Thursday, 23 March 2017

Whether accused can be prosecuted under POCSO Act even if offence of molestation took place prior to introduction of said Act?

Yet another contention advanced by learned counsel

is that, the incident took place before the introduction of the

Act. The POCSO Act came into force in the year 2012 and the

issue with respect to molestation took place much prior to

that. The incident under the consideration of the Commission

was not the issue of molestation. The issue was with respect

to the publication of the details of the victim child through face

book post, which took place on 23.05.2016 when the post was

uploaded in the face book. Therefore, in order to attract an

offence under Sec.23, the incident allegedly took place in


respect of the molestation of the child is not at all relevant.

The relevance of Sec.23 is in respect of the face book post,

which, even according to the petitioner, is after the

introduction of the Act. Therefore, there is no substance or

foundation for the contention advanced by the learned counsel

accordingly.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                             PRESENT:

                        MR. JUSTICE SHAJI P.CHALY

                         11TH DAY OF NOVEMBER 2016

                           WP(C).No. 31378 of 2016 (V)
                           

                     SUDHEESH KUMAR.S.R.,
             

V

            STATE OF KERALA,
 Citation: 2017 CRLJ 443 kerala,2017 ALLMR (CRI)JOURNAL113



      This writ petition is filed by the petitioner seeking to

quash Ext.P15 order, and for other related reliefs. Ext.P15 is

an order passed by the Kerala State Commission for Protection

of Child Rights, dated 22.08.2016, whereby a recommendation

was made to conduct enquiry against the petitioner and take

appropriate action under the provisions of Protection of

Children from Sexual Offences Act, 2012 [hereinafter called,

the POCSO Act], and as per the provisions of Child Protection

Commission Act.      Material facts for the disposal of the writ

petition are as follows:

      2.   Petitioner is a practising lawyer with 13 years

experience before various Courts in Thiruvananthapuram

District. Petitioner is a public spirited citizen and legal advisor

of FICUS Charitable Society, constituted with the object of

fighting against corruption and for protection of child

education, providing financial assistance to children who are

financially poor. Petitioner filed several complaints against a

teacher in a Higher Secondary School, Kanjiramkulam, with

respect to numerous irregularities noticed for violation of

Ext.P1 Government Order, for collecting excess fees from

SC/ST students, etc. etc.     Petitioner came to know that a

teacher working as UPSA in the said school had sexually

molested three girl children, and parent of a child filed a

complaint before the Head Master. Since there was no action

taken against the said person, despite adverse report and

recommendation of the Educational Officer, Neyyattinkara,

petitioner secured documents through the Right to Information

Act. In spite of all earnest efforts of the petitioner, there was

no action forthcoming from the authorities, and therefore, with

the bonafide intention to pressurize the authorities, posted

Exts.P9, and P7 and P8 received along with Ext.P9, under the

RTI Act, in the face book. Ext.P8 contains the name, class,

division and school of the child. According to the petitioner,

petitioner did not notice it before posting Ext.P8 in the face

book.

      3.   On noticing the name of the child next day itself,

petitioner deleted the same from the face book account of the

petitioner. One Vijaya Kumar, who is also an activist of FICUS

charitable society, requested the 3rd respondent through

Ext.P10 to take action against the said teacher, based on the

report of the DPI and records received under the RTI Act. In

reply to Ext.P10, 3rd respondent sent Ext.P11 communication

to Mr. Vijaya Kumar, stating that it is trivial or frivolous matter

and it is outside the purview of the Commission. It is also

stated, at the instance and influence of the Manager and

teacher in question of the school, in collusion with 6th

respondent filed Ext.P12 complaint before the Commission on

the basis of Ext.P12, and 3rd respondent issued Ext.P13 notice

to the petitioner to appear in person before the Commission.

Petitioner appeared before the Commission and submitted

detailed explanation.       However, without considering the

explanation submitted by the petitioner, Commission passed

Ext.P15 order, directing the 5th respondent to conduct enquiry

into Ext.P12 complaint as well as Ext.P14 objection and take

steps to proceed against the culprits. It is thus challenging

Ext.P15, this writ petition is filed.

