The Jharkhand High Court observed that repeatedly or consistently following or watching or contacting a child with sexual intent amounts to sexual harrassment under Section 11(4) of the Protection of Children from Sexual Offences Act, 2012.

The Court upheld the order of rejection of discharge application of a teacher who had an evil eye on his female student on the ground that his act comes within the periphery of Section 11(4) of the POCSO Act.

A Single Bench of Justice Subhash Chand said, “In the FIR itself, it has been stated that the minor victim girl of the informant was sexually harassed by the teacher of the school he used to tease her. He was also having evil eye so the complaint was made against him to the Principal of the school and he was removed from the post of teacher from that school. Thereafter, he had threatened to see them. … It has also been stated by these witnesses that even after removal from the post of teacher from that school he used to make effort to follow the victim daughter of the informant and also had been making effort to meet her and to talk her. As such, the act of the present petitioner comes within periphery of section 11(4) of the POCSO Act, 2012 which amounts sexual harassment as explained in section 2(J) of the POCSO Act, 2012 and the same is punishable under section 12 of the POCSO Act, 2012.”

The Bench also noted that as per the settled law, even if there is a sufficient material for the grave suspicion, the court should decline the discharge application.

Advocate Jasvindar Mazumdar appeared for the petitioner while APP Abhay Kumar Tiwari and Advocate Shekhar Pd. Gupta appeared for the opposite parties.

Brief Facts -

The informant i.e., the father of the victim girl gave a written information to the police alleging that his 15-year-old minor daughter was missing from his house as all of a sudden, she was not found on her bed at night. She was studying in Class X and one and a half year ago, the teacher of the school (petitioner/convict herein) had an evil eye upon her. Complaint of the same was made to the Manager of school and hence, the school management had removed the convict teacher from the school. However, even after that, he used to make effort to meet the victim.

With the belief that the convict had kidnapped the victim with an intent to have an illicit relation with her, a report was lodged. Hence, a case was registered under Sections 363 and 366A of the Indian Penal Code (IPC) Against the final report filed by the Investigating Officer for the lack of evidence against the convict, the Trial Court took cognisance. The Court rejected his application for discharge and aggrieved by this, he approached the High Court.

The High Court in view of the above facts observed, “It is the settled law that while framing the charge the trial court has to take into consideration the allegations made in the FIR and the evidence collected by the IO during investigation if from them, there are sufficient ground to proceed with the trial against the accused the court should decline the discharge application of the accused. … It is also the settled law that while disposing off the discharge application of the accused the court should not appreciate the evidence on record. The appraisal of the evidence, marshalling of the evidence and conducting mini trial at the time of disposing discharge application is not permissible.”

The Court further said that as per Section 11 of the POCSO Act, a person is said to commit the sexual harassment upon a child when such person with sexual intent repeatedly or consistently follows or watches or contacts a child either directly or through electronic, digital or any other means will amount sexual assault in view of section 11(4) of the POCSO Act.

“Herein from the allegations made in the FIR and the statement of the witnesses under section 161 of Cr.PC as narrated hereinabove, there is ample evidence against the petitioner in regard to the sexual harassment caused to the victim who is deceased girl of the informant”, added the Court.

Accordingly, the High Court dismissed the criminal revision petition and upheld the impugned order.

Cause Title- Rahul Yadav v. The State of Jharkhand & Anr.

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