Having Sexual Intercourse, Being Naked In Front Of Minor Amounts To Sexual Harassment U/S 11 Of POCSO Act: Kerala High Court

Justice A. Badharudeen stated that exhibiting any part of the body with the intention that it would be seen by a child would amount to sexual harassment.

“To be more explicit, when a person exhibits naked body to a child, the same is an act intending to commit sexual harassment upon a child and therefore, the offence punishable under Section 11(i) read with 12 of the POCSO Act would attract. In this case, the allegation is that the accused persons engaged in sexual intercourse after being naked, even without locking the room and allowed the entry of the minor in the room, so that the minor could see the same. Thus, prima facie, the allegation as to commission of offence punishable under Section 11(i) read with 12 of the POCSO Act, as against the petitioner in this case is made out.”

The petitioner who was arrayed as the second accused had sexual intercourse with the mother of the child, the first accused. The allegation is that the petitioner and the mother engaged in sexual intercourse at a lodge room after sending the minor boy to buy some articles. The allegation is that the minor boy saw the petitioner and his mother engaging in sexual intercourse after getting naked when he came back after buying articles since they did not lock the room. The petitioner seeing the minor abused him by holding his neck, beat on his cheek and kicked him down.

The offences alleged against the petitioner are punishable under Sections 294(b) (obscene acts and songs), 341 (punishment for wrongful restraint), 323 (punishment for voluntarily causing hurt) and 34 (common intention) of IPC, Section 75 (punishment for cruelty to child) of the Juvenile Justice (Care and Protection) of Children Act and Section 11 (sexual harassment) and 12 (punishment for sexual harassment) of the POCSO Act.

The Court stated that prosecution materials do not suggest that the petitioner was abused in or near any public place. It noted that even though there were allegations of using abusive words, the words are not stated. The Court also stated that prosecution allegations do not make out an offence of wrongful restraint.

Further, the Court stated that the petitioner beat and kicked the minor, thus causing him hurt.

The Court stated that since the petitioner had no actual charge or control of the minor boy, offence under Section 75 of the JJ would not be attracted.

As such, the Court quashed criminal proceedings against the petitioner under Section 294, 341 of the IPC, and Section 75 of the JJ Act.

On examining the definition of sexual harassment, the Court stated that the petitioner and the mother engaged in sexual intercourse , after getting naked, without even locking the room. The Court stated that the minor got into the room since the room was not locked which led the minor boy to see the sexual intercourse.

“Reading the statutory provision, a person is said to commit sexual harassment upon a child, when such person with sexual intent, utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child. The same is an offence punishable under Section 12 of the POCSO Act”, added the Court.

Accordingly, the Court stated that the petitioner can be tried for offences punishable under Sections 323 read with Section 34 of IPC as well as under Section 11(i) read with 12 of the POCSO Act.

Counsel for Petitioners: Advocate Liju M P

Counsel for Respondents: Advocates Augustus Binu, Public Prosecutor M P Prasanth

Case Number: CRL.MC NO. 3553 OF 2022

Case Title: Fisal Khan v State of Kerala

Citation: 2024 LiveLaw (Ker) 637

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