The Kerala High Court recently ruled that engaging in sexual intercourse in an unlocked room and exposing one’s naked body to a minor constitutes a deliberate act of sexual harassment, punishable under the Protection of Children from Sexual Offences (POCSO) Act.
Justice A. Badharudeen, therefore, declined to quash the POCSO Act case against Fisal Khan (the accused/petitioner), who allegedly engaged in sexual activity with a woman in the presence of her child.
The Court noted that the petitioner and the child's mother reportedly engaged in sexual acts without locking the room, intentionally exposing parts of their bodies for the minor to see. This behavior, the Court observed, falls under the offence of sexual harassment as defined in Section 11(i) of the POCSO Act (acts intended to sexually exploit or abuse a child through words, gestures, or exposure of the body) and is punishable under Section 12 of the Act.
"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 order stated.
The case arose after Khan allegedly had sexual intercourse with a 16-year-old boy’s mother in a lodge room after sending the minor (victim) out to buy some articles.
When the child returned, he saw them naked and having sex. When the minor questioned Khan, he allegedly assaulted the child by grabbing his neck, slapping him and kicking him to the ground.
Criminal proceedings were initiated against Fisal Khan and the child's mother under various provisions, including Sections 294(b) (obscene acts and songs), 341 (wrongful restraint), 323 (voluntarily causing hurt), and 34 (common intention) of the Indian Penal Code (IPC), Section 75 (cruelty to a child) of the Juvenile Justice Act (JJ Act), and Sections 11 and 12 of the Protection of Children from Sexual Offences (POCSO) Act.
Khan then approached the High Court seeking to quash the proceedings against him. His counsel argued that Khan did not have actual control or custody of the victim and that the First Information Statement (FIS) lacked the necessary elements to substantiate the charges.
However, the public prosecutor contended that the charges against Khan were valid, as the minor had witnessed the sexual act, and the allegations of physical assault were supported by the minor's statements.
After reviewing the legal provisions and the submissions from both sides, the Court found insufficient evidence to support the charges under Sections 294(b) and 341 of the IPC, noting that the minor was not abused in a public place nor confined as alleged by the prosecution.
The Court also determined that Section 75 of the JJ Act, concerning cruelty to a child, applied only to the victim’s mother, who had direct charge and control over the child, and not to Khan.
As a result, the Court partially allowed the petition, quashing the charges of obscene acts and wrongful restraint under the IPC, as well as the charge of cruelty under Section 75 of the JJ Act against Khan.
However, the Court upheld the charges of physical abuse under Section 323 of the IPC and concluded that the act of being seen engaging in sexual intercourse without locking the door sufficiently established a prima facie case against Khan under Section 11(i) read with Section 12 of the POCSO Act.
"This petition stands allowed in part. Criminal 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 herein stand 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," the Court held.
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