Telangana High Court
D. Bhasker vs State Of Telangana And 2 Others on 13 December, 2022
Bench: K.Surender
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Petition No.180 OF 2022
Between:
D. Bhasker ... Petitioner
And
The State of Telangana,
rep. by its Public Prosecutor,
High Court for the State of Telangana,
Hyderabad & Others ... Respondents
DATE OF JUDGMENT PRONOUNCED: 13.12.2022
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to Yes/No
see the Judgments?
2 Whether the copies of judgment
may be marked to Law Yes/No
Reporters/Journals
3 Whether Their
Ladyship/Lordship wish to see Yes/No
the fair copy of the Judgment?
_________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.P. No. 180 of 2022
% Dated 13.12.2022
# D. Bhasker ... Petitioner
And
$ The State of Telangana,
rep. by its Public Prosecutor,
High Court for the State of Telangana,
Hyderabad & Others ... Respondents
! Counsel for the Petitioner: Sri. Vijay Kumar Panuganti
^ Counsel for the Respondents: Sri S.Sudershan,
Addl. Public Prosecutor
>HEAD NOTE:
? Cases referred
1) 1992 Supp.(1) SCC 335
2) 2022 (10) SCC 221
3
THE HONOURABLE SRI JUSTICE K.SURENDER
Criminal Petition No.180 of 2022
ORDER:
1. This Criminal Petition is filed to quash the proceedings
against the petitioner/accused in SC(POCSO) No.305 of 2020
on the file of III Additional District and Sessions Court, FTC at
Gadwal (I Additional Sessions Judge Court at
Mahabubnagar).
2. The case against the petitioner is the teacher of the
victim girl and a video was viral in whatsapp group in which
the petitioner was seen sexually abusing the victim girl. The
Station House Officer, Maldakal, issued a requisition to
District Child Protection Officer (DCPO) for recording the
statements of victim and other girls. Having recorded the
statements of the girls, it was found by the Investigating
Officer that the petitioner had abused the children, which
amounts to an offence under Sections 11 and 12 of the
Protection of Children from Sexual Offences Act, 2012 (for
short 'the Act of 2012').
3. Learned counsel for the petitioner would submit that
only ground on which he is seeking quashing the proceedings
is that Section 11 read with Section 12 of the act of 2012 is
punishable with imprisonment of a term which may extend to
three years and fine, as such, in accordance with Part II of
First Schedule of Code of Criminal Procedure, the offence is
non-cognizable. As seen from the charge sheet, no where it is
mentioned that the concerned Magistrate has accorded
permission to investigate, for which reason, taking cognizance
of offence is bad in law. In support of his contention, he relied
upon the judgment of Hon'ble Supreme Court in the case of
State of Haryana v. Bhajan Lal [1992 Supp.(1) SCC 335],
and drew attention to guideline No.4, wherein the Hon'ble
Supreme Court held that when the allegations constitute only
non-cognizable offence, no investigation is permitted by the
police officer, without an order of Magistrate as required
under Section 155 (2) of Cr.P.C. In the present case, since,
there is no such permission, which was accorded by the
Magistrate, charge sheet has to be quashed.
4. For the sake of convenience, Part II of First Schedule of
Code of Criminal Procedure is extracted hereunder:
Offence Cognizable or Bailable or By what Court
Non-cognizable Non-Bailable triable
If punishment with death, Cognizable Non-bailable Court of
imprisonment for life, or Session
imprisonment for more
than 7 years
If punishable with Ditto Ditto Magistrate of
imprisonment for 3 years the first Class
and upwards but not more
than 7 years
If punishable with Non-cognizable Bailable Any
imprisonment for less than Magistrate
3 years or with fine only
5. If an offence under IPC is punishable with imprisonment
for less than three years or with fine only then the said
offence is made non-cognizable and bailable, which offence
can be tried by "Any Magistrate".
6. Sections 11 and 12 of the Act of 2012 reads as follows:
"Section 11 POCSO Act (The Protection of Children from Sexual
Offences Act, 2012): Sexual harassment.
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."
7. Section 12 : Punishment for sexual harassment
"Whoever, commits sexual harassment upon a child shall be
punished with imprisonment of either description for a term
which may extend to three years and shall also be liable to fine."
8. Section 11 of the Act of 2012 gives details of what
amounts to committing sexual harassment upon a child with
sexual intent. Section 12 of the Act makes the commission of
such sexual harassment as described under Section 11
punishable with imprisonment of a term which may extend to
three years and shall also be liable to fine.
9. The maximum punishment which can be imposed by
the Special Court trying an offence under the Act of 2012
would be three years, considering Part-II of First Schedule to
Cr.P.C, when an offence is punishable less than three years or
with fine only, can be said to be non-cognizable. For the
offence under Section 12 of the Act when the Court can
impose maximum imprisonment of three years, the offence
falls within the 2nd description of offences under Part II of
First Schedule i.e., if the offence is punishable with
imprisonment for three years and upwards, but not more
than seven years, offence would be cognizable and non-
bailable.
10. The argument of the learned counsel for the petitioner
has no legs to stand for the reason of Section 12 being a
cognizable and non-bailable offence. The Hon'ble Supreme
Court in the judgment of M/s.Knit Pro International v. State
of NCT of Delhi and another [2022 (10) SCC 221] held that
Section 63 of the Copy Right Act 1957 prescribed the
maximum sentence of three years is cognizable and non-
bailable offence.
11. In view of the reasons discussed above, while holding
that offence under Section 12 of the Act is cognizable and
non-bailable, the Criminal Petition is liable to be dismissed.
12. Accordingly, this Criminal Petition is dismissed.
Miscellaneous applications, pending if any, shall stand closed.
_________________
K.SURENDER, J
Date: 13.12.2022
Note: LR copy to be marked.
B/o.kvs
THE HON'BLE SRI JUSTICE K.SURENDER
Criminal Petition No.180 of 2022
Date 13.12.2022
kvs
