Engaging in Sexual Activity in a Minor’s Presence Is Punishable: Kerala High Court Upholds POCSO Act

The Court held that engaging in sexual acts in the presence of a minor child amounts to sexual harassment under Section 11 of the POCSO Act. 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 and 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(0) (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, it is said that the defendants, after the removal, although the room was not locked, they slept together and allowed the little boy to enter the room to see It appears that a charge of offense punishable under clause (i) of section 11 read with 12 of the POCSO Act has been made against the accused in this case.” The case started after Khan asked the minor (the victim) to buy some goods for which he had sex with the mother of a 16-year-old boy.When he returned, it was discovered the little boy is sitting naked, the boy is sleeping. Criminal proceedings were initiated under sections 294(b) (obscene acts and songs), 341 (obscene prohibition). 323 (intent to injure), and 34 (just intent) Indian Penal Code, section 75 (cruelty to children) Juvenile Justice Act (JJ Act) and sections 11 and 12 of the POCSO Act against Khan and the child's mother Then Khan moved the Supreme Court to dismiss the case against him. Khan's lawyer argued that Khan did not have control or custody of the victim, even though the First Information Statement (FIS) did not contain enough material to support the allegations against him. However, the public prosecutor said that the charges against Khan were justified because Saghir had seen sex art and the charges of sexual intercourse and allegations of physical abuse were also upheld by Saghir's comments. 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. Crimes relating to offenses punishable under Sections 294(b), 341 read with 34 IPC and Section 75 of the JJ Act have been imposed on the petitioner herein. , as the appropriate punishment is waived Punishment under Sections 323 notice and 34 IPC and also under section 110 notice and 12 POCSO," said the court. The Prosecuting Counsel \ n Prasant represented the state..