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.
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
Citation: 2017 SCC ONLINE Bom 8895.
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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