Mere Messaging With Child Not An Offence U/S11(iv) POCSO Act Unless It Depicts Sexual Intent: Kerala HC

The Bench of Justice A Badharudeen held, “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. In order to find the ingredients to bring home an offence under Section 11(iv) of PoCSO Act, the messages or chats to be part of the prosecution records so as to scrutinize the same to find as to whether the materials would prima facie show that the accused committed the offence. Thus it is not justifiable to fasten criminal culpability to an accused without having scrutiny of the chats or messages or any other overt acts with certainty. When the messages or chats not even collected and made part of the prosecution records, it is incorrect to hold that offence under Section 11(iv) of the PoCSO Act is made out prima facie.”

Advocate Mithun Baby John appeared for the Petitioner, and PP MP Prasanth appeared for the Respondents.

A criminal miscellaneous case was filed under Section 482 of the Code of Criminal Procedure, 1973, to quash an FIR, the Final Report and all further proceedings against the petitioner for the alleged offences punishable under Section 354D of the Indian Penal Code ('IPC') and Section 12 r/w 11(iv) of the POCSO.

The Petitioner submitted that the only allegation against him was regarding messaging and calling the victim, who was 17 years old, on her mobile phone. It was pointed out that the messages sent were neither disclosed in the statements nor available in the prosecution records. He also submitted that the victim filed an affidavit stating that the matter has been settled and further action in this matter was not necessary. The Counsel for the Victim also supported the settlement.

The Public Prosecutor opposed the quashing of the proceedings against the petitioner and submitted that acting on the affidavit filed by the victim or their parents, settlement of offences under POCSO was not legally permissible.

“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. Therefore, this matter would require quashment on merits.”, the Court observed.

Accordingly, the Court allowed the petition and quashed the FIR, the Chargesheet and all the subsequent proceedings against the Petitioner.

Cause Title: XXXX v. State of Kerla (Neutral Citation: 2024:DHC:7045-DB)

Appearances:

Petitioner: Advocate Mithun Baby John

Respondents: PP MP Prasanth and Advocate NU Harikrishna

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