Ernakulam: The Kerala High Court refused to quash a case against an accused under the Protection of Children from Sexual Offences (POCSO) Act registered against him for engaging in sexual intercourse with the mother of the minor in front of him without locking the door, saying this is an act intending to commit sexual harassment upon a child and therefore, the offence punishable under the POCSO Act would attract.
Justice A Badharudeen was hearing a plea filed by the accused seeking quashing of case against him under the provisions of the POSCO Act and provisions of the Indian Penal Code (IPC) and the Juvenile Justice (Care and Protection) of Children (JJ) Act. The mother of the victim is also an accused in the case.
High Court refused to quash charges under POCSO Act against accused
Refusing to quash charges against him under the POCSO Act, the High Court noted that as per the statutory provision of the POCSO Act, 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.
When a person exhibits naked body to a child, it is an act intending to commit sexual harassment upon a child: High Court
“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 High Court said.
Offence under JJ Act would not attract against petitioner and would attract against mother of minor: High Court
The High Court further said that section 323 (punishment for intentionally or knowingly causing hurt to another person) read with section 34 (common intention) of IPC would also attract against the petitioner accused in this case. It, however, said that offences punishable under sections 294(b) (dealing with the singing, reciting, or uttering of obscene words or songs in or near a public place) and 341 (punishment for wrongfully restraining a person) of IPC and offence punishable under section 75 of the JJ Act would not attract against the petitioner. It further said that provision under the JJ Act would attract against the other accused, who being the mother of the victim, has actual charge or control over the child.
What are the allegations?
As per the prosecution, the mother of the victim and the petitioner, after sharing common intention, engaged in sexual intercourse in the presence of the minor victim on February 8, 2021 in a lodge in Kizhakkekotta. The allegation is that after reaching the lodge along with the minor victim, aged 16 years, the minor was sent to purchase some articles. When the minor returned along with the articles and opened the door, he happened to see that both of them were engaged in sexual intercourse in naked condition. When the victim questioned the same, the petitioner abused the minor, caught hold on his neck, beat on his cheek and kicked him down. The mother of the victim also shared common intention by not restraining the petitioner from doing the said overt acts against the minor, the prosecution alleged.
