Allowed

Ismail M. v. State of Kerala

Kerala HC6 Jun 2019Crl.Rev.Pet/291/2019

Case brief

AI extract

What is this about?

The High Court allowed the Criminal Revision Petition, holding that inducing a child to witness sexual acts between adults constitutes sexual harassment under Sec. 11(i) POCSO. The court quashed the lower court's order dismissing the complaint on jurisdictional grounds, asserting Special Courts can directly take cognizance on complaints under Sec. 33(1).

What did the court decide?

The impugned order is set aside and the complaint is remitted to the Special Court for consideration afresh.

Ismail M. Vs State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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THURSDAY, THE 06TH DAY OF JUNE 2019 / 16TH JYAISHTA, 1941

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Crl.Rev.Pet.No.291 of 2019

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AGAINST THE ORDER/JUDGMENT IN CRMP 1198/2018 of DISTRICT COURT & SESSIONS COURT,KOLLAM

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REVISION PETITIONER/S:

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ISMAIL M., AGED 37 YEARS S/O. MYTHEEN SHERIF, ISMAIL MANZIL HOUSE, VALAKODE VILLAGE, VALAKODE DESOM, PUNALUR TALUK, KOLLAM DISTRICT-691331

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BY ADVS. SRI.VINAY RAMDAS SMT.K.B.ANAMIKA

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31

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2 SULFI, AGED 30 YEARS, D/O. NABEESATHU, RAFI ANEESE MANZIL, PATHANAPURAM VILLAGE AND TALUK, KOLLAM-689 695

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3 SREERAJ M.S., AGED ABOUT 30 YEARS, S/O. SREEKUMAR SHARMA, MAMPATTE SREE BHAVANAM, EAST OTHERA, THIRUVALLA, KOLLAM-689 546

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4 NABEESATH RAFI, AGED ABOUT 50 YEARS, S/O. NABEESATHU, RAFI ANEESE MANZIL, PATHANAPURAM VILLAGE AND TALUK, KOLLAM-689 695

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BY ADVS. SRI.K.V.ANIL KUMAR SRI.M.R.SUDHEENDRAN SMT.ASHA P.NAIR

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OTHER PRESENT:

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SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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(C.R)

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ALEXANDER THOMAS, J.

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==================

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Crl.R.P.No. 291 of 2019

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==================

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Dated this the 6^th day of June, 2019 O R D E R

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The prayers in the aforecaptioned Criminal Revision Petitioner

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Case filed under Secs. 397 and 401 of the Code of Criminal Procedure, 1973, are as follows:

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“i. Set aside the order in C.M.P.No.1198/2018 dated 10/01/2019 on the files of the 1^st Additional Sessions Judge, Kollam, (sic) allow the same;

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ii. Grant such other relief deemed fit and proper by this Honourable Court.”

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Heard Sri.Vinay Ramdas, learned counsel appearing for

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the petitioner (complainant), Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State, Sri.K.V.Anil Kumar, learned counsel appearing for R-2 and Sri.M.R.Sudheendran, learned counsel appearing for R-3. Though notice process on R-4 has been duly completed, there is no appearance for that party.

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The gist of the allegations in Anx. A-1 complaint is as

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follows:

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The petitioner and the 2^nd respondent are husband and wife and a minor female child aged 3¹ /2 is born out of the wedlock. The 3^rd respondent is an old friend and batch mate of the 2^nd respondent,

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Crl.R.P.291/19 - : 3 :-

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who is also married. The 4^th respondent is the mother of the 2^nd respondent. 2^nd and 3^rd respondents are in an illicit relationship and the trails of the same can be seen in Facebook, etc. The Revision Petitioner had left his job when he learnt about the illicit relationship and came back to his native place. The 2^nd respondent had shifted her residence to the above shown address, as the same is convenient for her illicit relationship. The 2^nd respondent is working in Neethi Medicals in Kulanada and the child is now enrolled in L.P. School, Kulanada. The school is 40 k.m. away from her house. Respondents 2 and 3 used to take the minor child after school hours in a Wagon-R car used by the 3^rd respondent and travelled to scheduled places at odd times. Respondents 2 and 3 used to perform sexual acts in front of the minor child. It is alleged that the 3^rd respondent used to hug and kiss the minor child in the case. The petitioner had seen the child at her school and the petitioner had asked about the behaviour of the 3^rd respondent and the same was recorded and produced before the court below in a compact disc, etc. 4. According to the petitioner, he had made a complaint

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alleging commission of offences punishable under Protection of Children from Sexual Offences Act, 2012 (POCSO Act) before the Station House Officer (SHO), Pathanapuram Police Station, and that at the instance of one of the Police officials, he was forced to sign in the register stating that the complaint is not proceeded with. Thereafter, the petitioner was constrained to make a complaint before

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the Superintendent of Police (District Police Chief). But no effective

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action was forthcoming from the competent Police authorities concerned. That thereupon the petitioner was concertinaed to file Anx.A-1 private criminal complaint before the Judicial First Class Magistrate's Court-III, Punalur, which was then directed to be represented before the proper court as the jurisdiction is vested with the notified sessions court. Accordingly, the petitioner had then represented the said Anx.A-1 complaint before the Addl. Sessions Court-I, Kollam, which is notified as the Special Court to deal with offences under the POCSO Act and the complaint has been numbered Crl. Miscellaneous Petition No.1198/2018 as can be seen from Anx. A-1.

