CRL.REV.P. 691/2024 Page 1 of 22

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 05.01.2026

Judgment pronounced on: 04.04.2026

Judgment uploaded on: 04.04.2026

+ CRL.REV.P. 691/2024

COURT ON ITS OWN MOTION .....Petitioner

Through: Ms. Aasha Tiwari, Advocate/

Amicus Curiae with Mr.

Puneet Narula, Advocate.

Versus

STATE AND ORS. .....Respondents

Through: Mrs. Anubha Bhardwaj, SPP

for CBI along with Ms. Anchal

Kashyap and Mr. Vijay Misra,

Advocates.

Mr. Nitin Chaudhary and Mr.

Abhishek Singh, Advocates for

R-2.

CORAM:

HON’BLE DR. JUSTICE SWARANA KANTA SHARMA

J U D G M E N T

Index to the Judgment

INTRODUCTION ................................................................................. 2

FACTUAL BACKGROUND .................................................................. 3

SUBMISSIONS BEFORE THE COURT ............................................. 6

ANALYSIS & FINDINGS ..................................................................... 8

CRL.REV.P. 691/2024 Page 2 of 22

A. Section 15(2) of POCSO Act ..................................................................... 9

B. Meaning of ‘Child’ under POCSO Act .................................................. 11

C. Interpretation of ‘Child’ in the Context of Child Pornographic

Material under the POCSO Act .................................................................... 13

D. Application of the Test of Subjective Satisfaction to the Material on

Record ............................................................................................................... 18

E. The Decision ............................................................................................. 20

DR. SWARANA KANTA SHARMA, J

INTRODUCTION

1. A Public Interest Litigation (PIL) was filed by one Tulir

Charitable Trust, assailing the order dated 01.09.2023 [hereafter

‗impugned order‘] passed by the learned Additional Sessions Judge

(Special Court-POCSO), Shahdara District, Karkardooma Courts

[hereafter ‗Sessions Court‘] in SC 18/2022, whereby the respondent

nos. 3 and 4 herein were discharged of offences under Section 15(2)

of the Protection of Children from Sexual Offences Act, 2012

[hereafter ‗POCSO Act‘]. Guidelines were also sought with respect to

cases involving Child Sexual Abuse Material of unidentified

child/children online or offline. The PIL came to be listed before the

Division Bench-I.

2. By way of judgment dated 09.05.2024, the Division Bench–I

observed that the prayer seeking formulation of guidelines for the

benefit of POCSO Special Courts dealing with cases involving Child

Sexual Abuse Material of unidentified child/children was not

required to be considered in the present case, as sufficient legal

CRL.REV.P. 691/2024 Page 3 of 22

provisions already exist to deal with such situations. It was further

noted that, vide the impugned order, the learned Sessions Court had

held that the provisions of Section 15(2) of the POCSO Act could not

be invoked against the accused persons in the absence of any criteria

for determining the age of the children appearing in the pornographic

videos and photographs. On that basis, the learned Sessions Court

had discharged the said respondents of the offence under Section

15(2) of the POCSO Act. Division Bench–I, after taking note of the

scheme of the POCSO Act and certain judicial precedents, expressed

a prima facie view that the findings recorded in the impugned order

suffered from manifest illegalities and had resulted in miscarriage of

justice.

3. Accordingly, the PIL was converted into the present suo motu

revision petition and was thereafter listed before this Court. During

the course of proceedings, the Union of India was deleted from the

array of parties, and an amended memo of parties was placed on

record. The trial court proceedings were stayed vide order dated

21.05.2024.

