The charges of sexual harassment under IPC and POCSO Act were quashed as the utterances did not constitute sexual harassment based on context and intent.

COMMON ORDER

The criminal prosecutions initiated against the Chairman of the Child Welfare Committee, Kannur in S.C No.466/2021 and S.C No.467/2021 on the files of the Additional Sessions Court-I, Thalassery are under challenge in these petitions filed under Section 482 Cr.P.C by the accused in those cases.

2. The allegation against the petitioner is that during the course of his interaction with two minor girls who were allegedly kidnapped by their uncle, he uttered sexually explicit words and thus resorted to sexual harassment punishable under Section 354A (1)(iv) I.P.C and Section 11 r/w Section 12 of the POCSO Act, 2012.

3. The two minor girls, who are direct sisters, were remaining under the care and protection of their father after the separation of their father and mother, for the past five years due to matrimonial discord. The mother of the above children is said to be working abroad. While so, the above girls wanted to shift their residence to their mother’s parental home stating the reason that their father used to physically torture them. At the request of the children, their uncle (mother’s brother) is said to have taken them to their mother’s home on 16.10.2020. Thereupon, their father preferred a complaint before the police alleging that the children were kidnapped by their uncle and another person. It is in connection with the aforesaid case that the children were taken to the office of Child Welfare Committee, Kannur for counselling. According to the prosecution, the petitioner uttered sexually coloured words to the children during the course of his interaction with them on 21.10.2020, and thereby committed the aforesaid offences.

4. Heard the learned counsel for the petitioner, the learned counsel for the de facto complainant and the learned Public Prosecutor representing the State of Kerala.

5. According to the petitioner, the counselling done on the above minor girls at the Child Welfare Committee Office revealed that both of them were having lovers with whom they had indulged in sexual relationship. Upon getting knowledge about the above POCSO Act crime, he is said to have reported the matter to the Kudiyanmala Police leading the registration of Crime No.374/2020 and 375/2020 against the lovers of the minor girls for the commission of offences under Sections 3, 4, 5, 6, 7 & 8 of the POCSO Act. The above minor girls are alleged to have strongly opposed the reporting to Police, their sexual relationship with their lovers stating the reason that they are having no complaints at all. Thus, it is contended by the petitioner that the above minor girls, who nurtured enmity with him for reporting their forbidden relationship with their lovers, had preferred false complaints against him leading to the registration of the FIRs in these cases. It is further stated that the investigating agency conducted a perfunctory investigation and filed the final report alleging the false charge of sexual harassment against the petitioner. The petitioner would further contend that even if the allegation of the minor girls about the words spoken by him are accepted as such, it will not constitute any of the offences alleged against him.

6. In Crl.M.C.No.2457/2022, filed against the criminal prosecution in S.C.No.466/2021, the English translation of the objectionable words which the petitioner is alleged to have uttered during the course of interaction with the elder girl, are as follows:

“I know that you had sexual intercourse with your lover. You are aged only 17 years. If I did not report this matter I am liable to be prosecuted.”

7. Upon hearing the above words, the elder girl is said to have replied that she doesn’t want any case and that what is referred to by him was an incident that happened one year ago. Th