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It is further stated that the Special Court has then proceeded to record the statements of 6 witnesses and the matter was heard and by the impugned A-2 order dated 10.1.2019, it was held that the offence alleged as per Sec.11(i) of the POCSO Act is not disclosed in the factual allegations in the complaint and that even if the averments in the complaint are assumed to be true, still the provisions under the POCSO Act are not applicable to the facts of the case and that there is not even an allegation that the respondents have done the acts complained of with sexual intent against the child and that even if it is taken that R-1 and R-2 had sexual activities in the car, there is no allegation or evidence that the indulgence of such activities with the

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intention to make the child to see it. Moreover, it has also been held therein that going by the provisions of Sec.19 of the POCSO Act, there is no authority conferred on the special court to take a complaint directly. Further that the the provisions of the POCSO Act are not applicable and that the other offences alleged are under the I.P.C. It is in the light of these aspects, that the special court has issued the impugned Anx. A-2 order, whereby the complaint has been returned for presentation before the proper court.

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From a mere reading of Anx. A-1 complaint, it can be seen that the petitioner herein is the father of the minor victim girl aged 3¹ /2 years born in her wedlock with the 2^nd respondent. It is further alleged that 2^nd and 3^rd respondents are having illicit relationship. Further that 2^nd and 3^rd respondents used to take the minor child after school hours in the Wagon-R car used by the 3^rd respondent to secluded places at odd times and that 2^nd and 3^rd respondents used to perform sexual acts in front of the minor child and further that the 3^rd respondent used to hug and kiss the minor child in the car.

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7. Sec. 11(i) of the POCSO Act reads as follows:

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“Sec.11: Sexual harassment:- A person is said to commit sexual harassment upon a child when such person with sexual intent,--

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(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

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be seen by the child; or

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xxx xxx xxx”

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Sec. 7 of the POCSO Act reads as follows:

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“Sec.7: Sexual Assault:- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”

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8. Sec. 2(1)(j) of the POCSO Act defines “ sexual harassment ”

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as having the same meaning as assigned to it in Sec. 11 thereof. Sec. 2(1)(i) of the said Act defines “ sexual assault ” as to have the same meaning as assigned to it in Sec. 7. Sec. 11(i) of the Act stipulates that 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 the body shall be seen by the child. In the instant case, the specific averments in Anx. A-1 complaint are that the 2^nd respondent used to take the minor child along with the 3^rd respondent in his car to isolated places and used to frequently perform sexual acts in that car in front of the minor child. When two adults are performing sexual acts deliberately in the presence of a minor child and knowing fully well that since the acts are being performed in a car and in the presence of the child, the child will necessarily see it,

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then it amounts to their exhibiting their body or part of the body with the intention that the body or part of the body shall be seen by the child and in such a scenario, it goes without saying that the said persons should be imputed with the mens rea that they are doing the said act with sexual intent so that their body or part of the body shall be so seen by the child. Therefore, there cannot be any doubt that the vital ingredients of clause (i) of Sec.11 of the POCSO Act are satisfied assuming that the said allegations raised in Anx. A-1 complaint are true.

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Further, Oxford Advanced Learner's Dictionary , New 8^th Edition, defines the word, “ gesture ” as having various shades of meaning including “ movement that you make with your hands, your head or your face to show a particular meaning ,” etc. and also as “ something that you do or say to show a particular feeling or intention ”. A gesture is a form of non-verbal communication or nonvocal communication in which visible bodily actions communicate particular messages either in place or, or in conjunction with, speech. Gestures include movement of the hands, face or other parts of the body. It may be seen that Sec. 11(i) of the POCSO Act also stipulates that a person is said to commit sexual harassment upon a child when such person with sexual intent makes any gesture with the intention

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that such gesture shall be seen by the child. When two adults like respondents 2 and 3 perform sexual acts as stated above, in the presence of the child and knowing fully well that the child will necessarily see it, as it is being performed in the closed space of a car, then the abovesaid sexual acts involve visible movements and actions of their body and then they should be imputed with the intention that they are doing such acts, which should also be seen by the child. Therefore, on both these counts, there can be no doubt that the vital ingredients of clause (i) of Sec.11(i) of the POCSO Act are attracted, if it is assumed that the allegations raised in Anx. A-1 complaint are true.