FACTUAL BACKGROUND

4. The facts of the case, in brief, are that upon receiving

information from a reliable source, an FIR bearing No. RC-

20(S)/2021/CBI/SC-III/New Delhi was registered by the Central

Bureau of Investigation (CBI) against Raman Gautam (respondent

no. 2), one Rakesh Kumar, and other unknown persons for

CRL.REV.P. 691/2024 Page 4 of 22

commission of offences under Section 67B of the Information

Technology Act, 2000 [hereafter ‗IT Act‘] read with Section 120B of

the Indian Penal Code, 1860 [hereafter ‗IPC‘]. It was alleged that the

said accused persons were involved in transmitting, storing, and

viewing Child Sexual Exploitation Material [hereafter ‗CSEM‘] by

sharing links, videos, pictures, texts, and posts, and by hosting such

content on social media groups/platforms and third-party storage or

hosting platforms.

5. Pursuant to the registration of the FIR, a search under Section

165 of the Code of Criminal Procedure, 1973 [hereafter ‗Cr.P.C.‘]

was conducted on 16.11.2021 at the residence of respondent no. 2

herein. During the search, a hard disk and a mobile phone ‗Realme 3

Pro‘ were seized. Upon scrutiny of the mobile phone, it was revealed

that one Sandeep Singh @ Lovely (respondent no. 3 herein) had been

transmitting CSEM to respondent no. 2. On the same day, i.e.,

16.11.2021, respondent no. 3 was also traced, and two mobile phones

recovered from him were searched. The examination of these devices

revealed that he had stored pornographic material involving children

and had also shared/transmitted the same with two other WhatsApp

users. During the course of investigation, upon scrutiny conducted in

the presence of independent witnesses, it was established that mobile

number 9540026597 was being used by respondent no. 2, which had

been issued in his name. It was further revealed that he had become a

member of various WhatsApp groups wherein CSEM, along with

other pornographic material, was being shared. The said material was

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received by him from respondent no. 3, who was using WhatsApp

with mobile number 7827167203.

6. As per the charge-sheet, 34 videos from the mobile phone of

respondent no. 2 and 14 videos from the hard disk seized from him

were collected, which depicted children in a sexually explicit manner.

During investigation, it was also established that the user of three

mobile numbers, i.e. 9540067545, 8882301205, and 7827167203,

was respondent no. 3. It was further revealed that 23 videos and 2

videos were recovered from his two mobile phones respectively, and

these videos also depicted children in a sexually explicit manner.

7. After collection of the evidence against respondent nos. 2 and

3, both of them were chargesheeted for offences under Section 15(2)

of the POCSO Act, Section 67B of the IT Act, and Section 120B of

the IPC.

8. The learned Sessions Court, by way of the impugned order,

discharged both the accused persons of the offence under Section

15(2) of the POCSO Act.

9. The learned Sessions Court, inter alia, observed that the

child/children appearing in the alleged pornographic videos were

unidentified, i.e., their names, parentage, and place of residence were

not known. It was further observed that no documents were available,

for obvious reasons, to establish the age of the victims since the

children were unidentified. The learned Sessions Court also noted

that no scientific or medical test had been conducted to determine the

CRL.REV.P. 691/2024 Page 6 of 22

age of the child/children visible in the photos/videos. The learned

Sessions Court further observed that had the victims been identifiable

in the present case, then even in the absence of age-related

documents, their age could have been determined through methods

such as bone age test, examination of wisdom teeth, radiographic

techniques, or any other scientific test. In such a situation, the

provisions of Section 15(2) of the POCSO Act could have been

invoked. However, in the absence of any such determination of age,

the learned Sessions Court held that the mandatory criteria for

establishing that the persons depicted were children had not been

satisfied, and therefore the provisions of Section 15(2) of the POCSO

Act could not be invoked.

10. These findings of the learned Sessions Court, in the context of

Section 15(2) of the POCSO Act, are presently under consideration

and scrutiny before this Court.

