Point of Law: Section 11 of POCSO Act deals with offence of sexual harassment.

JUDGMENT :

A question of seminal importance related to the entitlement of compensation by the ‘sexual harassment victims’ under the Kerala Victim Compensation Scheme, 2017, as amended in 2021, falls for consideration in this original petition.

2. The Special Court for Trial of Offences Relating to Atrocities Against Women and Children Including POCSO Cases (Additional Sessions Court-I), Alappuzha (for short, the court below) passed two orders of similar nature (Exts.P7 and P8) directing the District Legal Services Authority, Alappuzha to pay interim compensation to the victims involved in two cases (SC Nos.848/2016 and 849/2016) pending before it. The offence involved in both cases is under Section 11, read with Section 12 of the Protection of Children from Sexual Offences Act, 2012 (for short, the POCSO Act), apart from the offences under the Indian Penal Code (for short, the IPC). Section 11 of the POCSO Act deals with the offence of sexual harassment, while Section 12 provides for its punishment. The court below, in both cases, granted interim compensation of Rs.50,000/-to each victim invoking section 357A of Cr. P.C, Section 33(8) of the POCSO Act and Rule 9(1) of Protection of Children from Sexual Offences Rules, 2020 (for short, the POCSO Rules). The petitioners, the Kerala Legal Services Authority and the District Legal Services Authority, Alappuzha, the statutory authorities entrusted with the power to give compensation to the victims as per the Victim Compensation Scheme under section 357A of Cr. P.C as well as under section 33(8) of the POCSO Act, challenges Exts.P7 and P8 orders on the ground that since the offence ‘sexual harassment’ is not included as an injury in the Schedule of the Kerala Victim Compensation Scheme, 2017, the victims are not eligible for compensation.

3. Taking note of the critical question of law involved in the case, this court appointed Sri.K.K.Dheerendrakrishnan as Amicus Curiae to assist the court.

4. I have heard Sri. Roshan D. Alexander, the learned counsel for the petitioners, Sri. P. Narayanan, the learned Additional Public Prosecutor as well the learned Amicus Curiae.

5. The learned counsel for the petitioners Sri. Roshan D. Alexander submitted that since the offence ‘sexual harassment’ as defined under Section 2(j) read with 11 of the POCSO Act is not included as an injury in the Schedule of the Kerala Victim Compensation Scheme, 2017, the victim of sexual harassment cannot claim compensation invoking section 357A of Cr.P.C, Section 33(8) of the POCSO Act, Rule 9(1) of POCSO Rules, 2020 and the provisions of the Kerala Victim Compensation Scheme, 2017, as amended in 2021. On the other hand, the learned Amicus Curiae Sri.K.K.Dheerendrakrishnan submitted that the Victim Compensation Scheme is a beneficial scheme for the victim and, hence, the term ‘sexual assault’ in the Schedule requires a liberal construction to include within it ‘sexual harassment’ as well. Inviting my attention to the definition of the terms ‘injury’ and ‘sexual assault victims’ in Clauses (d) and (g), respectively, in Chapter II of the Amended Scheme, the learned Amicus Curiae submitted that the victim in both the cases qualifies for compensation.

6. Section 357A, a facet of victimology, was inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009), on the recommendation of the Law Commission, to oblige the State Government to prepare, in coordination with the Central Government, a scheme called Victim Compensation Scheme for the purpose of providing compensation to the victim or his/her dependent who had suffered loss or injury because of any crime and who requires rehabilitation. It is a laudable legislative effort by the State to apply criminal jurisprudence horizontally. Prior to Amendment Act 5 of 2009, there was no comprehensive legislation or a well-designed statutory scheme in India that allowed a victim to seek compensation from either the perpetrator or the State. The criminal law in the