Research › Search › Judgment

Kerala High Court · body

2024 DIGILAW 1199 (KER)

SIDHARTH DRAVID S/O SHIBU v. STATE OF KERALA

2024-09-23

A.BADHARUDEEN

body2024
ORDER : 1. This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, seeking quashment of the proceedings in S.C. No. 637/2023 on the files of the Fast Track Special Court for the trial of offences under the Protection of Children from Sexual Offences Act [hereinafter referred as ‘POCSO Act’ for short] cases, Nedumangad. The petitioner herein is the sole accused in the above case. 2. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the defacto complainant, in detail. Perused the relevant materials available. 3. In this matter, the prosecution alleges commission of offences punishable under Sections 354-D and 363 of IPC as well as under Section 11(iv) read with 12 of the POCSO Act. 4. While seeking quashment of the proceedings, the learned counsel for the petitioner would submit that, going by the statements of the victim viz. FIS and 161 statement, none of the above said offences made out, prima facie. Therefore, quashment of the proceedings sought for, on merits would succeed. He also would submit that, apart from meritorious interference in this matter by way of quashment, the matter has been now settled and the mother of the victim has filed an affidavit supporting the settlement. Therefore, quashment of the proceedings sought for, is liable to be allowed on merits or otherwise in view of the affidavit supporting settlement. 5. The learned Public Prosecutor opposed quashment of the matter on merits and on the ground of settlement. At the same time, the learned Public Prosecutor also conceded that, in the statements given by the victim, no serious allegation as to sexual overtures at the instance of the accused could be seen, prima facie, though there is allegation to the effect that the accused brought the minor victim on his motor bike and dropped her near the tuition centre. 6. As far as the quashment sought for on the ground of settlement is concerned, the same is not legally permissible. Therefore, quashment on the ground of settlement is liable to fail. 7. 6. As far as the quashment sought for on the ground of settlement is concerned, the same is not legally permissible. Therefore, quashment on the ground of settlement is liable to fail. 7. Coming to the prayer for quashment on the ground of merits, the statement of the victim dated 31.12.2022, which led to registration of this crime, would show that the victim was a student of VHSS, Vattiyoorkavu, studying in 9th standard and she maintained a love affair with the accused for three months. While so, when she used to go for tuition, she would reach Nettayam by bus, the accused would take her on his motor bike and drop her near the tuition centre and there they used to chat for ten minutes. The accused had taken the victim to the tuition center for two days and there was chatting between them on those days. On 31.12.2022, when the victim traveled on the motor bike of the accused and reached near the tuition centre, the same was detected by her mother and she was scolded for the same. When the 161 statement given by the victim is gone through, the allegation is more lightened stating that she called the accused and accordingly he brought her to the tuition centre. She also stated that the accused did not take her to any other place and he did not abuse her, in any manner. 8. In view of the rival arguments and the prosecution allegations as espoused, the ingredients to attract offence punishable under Section 11(4) read with 12 of the POCSO Act, required to be addressed. For this purpose, reference to Section 11(4) read with 12 of the POCSO Act, is necessary. The same are as under: 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. (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. (iii) shows any object to a child in any form or media for pornographic purposes. (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. (iii) shows any object to a child in any form or media for pornographic purposes. (iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means. (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. (vi) entices a child for pornographic purposes or gives gratification therefor. Explanation - Any question which involves “sexual intent” shall be a question of fact. 12. Punishment for sexual harassment - Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine. 9. When reading Section 11(iv) of the POCSO Act, a person is said to commit sexual harassment upon a child when such person, repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means with sexual intent. The cardinal element of the overt acts which would make the same as an offence is that the overt acts should be the outcome of sexual intent. Here, going by the statements of the victim, on no stretch of imagination it could be noticed that the accused herein done any acts with sexual intent as dealt in Section 11(iv) of the POCSO Act. Therefore, prima facie, Section 11(iv) read with 12 of the POCSO Act would not attract in the facts of the given case. 10. Coming to the offence punishable under Section 354(D) of IPC, the same is as under: 354D. Stalking: (1) Any man who: (i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman. 10. Coming to the offence punishable under Section 354(D) of IPC, the same is as under: 354D. Stalking: (1) Any man who: (i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman. (ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking: Provided that such conduct shall not amount to stalking if the man who pursued it proves that: (i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State. (ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law. (iii) in the particular circumstances such conduct was reasonable and justified. (2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine. 11. Section 78 of the Bharatiya Nyaya Sanhita, 2023 [hereinafter referred as ‘BNS’ for short] is the provision analogous to Section 354D of IPC. The same also is as under: 78. Stalking: (1) Any man who: (i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman. (ii) monitors the use by a woman of the internet, e-mail or any other form of electronic communication, commits the offence of stalking: Provided that such conduct shall not amount to stalking if the man who pursued it proves that: (i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State. (ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law. (iii) in the particular circumstances such conduct was reasonable and justified. (ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law. (iii) in the particular circumstances such conduct was reasonable and justified. (2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and shall also be liable to fine and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine. 12. Coming to the offence punishable under Section 363 of IPC, the same is as under: 363. Punishment for kidnapping - Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 13. Kidnapping is defined under Section 359 of IPC. Section 359 of IPC provides that: 359. Kidnapping - Kidnapping is of two kinds: kidnapping from [India], and kidnapping from lawful guardianship. 14. As per Section 359 of IPC, kidnapping is of two kinds. Sections 360 and 361 of IPC deal with the same: 360. Kidnapping from India - Whoever conveys any person beyond the limits of [India] without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from [India]. 361. Kidnapping from lawful guardianship - Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. 15. Section 137 of the BNS is the provision analogous to Sections 359, 360 and 361 of IPC. The same is as under: 137. Kidnapping: (1) Kidnapping is of two kinds: kidnapping from India, and kidnapping from lawful guardianship: (a) whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from India. The same is as under: 137. Kidnapping: (1) Kidnapping is of two kinds: kidnapping from India, and kidnapping from lawful guardianship: (a) whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from India. (b) whoever takes or entices any child or any person of unsound mind, out of the keeping of the lawful guardian of such child or person of unsound mind, without the consent of such guardian, is said to kidnap such child or person from lawful guardianship. Explanation - The words “lawful guardian” in this clause include any person lawfully entrusted with the care or custody of such child or other person. Exception - This clause does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose. (2) Whoever kidnaps any person from India or from lawful guardianship shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 16. In the present case, the statement of the victim is that, she left the house to go for tuition and in the meantime, the accused brought her on his motor bike and dropped at the tuition centre and they had ten minutes chat. Apart from this allegation, nothing available to see that the accused had done any overt acts despite a clear indication of disinterest of the victim or done any other overt acts which would attract the offence of stalking. Similarly, none of the overt acts would show that the accused herein took or enticed the victim out of the keeping of the lawful guardian, without the consent of such guardian, since the prosecution case itself is that the victim voluntarily gone for tuition and the accused person took her on his motor bike and dropped her at the tuition centre. In such a case, it could not be held that offences punishable under Sections 354D and 363 of IPC made out, prima facie. 17. In such a case, it could not be held that offences punishable under Sections 354D and 363 of IPC made out, prima facie. 17. Since, the prosecution materials do not show commission of offences punishable under Sections 354-D and 363 of IPC as well as under Section 11(iv) read with 12 of the POCSO Act by the petitioner/accused, quashment sought for is liable to be succeed on the ground of merits. 18. Accordingly, this petition stands allowed and all further proceedings in S.C. No. 637/2023 on the files of the Fast Track Special Court for the trial of POCSO Act cases, Nedumangad, as against the petitioner/accused stand quashed.