In a significant ruling, the Kerala High Court held that engaging in sexual intercourse in a naked state in the presence of a minor constitutes sexual harassment under the Protection of Children from Sexual Offences (POCSO) Act. While partially allowing a petition seeking quashing of charges, the Court ruled that the accused must face trial for offences under Section 323 of the Indian Penal Code (IPC) and Section 11(i) read with Section 12 of the POCSO Act. The judgment was delivered by Justice A. Badharudeen in CRL.MC No. 3553 of 2022.
Background of the Case
The case arose from an incident on February 8, 2021, where the second accused (the petitioner) and the mother of the victim (first accused) allegedly engaged in sexual intercourse in front of the victim, a 16-year-old boy. The prosecution alleged that when the minor returned to their lodge room after purchasing some items, he found the petitioner and his mother in a compromising position. When the minor objected, the petitioner allegedly assaulted him by grabbing his neck, slapping, and kicking him.
The petitioner was charged under Sections 294(b), 341, 323, and 34 of IPC, Section 11(i) read with Section 12 of the POCSO Act, and Section 75 of the Juvenile Justice (Care and Protection of Children) Act.
Key Legal Issues
- POCSO Act Applicability: The central issue was whether the act of engaging in sexual intercourse in front of a minor amounted to sexual harassment under Section 11(i) of the POCSO Act.
- IPC Charges: The petitioner sought to quash the charges under Sections 294(b) (obscene acts), 341 (wrongful restraint), and 323 (causing hurt), arguing that the evidence did not support these accusations.
- Juvenile Justice Act: The petitioner also sought to quash charges under Section 75 of the Juvenile Justice Act, which pertains to cruelty and neglect of children.
Court’s Observations and Decision
Justice A. Badharudeen, after reviewing the arguments from both sides, made the following key rulings:
- POCSO Act Applicability: The Court held that the petitioner’s actions fell within the scope of sexual harassment as defined by Section 11(i) of the POCSO Act. Justice Badharudeen explained:
“Exposing a naked body in front of a minor child is an act of sexual harassment and hence punishable under Section 11(i) read with Section 12 of the POCSO Act.”
The Court further emphasized that allowing a minor to witness sexual intercourse without securing the room amounts to sexual harassment.
- IPC Charges: The Court quashed the charges under Sections 294(b) and 341 of IPC, observing that the prosecution’s evidence did not sufficiently prove that the minor was abused near a public place or wrongfully restrained. However, the Court upheld the charges under Section 323 of IPC, finding that the petitioner had physically assaulted the minor by slapping and kicking him.
- Juvenile Justice Act: The Court quashed the charges under Section 75 of the Juvenile Justice Act against the petitioner, noting that the petitioner did not have actual custody or control over the child. However, the victim’s mother, who had custody, would continue to face these charges.
Important Observations by the Court
The Court underscored the importance of protecting minors from such acts, stating:
“Exhibiting nudity and engaging in sexual acts in front of a minor, whether intentional or negligent, is an explicit act of sexual harassment and must not be tolerated.”
Justice Badharudeen made it clear that while certain charges lacked evidence, the allegations of physical assault and sexual harassment merited further trial.
Final Decision
The Kerala High Court quashed the charges under Sections 294(b) and 341 of IPC, as well as Section 75 of the Juvenile Justice Act against the petitioner. However, it upheld the charges under Sections 323 of IPC and Section 11(i) read with Section 12 of the POCSO Act. The case was remanded to the trial court for further proceedings, with the petitioner required to stand trial for the remaining charges.