      4.   Fifth respondent has filed a statement through the

Special Government Pleader (Women & Children), disputing

the statements, allegations and claims and demands made by

the petitioner. It is also stated, the complaint originated from

a face book post of the petitioner on 23.05.2016 disclosing the

personal details of the child who was alleged to have been

sexually abused by a male teacher. The photocopy of the face

book post uploaded by the petitioner is produced as Annexure-

(a). It is also stated that the various documents which were

uploaded in the face book post clearly show the name of the

victim, school and the name of the male teacher alleged to

have sexually abused the child, thereby revealing the identity

of the child and also intruding into her privacy. It is further

stated, apart from Exts.P7, P8 and P9, yet another document

is also posted in the face book, produced as Annexure-(b), and

in the said document also, the identity of the victim girl as well

as the injuries allegedly sustained to her self respect was

mentioned.

      5.   That apart, it is submitted, consequent on the

receipt of the complaint, notice was issued to the petitioner,

received objection and considered the objection, complaint and

after providing an opportunity of hearing only, Ext.P15 order is

passed. However, it is also stated, an enquiry was conducted

through the Deputy Superintendent of Police, Neyyattinkara,

wherein the father of the victim girl, Head Master of the school

and another lady teacher of the school were questioned, from

which it was revealed that a complaint was made against the

teacher for child molestation. However, the Head Master when

enquired into the complaint revealed that the complaint had no

sanctity.   Yet, departmental action was taken against the

teacher on the report of the Head Master and certain steps

were taken affecting the service conditions of the said teacher.

It is also stated, father of the student, did not submit any

other complaint before any other office in connection with this

matter.    Moreover, father had also stated, his daughter is

studying in the same school for Plus One and he was unaware

of any face book post or regarding any agency investigating

the matter. According to him, the studies and future of his

daughter are of paramount importance to him.

     6.    However, the petitioner, after five years, when the

victim girl is doing her Plus One in the same school had gone

behind the incident under the RTI Act for reasons best known

to him and uploaded the face book post with disgraceful

comments.      Therefore, according to the respondents, the

disclosure of identity of the child, contravened Sec.23(1) and

(2) of the POCSO Act. It is according to the provisions of law,

Ext.P15 order is passed. It is also stated that the impugned

order is passed observing all principles of natural justice and

therefore petitioner has not made out any case warranting

interference of this Court by invoking the power of judicial

review under Article 226 of the Constitution of India.

      7.   Petitioner has filed a reply affidavit to the statement

filed by the respondents, reiterating and adopting the stand

taken in the writ petition. It is also stated therein that the

school management or Child-line activists did not lodge a

complaint with respect to the incident before police due to the

influence of the teacher in question and the Manager of the

school, and now the 6th respondent has filed Ext.P12 complaint

against the petitioner.   However, did not file any complaint

against the teacher who is the real culprit. It is also stated

that the subject matter should have been reported to the

police and police ought to have taken appropriate action.

      8.   Heard learned counsel for the petitioner and the

learned Special Government Pleader, and perused the

documents on record and the pleadings put forth by the

respective parties.

     9.      The subject matter of this writ petition is revolving

round Ext.P15 order passed by the Commission for Protection

of Child Rights.      The question to be decided is whether it

suffers from any manner of illegality or arbitrariness enabling

this Court to interfere with the same.            The paramount

contention advanced by learned counsel for the petitioner is

that the petitioner has made the post in the face book which

contained the name of the child with bonafide and good

intentions. The intention of the petitioner was to book the real

culprit, who is a teacher in the school in question. It is also

stated that the name of the child is contained in Exts.P7 and

P8 and P9, which were received by the petitioner under the RTI

Act, and therefore mere posting of the same will not amount to

the offence under Sec.23 of the POCSO Act.             Therefore,

essence of the issue is dependent on Sec.23 of POCSO Act,

which reads as follows:

              "23. Procedure for media.--(1) No person shall

      make any report or present comments on any child

      from any form of media or studio or photographic

      facilities  without  having  complete    and authentic

      information, which may have the effect of lowering his

      reputation or infringing upon his privacy.

           (2) No reports in any media shall disclose, the

     identity of a child including his name, address,

     photograph, family details, school, neighbourhood or

     any other particulars which may lead to disclosure of

     identity of the child:

           Provided that for reasons to be recorded in

     writing, the Special Court, competent to try the case

     under the Act, may permit such disclosure, if in its

     opinion such disclosure is in the interest of the child.

           (3) The publisher or owner of the media or studio

     or photographic facilities shall be jointly and severally

     liable for the acts and omissions of his employee.

