The Bombay High Court has said that looking at a minor boy or a girl with a sexual intention will invite the provisions of the POCSO Act

~By Rajesh Kumar

On September 27, Justice AM Badar of the Bombay High Court held that looking lecherously at a minor boy or a girl is punishable under the Protection of Children from Sexual Offences (POCSO) Act, 2005.

The ruling came while declining to quash the FIR against one Manju Tejbal Vishwakarma, the victim’s mother, and Valji Vadher who had been booked under the law to protect children and minors from sexual offences. “Watching a child with sexual intent comes under mischief covered by Section 11 of the POCSO Act,” the Court ruled.

Section 11 of the POCSO Act defines “sexual harassment of a child”, and includes the words “constantly watching a child with sexual intent”. This offence is punishable by up to three years imprisonment and a fine under Section 12 of the Act.

Referring to the fact that the victim had testified before a metropolitan magistrate that one of the accused always used to look at her “with a bad intention”, the Court said: “Therefore, it cannot be said that there are no sufficient grounds to proceed against the accused for the offence as defined by Section 11 and made punishable under Section 12 of the POCSO Act.”

Section 11 of the POCSO Act defines “sexual harassment of a child”, and includes the words “constantly watching a child with sexual intent”.

In their writ petition, Vadher and Vishwakarma had contended that the FIR was based on hearsay which is inadmissible as evidence, and anyway, the allegation of looking at someone with a bad eye was too vague to attract provisions of the criminal law.

Refusing to accept the aforesaid contentions, the Court relied on the victim’s testimony before the magistrate and held that it needs to be mentioned that if a person with sexual intent repeatedly or constantly follows or watches 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 which needs to be adjudicated on appreciation of evidence adduced by the prosecution at the stage of trial.

Vishwakarma had contended that Section 11 of the POCSO Act could not be invoked against her. The Court accepted this submission but rejected the plea of Vadher, who was the second petitioner in the case, and ordered that he should stand trial. “Watching a female child with sexual intent comes under the mischief covered by Section 11 of the POCSO Act. Therefore, it cannot be said that there are no sufficient grounds to proceed against petitioner no.2 Valji Vadher for the offence as defined by Section 11 and made punishable under Section 12 of the POCSO Act.”

—The writer is an advocate