On Friday, the Sessions Court in Delhi granted bail to an accused in a POCSO case.
The accused was arrested on 7th August on the allegation that he along with others were harassing a schoolgirl aged about 17 years and studying in class 12 in a South Delhi school.
It was alleged in the FIR that two women from the modelling world had sent obscene pictures of the mother of the victim through WhatsApp and Instagram. The FIR stated that the parents of the victim were separated, and it was further alleged that the accused was in an illicit relationship with the mother of the complainant. As per the victim, she felt harassed seeing
the vulgar images of her own mother.
She felt her family reputation was adversely affected and so were her studies. The accused took up the defense in his bail application, argued by Mr. Vivek Sood, Senior Advocate that he had never contacted the schoolgirl.
There was no allegation in the FIR that he had contacted the minor. It was submitted on his behalf that since the accused had admittedly not contacted the schoolgirl, he was not liable under Section 11 of POCSO, which reads as follows:
“Section 11- 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 itis seen by such person or any other person; or
(iii) shows any object to a child in any form or media forpornographic 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.
Explanation.--Any question which involves sexual intent" shall be a question of fact.”
Mr. Sood argued that since the accused had undisputedly never contacted the complainant, Section 11 of POCSO was prima facie not attracted. He brought the attention of the Court to the requisite ingredient of Section 11 i.e. “sexual intent” to prove an offence of sexual harassment against the minor, which he argued is absent in the instant case.
It was further argued that even assuming that the accused was in a relationship with the mother of the complainant, it is no offence in view of the Supreme Court’s judgment in Joseph Shines’s case, declaring the offence of adultery to be unconstitutional.
Adultery has been decriminalized as an offence. It was further argued by Mr. Sood that the arrest of the accused was illegal in view of the law laid down in Arnesh Kumar’s case by the SC. Instead of arrest, the accused should have been called for joining the investigation.
There was no necessity to arrest him. He could have been made an accused even without arrest. Mr. Sood argued that the police had acted in a highhanded manner by arresting the accused. The accused is a married man with a small
child and is the sole bread winner of his family.
Mr. Sood argued that, “the principle of ‘bail, no jail’ was squarely applicable to the present case”.
The Special POCSO Court noticed that the screenshots of the chats filed on record by the Complainant were prima facie not attributable to the accused. No connection was established between the sender of the vulgar images and the arrested accused. There was no material on record to show that the accused had instigated the sender to forward the obscene images to the Complainant. Since there was no material to show the connectivity of the accused with the offending images, he deserved to be granted bail.
The Court while releasing the accused on bail, imposed certain conditions.
Read Order Here:
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