POCSO Section 15(2) and Unidentified Victims: “Appears to Depict a Child” and the Test of Subjective Satisfaction

1. Introduction

The Delhi High Court in COURT ON ITS OWN MOTION v. STATE AND ORS. (2026 DHC 2817, decided on 04.04.2026) examined a recurring problem in prosecutions concerning online/offline circulation of Child Sexual Exploitation Material (CSEM): can an accused be discharged under Section 15(2) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) merely because the children depicted in the pornographic material are unidentified and their age cannot be proved through conventional documentary/medical methods?

The case arose from a CBI FIR alleging that the accused were storing, viewing and transmitting CSEM through WhatsApp groups and devices. The Special Court (POCSO) discharged the accused for the POCSO offence under Section 15(2), reasoning that since the victims in the videos/images were unidentified, their age could not be determined by documents or medical tests, and therefore the “child” requirement was not satisfied.

The matter travelled to the High Court as a suo motu criminal revision (converted from a PIL), placing at its centre the interpretation of “child pornography” under Section 2(1)(da) POCSO—particularly the phrase “appear to depict a child”—and the correct standard for courts at the stage of charge/discharge in Section 15 CSEM prosecutions.

2. Summary of the Judgment

The High Court set aside the discharge order to the extent it discharged the accused of the offence under Section 15(2) POCSO, and directed the Sessions Court to frame charges under Section 15(2) in addition to charges under Section 67B of the IT Act and Section 120B IPC.

The Court held that the Sessions Court adopted an unduly rigid and impractical approach by insisting on documentary/medical proof of age where the children depicted in CSEM are unidentified and untraceable. For Section 15 offences, courts may proceed on a prima facie “subjective satisfaction” that the material appears to depict a child, drawing upon expert opinions, forensic reports, witness statements, and (where appropriate) the court’s own assessment.

3. Analysis

3.1 Precedents Cited

(a) Yuvaprakash v. State of T.N.: (2024) 17 SCC 684

The Sessions Court relied on Yuvaprakash v. State of T.N.: (2024) 17 SCC 684 to underline that determination of age must be undertaken in terms of Section 34 POCSO read with Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

The High Court distinguished this reliance: Yuvaprakash concerned an offence under Section 6 POCSO (aggravated penetrative sexual assault) where the victim was identifiable and available before the court, making the statutory age-determination workflow practically workable. In contrast, Section 15(2) prosecutions frequently involve CSEM where the depicted child is unknown, often in content circulating online, making a strict insistence on documentary/medical age proof unworkable and capable of nullifying Section 15 in most cases.

(b) Just Rights for Children Alliance v. S. Harish: 2024 SCC OnLine SC 2611

The judgment is anchored in the Supreme Court’s authoritative exposition in Just Rights for Children Alliance v. S. Harish: 2024 SCC OnLine SC 2611. The High Court extracted and applied the Supreme Court’s holding that for offences under Section 15 concerning child pornographic material, courts need only form a prima facie subjective satisfaction that the material “appears to depict a child” from the standpoint of an ordinary prudent person.

The Supreme Court’s reasoning, adopted here, recognizes a structural reality: identity and exact age of the victim in pornographic material is often impossible to conclusively establish; imposing an objective conclusive proof standard would cause Section 15 prosecutions to “fail at the threshold,” frustrating the protective purpose of POCSO.

3.2 Legal Reasoning

(i) The statutory ingredients of Section 15(2) POCSO

The Court first clarified the elements of Section 15(2):

  1. Storage/possession of pornographic material “involving a child”;
  2. Such storage/possession is for transmitting/propagating/displaying/distributing;
  3. Exception: possession solely for reporting (as prescribed) or for use as evidence in court.

On facts, the charge-sheet alleged multiple videos recovered from devices (mobile phones/hard disk), WhatsApp group membership, and transmission of CSEM—facts that, at the stage of charge, prima facie satisfied these ingredients.

(ii) “Child” under Section 2(1)(d) vs “child pornography” under Section 2(1)(da)

The Sessions Court treated the definition of “child” (below 18 years) as requiring proof of exact age through documents/medical tests even in CSEM cases with unidentified victims. The High Court held this approach ignores the distinct legislative design introduced via Section 2(1)(da), which defines “child pornography” to include:

  • visual depiction of sexually explicit conduct involving a child, including photographs/videos/digital or computer-generated images indistinguishable from an actual child; and
  • images “created, adapted, or modified, but appear to depict a child.”

