Exhibiting Naked Body To Child Is An Act Intending To Commit Sexual Harassment: Kerala HC Refuses To Quash POCSO Case
The Kerala High Court observed that when a person exhibits a naked body to a child, the same is an act intending to commit sexual harassment upon a child and is punishable under Section 11(i) read with 12 of the POCSO Act.
The Court was hearing Criminal Miscellaneous Case has been filed under Section 482 of the CrPC to quash all further proceedings under the Protection of Children from Sexual Offences Act.
The bench of Justice A. Badharudeen observed, “…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.”
Advocate Liju MP appeared for the Appellant and Advocate Augustus Binu appeared for the Respondent.
Brief Facts-
In the present case, the prosecution alleges that the mother of the victim and the Petitioner, after sharing a common intention, engaged in sexual intercourse, in the presence of the victim. The allegation is that, after reaching the lodge along with the victim, a minor boy 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, after being naked. When the victim questioned the same, the Petitioner abused and kicked the minor. The mother of the victim shared common intention by not restraining the Petitioner from doing the said overt acts against the minor. Hence, the prosecution alleged the commission of offences punishable under Sections 294(b), 341, 323 and 34 of IPC, Section 12 read with 11(i) of the POCSO Act and Section 75 of the Juvenile Justice (Care and Protection) of Children Act.
The Court perused Section 11 of the POCSO Act and observed, “…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.”
The Court noted, “As far as the offence punishable under Section 75 of the JJ Act is concerned, as per Section 75 of the JJ Act, whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or wilfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering, is an offender.”
Accordingly, the Court allowed the Petition in part. Proceedings pertaining to offences punishable under Sections 294(b), 341 read with 34 of IPC as well as under Section 75 of the JJ Act, as against the Petitioner was quashed, while dismissing the quashment sought for, for the offences punishable under Sections 323 read with 34 of IPC as well as under Section 11(i) read with 12 of the POCSO Act.
Cause Title: Fisal Khan v. State of Kerala (Neutral Citation: 2024:KER:75202)