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Synopsis

The Delhi High Court, recently, took suo moto cognizance against the acquittal of two individuals who were involved in storing and distributing Child Sexual Abuse Material (CSAM) through social media groups. The decision came in response to a plea filed by a charitable trust focused on combating child sexual abuse. 

“Revisional jurisdiction of the High Court can be invoked suo moto in cases of manifest illegality, or in cases where the Courts have wrongly appreciated or refused to appreciate evidence”, the bench led by Acting Chief Justice Manmohan and Justice Manmeet PS Arora held. 

A public interest litigation was filed challenging the order passed by the trial court, wherein two individuals were acquitted of charges under Section 15(2) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). Additionally, the PIL sought guidelines for handling cases involving Child Sexual Abuse Material (CSAM) of unidentified child/children, whether online or offline. 

The trust had lodged an FIR, leading to the filing of a charge sheet under Sections 67B of the Information Technology Act, 2000 (IT Act), Section 15(2) of the POCSO Act, 2012, and Section 120B of the Indian Penal Code, 1860 (IPC), requesting permission for further investigation.

However, the trial court concluded that Section 15(2) of the POCSO Act could not be applied to individuals due to the absence of criteria for determining the age of the children in pornographic materials. Therefore, they were acquitted of the charges under Section 15(2) of the POCSO Act.

Advocate Vakul Sharma, representing the Charitable Trust, asserted that the trial court incorrectly applied Section 34 of the POCSO Act to the accused. He further contended that Section 94(2)(i) of the Juvenile Justice Act does not apply to unidentified and untraceable victims.

Advocate Sharma argued that the impugned order contradicted the spirit of the POCSO Act by distinguishing between 'identified' and 'unidentified' children. He argued that this order could result in offenders avoiding punishment under Sections 14 and 15 of the POCSO Act by questioning the accuracy of age determination for 'unidentified children'.

Furthermore, it was contended that the trial court failed to consider the testimonies of two expert medical witnesses and the impossibility of conducting medical tests to determine the age of the children depicted in pornographic materials. According to the trust, the approach taken by the trial court undermined the purpose of the POCSO Act. It could encourage perpetrators of CSAM to distribute, publish, or transmit materials involving 'unidentified child victims', both online and offline, thus rendering the POCSO Act ineffective, the trust asserted. 

The court, during the session, questioned the Special Public Prosecutor Anubha Bhardwaj, representing the CBI, about any pending appeals or revisions initiated by them. SPP Bharadwaj responded that they had not contested the order in any court and had no intention to do so, as the trial was proceeding under Sections 67B of the IT Act and 120B IPC.

The court observed that the trust mentioned in the PIL was not involved in the FIR proceedings before the trial court. Instead, it was a charitable trust focused on combating child sexual abuse. Therefore, the trust was not directly implicated in the criminal proceedings against the individuals in question.

The court noted that generally PILs in criminal matters are not entertained. It deemed the request to establish guidelines for POCSO Special Courts in cases involving CSAM of unidentified children unnecessary, as there were adequate legal provisions to address such cases.

However, upon reviewing the order dated September 1, 2023, the court found significant legal errors in the conclusions, leading to a miscarriage of justice. 

The bench observed that the trial court had interpreted Section 15(2) of the POCSO Act solely based on the definition of 'child' in Section 2(d), overlooking the definition of 'child pornography' in Section 2(da) of the same act. The court referred to the case of Parthasarathi M vs. State of Kerala and reiterated that strict proof of the victim's age is not necessary in all cases of child pornography. 

The court stressed that under Section 397 of the CrPC, both the Court of Session and the High Court have the power of revision to review proceedings of lower Criminal Courts within their jurisdiction. The court reiterated the Supreme Court’s stance that such revisional jurisdiction can be exercised by the High Court suo motu to scrutinize the correctness of orders passed by lower courts.

The court further highlighted that the High Court's revisional jurisdiction can be invoked suo motu in cases of manifest illegality or when courts have erred in appreciating the evidence. Based on the above, the Court decided to exercise its suo motu revisional jurisdiction under Section 397 read with Section 401 CrPC.

Consequently, the court passed the following directions: 
1. The PIL was registered as a suo motu revision petition and scheduled for hearing before a learned Single Judge for May 21, 2024.
2. Ms. Aashaa Tiwari was appointed as Amicus Curiae to assist the Single Judge.
3. Court directed the Registry to provide a complete set of documents to the appointed Amicus Curiae.
4. A notice was issued to acquitted individuals regarding the possibility of setting aside the order dated September 1, 2023.

Advocates for Petitioner: Advocate Vakul Sharma
Advocates for Union: Standing Counsel Ravi Prakash with Advocates Ali Khan, Taha Yasin, and Astu
Advocates for State: Standing Counsel Sanjay Lau with Additional Standing Counsel Nandita Rao
Advocates for CBI: Special Public Prosecutor Anubha Bhardwaj

Case Title: Tulir Charitable Trust v Union Of India & Ors. (2024:DHC:3837-DB)