SUBMISSIONS BEFORE THE COURT

11. The learned Amicus Curiae submits that respondent nos. 2 and

3 were erroneously discharged of the offence under Section 15(2) of

the POCSO Act solely on account of absence of documentary proof

or physical verification of the age of the children depicted in the

recovered pornographic videos and images. It is submitted that the

said respondents were actively involved in circulating, storing, and

viewing CSEM, including by sharing links, videos, pictures, text, and

posts, and by hosting such content on various social media groups

CRL.REV.P. 691/2024 Page 7 of 22

and platforms. It is pointed out that 34 pornographic videos were

retrieved from the mobile phone of respondent no. 2 and 14 videos

from the hard disk seized from him, all depicting children engaged in

sexually explicit acts. Similarly, 23 videos were recovered from one

mobile phone of respondent no. 3 and 2 videos from another mobile

phone, which also depicted children in sexually explicit conduct. It is

further submitted that respondent no. 3 had been transmitting such

material to other WhatsApp users through his account. It is contended

that the learned Sessions Court discharged the respondents on the

premise that the applicability of the POCSO Act depends upon

establishing whether the persons appearing in the videos qualify as a

‗child‘, and that in the absence of documentary proof or physical

presence of the victims for age verification, such determination could

not be made. The learned Amicus Curiae submits that such reasoning

defeats the very object of the POCSO Act, since discharging accused

persons merely because the children depicted in such material are

unidentified and their age cannot be determined through conventional

methods would result in grave miscarriage of justice in cases

involving unidentified child victims exploited in pornographic

material. It is further submitted that the learned Sessions Court failed

to duly consider the expert opinions of two doctors who had opined

that the persons appearing in certain videos appeared to be children

below the age of 18 years. It is also submitted that conducting

medical or scientific age determination tests was not feasible in the

present case since the victims were unidentified and had not appeared

CRL.REV.P. 691/2024 Page 8 of 22

before the Court.

12. The learned SPP appearing for the CBI supports the

submissions advanced on behalf of the petitioner and submits that the

order passed by the learned Sessions Court is perverse. It is argued

that the law does not mandate the identification or physical presence

of the child for the purpose of invoking Section 15(2) of the POCSO

Act, and that the definition of ‗child‘ under Section 2(d) of the

POCSO Act cannot be applied in such a rigid manner so as to defeat

the purpose of the statute.

13. Conversely, the learned counsel appearing for respondent no. 2

vehemently opposes the present petition and submits that there is no

infirmity in the detailed and reasoned order passed by the learned

Sessions Court. It is argued that there is no material on record to

establish that the individuals depicted in the alleged CSEM are

children, i.e., below the age of 18 years. It is contended that in the

absence of any such proof or material, the offence under Section

15(2) of the POCSO Act cannot be invoked or charges framed

against the accused persons.

14. This Court has heard arguments addressed by the learned

amicus curiae, the learned SPP for the CBI and the learned counsel

for respondent no. 2, and has perused the material placed on record.

ANALYSIS & FINDINGS

15. In the present case, respondent nos. 2 and 3 were

chargesheeted for commission of offences under Section 15(2) of the

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POCSO Act, Section 67B of the IT Act, and Section 120B of the

IPC. However, the learned Sessions Court subsequently discharged

respondent nos. 2 and 3 in respect of the offence under Section 15(2)

of the POCSO Act.

A. Section 15(2) of POCSO Act

16. At the outset, it would be appropriate to examine the

circumstances in which Section 15(2) of the POCSO Act is attracted.

Section 15(2) of the POCSO Act reads as under:

―15. Punishment for storage of pornographic material

involving child.—

(1) x x x

(2) Any person, who stores or possesses pornographic material

in any form involving a child for transmitting or propagating or

displaying or distributing in any manner at any time except for

the purpose of reporting, as may be prescribed, or for use as

evidence in court, shall be punished with imprisonment of

either description which may extend to three years, or with

fine, or with both.‖

17. A reading of the aforesaid provision indicates that the

following essential ingredients must be satisfied for the purpose of

attracting Section 15(2) of the POCSO Act:

(i) First, the person must store or possess pornographic

material in any form which depicts a child in a sexually

explicit manner.

