Having sex in presence of minor is punishable under POCSO Act: Kerala High Court

The Kerala High Court recently held that having sexual intercourse in an unlocked room and exposing one’s naked body to a minor child is an intentional act of sexual harassment punishable under the Protection of Children from Sexual Offences Act (POCSO Act). [Fisal Khan v State of Kerala & ors].Therefore, Justice A Badharudeen refused to quash the case under POCSO Act against one Fisal Khan (accused/ petitioner) who allegedly engaged in sex with a woman in front of the woman's child.The Court observed that the petitioner and the child’s mother allegedly engaged in sex in front of the minor without locking the room, thereby displaying parts of their body with the intent for it to be seen by the minor.This would constitute the offence of sexual harassment under Section 11(i) (any act intended to sexually exploit or abuse a child through words, gestures, or exposure of the body) read with Section 12 (punishment for sexual harassment of a child) of the POCSO Act. "In this case, the allegation is that the accused persons engaged in sexual intercourse after being naked, even without locking the room and allowed the entry of the minor in the room, so that the minor could see the same. Thus, prima facie, the allegation as to commission of offence punishable under Section 11(i) read with 12 of the POCSO Act, as against the petitioner in this case is made out," the order stated..The case arose after Khan allegedly had sexual intercourse with a 16-year-old boy’s mother in a lodge room after sending the minor (victim) out to buy some articles. Upon returning, the minor child saw them naked and having sex. When the minor questioned Khan, he allegedly assaulted the child by grabbing his neck, slapping him and kicking him to the ground.Criminal proceedings were initiated under Sections 294(b) (obscene acts and songs), 341 (wrongful restraint), 323 (voluntarily causing hurt), and 34 (common intention) of the Indian Penal Code, Section 75 (cruelty to a child) of the Juvenile Justice Act (JJ Act) and Sections 11 and 12 of the POCSO Act against Khan and the child's mother. Khan then approached the High Court to quash the proceedings against him..The counsel for Khan argued that Khan did not have actual control or custody of the victim and even the First Information Statement (FIS) lacked the necessary elements to support the charges filed against him.However, the public prosecutor submitted that the charges alleged against Khan were valid as the minor witnessed the sexual act and the allegations of physical assault were also supported by the statements provided by the minor..The Court after going through the legal provisions and the submissions of the counsel found that there was no sufficient evidence to support the charges under Sections 294(b) and 341 of the IPC as the minor was not abused in any public place nor was he confined as per the allegation of the prosecution.It also observed that Section 75 of the JJ Act on cruelty to child was not applicable to Khan but only to the victim’s mother who had direct charge and control over the child.Thus, it partly allowed the petition and quashed the charges of obscene acts and wrongful restraint under IPC and cruelty under Section 75 of JJ Act as against Khan.Pertinently, the Court upheld the charges of physical abuse under Section 323 of the IPC and also found that the act of being seen while engaging in sexual intercourse without locking the door sufficiently supported a prima facie case against the petitioner under Section 11(i) read with Section 12 of the POCSO Act.."This petition stands allowed in part. Criminal proceedings pertaining to offences punishable under Sections 294(b), 341 read with 34 of IPC as well as under Section 75 of the JJ Act, as against the petitioner herein stand quashed, while dismissing the quashment sought for, for the offences punishable under Sections 323 read with 34 of IPC as well as under Section 11(i) read with 12 of the POCSO Act," the Court held..The petitioner was represented by advocate Liju MP.Advocate Augustus Binu appeared for the minor while Public Prosecutor MP Prasanth represented the state ..[Read Order]