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Further the specific allegation in the said complaint that R-3 (paramour of R-2) while undertaking such journeys in the car, along with R-2, had used to hug and kiss the child. The residuary clause of Sec. 7 of the POCSO Act which deals with sexual assault, stipulates that “ whoever .... ..... does any other act with sexual intent, which involves physical contact without penetration is said to commit sexual assault ”. There cannot be any doubt that if a person like the 3^rd respondent who is alleged to be the paramour of the child's mother, frequently kisses and hugs the minor girl child and that too, in journeys undertaken by them in the car, where he and mother of the child frequently used to do sexual acts in the presence of the child,

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etc., then it goes without saying that the 3^rd respondent should be imputed with the mens rea that he was doing the said act of kissing and hugging the child, which involves his physical contact of the child, with sexual intent. It is not as if a grown up adult is showing a loving gesture of kissing and hugging a minor child out of love and affection of the child, as context in which the alleged incidents have taken place, will have to be borne in mind. The specific allegation of the complainant is that R-2 and R-3 used to frequently perform sexual acts in the car in lonely places, which is seen by the child and then he used to hug and kiss the child. Therefore, in the context of the said factual allegation it can be seen that R-3 should be attributed with the mens rea that he was doing the said act of having physical contact of the body of the child by hugging and kissing her with sexual intent as envisaged in Sec. 7.

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The matter could be examined from another perspective. If a person with sexual intent shows a sexually explicit or pornographic video in a mobile phone or some such other equipment to a child, then it goes without saying that it would satisfy the definition of “ sexual harassment ” contained in Sec.11 of the Act inasmuch as, the person with sexual intent exhibits the said object with the intention that such object shall be seen by the child. So also,

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when a person with sexual intent shows an obscene gesture or gesticulation suggesting sexual acts, etc. to the child, then it would also constitute sexual harassment under Sec. 11(1) inasmuch as, such person with sexual intent makes such gesture with the intention that such gesture shall be seen by the child. Further it can be seen that if a person with sexual intent exhibits his private parts to the child with such intention, etc., then also it would constitute sexual harassment as per Sec. 11(1) of the Act inasmuch as such person with sexual intent exhibits his part of the body with the intention that such part of the body shall be seen by the child. Then there cannot be any dispute that the act of an adult male and adult female in deliberately indulging themselves in the sexual act of intercourse and knowing fully well that the same is done in the presence of the child and that the child is seeing it, then it does not stand to logic and reason as to why such an obnoxious and vicious act, cannot fulfill the definition of sexual harassment as understood in Sec. 11(i) of the POCSO Act.

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Therefore, in the light of these aspects, this Court is constrained to take the view that if it is assumed that the allegations in Anx. A-1 complaint are true, then the vital ingredients of Sec. 11(i) and Sec. 7 of the POCSO are made out in the instant case. This Court is at a loss to understand as to how the learned Special Judge, who is

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an officer in the rank of Sessions Judge, has taken the said view that the allegations in Anx. A-1 complaint will not disclose any of the offences in POCSO and that the provisions of the POCSO Act are not applicable to the instant case, even if it is assumed that the entire allegations in Anx. A-1 complaint are true. The said view taken by the court below is, to say the least, perverse and unreasonable and cannot be sustained for a moment.

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The other main finding made by the Special Sessions Court is that going by the provisions contained in Sec. 19 of the POCSO Act, there is no authority conferred on the special court to take a complaint directly. From a reading of the provisions of the POCSO Act, it can be seen that Chapter VIII of the said Act deals with designation of the special courts. Sub section (1) of Sec. 28 stipulates that for the purpose of providing a speedy trial, the State Government shall, in consultation with the Chief Justice of the High Court, by notification in the official gazette, designate for each district, a court of sessions to be Special Court to try the offences under the Act, etc. Chapter VIII of the POCSO deals with procedure and powers of the special courts and recording of evidence. Sub section (1) of Sec. 33 stipulates that a special court may take cognizance of any offence without the accused being committed to it for trial, upon receiving a

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complaint of facts which constitute such offence, or upon a police report of such facts. Sec.31 deals with application of Code of Criminal

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Procedure, 1973, to proceedings before a special court and it is mandated therein that, save as otherwise in the Act, the provisions of the Cr.P.C. including the provisions as to bail and bonds, shall apply to the proceedings before a special court and for the purposes of the said provisions, the special court shall be deemed to be a court of sessions and the person conducting a prosecution before a special court shall be deemed to be a special prosecutor. Chapter V deals with procedure and report of cases. Sec. 19 which comes under Chapter V, provides as follows:

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“Sec. 19: Reporting of offences.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any person (including the child), who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to,--

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(a) the Special Juvenile Police Unit; or

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(b) the local police.