(ii) Second, such storage or possession must be for the

purpose of transmitting, propagating, displaying, or

distributing such material in any manner.

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(iii) Third, the provision carves out an exception where such

material is stored or possessed solely for the purpose of

reporting the matter, as may be prescribed, or for use as

evidence before a court of law.

18. In the present case, it is noteworthy that during the course of

investigation, the mobile phones of respondent nos. 2 and 3 were

examined and data was recovered therefrom. The material collected

during investigation prima facie indicates the possession and storage

of pornographic material depicting children engaged in sexually

explicit acts. Specifically, 34 such videos were retrieved from the

mobile phone of respondent no. 2 and 14 videos from the hard disk

seized from him. It was also revealed during investigation that

respondent no. 2, using mobile number 95******97, was a member

of multiple WhatsApp groups wherein such CSEM was being

circulated.

19. Insofar as respondent no. 3 is concerned, two mobile phones

were seized from him, from which a total of 25 videos were

recovered, which also depicted children engaged in sexually explicit

acts. The investigation further revealed that respondent no. 3 had

transmitted such CSEM to respondent no. 2 and other WhatsApp

users through mobile number 78******03.

20. Thus, the essential ingredients of Section 15(2) of the POCSO

Act appear to be prima facie satisfied, inasmuch as respondent nos. 2

and 3 were allegedly found to be in possession of pornographic

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videos depicting children in sexually explicit acts, and were also

involved in transmitting the same to other WhatsApp users.

B. Meaning of ‘Child’ under POCSO Act

21. At this stage, it would also be appropriate to examine how the

age of a child is determined for the purposes of the POCSO Act.

22. The legislature had enacted the POCSO Act with the object of

safeguarding children from offences of sexual assault, sexual

harassment, and pornography. A foundational requirement for the

applicability of the POCSO Act is that the alleged offence must have

been committed against a child. It is only upon satisfaction of this

essential condition that the provisions of the Act can be invoked.

23. The expression ‗child‘ has been specifically defined under

Section 2(1)(d) of the POCSO Act, which reads as follows:

―child means any person below the age of eighteen years‖

24. Thus, the definition of ―child‖ under the POCSO Act makes it

clear that any individual who has not attained the age of 18 years is to

be regarded as a child. Consequently, before invoking the provisions

of the POCSO Act, it becomes necessary to determine whether the

alleged offence has been committed against a person who was below

the age of 18 years at the relevant time.

25. The determination of the age of the victim for the purposes of

the POCSO Act is governed by Section 34 of the Act. The said

provision makes it clear that the Special Court is required to satisfy

CRL.REV.P. 691/2024 Page 12 of 22

itself regarding the age of the person concerned and record reasons in

writing for such determination. Section 34 of the POCSO Act reads

as follows:

―34. Procedure in case of commission of offence by child

and determination of age by Special Court.—

(1) Where any offence under this Act is committed by a child,

such child shall be dealt with under the provisions of 1 [the

Juvenile Justice (Care and Protection of Children) Act, 2015 (2

of 2016)].

(2) If any question arises in any proceeding before the Special

Court whether a person is a child or not, such question shall be

determined by the Special Court after satisfying itself about the

age of such person and it shall record in writing its reasons for

such determination.

26. The criteria for determining the age of an individual for the

purpose of ascertaining whether he or she is a child is further

provided under Section 94 of the Juvenile Justice (Care and

Protection of Children) Act, 2015. The said provision lays down the

procedure to be followed for age determination and provides as

follows:

―94. Presumption and determination of age.