The phrase “appear to depict a child” is decisive. It evidences legislative intent that in CSEM/child pornography contexts, the law cannot be held hostage to conclusive proof of identity and age—often impossible to obtain. The Court treated Section 15 and Section 2(1)(da) as a cohesive scheme, echoing the Supreme Court’s insistence that neither provision be interpreted in isolation.

(iii) The “test of subjective satisfaction” at the stage of charge

Applying Just Rights for Children Alliance v. S. Harish: 2024 SCC OnLine SC 2611, the Court held that for Section 15 prosecutions the court must form a prima facie subjective satisfaction that the material appears to depict a child. This satisfaction may be drawn from:

  • FSL/forensic reports;
  • expert medical/forensic opinion;
  • other authoritative opinions; and/or
  • the court’s own assessment, depending on facts.

(iv) Application to the record: experts, witnesses, and forensics

The High Court found the Sessions Court failed to appreciate the material that already supported subjective satisfaction, including:

  • Expert opinions of two doctors who, after viewing files, opined that some persons were children below 18 based on developmental characteristics (physical development, genital development, and secondary sexual characteristics).
  • Statements of Delhi Commission for Women coordinators (recorded under Section 161 Cr.P.C.) who, after viewing the content, opined that videos involved children depicted in obscene, indecent, and sexually explicit manner.
  • Witness statement (PW-3) describing receiving from respondent no. 3 a sexually explicit video depicting children, and objecting to such content.
  • CFSL report confirming receipt/storage/collection of CSEM on the devices and linking transmission between the accused.

On this material, the Court held that the threshold for framing a charge was met and that insistence on “conclusive age determination” would wrongly convert the charge stage into a mini-trial and would undermine the operational efficacy of Section 15(2).

3.3 Impact

  • Closes a prosecution-defeating loophole in CSEM cases: The decision reinforces that Section 15(2) cannot be neutralized simply because victims in circulating content are unidentified and cannot be subjected to ossification tests or produce age documents.
  • Guidance to POCSO Special Courts at charge stage: Courts should not demand impossible proof (identity/age documents/medical tests) where the legislative standard is “appears to depict a child” supported by subjective satisfaction.
  • Elevates the evidentiary role of forensics and expert viewing: CFSL/FSL reports, expert developmental assessment, and consistent witness accounts become central tools in satisfying the prima facie standard for Section 15(2).
  • Strengthens alignment with Supreme Court jurisprudence: The judgment operationalizes the Supreme Court’s framework in Just Rights for Children Alliance v. S. Harish: 2024 SCC OnLine SC 2611 within trial court practice, particularly against over-technical discharge reasoning.

4. Complex Concepts Simplified

  • “Discharge” vs “Framing of charge”: Discharge ends the case against an accused at an early stage if the record does not disclose sufficient grounds to proceed. Framing of charge occurs when the court finds a prima facie case to try the accused; it is not a finding of guilt.
  • “Prima facie”: A preliminary assessment based on the record that a case exists to proceed; the court is not required to decide the case finally.
  • “Subjective satisfaction” test (in Section 15 context): The court forms a reasonable, common-sense, prudent-person view—supported by expert/forensic inputs where available—that the content appears to involve a child, without needing conclusive proof of exact age.
  • Why “ossification test” may be irrelevant in CSEM cases: Ossification/medical age tests require the person to be produced and examined. In many CSEM cases, the depicted child is unknown and untraceable; insisting on such tests would make Section 15 largely unenforceable.
  • Section 2(1)(da) “appear to depict a child”: The law expressly includes content that appears to show a child (including modified/created images), reflecting that the harm and illegality attach to the depiction and its circulation, not merely to the prosecution’s ability to locate and age-verify the victim.

5. Conclusion

This decision crystallizes a practical and purposive rule for Section 15(2) POCSO prosecutions involving CSEM: courts must not insist on conclusive documentary or medical proof of the depicted person’s age where the child is unidentified; instead, they may proceed on prima facie “subjective satisfaction” that the material appears to depict a child, informed by expert and forensic material and prudent assessment.

By setting aside the discharge and directing framing of charges, the Delhi High Court reinforces that POCSO’s protective framework must remain workable against modern forms of exploitation—especially where anonymity and cross-border circulation are integral features of the offence.