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(2) Every report given under sub-section (1) shall be--

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(a) ascribed an entry number and recorded in writing;

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(b) be read over to the informant;

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(c) shall be entered in a book to be kept by the Police Unit.

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(3) Where the report under sub-section (1) is given by a child, the same shall be recorded under sub-section (2) in a simple language so that the child understands contents being recorded.

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(4) In case contents are being recorded in the language not understood by the child or wherever it is deemed necessary, a translator or an interpreter, having such qualifications, experience and on payment of such fees as may be prescribed, shall be provided to the child if he fails to understand the same.

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(5) Where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed is in need of care and protection, then, it shall, after recording the reasons in writing, make immediate arrangement to give him such care and protection (including admitting the child into shelter home or to the nearest hospital) within twenty-four hours of the report, as may be prescribed.

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(6) The Special Juvenile Police Unit or local police shall, without unnecessary delay but within a period of twenty-four hours, report the matter to the Child Welfare Committee and the Special Court or where no Special Court has been designated, to the Court of Session, including need of the child for care and protection and steps taken in this regard.

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(7) No person shall incur any liability, whether civil or criminal, for giving the information in good faith for the purpose of sub-section (1).”

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It can be seen that Sec.19 makes special procedure and provisions in the matter of reporting of offences and there is non obstante clause in sub section (1) of Sec. 19. Therefore, in the matter of reporting of offences, Sec. 19 would be a special provision as far as the offences under the POCSO Act are concerned. Whereas the provisions of Sec.154 of the Cr.P.C. which deals with information in cognizable cases and in the matter of registration of FIR, crime, etc. is a general law in criminal procedure. In view of the saving clause in Sec.31 and non obstante clause in Sec. 19(1), it goes without saying that the special procedure for reporting of offences as stipulated in Sec.19 would override the general provisions in Sec. 154 of the Cr.P.C. However, it is also relevant to note that a close reading of Sec. 19 of the POCSO Act would reveal that what has been now done by the

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Parliament is to streamline the procedure for reporting of cases, which may be made either to the special juvenile police unit or to the local police and also about the procedure to be followed in recording of the report, etc. so as to make it in a more child friendly manner, as the very act itself is a special act, which regulates prosecution of sexual offences. Sec.19 cannot even be the remote basis to take the view that the only manner in which cognizance of the offence could be taken by the special court is by the sole method of reporting of offences and investigation and subsequent filing of the final report/charge sheet, etc. Sec. 31 clearly mandates the applicability of Cr.P.C. save as otherwise provided in the POCSO Act.

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It is to be very pertinently noted that the Parliament has made a specific provision in under Sec.33(1) of the POCSO Act under Chapter VIII of the POCSO Act that a special court may take cognizance of any offence without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a Police report of such facts. Therefore, it is fully open to the special court to take cognizance of the offence either on receiving complaint of the facts, which constitute such offence or upon Police report of such facts. Therefore, indisputably the view taken by the special court that the only manner for taking cognizance

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of the offence under the POCSO Act is on the basis of a Police report, which gets culminated by the reporting of offence under Sec. 19 of the Act, etc. is illegal and legally wrong. Going by the specific provisions in Sec. 33(1) of the POCSO Act it is clear like the blue sky, that cognizance of the offence under the POCSO Act could be taken either on receiving a complaint of facts, which constitute such offence or upon a Police report of such facts. Therefore, the last ground found by the court below that the special court has no jurisdiction to take complaint directly, and the only manner of taking cognizance of the offence is on the basis of a Police report, which is culminated by the reporting of offences in terms of Sec.19 of POCSO Act, is illegal and wrong as both options are permissible. Further in the instant case, the specific case of the complainant is that he had tried level best to get the factum of the offence reported before the local Police, which was resisted by some of the officials of the Police Station concerned and he was thereafter constrained to approach the District Police Chief so as to ensure that necessary action is taken for registration of the crime, but that also turned to be a failure. It is thereafter that the petitioner has filed the instant Anx.A-1 complaint making the abovesaid allegations regarding the disclosure of offences under the POCSO Act. In the light of these aspects, it is only to be held that the

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impugned Anx. A-2 order cannot be sustained in law. In that view of the matter, the impugned Anx.A-2 order is set aside and Anx. A-1 complaint will stand remitted to the special court for consideration afresh. The special court will deal with the said complaint, in accordance with law.

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With these observations and directions, the above Criminal Miscellaneous Case stands finally disposed of.

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sdk+

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Sd/ALEXANDER THOMAS, JUDGE

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 A TRUE COPY OF C.M.P. 1198/2018 DATED 29/9/2018

Ismail M. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Ismail M. v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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