           (4) Any person who contravenes the provisions of

     sub-section (1) or sub-section (2) shall be liable to be

     punished with imprisonment of either description for a

     period of which shall not be less than six months but

     which may extend to one year or with fine or with

     both".

     10. On an evaluation of Sec.23, it is unequivocally clear,

a prohibition is made under sub-section (1) thereto, by which,

no person shall make any report or comments on any child

from any form of media or studio or photographic facilities

without having complete and authentic information, which may

have the effect of lowering his reputation or infringing upon his

privacy.   Further, as per sub-section (2), no reports in any

media shall disclose the identity of a child including his name,

address,   photograph,     family   details,  school    etc.  etc.

Therefore, the intention under Sec.23 is very clear that the

victim child shall not be exposed to any sort of publication so

as to affect her future and damn her career. In my considered

opinion, in order to constitute an offence under sub-section (4)

of Sec.23, no mens rea, culpability, and malafide or illegal

intention is required. Mere publication of the details of the

victim child will attract the offence under sub-section (4).

Therefore, the thrust of the contention advanced by the

petitioner that the petitioner did not have any malafide

intention to expose the child, cannot be sustained under law.

      11. Yet another contention advanced by learned counsel

is that, the incident took place before the introduction of the

Act. The POCSO Act came into force in the year 2012 and the

issue with respect to molestation took place much prior to

that. The incident under the consideration of the Commission

was not the issue of molestation. The issue was with respect

to the publication of the details of the victim child through face

book post, which took place on 23.05.2016 when the post was

uploaded in the face book. Therefore, in order to attract an

offence under Sec.23, the incident allegedly took place in


respect of the molestation of the child is not at all relevant.

The relevance of Sec.23 is in respect of the face book post,

which, even according to the petitioner, is after the

introduction of the Act. Therefore, there is no substance or

foundation for the contention advanced by the learned counsel

accordingly.

      12. Learned counsel even though has brought to my

attention, discussion in the Parliament of India, Rajya Sabha,

in respect of the Protection of Children from Sexual Offences

Bill, 2011, and specifically to clause 23, wherein a Procedure

for Media is explained. However, on going through the said

report, I do not find anything in favour of the petitioner.

However, the attempt of the learned counsel for the petitioner

was to impress upon me a point that media means, the media

which broad-casts, for public attention.       However, since

'media' is not defined under the POCSO Act, a reference to

dictionary meaning of the term would be worthwhile.        The

Chambers Concise Dictionary defines 'media' as a medium, it is

further explained as any intervening means, instrument, or

agency etc. etc. Therefore, in my considered opinion, the said

contention advanced by the petitioner is also not having any

bearing to the issue in question.

      13. Learned counsel has also invited my attention to

'Maxwell on the Interpretation of Statutes' Twelfth Edition,

Page 239, and pointed out that, if there appears any

reasonable doubt or ambiguity, it will be resolved in favour of

the person who would be liable to the penalty. Further pointed

out to a passage, which reads: "If the language of the statute

is equivocal and there are two reasonable meanings of the said

language, the interpretation which will avoid the penalty is to

be adopted. The court must always see that the person to be

penalised comes fairly and squarely within the plain words of

the enactment". Therefore, it is the contention of the learned

counsel, since there is no malafide intention on the part of the

petitioner in making the post inure to the benefit of the said

person and a punishment under Sec.23(4) shall be avoided.

This issue is discussed by me earlier and has come to a definite

conclusion that no manner of malafides is required to

constitute an offence. Therefore, I do not propose to take a

benevolent approach in favour of the petitioner. This Court is

also bound by the provisions of law since the validity of the

same is not under challenge. It is well settled that a provision
of a statute should be interpreted to meet the purpose and

purport it needs to serve. Looking in that angle also, I have no

hesitation to hold that petitioner is not entitled to get any

relief. Moreover, from the impugned order itself, it is clear,

petitioner was given all opportunity to defend his case and

thereafter only Ext.P15 order is passed.

       14. Upshot of the above discussion is, petitioner failed

to establish any case to interfere with Ext.P15 order passed by

the Commission, invoking the power conferred on this Court

under Article 226 of the Constitution of India.

       Resultantly, writ petition fails, accordingly it is dismissed.




                                                   Sd/-
                                            SHAJI P. CHALY
                                                 JUDGE

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