Whether prosecution under POCSO Act is maintainable if a person constantly watches child ?

Whether prosecution under POCSO Act is maintainable if a person constantly watches child ?


IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.1947 OF 2017

MANJU TEJBAL VISHWAKARMA AND ANR.  V/s. THE UNION TERRITORY OF DAMAN & DIU 

CORAM : A. M. BADAR, J.

DATE : 27th SEPTEMBER 2017

Citation: 2017 SCC ONLINE Bom 8895.


Therefore, it will be appropriate to reproduce provisions of Section 11 of the POCSO Act, which reads thus : 


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; or


(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; or


(iii)  shows any  object to a child  in any form or media for pornographic purposes; or 


(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or


(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; or


(vi) entices  a child  for pornographic purposes or

gives gratification therefor. 

4 In context of the instant case, it needs to be mentioned that if a person with sexual intent repeatedly or constantly follows or  atches or contacts a child either directly or through other means, then he can be said to have committed an offence defined under Section 11 of the POCSO Act.  The question whether the act was with sexual intent is a question of fact which needs to be adjudicated   on   appreciation   of   evidence   adduced   by   the prosecution.


5 In   the   instant   case,   material   on   record   shows   that there are no averments that petitioner no.1, who is mother of the victim female child, has done any act against the victim, who is her daughter, with any sexual intent, and therefore, Section 11 of the POCSO Act made punishable under Section 12 thereof is infact not invoked by the prosecution against petitioner no.1.  So far as petitioner no.2 Valji Vadher is concerned, the victim female child in her statement recorded under Section 164 of Cr.P.C. has stated that petitioner no.2 Valji Vadher is having bad eye on her.  In her statement  recorded   under   Section   161   of   the   Cr.P.C.,   she   has stated that petitioner no.2 Valji Vadher always used to see her with bad intention.  Watching a female child with sexual intent comes under  the  mischief   covered   by   Section  11  of   the  POCSO   Act.


Bharath L

Advocate

High Court of Karnataka, Bangalore

9844734166


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