Non-Identification Of Victims Or No Proof Of Age In Child Pornography Cases Can’t Defeat Prosecution In POCSO Cases: Delhi High Court

The Court was hearing a suo motu revision arising from an order of the Sessions Court which had discharged the accused of offences under Section 15(2) of the POCSO Act on the ground that the age of the persons appearing in the pornographic material could not be established.

A Bench of Justice Swarana Kanta Sharma observed: “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, the Bench added, “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”.

Advocate Aasha Tiwari assisted the Court as Amicus Curiae, while Special Public Prosecutor Anubha Bhardwaj represented the respondents.

Background

The case originated from an FIR registered by the CBI alleging that the accused persons were involved in storing, transmitting, and sharing CSEM through mobile devices and social media platforms. During the investigation, multiple videos depicting children in sexually explicit acts were recovered from the electronic devices of the accused.

The charge sheet alleged offences under Section 15(2) of the POCSO Act, Section 67B of the IT Act, and Section 120B IPC. However, the Sessions Court discharged the accused under the POCSO Act on the ground that the victims appearing in the material were unidentified, and no documentary or medical evidence was available to establish their age.

Court’s Observation

The High Court began by examining the scope of Section 15(2) of the POCSO Act and noted that the provision penalises storage or possession of pornographic material involving a child for purposes such as transmission or distribution. It was observed that the material recovered during the investigation prima facie disclosed possession and transmission of videos depicting children engaged in sexually explicit acts.

“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”, the Court underscored.

The Court then addressed the central issue concerning the determination of age. It noted that while the definition of “child” under the POCSO Act requires that the person be below 18 years of age, the procedure for age determination under Section 34 of the Act and Section 94 of the JJ Act is ordinarily applicable where the victim is identifiable and can be produced before the Court.

In contrast, the Court emphasised that cases involving CSEM present a fundamentally different situation, where the victims are often unidentified and untraceable. Rejecting the approach adopted by the Sessions Court, the High Court held that insisting on strict proof of age in such cases would defeat the legislative intent. It was observed that such an interpretation would result in failure of prosecution at the very threshold and would leave victims unprotected.

The Court further examined the definition of “child pornography” under Section 2(1)(da) of the POCSO Act and highlighted the significance of the expression “appear to depict a child.” It held that this indicates a departure from rigid, objective age determination and permits the Court to undertake a prima facie assessment of the material itself.

Relying on the Supreme Court decision in Just Rights for Children Alliance v. S. Harish (2024), the Court reiterated that the appropriate standard in such cases is one of “subjective satisfaction.” It noted that “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.”

“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”, the Court added.

Applying this test, the Court observed that expert opinions obtained during the investigation had indicated that the persons appearing in the videos were below 18 years of age based on developmental characteristics. It further noted that statements of witnesses and forensic reports supported the allegation that the accused had stored and transmitted such material.

The Court held that this material was sufficient, at the stage of charge, to satisfy the requirement of prima facie subjective satisfaction and that the Sessions Court had erred in disregarding such evidence.

Conclusion

The High Court held that the Sessions Court had committed a manifest error in discharging the accused under Section 15(2) of the POCSO Act solely on the ground that the age of the victims could not be conclusively determined.

It held that in cases involving CSEM, the requirement of proving age through documentary or medical evidence cannot be applied rigidly, and that courts must instead rely on a prima facie assessment of the material, including expert opinion and surrounding circumstances.

Accordingly, the impugned order was set aside to the extent it discharged the accused under Section 15(2) of the POCSO Act, and the Sessions Court was directed to frame charges and proceed with the trial in accordance with law.

Cause Title: Court on its Own Motion v. State & Ors. (Neutral Citation: 2026:DHC:2817)

Appearances

Petitioner: Aasha Tiwari, Advocate/Amicus Curiae with Puneet Narula, Advocate

Respondents: Special Public Prosecutor Anubha Bhardwaj with Advocates Anchal Kashyap & Vijay Misra; Advocates Nitin Chaudhary & Abhishek Singh

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