(1) x x x

(2) In case, the Committee or the Board has reasonable grounds

for doubt regarding whether the person brought before it is a

child or not, the Committee or the Board, as the case may be,

shall undertake the process of age determination, by seeking

evidence by obtaining —

(i) the date of birth certificate from the school, or the

matriculation or equivalent certificate from the concerned

examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal

authority or a panchayat;

CRL.REV.P. 691/2024 Page 13 of 22

(iii) and only in the absence of (i) and (ii) above, age shall

be determined by an ossification test or any other latest

medical age determination test conducted on the orders of

the Committee or the Board:

Provided such age determination test conducted on the order of

the Committee or the Board shall be completed within fifteen

days from the date of such order.

(3) The age recorded by the Committee or the Board to be the

age of person so brought before it shall, for the purpose of this

Act, be deemed to be the true age of that person.

27. However, the aforesaid procedure ordinarily applies in

situations where the victim child is identifiable or traceable before the

Court. In the impugned order, the learned Sessions Court has placed

reliance on the decision of the Hon‘ble Supreme Court in

Yuvaprakash v. State of T.N.: (2024) 17 SCC 684, wherein it was

observed that the determination of age must be carried out in terms of

Section 34 of the POCSO Act read with Section 94 of the JJ Act.

However, what the learned Sessions Court has failed to take into

consideration is that the said decision pertained to an offence under

Section 6 of the POCSO Act, which prescribes punishment for

aggravated penetrative sexual assault. In that case, the victim was

identified, traceable, and physically available before the Court, and

therefore the question of determining the age of the victim through

the procedure prescribed under the statute had directly arisen.

C. Interpretation of ‘Child’ in the Context of Child Pornographic

Material under the POCSO Act

28. In contrast, the present case concerns the applicability of

Section 15(2) of the POCSO Act, which deals with punishment for

CRL.REV.P. 691/2024 Page 14 of 22

storing, collecting, and further transmitting CSEM. In cases of this

nature, the victims depicted in such material are most often

unidentified and untraceable; their parentage and addresses remain

unknown, and they cannot be produced before the Court. In such

circumstances, the rigid application of the age-determination

procedure under Section 34 of the POCSO Act read with Section 94

of the JJ Act would be wholly impractical and unjust. Applying such

stringent requirements would effectively deny justice to the victims,

as most would never be traced for obvious reasons, thereby rendering

the protective framework of the law ineffective.

29. In the impugned order, the learned Sessions Court discharged

respondent nos. 2 and 3 of the offence under Section 15(2) of the

POCSO Act on the ground that no documentary proof regarding the

age of the persons appearing in the videos was available before the

Court and that no medical or scientific test had been conducted to

ascertain their age.

30. However, in the considered opinion of this Court, the learned

Sessions Court erred in adopting this approach, as it failed to take

into consideration the scope and import of Section 2(1)(da) of the

POCSO Act, which specifically defines what constitutes ‗child

pornography‘. Section 2(1)(da) of the POCSO Act defines ‗child

pornography‘ in the following terms:

―child pornography means any visual depiction of sexually

explicit conduct involving a child which include photograph,

video, digital or computer generated image indistinguishable

CRL.REV.P. 691/2024 Page 15 of 22

from an actual child and image created, adapted, or modified,

but appear to depict a child‖

31. The aforesaid provision makes it clear that child pornography

includes any visual depiction showing a child engaged in sexually

explicit conduct. Importantly, the definition also covers images which

are created, adapted, or modified, but appear to depict a child.

32. The expression ―appear to depict a child‖ used in Section

2(1)(da) is of significance. It indicates that, for the purposes of

determining whether a particular visual depiction falls within the

ambit of child pornography, 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.

