In a significant ruling, the Kerala High Court, on September 10, 2024, quashed charges under the Protection of Children from Sexual Offences (POCSO) Act and the Indian Penal Code (IPC) against the accused in the case of CRL.MC No. 5035 of 2023. Justice A. Badharudeen, presiding over the case, observed that sending messages and calls to a minor, without proof of sexual intent, does not prima facie establish an offence under Section 11(iv) of the POCSO Act or Section 354D of the IPC.
Background of the Case
The case originated from Crime No. 691/2021 registered by Nadakkavu Police Station, Kozhikode. The accused was alleged to have harassed a 17-year-old girl by sending her multiple messages and phone calls. The complaint was lodged by the victim’s family, alleging that the accused’s actions amounted to stalking and sexual harassment. The accused sought the quashing of the FIR and the subsequent final report, arguing that the allegations did not constitute an offence under the law.
Legal Issues Involved
The prosecution had invoked Section 354D of the IPC, which deals with stalking, and Sections 11(iv) and 12 of the POCSO Act, which pertain to sexual harassment. Under Section 11(iv) of the POCSO Act, a person is said to commit sexual harassment when they repeatedly or constantly follow, watch, or contact a child with sexual intent. Section 12 of the Act makes such behaviour punishable.
The primary question before the court was whether the mere act of sending messages or making calls to a minor, without further evidence of sexual intent, could be construed as sexual harassment under the POCSO Act.
Court’s Observations
Justice Badharudeen highlighted the absence of key evidence, such as the content of the messages, in the prosecution’s case. He noted that while the accused was alleged to have disturbed the victim by sending messages and making phone calls, there was no material on record to suggest that these actions were accompanied by sexual intent.
In a critical observation, the court remarked:
“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 prima facie depict sexual intent.”
The court further emphasized that criminal culpability cannot be imposed without scrutinizing the content of the messages or other overt acts with certainty. In the absence of any explicit evidence of sexual intent in the communication between the accused and the victim, the court found no basis to proceed with the charges.
Decision of the Court
The Kerala High Court ruled in favour of quashing the proceedings against the accused, noting that the essential ingredients required to establish the offences under both the IPC and the PoCSO Act were not present in the case. Consequently, the court allowed the criminal miscellaneous case, quashing the FIR, the final report, and all further proceedings in SC No. 280/2022 before the Additional Sessions Court, Kozhikode.
The court’s decision underscores the necessity of clear evidence of sexual intent when prosecuting offences under the PoCSO Act. The ruling also affirms that the mere act of contacting or messaging a minor, without more, does not automatically lead to criminal liability under the stringent provisions of the Act.
The accused was represented by Advocate Mithun Baby John. The State was represented by Public Prosecutor M.P. Prasanth, while the victim was represented by Advocate N.U. Harikrishna.
