The Delhi High Court has held that the identification or physical presence of a child victim is not a mandatory prerequisite for invoking Section 15(2) of the Protection of Children from Sexual Offences (POCSO) Act. The Court emphasized that for offences involving Child Sexual Abuse Material (CSAM), courts must apply the “test of subjective satisfaction” to determine if the material appears to depict a child.
Justice Swarana Kanta Sharma, in a judgment pronounced on April 4, 2026, set aside a Sessions Court order that had discharged two individuals accused of storing and transmitting pornographic material involving children.
Factual Background
The case originated from a Public Interest Litigation (PIL) filed by Tulir Charitable Trust, which challenged an order dated September 1, 2023, passed by the Special POCSO Court, Karkardooma. The Sessions Court had discharged respondent nos. 2 (Raman Gautam) and 3 (Sandeep Singh @ Lovely) for offences under Section 15(2) of the POCSO Act. The PIL was subsequently converted into a suo motu revision petition by a Division Bench of the High Court.
The prosecution’s case was based on an FIR registered by the Central Bureau of Investigation (CBI) alleging that the accused were involved in transmitting and storing Child Sexual Exploitation Material (CSEM) via social media and storage platforms. During searches, a hard disk and mobile phones were seized from Raman Gautam, while two mobile phones were recovered from Sandeep Singh.
Investigation revealed that Sandeep Singh had transmitted CSEM to Raman Gautam. Forensic scrutiny of the devices retrieved 34 videos from Gautam’s phone and 14 from his hard disk, alongside 25 videos from Singh’s devices, all depicting children in sexually explicit acts.
The Impugned Order
The Sessions Court discharged the accused on the grounds that the children in the videos were unidentified, and there was no documentary proof (such as birth certificates) or scientific medical tests (such as bone age tests) to establish that the persons depicted were below 18 years of age. The lower court held that in the absence of such determination, the mandatory criteria for defining a “child” under the POCSO Act were not satisfied.
Submissions Before the Court
The Amicus Curiae, Ms. Aasha Tiwari, argued that discharging the accused solely due to the absence of physical verification of the victims’ age defeats the object of the POCSO Act. She contended that conducting scientific tests is unfeasible when victims are unidentified and online.
The CBI supported the petitioner, asserting that the law does not mandate the physical presence of the child to invoke Section 15(2). Conversely, the counsel for the respondents argued that without material proof that the individuals depicted were minors, the charge could not be sustained.
Court’s Analysis and Findings
The High Court observed that Section 15(2) of the POCSO Act punishes the storage or possession of pornographic material involving a child for transmission or distribution.
Interpreting ‘Child’ and ‘Child Pornography’
Justice Sharma noted that while Section 2(1)(d) defines a child as a person below 18, and Section 94 of the Juvenile Justice Act provides the procedure for age determination, these “ordinarily apply in situations where the victim child is identifiable or traceable.”
The Court highlighted Section 2(1)(da) of the POCSO Act, which defines ‘child pornography’ to include depictions that “appear to depict a child.” The Court observed:
“The expression ‘appear to depict a child’ used in Section 2(1)(da) is of significance. It indicates that… 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.”
Test of Subjective Satisfaction
Citing the Supreme Court’s decision in Just Rights for Children Alliance v. S. Harish (2024), the Court held that a “prima facie subjective satisfaction” is sufficient. The Court quoted the Apex Court:
“If such a criterion [objective determination of age] is adopted, then most of the cases pertaining to the possession of any child pornographic material would fail at the threshold… merely due to technicalities and the inflexible character of the criteria.”
Application to Facts
In the present case, the CBI had obtained opinions from two medical experts at Maulana Azad Medical College. These experts, after perusing the files, opined that based on physical and genital development, “some of the persons are children i.e. below the age of 18 years.” Furthermore, members of the Delhi Commission for Women had also viewed the material and confirmed the involvement of children in sexually explicit acts.
The Court found that the test of subjective satisfaction was “duly met” based on these expert opinions and witness statements.
The Decision
The High Court concluded that the Sessions Court erred by adopting a “hyper-technical approach.” It held that the material collected during the investigation sufficiently satisfied the essential ingredients of Section 15(2) at the stage of framing charges.
The Court set aside the discharge order and directed the Sessions Court to frame charges against the respondents under Section 15(2) of the POCSO Act, in addition to Section 67B of the IT Act and Section 120B of the IPC.
Case Details:
- Case Title: Court on its Own Motion vs. State and Ors.
- Case No: CRL.REV.P. 691/2024
- Bench: Justice Swarana Kanta Sharma
- Datet: April 4, 2026
