Point of Law: Section 12 of POCSO stipulates that whoever commits sexual harassment upon a child shall be punished with imprisonment which may extend to three years.

JUDGMENT :

1. The instant writ petition under Article 226 of the Constitution of India, 1950, styled as a Public Interest Litigation has been filed seeking application of Item III of Part II of Schedule I of the Code of Criminal Procedure, 1973, (hereinafter referred to as “CrPC”) to offences under Section 12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act”).

2. The Petitioner, a practising Advocate, who is appearing in person, by way of the instant PIL, had sought to bring attention of this Court to the ambiguity revolving around the classification of Section 12 of the POCSO, which provides for the punishment for committing sexual harassment of a child, as a bailable or a non-bailable offence. However, today, i.e. 22.11.2022, during the course of the hearing, a Judgment dated 20.05.2022 rendered by the Supreme Court in Knit Pro International v. State of NCT of Delhi and Anr., 2022 SCC OnLine SC 668, was presented to this Court which has supposedly laid the issue raised by the Petitioner herein to rest.

3. For this Court to proceed in this matter, it is imperative for the relevant provisions to be replicated in order for a holistic understanding of what is being sought by way of the instant PIL:

“Section 12. Punishment for sexual harassment [POCSO Act] Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.”

[Part II of Schedule I of CrPC]

Classification of Offences against other laws.

4. Section 12 of the POCSO stipulates that whoever commits sexual harassment upon a child shall be punished with imprisonment which may extend to three years. A perusal of Part II of Schedule I of the CrPC enumerates that if an offence is punishable with imprisonment for 3 years and upwards, but not more than 7 years, then it will be a cognizable and non-bailable offence, and shall be triable by a Magistrate of the first class (second category). However, if an offence is punishable with imprisonment for less than 3 years or with fine only, then it will be a non-cognizable and bailable offence that shall be tried by any Magistrate (third category).

5. The issue that has arisen is that as Section 12 of the POCSO Act specifies for a term of imprisonment that can extend up to 3 years, it falls on the cusp of legislative ambiguity that can make it either a cognizable and non-bailable offence or a non-cognizable and bailable offence. It is this ambiguity which has led to the birth of the instant PIL.

6. In Anurag Sanghi v. State of Ors., W.P.(Crl) 3422/2018, a similar controversy had arisen before this Court with respect to the classification of Section 63 of the Indian Copyright Act, 1957, and whether the punishment stipulated thereunder would fall within the scope of cognizable offences as set out in Part II of the First Schedule of the CrPC. A Single-Judge Bench of this Court, vide Judgment dated 25.11.2019, held that the offence under Section 63 of the Copyright would be a non-cognizable offence and bailable offence and therefore, would fall within the scope of the third category. This decision was taken in view of the decision of the Supreme Court in Avinash Bhosale v. Union of India, (2007) 14 SCC 325.

7. This Judgment of the High Court was challenged before the Supreme Court, and vide Judgment dated 20.05.2022 in Knit Pro International v.