act, which deals with punishment for
storing, collecting, and further transmitting CSEM. In cases of this
nature, the victims depicted in such material are most often
unidentified and untraceable; their parentage and addresses remain
unknown, and they cannot be produced before the Court. In such
circumstances, the rigid application of the age-determination
procedure under Section 34 of the POCSO Act read with Section 94
of the JJ Act would be wholly impractical and unjust. Applying such
stringent requirements would effectively deny justice to the victims,
as most would never be traced for obvious reasons, thereby rendering
the protective framework of the law ineffective.
29. In the impugned order, the learned Sessions Court discharged
respondent nos. 2 and 3 of the offence under Section 15(2) of the
POCSO Act on the ground that no documentary proof regarding the
age of the persons appearing in the videos was available before the
Court and that no medical or scientific test had been conducted to
ascertain their age.
30. However, in the considered opinion of this Court, the learned
Sessions Court erred in adopting this approach, as it failed to take
into consideration the scope and import of Section 2(1)(da) of the
POCSO Act, which specifically defines what constitutes ‗child
pornography'. Section 2(1)(da) of the POCSO Act defines ‗child
pornography' in the following terms:
―child pornography means any visual depiction of sexually
explicit conduct involving a child which include photograph,
video, digital or computer generated image indistinguishable
from an actual child and image created, adapted, or modified,
but appear to depict a child‖
31. The aforesaid provision makes it clear that child pornography
includes any visual depiction showing a child engaged in sexually
explicit conduct. Importantly, the definition also covers images which
are created, adapted, or modified, but appear to depict a child.
32. The expression ―appear to depict a child‖ used in Section
2(1)(da) is of significance. It indicates that, for the purposes of
determining whether a particular visual depiction falls within the
ambit of child pornography, the Court may undertake a prima facie
assessment of the material itself to determine whether the person
appearing in the depiction appears to be a child.
33. The Hon'ble Supreme Court in the case of Just Rights for
Children Alliance v. S. Harish: 2024 SCC OnLine SC 2611, has
categorically held that for determining whether a visual depiction of a
sexually explicit act involves a child, the Court is required to apply
the test of subjective satisfaction. The relevant observations of the
Hon'ble Supreme Court are reproduced below:
―131. Thus, any visual depiction of a sexually explicit act
which any ordinary person of a prudent mind would reasonably
believe to prima facie depict a child or appear to involve a
child, would be deemed as ‗child pornography' for the
purposes of the POCSO. Therefore, for any offence under
the POCSO that relates to child pornographic material,
such as Section 15, the courts would only be required to
form a prima facie subjective satisfaction that the material
appears to depict a child from the perspective of any
ordinary prudent person. Such satisfaction may be arrived
at from any authoritative and definitive opinion such as
through a forensic science laboratory (FSL) report of such
material or from any expert opinion on the material in
question, or by the assessment of such material by the
courts themselves, depending on the peculiar facts and
circumstances of each case.‖
34. Further, it must be borne in mind that Section 15 of the
POCSO Act cannot be interpreted in isolation and must be read in
conjunction with Section 2(1)(da) of the Act. The introduction of
Section 2(1)(da) reflects a clear legislative intent that rigid or strictly
objective standards for determining the precise age of a person
visually depicted in a sexually explicit act should not impede the
operation of Section 15. Any interpretation to the contrary would
defeat the very purpose for which the provision was enacted. It is
evident that the legislature was conscious of the practical difficulty
involved in ascertaining the exact age of individuals appearing in
such visual depictions. Had strict age-determination criteria been
insisted upon in every case, the application of Section 15 would have
been rendered largely ineffective. Section 2(1)(da) was therefore
incorporated to ensure that offences relating to CSEM are not
frustrated merely because the age of the person depicted cannot be
established through conventional or objective means.
35. In the majority of cases involving CSEM, the children depicted
remain unidentified and untraceable, and therefore cannot be
produced before the Court. In such circumstances, it becomes
practically impossible to obtain documentary proof of age or to
conduct any medical or scientific test for age determination. 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. Such an approach would defeat the very object and
purpose of Section 15 of the POCSO Act, since the prosecution
would fail at the very threshold merely due to the inability to
conclusively determine the age of the child depicted.
36. In this regard, the Supreme Court in Just Rights for Children
Alliance v. S. Harish (supra), has made the following observations:
―137. The test or criteria of ‗subjective satisfaction' is in view
of the practical difficulty that exists in conclusively
establishing the age of an individual in any pornographic
material through any objective means or criteria. This is owed
to the fact that often, it is next to impossible to establish the
identity of the victim, then to trace the whereabouts of such
person, and then objectively determine their age. If such a
criterion is adopted, then most of the cases pertaining to the
possession of any child pornographic material would fail at the
threshold, due to want of any means or information for
conclusively proving the age of the victim.
138. The aforesaid aspect may be looked at from one another
angle. Any mandate of an objective determination of the age by
conclusive means, could possibly result in absurd
consequences. For instance, say a pornographic material
involves an under-teen child who by virtue of his built on the
face of it appears to be a child, yet such material will not be
considered child pornographic material in the eyes of law,
unless an objective determination of the exact age of such child
is carried out in a conclusive manner. In the absence of any
such determination, the prosecution of possession of such
material would have to fail, merely due to technicalities and the
inflexible character of the criteria or test for determining the
age.
