Engaging in sexual acts in the presence of a minor constitutes sexual harassment under the POCSO Act, while lack of control over the child negates charges under the JJ Act.

ORDER

Dated this the 14^th day of October, 2024

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure , 1973, to quash all further proceedings in furtherance to Annexure-1 Final Report in Crime No.1267/2021 of Fort Police Station, Thiruvananthapuram, now pending as S.C. No.593/2022 on the files of the Special Court for the trial of cases under the Protection of Children from Sexual Offences Act (hereinafter referred as ‘POCSO Act’ for short) cases, Thiruvananthapuram. The petitioner herein is the 2^nd accused in the above case as per the Final Report.

2. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the defacto complainant, in detail. Perused the relevant materials available.

3. In this matter, though the petitioner is arrayed as the 2^nd accused, while arraying the mother of the victim as the 1^st accused, the narration in the charge runs on the premise that the petitioner herein is the 1^st accused. The allegation of the prosecution is that, on 08.02.2021 in Room No.151 of RP Days Inn Lodge in Kizhakkekotta, the mother of the victim and the petitioner herein, 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, minor boy aged 16 years, the minor was sent to purchase some articles. When the minor returned along with the articles, at 20.30 hours 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 petitioner herein abused the minor, caught hold on his neck, beat on his cheek and kicked him down. The other accused, who is the mother of the victim also shared common intention by not restraining the petitioner from doing the said overt acts against the minor. It is on this premise, the prosecution alleges commission of offences punishable under Sections 294(b), 341, 323 and 34 of IPC, Section 12 read with 11(i) of the POCSO Act and Section 75 of the Juvenile Justice (Care and Protection) of Children Act [hereinafter referred as ‘JJ Act’ for short], by accused Nos.1 and 2.

4. The learned counsel for the petitioner read out the FIS and submitted that, no ingredients to attract offences punishable under Sections 294(b) and 341 of IPC as well as under Section 11 (i) read with 12 of the POCSO Act, made out, as against the petitioner and the other accused. He also would submit that, Section 75 of the JJ Act also would not attract as against the petitioner, since he has no actual control or custody of the victim, in any manner. Therefore, the proceedings as against the petitioner is liable to be quashed.

5. Opposing quashment, the learned Public Prosecutor specifically pointed out that offence punishable under Section 11 (i) read with 12 of the POCSO Act would attract since, sexual intercourse in naked state in between the 1^st and 2^nd accused was seen by the minor. He also would submit that offence under Section 323 read with 34 of IPC also is made out from the statement as well as the additional statement of the victim.

6. On perusal of the statements and additional statement of the victim, it could be seen that there is allegation that the petitioner abused the minor, caught hold on his neck, beat on his cheek and kicked him down and the specific allegation is that, the victim saw the sexual intercourse between the accused persons after being naked. Even though there is allegation of using abusive words, the words are not stated in the statements and also there is nothing stated regarding wrongful confinement.

7. Coming to Section 11 (i) read with 12 of the POCSO Act, the same is as under:

11. Sexual harassment.—A person is said to commit sexual harassment upon a child when such person with sexual intent,—

(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of bod