33. The Hon‘ble Supreme Court in the case of Just Rights for

Children Alliance v. S. Harish: 2024 SCC OnLine SC 2611, has

categorically held that for determining whether a visual depiction of a

sexually explicit act involves a child, the Court is required to apply

the test of subjective satisfaction. The relevant observations of the

Hon‘ble Supreme Court are reproduced below:

―131. Thus, any visual depiction of a sexually explicit act

which any ordinary person of a prudent mind would reasonably

believe to prima facie depict a child or appear to involve a

child, would be deemed as ‗child pornography‘ for the

purposes of the POCSO. Therefore, for any offence under

the POCSO that relates to child pornographic material,

such as Section 15, 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. Such satisfaction may be arrived

at from any authoritative and definitive opinion such as

CRL.REV.P. 691/2024 Page 16 of 22

through a forensic science laboratory (FSL) report of such

material or from any expert opinion on the material in

question, or by the assessment of such material by the

courts themselves, depending on the peculiar facts and

circumstances of each case.‖

34. Further, 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. It is

evident that 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.

35. 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

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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 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.

36. In this regard, the Supreme Court in Just Rights for Children

Alliance v. S. Harish (supra), has made the following observations:

―137. The test or criteria of ‗subjective satisfaction‘ is in view

of the practical difficulty that exists in conclusively

establishing the age of an individual in any pornographic

material through any objective means or criteria. This is owed

to the fact that often, it is next to impossible to establish the

identity of the victim, then to trace the whereabouts of such

person, and then objectively determine their age. If such a

criterion is adopted, then most of the cases pertaining to the

possession of any child pornographic material would fail at the

threshold, due to want of any means or information for

conclusively proving the age of the victim.

138. The aforesaid aspect may be looked at from one another

angle. Any mandate of an objective determination of the age by

conclusive means, could possibly result in absurd

consequences. For instance, say a pornographic material

involves an under-teen child who by virtue of his built on the

face of it appears to be a child, yet such material will not be

considered child pornographic material in the eyes of law,

unless an objective determination of the exact age of such child

is carried out in a conclusive manner. In the absence of any

such determination, the prosecution of possession of such

material would have to fail, merely due to technicalities and the

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inflexible character of the criteria or test for determining the

age.

139. The aforesaid provision of Section 2(1)(da) of the POCSO

holds significant importance, as the legislature whilst giving

teeth to the existing provision of Section 15 of the Act, and

making three distinct offences punishable under it through the

2019 Amendment Act, also consciously defined the term ‗child

pornography‘ under the POCSO through the very same

amendment. It indicates the legislature‘s intention of

construing both these provisions together as a whole; neither

Section 15 of the POCSO nor Section 2(1)(da) can be

interpreted or invoked in isolation from the other.

140. The legislature through Section 2(1)(da) of the POCSO,

made a conscious departure from the already existing objective

criterion of determination of age in terms of Section 2(1)(d)

which is generally applicable to the POCSO, as it was alive to

aforementioned inherent difficulty that is posed by such

criteria. The legislature was well aware, that if the proof of age

in offences pertaining to child pornography such as under

Section 15 of the POCSO would also have to be assessed by

the existing objective test, it would lead to a very chilling

effect, whereby the entire Section 15 of the POCSO could be

rendered unworkable merely on account of a hyper-technical

approach as to determination of age, thereby defeating the very

object of the POCSO.‖

D. Application of the Test of Subjective Satisfaction to the Material

on Record

37. Coming to the factual matrix of the present case, the opinion of

two experts, namely Dr. Rachna Sharma (PW-9), Senior Specialist,

Department of Obstetrics and Gynaecology, Maulana Azad Medical

College and Lok Nayak Hospital, New Delhi, and Dr. Sreenivas M.

[PW-9(1)], Director Professor & HOD, Department of Forensic

Medicine, Maulana Azad Medical College, New Delhi, was obtained

during the course of investigation. The pornographic videos

CRL.REV.P. 691/2024 Page 19 of 22

recovered from the mobile phones of respondent nos. 2 and 3 were

shown to the said experts. After examining the material, both experts

opined that, on the basis of developmental characteristics such as

physical development, genital development, and secondary sexual

characteristics, some of the persons appearing in the videos and

photographs were children below the age of 18 years. The relevant

portion of the expert opinion reads as follows:

