The Bombay High Court on 27th September 2017 has ruled that
"If a person with sexual intent repeatedly or constantly follows or watches or contacts a child either directly or through other means, then he can be said to have committed an offence defined under Section 11 of the POCSO Act"
In the instant case( CRIMINAL WRIT PETITION NO.1947 OF 2017 MANJU TEJBAL VISHWAKARMA AND ANR. V/s.
THE UNION TERRITORY OF DAMAN & DIU) the petitioners filed a writ petition for quashing the proceedings in Special Case No.20 of 2016 pending against them on the file of the learned Special Judge under Protection of Children from Sexual Offences Act, at Daman
The learned advocate for the Petitioner argued that the FIR itself is hearsay and cannot constitute as admissible evidence for framing Charge against the accused persons i.e. petitioners.
The learned advocate for the petitioners, further argued that the allegation against petitioner no.2 / accused no.2 Valji Vadher are as vague as it is only averred that he had bad eye on the victim girl and therefore, this vague statement cannot make out an offence under Section 11 of the POCSO Act. At any rate, such statement cannot be considered as evidence sufficient to frame Charge for the offence punishable under Section 11 and made punishable under Section 12 of the POCSO Act.
In giving judgement the Court find it appropriate to produce provisions Section 11 of the POCSO Act, which reads thus :
11. Sexual harassment : A person is said to commit sexual harassment upon a child when such person with sexual intent
(i)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; or
(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or
(iii) shows any object to a child in any form or media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated depiction through electronic,film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or
(vi) entices a child for pornographic purposes or gives gratification therefor.
The Court held that
"In context of the instant case, it needs to be mentioned that if a person with sexual intent repeatedly or constantly follows or watches or contacts a child either directly or through other means, then he can be said to have committed an offence defined under Section 11 of the POCSO Act. The question whether the act was with sexual intent is a question of fact which needs to be adjudicated on appreciation of evidence adduced by the prosecution."
The Court also held that
"In her statement recorded under Section 161 of the Cr.P.C., she has stated that petitioner no.2 Valji Vadher always used to see her with bad intention. Watching a female child with sexual intent comes under the mischief covered by Section 11 of the POCSO Act. Therefore, it cannot be said that there are no sufficient grounds to proceed against petitioner no.2 Valji Vadher for the offence as defined by Section 11 and made punishable under Section 12 of the POCSO Act."
The Court finds that
In the instant case, material on record shows that there are no averments that petitioner no.1, who is mother of the victim female child, has done any act against the victim, who is her daughter, with any sexual intent, and therefore, Section 11 of the POCSO Act made punishable under Section 12 thereof is infact not invoked by the prosecution against petitioner no.1
In the result, the Court held that proceedings in Special Case No.20 of 2016 pending on the file of the learned Special Judge under the POCSO Act, cannot be quashed.
"If a person with sexual intent repeatedly or constantly follows or watches or contacts a child either directly or through other means, then he can be said to have committed an offence defined under Section 11 of the POCSO Act"
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| Bombay High Court |
In the instant case( CRIMINAL WRIT PETITION NO.1947 OF 2017 MANJU TEJBAL VISHWAKARMA AND ANR. V/s.
THE UNION TERRITORY OF DAMAN & DIU) the petitioners filed a writ petition for quashing the proceedings in Special Case No.20 of 2016 pending against them on the file of the learned Special Judge under Protection of Children from Sexual Offences Act, at Daman
The learned advocate for the Petitioner argued that the FIR itself is hearsay and cannot constitute as admissible evidence for framing Charge against the accused persons i.e. petitioners.
The learned advocate for the petitioners, further argued that the allegation against petitioner no.2 / accused no.2 Valji Vadher are as vague as it is only averred that he had bad eye on the victim girl and therefore, this vague statement cannot make out an offence under Section 11 of the POCSO Act. At any rate, such statement cannot be considered as evidence sufficient to frame Charge for the offence punishable under Section 11 and made punishable under Section 12 of the POCSO Act.
In giving judgement the Court find it appropriate to produce provisions Section 11 of the POCSO Act, which reads thus :
11. Sexual harassment : A person is said to commit sexual harassment upon a child when such person with sexual intent
(i)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; or
(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or
(iii) shows any object to a child in any form or media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated depiction through electronic,film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or
(vi) entices a child for pornographic purposes or gives gratification therefor.
The Court held that
"In context of the instant case, it needs to be mentioned that if a person with sexual intent repeatedly or constantly follows or watches or contacts a child either directly or through other means, then he can be said to have committed an offence defined under Section 11 of the POCSO Act. The question whether the act was with sexual intent is a question of fact which needs to be adjudicated on appreciation of evidence adduced by the prosecution."
The Court also held that
"In her statement recorded under Section 161 of the Cr.P.C., she has stated that petitioner no.2 Valji Vadher always used to see her with bad intention. Watching a female child with sexual intent comes under the mischief covered by Section 11 of the POCSO Act. Therefore, it cannot be said that there are no sufficient grounds to proceed against petitioner no.2 Valji Vadher for the offence as defined by Section 11 and made punishable under Section 12 of the POCSO Act."
The Court finds that
In the instant case, material on record shows that there are no averments that petitioner no.1, who is mother of the victim female child, has done any act against the victim, who is her daughter, with any sexual intent, and therefore, Section 11 of the POCSO Act made punishable under Section 12 thereof is infact not invoked by the prosecution against petitioner no.1
In the result, the Court held that proceedings in Special Case No.20 of 2016 pending on the file of the learned Special Judge under the POCSO Act, cannot be quashed.
