Kerala High Court: In a criminal miscellaneous case filed under Section 482 of the Code of Criminal Procedure, 1973, to quash all further proceedings for the trial of cases under the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), A. Badharudeen, J. held that having sexual intercourse in an unlocked room and exposing one’s naked body to a minor child is an intentional act of sexual harassment punishable under POCSO Act. Thus, the Court quashed the criminal proceedings pertaining to offences punishable under Sections 294(b), 341 read with 34 of IPC as well as under Section 75 of the JJ Act, against the accused 2 , while dismissing the quashment sought for, for the offences punishable under Sections 323 read with 34 of IPC as well as under Section 11(i) read with 12 of the POCSO Act.
Background:
The allegation of the prosecution is that, on 08-02-2021 in a Lodge, the mother (accused 1) of the victim and the accused 2, after sharing common intention, engaged in sexual intercourse, in the presence of the victim. The allegation is that, after reaching the lodge along with the victim, a minor boy aged 16 years, was sent to purchase some articles. When he returned along with the articles, and opened the door, he happened to see that both of them were engaged in sexual intercourse, after being naked. When the victim questioned the same, the accused 2 abused the minor, caught hold of his neck, beat him on his cheek and kicked him down. The mother of the minor did not restrain the accused 2 from doing the said overt acts against him. It is on this premise, the prosecution alleged commission of offences punishable under Sections 294(b), 341, 323 and 34 of the Penal Code, 1860 (‘IPC’), Section 12 read with 11(i) of the POCSO Act and Section 75 of the Juvenile Justice (Care and Protection) of Children, 2015.
Analysis and Decision:
The Court took note of Section 11(i) read with 12 of the POCSO Act, and observed that when a person exhibits naked body to a child, the same is an act intending to commit sexual harassment upon a child and therefore, the offence punishable under Section 11(i) read with 12 of the POCSO Act would attract.
The Court noted that in this case, the allegation is that the accused persons engaged in sexual intercourse after being naked, even without locking the room and allowed the entry of the minor in the room, so that the minor could see the same. Thus, prima facie, the allegation as to commission of offence punishable under Section 11(i) read with Section 12 of the POCSO Act, against accused 2 is made out.
The Court noted that accused 2 had abused and thrashed the minor victim and concluded that the offense falls under Section 323 of IPC in conjunction with Section 34 IPC.
Further, concerning the offence punishable under Section 75 of the JJ Act, which provides that whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or willfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering, is an offender. The Court said that the accused 2 does not have actual charge or control over the child. Therefore, an offence punishable under Section 75 of the JJ Act would not attract as against him, though the same would attract against the other accused, who being the mother of the victim, has actual charge or control over the child.
Thus, the Court quashed the criminal proceedings pertaining to offences punishable under Sections 294(b), 341 read with 34 of IPC as well as under Section 75 of the JJ Act, against the accused 2 , while dismissing the quashment sought for, for the offences punishable under Sections 323 read with 34 of IPC as well as under Section 11(i) read with 12 of the POCSO Act. Further, the Court directed the accused 2 to go for trial for the offences punishable under Sections 323 read with Section 34 of IPC as well as under Section 11(i) read with 12 of the POCSO Act.
[Fisal Khan v. State of Kerala, 2024 SCC OnLine Ker 5763, decided on 14-10-2024]
Advocates who appeared in this case:
For Petitioner: Advocate Liju. M.P
For Respondent: Advocate Augustus Binu, Public Prosecutor MP Prasanth
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