Prima Facie Inference Of Involvement Of A Child Is Sufficient For Any Sexually Explicitly Material To Be Considered As Child Pornography: Delhi HC

The Delhi High Court observed that a prima facie inference of involvement of a child is sufficient for any sexually explicitly material to be considered as child pornography.

The court said that for the purposes of Section 2(da) of the POCSO Act, a subjective satisfaction/inference as regards the appearance of persons in sexually explicit material is sufficient for it to be considered child pornography.

In that context, the Bench of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora observed that, "In terms of Section 2(da) of the POCSO Act, any sexually explicit material involving a child or appear to depict a child would fall under the definition of child pornography, thereby suggesting that only a prima facie inference of involvement of a child is sufficient for any sexually explicitly material to be considered as child pornography. This is in contrast with the definition of ‘child’ under Section 2(d) of the POCSO Act, inasmuch as, the determination of a child will be dependent upon the objective criterion of whether a person is above the age of eighteen (18) years. Such objective criterion has to be satisfied as per the procedure set out in the JJ Act. However, for the purpose of Section 2(da) of the POCSO Act, a subjective satisfaction/inference as regards the appearance of persons in the sexually explicit material is sufficient for it to be considered child pornography."

The Court exercised its suo moto revisional jurisdiction and registered a revision petition from a public interest litigation which challenged a trial court order discharging two men accused of circulating and storing child pornographic material.

Counsel Vakul Sharma appeared for the petitioner, while Standing Counsel Sanjay Lau, along with others, appeared for the respondents.

Last year, on September 1, the Trial Court discharged the accused individuals of the offence under Section 15(2) of the Protection of Children from Sexual Offences Act, 2012. The Court reasoned that the absence of criteria to determine the age of children in pornographic material prevented invoking Section 15(2) of the POCSO Act.

Consequently, the PIL filed by Tulir Charitable Trust challenged this decision, seeking guidelines for Trial Courts handling cases involving Child Sexual Abuse Material (CSAM) of unidentified children online or offline.

The High Court rejected the prayer to frame guidelines for the POCSO Courts while observing that there were sufficient legal provisions. However, it added the trial court failed to consider the definition of 'child pornography' provided under Section 2(da) of the POCSO Act.

Subsequently, the Court considered it appropriate to exercise its suo moto revisional jurisdiction under Section 397 read with Section 401 Cr.P.C. to direct that the public interest litigation be registered as a suo moto revision petition and listed according to the roster before a Single Judge.

Cause Title: Tulir Charitable Trust vs Union of India & Ors.

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