139. The aforesaid provision of Section 2(1)(da) of the POCSO
holds significant importance, as the legislature whilst giving
teeth to the existing provision of Section 15 of the Act, and
making three distinct offences punishable under it through the
2019 Amendment Act, also consciously defined the term ‗child
pornography' under the POCSO through the very same
amendment. It indicates the legislature's intention of
construing both these provisions together as a whole; neither
Section 15 of the POCSO nor Section 2(1)(da) can be
interpreted or invoked in isolation from the other.
140. The legislature through Section 2(1)(da) of the POCSO,
made a conscious departure from the already existing objective
criterion of determination of age in terms of Section 2(1)(d)
which is generally applicable to the POCSO, as it was alive to
aforementioned inherent difficulty that is posed by such
criteria. The legislature was well aware, that if the proof of age
in offences pertaining to child pornography such as under
Section 15 of the POCSO would also have to be assessed by
the existing objective test, it would lead to a very chilling
effect, whereby the entire Section 15 of the POCSO could be
rendered unworkable merely on account of a hyper-technical
approach as to determination of age, thereby defeating the very
object of the POCSO.‖
D. Application of the Test of Subjective Satisfaction to the Material
on Record
37. Coming to the factual matrix of the present case, the opinion of
two experts, namely Dr. Rachna Sharma (PW-9), Senior Specialist,
Department of Obstetrics and Gynaecology, Maulana Azad Medical
College and Lok Nayak Hospital, New Delhi, and Dr. Sreenivas M.
[PW-9(1)], Director Professor & HOD, Department of Forensic
Medicine, Maulana Azad Medical College, New Delhi, was obtained
during the course of investigation. The pornographic videos
recovered from the mobile phones of respondent nos. 2 and 3 were
shown to the said experts. After examining the material, both experts
opined that, on the basis of developmental characteristics such as
physical development, genital development, and secondary sexual
characteristics, some of the persons appearing in the videos and
photographs were children below the age of 18 years. The relevant
portion of the expert opinion reads as follows:
―After perusal of the said files (videos/photos), and noting
the developmental characteristics of the persons involved
including physical development, genital developriènt and
secondary sexual characteristics, it is opined by me that
some of the persons are children i.e. below the age of 18
years.‖
(emphasis added)
38. Further, a team consisting of Saurabh Singh (PW-6), Senior
Program Coordinator, Manish Kumar, Senior Program Coordinator,
and Ms. Princy Goel (PW-7), Senior Program Coordinator, from the
Delhi Commission for Women, was constituted to assist the CBI
during the course of investigation. The statements of PW-6 and PW-7
were recorded under Section 161 of the Cr.P.C. after they were
shown the videos and photographs recovered from the mobile phones
and hard disk of respondent nos. 2 and 3. Upon viewing the material,
they opined that the videos involved children depicted in an obscene,
indecent, and sexually explicit manner.
39. Furthermore, the statement of Rakesh Kumar (PW-3), who was
acquainted with respondent no. 3, reveals that respondent no. 3 used
to routinely transmit adult sexually explicit videos to him, which PW-
3 would watch and subsequently delete. He also stated that in
September 2021, respondent no. 3 had sent a sexually explicit video
from mobile number 78******03 depicting children engaged in
sexual activities, after which PW-3 had asked him not to send such
videos.
40. Therefore, the statements recorded during the course of
investigation, the expert opinions, and the other material placed on
record prima facie indicate that the videos recovered from the mobile
phones and hard disk of respondent nos. 2 and 3 depict children
engaged in sexually explicit acts. Consequently, the test of subjective
satisfaction stands duly met, insofar as the material in question
appears to depict children in sexually explicit acts.
41. Further, the electronic devices belonging to respondent nos. 2
and 3 were duly seized and sent for forensic examination to the
Central Forensic Science Laboratory (CFSL). A forensic report dated
28.03.2024 was thereafter received, which records that respondent
no. 2 had received CSEM from respondent no. 3. The report further
confirms that respondent no. 2 had stored and collected CSEM, in the
form of images and videos, on his mobile phone as well as on a hard
disk. The CFSL report also establishes that respondent no. 3 had
likewise stored and collected CSEM, in the form of images and
videos, on both mobile phones seized from his possession.
E. The Decision
42. To conclude, this Court finds that the learned Sessions Court
erred in discharging respondent nos. 2 and 3 of the offence under
Section 15(2) of the POCSO Act solely on the ground that the age of
the children depicted in the CSEM had not been conclusively
determined. The learned Sessions Court failed to give due
consideration to the opinions of two experts, who had categorically
opined that the pornographic videos depicted children engaged in
sexually explicit acts. The said expert opinions clearly satisfy the test
of subjective satisfaction, which was not properly appreciated by the
learned Sessions Court. Further, this Court is of the considered view
that upon a perusal of the material placed on record along with the
chargesheet, it prima facie emerges that respondent nos. 2 and 3 had
stored and possessed CSEM and had also transmitted the same
through various WhatsApp groups. The material collected during
investigation thus sufficiently satisfies the essential ingredients of
Section 15(2) of the POCSO Act, at the stage of charge.
43. Accordingly, respondent nos. 2 and 3 are liable to be charged
for the offence under Section 15(2) of the POCSO Act, in addition to
the offences under Section 67B of the IT Act and Section 120B of the
IPC.
44. The impugned order dated 01.09.2023 is therefore set aside to
the extent that it discharges respondent nos. 2 and 3 of the offence
under Section 15(2) of the POCSO Act. The learned Sessions Court
is directed to frame charges against respondent nos. 2 and 3 for the
offence under Section 15(2) of the POCSO Act and to proceed with
the trial in accordance with law.
45. The judgment be uploaded on the website forthwith.
DR. SWARANA KANTA SHARMA, J
APRIL 04, 2026/
TD/TS/RB
