The Supreme Court, in its judgment in the child pornography case, ruled that viewing, possessing and not reporting possession of any child pornographic material even if it is not transmitted further, will constitute offences under the Protection of Children from Sexual Offences (POCSO) Act and the Information Technology (IT) Act.
In doing so, the court emphasised upon the Doctrine of Inchoate Crime, which covers criminal acts that are committed in preparation for a further offence.
What is an Inchoate Crime?
Inchoate crimes are defined as criminal acts that are committed in preparation for a further offence. The term ‘inchoate’ itself means ‘undeveloped’ or ‘incomplete.’
A two-judge bench of Chief Justice of India D.Y. Chandrachud and J.B. Pardiwala emphasised in its judgment that the Doctrine of Inchoate Crimes is a cornerstone of criminal jurisprudence. The judgment stated that the concept of inchoate crime is aimed at addressing the legal culpability of those who engage in a conduct that is preparatory to the commission of any substantive offence.
Inchoate crimes are often referred to and described as an incomplete or preliminary offence that capture the essence of criminal intent and the preparatory actions that precede the commission of a criminal act.
What is the significance of the concept of Inchoate Crime?
The Supreme Court said in its judgment that the concept of inchoate crime underscores the principle that the law does not merely respond to offences already committed but also intervenes when a crime is in the process of being committed, thus thereby protecting public order and safety.
The primary rationale for the existence of inchoate crimes within the legal framework is the prevention of harm by intervening at an early stage, that is before the potential damage is caused. It recognises that though certain actions do not result in an offence, nonetheless those actions pose a sufficient threat to society to warrant legal intervention.
Concept of an Inchoate Crime and Section 15 of POCSO
The Supreme Court emphasised that Section 15 of POCSO penalises storage or possession of any child pornographic material when done with a particular intention or purpose as stipulated in sub-section(s) (1), (2) or (3).
The court said that a bare textual reading of the provision makes it clear that it is the intention which is being punished and not the commission of any criminal act in the traditional sense. This in the criminal jurisprudence is known as an ‘Inchoate Crime’ or ‘Inchoate Offence’, the judgment underlined.
Balance between early intervention and the principle that no one should be punished merely for their thoughts or intentions
The judgment said the jurisprudence surrounding inchoate crimes has evolved as a balance struck between the need for early intervention on one hand, with the cardinal principle of criminal law that no one should be punished merely for their thoughts or intentions on the other, by criminalising only those actions of an individual that demonstrate a clear movement towards the commission of a criminal offence.
According to the judgment, the inherent tension between respecting the autonomy of an individual’s thought and state of mind with the societal interest and safety is often balanced and resolved by carefully shaping and defining the point at which any particular action or preparatory step becomes sufficiently proximate to the commission of an offence. In other words, the law would only intervene at the point where an individual has acquired the means to commit a further offence, and will not punish the mere thought of committing an offence in the absence of any overt steps towards the same.
Offence pertaining to the possession of any contraband is a prime example and one of the facets of an inchoate crime, as they involve the possession of items that are prohibited by law due to their inherent dangerousness or their use in the commission of further criminal offences. The criminalisation of possession as an inchoate crime is predicated on the idea that possession is not an innocuous act but a preparatory step towards more significant criminal conduct, the court said.