POCSO act will cover adults who faced sexual harassment as a minor: Andhra Pradesh HC

WHAT WAS THE CASE ABOUT? 

Andhra Pradesh High Court delivered a major verdict ruling that if a minor has been a victim sexual harassment till majority or files a case in the matter after attaining majority, the accused in such cases must be tried under the Protection of Children from Sexual Offences (POCSO) Act. The judgment was delivered by a single bench comprising of Justice Cheekati Manavendranath Roy.

In the case of  MONDI MURALI KRISHNA VS DUMPA HANISHA NAGA LAKSHMI & ORS.  a criminal revision petition was filed against the order of a special court established under Section 28 of the POCSO Act where the charge sheet was returned on the ground that the provisions of the POCSO Act are not applicable to the case.

FACTS OF THE CASE 

1. The case was filed by the father of the victim as the victim committed suicide on account of sexual assault and harassment she was subjected to by the accused. Victim was a B.Arch Student at Acharya Nagarjuna University, Guntur and was a minor at that time.
2. Accused were also students studying in the same university, they used to compel the victim to talk to them personally, used to humiliate her and talk to her in vulgar language.
3. Victim girl who got panicked went to meet them and the accused persons forced her to satisfy their lust.
4. The victim girl rejected their proposals and since then the accused starting teasing and humiliating her by spreading rumors about her character stating she had illegal contacts.
5. The girl was subjected to severe mental agony and emotional turmoil. The accused also tried to outrage her modesty by touching her inappropriately.
6. Unable to bear all the torture and sexual harassment she committed suicide by hanging herself in her hostel room.
7. A charge sheet was filed under Sections 354, 354(A)(2), 354(D)(2), 306 and 109 of IPC and under Sections 4(i) and (v) and 7(1) and 2) of the Andhra Pradesh Prohibition of Ragging Act, 1997 and under Sections 8 and 12 of the POCSO Act, after a complaint was filed by her father.
8. The Additional District and Sessions Judge held that as the victim was a major when she committed suicide, POCSO Act is not applicable and so returned the charge sheet to present it before the proper court. Subsequently the petition was dismissed.
9. Now, the petition was filed as a revision before the High Court.

CONTENTIONS OF THE PARTIES 

Petitioner: It was submitted by the counsel that the date of suicide cannot be taken into consideration to ascertain whether the deceased was a child or minor when she was subjected to sexual assault. It was contended that as per Section 2(d) of the POCSO Act, “child” means any person below the age of 18 years and when the victim was subjected to the sexual assault and harassment she was a child for the purpose of POCSO Act.

It was submitted by the counsel that no report was filed by the victim during her lifetime stating the commission of any of these offences and so cognizance of the case cannot be taken under POCSO Act.

POINTS OF DETERMINATION BEFORE THE COURT:

1. Whether the facts of case constitute any offence under the POCSO Act?
2. Whether the returning of charge sheet is sustainable under law, whether it warrants interference in this revision and whether the same is liable to be set aside?

WHAT THE COURT HELD? 

• The court focused on the object of the POCSO Act which is to ensure that the law operates in the best interest and well-being of every child. The returning of charge sheet by the lower courts defeated the object of the enactment.
• The learned HC Judge stated that Article 15 of the Constitution of India confers upon the State the power to make special provision for children. Article 39 provides that the State shall in particular direct its policy towards securing that the tender children are not abused and that childhood and youth are protected against exploitation. India has ratified the United Nations Convention on the Rights of Children on 11th December, 1992, which requires the State to undertake all appropriate national, bilateral and multilateral measures to prevent – (a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b) the exploitative use of 15 CMR, J. crlrc_1970_2017 children in prostitution or other unlawful sexual practices; and (c) the exploitative use of children in pornographic performances and materials.Therefore, to fulfill the constitutional obligation and protect children from such offences it is important to safeguard the interest of child at every stage.
• The court also stated that the Additional District and Sessions Judge haphazardly arrived at an erroneous conclusion by a cryptic order and erroneously held that the facts of the case do not attract any offences under the POCSO Act. Also there was an error in stating that the victim was a major on the date of her death and so POCSO Act has no application
• It was also observed that the acts of sexual assault and sexual harassment are offences under Section 7 and 11 of the Act were committed when she was a child below 18 years. The act of stalking the victim to her native place and to make continued phone calls attracts Section 11 of the POCSO Act.
• Court also held that as per Section 16 of the act which talks about abetment of an offence, even the principal of college was liable for his act of “illegal omission” as he did not take any action when he received a complaint by the father of the victim.
• Thereafter, the High Court allowed the revision and set aside the order passed by special court. It also directed the special court to take charge sheet and cognizance of the case and dispose off the matter within 6 months.