Tuesday, 3 October 2017

Whether prosecution under POCSO Act is maintainable if a person constantly watches child?

Therefore, it will be appropriate to reproduce provisions
of 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.
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.
5 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.  So far as
petitioner no.2 Valji Vadher is concerned, the victim female child
in her statement recorded under Section 164 of Cr.P.C. has stated
that petitioner no.2 Valji Vadher is having bad eye on her.  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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1947 OF 2017
MANJU TEJBAL VISHWAKARMA AND ANR. 
V/s.
THE UNION TERRITORY OF DAMAN & DIU 
CORAM : A. M. BADAR, J.
DATE : 27th SEPTEMBER 2017



1 By   this   petition,   petitioners   are   challenging
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.
2 Heard the learned advocate appearing for petitioners.
By taking me through the First Information Report (FIR) lodged

by   Police   Officer   Dinesh   Vaja   as   well   as   statement   of   victim
Sonam,   the   learned   advocate   vehemently   argued   that   the
prosecution   could   not   invoke   provisions   of   Section   11   of   the
Protection of Children from Sexual Offences Act (POCSO Act) as
against petitioner no.1, who is mother of the victim.  He further
argued  that  the  FIR  itself  is hearsay  and cannot constitute as
admissible   evidence   for   framing   Charge   against   the   accused
persons i.e. petitioners. In submission of the learned advocate for
petitioners, allegation against petitioner no.2 / accused no.2 are
also as vague as they can be.  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.
3 I   have   carefully   considered   the   submissions   so
advanced and also perused the FIR as well as the statement of
victim minor female child recorded on 5th  February 2016 by the

Judicial Magistrate First Class, Daman, as well as her statement
under Section 161 of the Code of Criminal Procedure recorded on
4
th February 2016.  The petitioner is only disputing invocation of
Section 11 of the POCSO Act made punishable under Section 12
thereof.   Therefore, it will be appropriate to reproduce provisions
of 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.
4 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.
5 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.  So far as
petitioner no.2 Valji Vadher is concerned, the victim female child
in her statement recorded under Section 164 of Cr.P.C. has stated
that petitioner no.2 Valji Vadher is having bad eye on her.  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. 
6 In the result, proceedings in Special Case No.20 of
2016 pending on the file of the learned Special Judge under the
POCSO Act, cannot be quashed.  
7 The   petition   is,   therefore,   disposed   of   with   these
observations.
(A. M. BADAR, J.)

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