Commenting on the clothes of girls and touching them inappropriately is a violation of Section 7 of the POCSO Act: HP HC

Himachal Pradesh High Court: In a petition filed by the plaintiff-defendant seeking quashing of an FIR registered under Section 354-A of the Penal Code, 1860 (‘IPC’) (pursuant to Section 75 of Nyaya Sanhita, 2023) and Section 7 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), Rakesh Kainthla, J.stated that many girls had stated that the accused touched the girls inappropriately on their back, cheek and neck. also made comments about himself and the girls’ clothing. These acts constituted commission of an offence punishable under Section 7 of the POCSO Act, which provided punishment for physical contact with a minor with sexual intent. The Court stated that the physical contact made by the accused with the girls, coupled with the words uttered by him, could only lead to one conclusion that the touching was with sexual intent.

The Court held that the allegations made by the girls in their statements under Section 161 of the Code of Criminal Procedure, 1973 (‘CrPC’) (corresponding to Section 180 of Nagarik Suraksha Sanhita, 2023) duly established a prima facie commission of the offence punishable under Section 7 of the POCSO Act. Therefore, the FIR could not be quashed at this stage.

Background

In the present case, the principal of the Government Senior Secondary School received a complaint of sexual harassment from a girl. The matter was referred to the Sexual Harassment Committee, which summoned the girl and her parents. However, they did not appear before the committee and ultimately the committee could do nothing. Since the case involved sexual harassment of a girl, a request was made to the police to take action as per the law.

The police conducted the investigation and went to the school. The statement of the victim was recorded and then the accused was arrested. The police recorded the statements of around 20 girls, who stated that the accused used ambiguous words and touched the girls on their backs, cheeks etc. which made them uncomfortable. Therefore, the challan was prepared and submitted to the court for committing offences punishable under Section 354-A of the Penal Code and Section 10 of the POCSO Act.

The accused filed the present petition alleging that he was wrongly implicated. The petitioner stated that the Director had misunderstood the purport of the complaint and referred the matter to the Chairman of the Sexual Harassment Commission for further action. The Sexual Harassment Commission also took no action in the matter and referred the matter back to the Director. The accused had been in the department for 22 years and had won many awards from various institutions. No charge was framed against the accused even if the allegations in the FIR were accepted as true. Continuing with the criminal proceedings would amount to gross abuse of the judicial process. Therefore, the accused prayed that the present petition be allowed and the FIR be quashed.

Analysis, law and decision

The Court took cognizance of the investigation conducted by the police and the recorded statement of the victim and other girls, in which they had stated that the petitioner had grabbed her by the neck, touched the back and cheek of the girls, uttered words with double meaning and also asked them whether they knew how the children were born. The Court held that the petitioner was a physics teacher and was not involved in procreation. Further, many girls had stated that he touched the girls inappropriately on their back, cheek and neck. The accused also made remarks about himself and the girls’ clothing. These acts constituted commission of an offence punishable under Section 7 of the POCSO Act, which provided punishment for physical contact with a minor with sexual intent.

The Court held that the physical contact the suspect had made with the girls, combined with the words he had spoken, could only lead to one conclusion, namely that the touching had a sexual intention. The mere fact that the informant had not mentioned the elements of the commission of the offence in the complaint he lodged with the principal could not lead to a conclusion that no such facts had taken place. The Court held that the girls had made statements indicating that the suspect had touched them inappropriately and that the outcome of the investigation could not be ignored at this stage.

The Court referred to Iqbal v. State of UP., (2023) 8 SCC 734 and held that this Court should not exercise its extraordinary jurisdiction when the matter was registered before it. The averments made by the girls in their statements under Section 161 of CrPC have duly established a prima facie case of the offence punishable under Section 7 of the POCSO Act and the FIR could not be quashed at this stage.

(Rakesh Kumar Bansal v. State of HP, Cr. MMO No. 825 of 2023, decided on 09-07-2024)

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Attorneys who acted in this case:

For the applicant: PP Chauhan, Advocate (through VC) with Tara Devi, Advocate.

For the defendant: Jitender Sharma, Additional Advocate General; Ajay Kumar Dhiman, Advocate.

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