Centre's CSAM crackdown gets judicial backing as Delhi court clears Facebook upload case for trial

As the Centre sharpens its crackdown on online child sexual abuse material (CSAM), with social media platforms facing increasing pressure to swiftly remove such content and law enforcement relying more heavily on cyber tip-offs, a Delhi court has reinforced the legal footing for such prosecutions by refusing to discharge a man accused of uploading child sexual abuse material on Facebook.

In a significant order, Additional Sessions Judge Hargurvarinder Singh Jaggi dismissed a revision petition filed by Aditya Biswas, holding that a CyberTipline report generated by the US-based National Center for Missing & Exploited Children (NCMEC), along with digital evidence such as IP logs and subscriber details, was sufficient to create a grave suspicion against the accused and justify a criminal trial.

The ruling comes at a time when the Centre has stepped up action against CSAM, directing social media intermediaries to proactively detect and remove such material and warning platforms of stricter legal consequences for non-compliance. Investigating agencies, including Delhi Police's cyber units, have increasingly relied on NCMEC CyberTips to identify offenders operating from India.

The case arose after NCMEC flagged a Facebook account named "Neem Biswas" for allegedly uploading a 17-second sexually explicit video involving a child.

Acting on information routed through the National Crime Records Bureau (NCRB), investigators traced the Facebook account through its IP address and mobile number. The registered subscriber, Nand Kishor Shaha, allegedly told police that the account had been created and operated by Biswas using his phone.

According to the prosecution, Biswas later admitted during investigation that he had downloaded and uploaded the video before discarding the mobile phone after it broke. A charge sheet was subsequently filed under Section 67B of the Information Technology Act.

Senior Advocate Nandita Rao, appearing for the accused, argued that the prosecution's case rested almost entirely on the CyberTipline report, which she described as hearsay because neither Facebook nor NCMEC officials were examined during the investigation. She also argued that no mobile phone was recovered, making the prosecution dependent on the accused's disclosure statement in violation of the constitutional protection against self-incrimination under Article 20(3). The defence further contended that the video did not meet the legal threshold of child pornography.

The Sessions Court, however, rejected each of these arguments.

“The digital footprints provided by the prosecuting agency are more than sufficient to raise a grave suspicion against the petitioner. Whether the electronic evidence satisfies the rigours of Section 65B of the Evidence Act... is an issue to be tested during the trial,” the court observed while refusing to interfere with the order framing charges.

Rejecting the argument that the absence of the mobile phone weakened the prosecution, the judge said the physical recovery of the device was not an absolute sine qua non when IP logs and subscriber data linked the social media account to the accused.

“The non-recovery of the device, allegedly thrown away by the petitioner, cannot be used to nip a legitimate prosecution in the bud,” the court said.

The court also found that the trial judge had personally viewed the video and had prima facie concluded that it depicted sexually explicit content involving a child. Questions regarding the age or gender of the child shown in the video, it held, are matters of defence to be examined during trial rather than at the stage of framing charges.

Significantly, the order extensively relies on the Supreme Court's landmark 2024 judgment in Just Rights for Children Alliance v. S. Harish, which broadened the interpretation of Section 67B of the IT Act. The Sessions Court noted that the apex court had recognised the doctrine of constructive possession in cyberspace, meaning that a person exercising control over a social media account containing child sexual abuse material can be prosecuted even if the device used to upload the content is unavailable. The Supreme Court also held that Section 67B criminalises not only publication but also downloading, browsing, storing and propagating child sexual abuse material.

Emphasising the limited scope of judicial scrutiny at the stage of framing charges, the court reiterated that it was only required to examine whether the available material created a strong or grave suspicion against the accused and not whether the prosecution had conclusively proved its case.

Finding no patent illegality, infirmity, perversity or jurisdictional error in the trial court's decision, Judge Jaggi upheld the order framing charges and directed the trial to proceed.