On 4 April 2026, the Delhi High Court delivered a detailed and well-reasoned judgment in Court on its Own Motion v. State & Ors. (CRL.REV.P. 691/2024). The Court set aside the discharge order passed by the learned Additional Sessions Judge (Special Court-POCSO), Shahdara, and directed framing of charges against the accused under Section 15(2) of the POCSO Act for storage and transmission of Child Sexual Exploitation Material (CSEM).
This judgment is undoubtedly written with the right intent. It correctly emphasises that child victims in such cases are often untraceable, that the law must not be rendered toothless merely because conventional age-proof documents are unavailable, and that the subjective satisfaction test laid down by the Supreme Court in Just Rights for Children Alliance v. S. Harish (2024) applies. The Court relied on expert opinions, CFSL reports, and the legislative intent behind Section 2(1)(da) of the POCSO Act, which includes material that “appears to depict a child.”
I applaud this approach from a purely theoretical and protective standpoint. The object of protecting children from sexual exploitation is paramount, and the Court has rightly refused to let technicalities defeat that object.
Yet, with the greatest respect, the judgment leans heavily towards the theoretical and appears to miss the practical realities of the society it seeks to govern. This judgment is therefore highly relevant for every POCSO lawyer in Delhi and every criminal lawyer in Delhi dealing with complex criminal prosecutions under the POCSO Act.
Law Cannot Exist in a Vacuum
Law is not an abstract academic exercise. It is meant to govern real people in a real, evolving society. It must therefore continuously adapt to prevailing social norms, technological realities, and ground-level truths. When the law fails to keep pace with societal changes, it risks becoming disconnected from the very people it is designed to protect and regulate.
In today’s India — particularly in 2026 — children are physically maturing at a noticeably faster rate than even a decade ago. Widespread access to social media, early exposure to adult content, improved nutrition, and changing lifestyles have led to what can only be described as “unnatural results” in terms of physical appearance. It is now entirely possible for a 16- or 17-year-old to look like a fully developed adult woman, and vice versa. In many CSEM cases, therefore, it becomes genuinely difficult — if not impossible — to conclusively determine from a video or photograph alone whether the person depicted is actually below 18 years of age.
The Fatal Flaw in Expert Evidence
In the present case, the High Court placed significant reliance on the opinions of two medical experts (Dr. Rachna Sharma and Dr. Sreenivas M.) who, after viewing the videos, opined that some of the persons appeared to be children below 18 years based on developmental and secondary sexual characteristics.
With due respect, this evidence suffers from a fundamental practical limitation. These experts never examined or saw the actual persons in real life. They formed their opinion solely on the basis of a video. As any practising criminal lawyer in Delhi knows, the same video can appear very differently to different viewers depending on lighting, angle, resolution, editing, and even the viewer’s own biases or expectations. One person may see a “child”; another may see a young adult. This subjectivity is inherent and unavoidable when the assessment is purely visual and remote.
The High Court’s reliance on such evidence, while legally permissible under the subjective satisfaction test, highlights the practical gap. In real-world criminal trials, where the stakes involve personal liberty, we cannot afford to convict or even charge persons on the basis of opinions that are, by their very nature, impressionistic and non-conclusive.
The Correct Approach: Ld. ASJ’s Order and Dilawar Balu Kurane
The learned Additional Sessions Judge, in the impugned order dated 01.09.2023, had taken a pragmatic view. He held that in the absence of any identifiable victim, documentary proof of age, or the possibility of conducting scientific tests, the mandatory ingredients for invoking Section 15(2) POCSO could not be said to be satisfied at the stage of charge.
This approach finds strong support in the criminal jurisprudence laid down by the Hon’ble Supreme Court in Dilawar Balu Kurane v. State of Maharashtra (and the catena of cases following it). The principle is clear:
If two views are possible on the basis of the material on record, and one view leads only to suspicion (and not grave suspicion), the Court is well within its power — and indeed duty-bound — to discharge the accused at the stage of framing of charge.
In the present case, at least two views were clearly possible:
- That the material depicts children (as per the experts and the High Court’s subjective satisfaction); or
- That the material depicts young adults whose exact age cannot be conclusively determined from visuals alone, especially given contemporary societal realities.
When such genuine ambiguity exists — and when the prosecution cannot produce even a single identifiable victim or objective proof — the benefit must go to the accused. The Ld. ASJ’s order was therefore not only legally sustainable but also practically sound.
The Way Forward
The Delhi High Court’s judgment now holds the field and will guide trial courts across the country in CSEM matters. While I respect the Court’s effort to strengthen the protective framework of the POCSO Act, I respectfully submit that the judgment would have been more complete had it also acknowledged the practical challenges that arise in 2026 when visual material alone is the sole basis for determining “child” status.
Perhaps the time has come for the legislature, or the higher judiciary through guidelines, to prescribe more nuanced standards for CSEM cases — standards that balance child protection with the fundamental principle that no person should be subjected to the rigours of a criminal trial on the basis of mere visual impressions and subjective expert opinions formed without physical examination.
Until then, practitioners and courts must remain alive to the fact that law, however well-intentioned, cannot afford to ignore the society it governs.