Delhi High Court objects to trial court closing POCSO case against two men found with child porn

In a very rare move, the Delhi High Court recently used its suo motu revision powers to convert a public interest litigation (PIL) petition into a revision plea against a trial court judgment which had closed a case under the Prevention of Children from Sexual Offences Act (POCSO Act) against two men accused of watching and circulating child pornography [Tulir Charitable Trust v Union of India & Ors]..A Division Bench of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora observed that even though a PIL in criminal matters is not normally entertained, the order passed by the trial court suffered from “manifest illegalities” and has caused “miscarriage of justice”.The Court noted that the while interpreting Section 15(2) of the POCSO Act, the Additional Sessions Judge (ASJ) solely relied upon the definition of ‘child’ provided under Section 2(d) of the POCSO Act and failed to consider the definition of ‘child pornography’ provided under Section 2(da) of the same law.“In the opinion of this Court, it is the definition of ‘child pornography’ which is of relevance while considering whether Section 15 of the POCSO Act has to be invoked or not. 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 explicit material to be considered as child pornography,” the Bench said..The Court recorded that the ASJ disregarded the statements of the doctors who had opined that some of the persons shown in the video/photos on the devices of the accused, were children.It, therefore, used its powers under Sections 397 and 401 of the Code of Criminal Procedure (CrPC) and ordered that the PIL filed against the order be registered as a revision petition.The matter will now be listed before a single-judge as per the roster. The Court also appointed advocate Aashaa Tiwari as amicus curiae in the matter and issued notice to the two accused who were discharged by the trial court..The PIL before the High Court was filed by An organisation named Tulir Charitable Trust against the order passed by Special Court-POCSO Shahdara District, Karkardooma Courts.Two persons were made accused in the case by CBI after around 73 videos were recovered from their devices involving Child Sexual Abuse Material (CSAM).They were charge-sheeted under Section 67B (punishment for publishing or transmitting of material depicting children in sexually explicit act) of the Information Technology Act (IT Act), Section 15(2) (possessing, propagating or displaying pornographic material in any form involving a child) of the POCSO Act and 120B (criminal conspiracy) of the Indian Penal Code.However, the ASJ held that the provision of Section 15(2) of the POCSO Act cannot be invoked against the two accused and they were discharged of the offence..When the PIL came up before the High Court, it asked the CBI whether it was planning to challenge the order. However, the CBI counsel replied in the negative and informed that the trial with respect to the offence under the IT Act is going on before the judge.The High Court, therefore, used its powers and registered a suo motu revision petition..Advocate Vakul Sharma appeared for Tulir Charitable Trust.Delhi government was represented by its Standing Counsel Sanjay Lau and Additional Standing Counsel (ASC) Nandita Rao.Special Public Prosecutor (SPP) Anubha Bhardwaj appeared for the CBI.Central Government Standing Counsel (CGSC) Ravi Prakash along with advocates Ali Khan, Taha Yasin and Astu represented the Union of India. .[Read Judgment]