Practicing sex for small amounts to harassment under POCSO: Kerala HC

The Kerala High Court has ruled that nudity and sexual intercourse in the presence of a minor constitutes sexual harassment under the Protection of Children from Sexual Offenses (POCSO) Act. The court made this observation but refused to quash the petitioners’ case and directed them to appear before the judge.

The court, presided over by Justice A. Badharudeen, was hearing a case involving Fisal Khan, 42, and the mother of a 16-year-old boy. The petitioners were accused of having sexual intercourse in the presence of the minor at a lodge in Thiruvananthapuram on February 8, 2021. The minor was allegedly sent to purchase items and upon returning, he witnessed the act. The petitioner then physically assaulted the minor, grabbing his neck, hitting him on the cheek and kicking him.

The petitioners were charged with offenses under sections 294(b) (uttering obscene words or songs in a public place), 341 (punishment for wrongful confinement), 323 (punishment for voluntarily causing hurt) and 34 (common intention) of Indian criminal law. Code (IPC), together with Section 12 (punishment for sexual harassment), read with Section 11(i) (sexual harassment by showing any part of the body or object to the child) of the POCSO Act, and Section 75 of the Juvenile Justice Act (Care and Protection of Children) Act. The petitioner’s counsel, Advocate Liu MP, sought quashing of the charges under Sections 294(b) and 341 of the IPC, as well as Section 75 of the Juvenile Justice Act. Public prosecutor MP Prasanth, however, argued that the actions constituted sexual harassment as defined under Section 11(i) read with Section 12 of the POCSO Act.

The court delved into the definition of sexual harassment under Section 11(i) of the POCSO Act, which states: “A person shall be said to commit sexual harassment against a child when such person with sexual intent: (i ) utters a word or any sound, or makes any gesture or exhibits any object or part of the body with the intention that such word or sound will be heard, or that such gesture, object or part of the body will be seen by the child;”

The court observed that “an act intended to commit sexual harassment of a child and would therefore attract the offense punishable under Section 11(i) read with 12 of the POCSO Act . In this case, the allegation is that the suspects had sexual intercourse after being naked even without locking the room and allowed the minor to enter the room so that the minor could see the same. Thus, prima facie, the allegation in respect of commission of an offense punishable under Section 11(i) read with Section 12 of the POCSO Act is leveled against the petitioner in this case.”

Regarding the charges under Section 294(b) of the IPC, the court noted that the provision punishes anyone who, to the annoyance of others, sings, recites or utters obscene songs, ballads or words in or near a public place. However, the prosecution material in the present case does not show that the minor was abused in or near a public place, nor does it record any words used to abuse him. Likewise, the prosecution case did not support a case of wrongful confinement under Section 341 of the IPC. Therefore, the court concluded that prima facie the offenses punishable under Sections 294(b) and 341 of the IPC were not established.

The court further noted that section 75 of the Juvenile Justice Act requires that the child be given actual charge or control of a child and that the child be assaulted, abandoned, abused, exposed or deliberately neglected, or child is subjected to such treatment. manner likely to cause unnecessary mental or physical suffering. In this case, the court stated that this provision would not apply to the petitioner’s husband, who did not have such control, but would apply to the victim’s mother, who did.

Based on these comments, the court partially granted the request. It quashed the criminal proceedings against the petitioner for offenses under Section 294(b), Section 341 read with Section 34 of the IPC, and Section 75 of the Juvenile Justice Act. However, the court rejected the plea to quash the charge under Sections 323 read with 34 of the IPC and Section 11(i) read with 12 of the POCSO Act.