POCSO Act, 2012
Section 15 POCSO and Section 67B of the Information Technology Act
Two statutes deal with material depicting the sexual abuse of children. Section 15 of the POCSO Act punishes the storage or possession of such material, in three offences graded by purpose. Section 67B of the Information Technology Act, 2000 punishes a wide range of acts in electronic form: publishing, creating, browsing, downloading, distributing, grooming and recording. They overlap heavily, and in Harish (2024 INSC 716) the Supreme Court read them together. This note compares them conduct by conduct and explains how they work side by side.
Each kind of conduct under POCSO and under Section 67B, with punishment and fit
1. The Two Provisions
Basis | Section 15, POCSO | Section 67B, IT Act |
|---|---|---|
Structure | Three offences of storage or possession, distinguished by PURPOSE | Five clauses, (a) to (e), each describing an ACT |
Medium | Material in ANY form | Material in ELECTRONIC form |
Mental element | Intent to share (15(1)); purpose of transmission or distribution (15(2)); commercial purpose (15(3)); s. 30 presumes it | Knowledge and intent inherent in the listed acts |
Punishment | 15(1): fine, minimum Rs 5,000, Rs 10,000 on repeat. 15(2): up to three years, or fine, or both. 15(3): three to five years; on repeat, five to seven years and fine | First conviction: up to five years and fine up to Rs 10 lakh. Subsequent: up to seven years and fine up to Rs 10 lakh |
Court | Special Court | Special Court, by POCSO s. 28(3) |
2. Section 67B, Clause by Clause
Clause | The conduct |
|---|---|
(a) | Publishing or transmitting, or causing to be published or transmitted, material in electronic form depicting children engaged in sexually explicit acts |
(b) | Creating text or digital images, collecting, seeking, browsing, downloading, advertising, promoting, exchanging or distributing such material in electronic form |
(c) | Cultivating, enticing or inducing children to online relationships with one or more children for sexually explicit acts, or in a manner that may offend a reasonable adult |
(d) | Facilitating the abuse of children online |
(e) | Recording in electronic form one's own abuse or that of others pertaining to sexually explicit acts with children |
3. Where They Overlap
§ The same conduct under both • Downloading and storing CSEAM is collecting or downloading under Section 67B(b), and storage or possession under Section 15. • Viewing online is browsing under Section 67B(b), and may be constructive possession under Section 15 after Harish. • Distributing is an offence under Section 67B(b) and storage for distribution under Section 15(2), and use for pornographic purposes under Section 13. • Grooming is within Section 67B(c) and sexual harassment under Section 11(iv) and (vi). • Recording abuse is within Section 67B(e), and Section 13 together with the sexual offence through Section 14(2). |
4. How They Fit Together
§ Three provisions settle the relationship Section 28(3), POCSO. The Special Court has jurisdiction to try Section 67B offences, notwithstanding anything in the IT Act, so both charges are tried together. Section 42, POCSO. It names Section 67B. Where an act is an offence under both, the offender is liable to the punishment greater in degree, imposed once. Section 42A, POCSO. The Act is additional to the IT Act, but prevails where there is inconsistency. |
5. Harish on the Two Provisions
📖 Just Rights for Children Alliance v. S. Harish, 2024 INSC 716 The High Court's error. The Madras High Court had held that merely downloading and watching such material privately was not an offence under either provision. On Section 15. Three distinct offences; possession includes constructive possession; retaining material without deleting or reporting it may evidence intent to share; the Section 30 presumption applies. On Section 67B. It is comprehensive: it punishes not only publication and transmission but also creating, collecting, seeking, browsing and downloading. Together. The Court treated the two provisions as parts of a single scheme against the sexual exploitation of children through such material, restoring the proceedings. |
6. The Key Differences
i. Purpose against act. Section 15 distinguishes by what the possessor intends; Section 67B punishes the act itself.
ii. Form. Section 15 reaches material in any form, including prints; Section 67B only electronic material.
iii. Scope. Section 67B reaches grooming and facilitating online abuse, which Section 15 does not.
iv. Presumption. Section 30 of POCSO presumes the mental state for Section 15; the IT Act contains no equivalent presumption.
v. Punishment. Section 67B's maximum on first conviction is higher than Section 15(2)'s, which matters under Section 42.
7. Frequently Asked Questions
Is browsing child sexual abuse material an offence?
Yes. Section 67B(b) of the IT Act expressly covers browsing and downloading, and after Harish, viewing with control over the material may be constructive possession under Section 15 of POCSO.
Which court tries Section 67B offences involving children?
The POCSO Special Court, under Section 28(3) of the Act.
What if the same act is an offence under both provisions?
Section 42 of POCSO applies: the offender receives the punishment greater in degree, imposed once.
What is the main difference between the two provisions?
Section 15 punishes storage or possession graded by purpose, in any form, with the Section 30 presumption; Section 67B punishes specified acts in electronic form, including grooming and facilitating abuse.