―After perusal of the said files (videos/photos), and noting

the developmental characteristics of the persons involved

including physical development, genital developriènt and

secondary sexual characteristics, it is opined by me that

some of the persons are children i.e. below the age of 18

years.‖

(emphasis added)

38. Further, a team consisting of Saurabh Singh (PW-6), Senior

Program Coordinator, Manish Kumar, Senior Program Coordinator,

and Ms. Princy Goel (PW-7), Senior Program Coordinator, from the

Delhi Commission for Women, was constituted to assist the CBI

during the course of investigation. The statements of PW-6 and PW-7

were recorded under Section 161 of the Cr.P.C. after they were

shown the videos and photographs recovered from the mobile phones

and hard disk of respondent nos. 2 and 3. Upon viewing the material,

they opined that the videos involved children depicted in an obscene,

indecent, and sexually explicit manner.

39. Furthermore, the statement of Rakesh Kumar (PW-3), who was

acquainted with respondent no. 3, reveals that respondent no. 3 used

to routinely transmit adult sexually explicit videos to him, which PW-

CRL.REV.P. 691/2024 Page 20 of 22

3 would watch and subsequently delete. He also stated that in

September 2021, respondent no. 3 had sent a sexually explicit video

from mobile number 78******03 depicting children engaged in

sexual activities, after which PW-3 had asked him not to send such

videos.

40. Therefore, the statements recorded during the course of

investigation, the expert opinions, and the other material placed on

record prima facie indicate that the videos recovered from the mobile

phones and hard disk of respondent nos. 2 and 3 depict children

engaged in sexually explicit acts. Consequently, the test of subjective

satisfaction stands duly met, insofar as the material in question

appears to depict children in sexually explicit acts.

41. Further, the electronic devices belonging to respondent nos. 2

and 3 were duly seized and sent for forensic examination to the

Central Forensic Science Laboratory (CFSL). A forensic report dated

28.03.2024 was thereafter received, which records that respondent

no. 2 had received CSEM from respondent no. 3. The report further

confirms that respondent no. 2 had stored and collected CSEM, in the

form of images and videos, on his mobile phone as well as on a hard

disk. The CFSL report also establishes that respondent no. 3 had

likewise stored and collected CSEM, in the form of images and

videos, on both mobile phones seized from his possession.

E. The Decision

42. To conclude, this Court finds that the learned Sessions Court

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erred in discharging respondent nos. 2 and 3 of the offence under

Section 15(2) of the POCSO Act solely on the ground that the age of

the children depicted in the CSEM had not been conclusively

determined. The learned Sessions Court failed to give due

consideration to the opinions of two experts, who had categorically

opined that the pornographic videos depicted children engaged in

sexually explicit acts. The said expert opinions clearly satisfy the test

of subjective satisfaction, which was not properly appreciated by the

learned Sessions Court. Further, this Court is of the considered view

that upon a perusal of the material placed on record along with the

chargesheet, it prima facie emerges that respondent nos. 2 and 3 had

stored and possessed CSEM and had also transmitted the same

through various WhatsApp groups. The material collected during

investigation thus sufficiently satisfies the essential ingredients of

Section 15(2) of the POCSO Act, at the stage of charge.

43. Accordingly, respondent nos. 2 and 3 are liable to be charged

for the offence under Section 15(2) of the POCSO Act, in addition to

the offences under Section 67B of the IT Act and Section 120B of the

IPC.

44. The impugned order dated 01.09.2023 is therefore set aside to

the extent that it discharges respondent nos. 2 and 3 of the offence

under Section 15(2) of the POCSO Act. The learned Sessions Court

is directed to frame charges against respondent nos. 2 and 3 for the

offence under Section 15(2) of the POCSO Act and to proceed with

CRL.REV.P. 691/2024 Page 22 of 22

the trial in accordance with law.

45. The judgment be uploaded on the website forthwith.

DR. SWARANA KANTA SHARMA, J

APRIL 04, 2026/

TD/TS/RB