Mere Messages Or Chats With Minor Without 'Sexual Intent' Not Sexual Harassment U/S 11 POCSO Act: Kerala High Court

The crime was registered against the petitioner under Section 354D (stalking) of the IPC, Section 11(iv) (sexual harassment) and Section 12 (punishment for sexual harassment) of the POCSO Act.

Justice A. Badharudeen stated that there is no evidence against the petitioner to prove that he constantly sent messages or chats to the minor with 'sexual intent' to attract an offence of sexual harassment under the POCSO Act.

“Section 11(iv) provides that a person said to commit sexual harassment upon a child when such person with sexual intent, repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means. Thus mere sending of messages or having chats with a child would not constitute an offence under Section 11(iv) punishable under Section 12 of the PoCSO Act unless the messages or chats would prima facie depict the sexual intent.

The petitioner submitted that the messages alleged to be sent by him are not disclosed in the statements nor available in the prosecution records. It is submitted that no offences have been made out and that the parties have settled the matter and thus seek quashment of proceedings.

The public prosecutor submitted that the POCSO case cannot be quashed based on a settlement between parties. Agreeing with this, the Court stated that the POCSO case cannot be quashed merely based on the affidavit of settlement filed by the parties.

The Court noted that the prime facie allegation against the petitioner is confined to sending messages and making calls to the victim and causing her disturbance. The Court stated that the messages or chats allegedly sent by the petitioner were not even collected and produced by the prosecution to prove that it was sent with sexual intent to hold the petitioner liable for causing sexual harassment.

“Here, the prosecution allegation is confined to that of sending of messages and calls to the victim to her mobile phone and in turn the same disturbed her. But nothing available from the prosecution records to find prima facie that the accused herein repeatedly or constantly followed or contacted the child through electronic digital or any other means with sexual intent, so as to attract offence under Section 11(iv) r/w. 12 of the PoCSO Act and Section 354D of IPC.”

As such, the Court held that the prosecution has not made out a prima face case. The Court thus quashed the FIR, final report and further proceedings against the petitioner.

Counsel for Petitioner: Advocate Mithun Baby John

Counsel for Respondents: Advocate N U Harikrishna, Public Prosecutor M P Prasanth

Case Number: CRL.MC NO. 5035 OF 2023

Case Title: Praveen Prakash v State of Kerala

Citation: 2024 LiveLaw (Ker) 606