Rajasthan High Court Discharges Youth From Stalking Charges Under POCSO | Holds Statement Shows No Contact Or Interaction And Adds Charge For Showing Adult Videos Under Section 354A IPC
Safiya Malik
The High Court of Rajasthan Single Bench of Justice Manoj Kumar Garg allowed in part a criminal revision petition, setting aside the trial court's order framing charges under Sections 354D of the Indian Penal Code (IPC) and Sections 11(iv)/12 of the Protection of Children from Sexual Offences Act (POCSO Act). The Court, however, upheld the charge under Section 11(iii)/12 of the POCSO Act and further directed the trial court to frame an additional charge under Section 354A(iii) IPC. The Court concluded that the charges under Section 354D IPC and Section 11(iv) POCSO Act were legally unsustainable due to lack of evidence, but sufficient prima facie material justified proceeding under the remaining provisions.
The petitioner filed a criminal revision under Sections 397/401 Cr.P.C. against the order dated 09.02.2024, passed by the Special Judge, POCSO Act Cases, Bikaner in Sessions Case No. 7/2024. The trial court had framed charges against the petitioner under Section 354D IPC and Sections 11(iii), 11(iv)/12 of the POCSO Act based on a complaint filed by the complainant regarding the abduction of his minor daughter.
According to the complaint, the complainant's minor daughter was abducted from her home by unknown persons. An FIR No. 0214/2023 was registered under Section 363 IPC, and upon completion of the investigation, the police filed a charge sheet against the petitioner for the alleged offences.
The learned counsel for the petitioner argued that the victim, in her statement recorded under Section 164 Cr.P.C., explicitly stated that she had left home voluntarily and roamed alone for about two months, during which no wrongful act was committed against her by the petitioner or any other person. The only allegation made was that the petitioner showed her adult videos. It was contended that this act alone, without evidence of coercion, exploitation, or other unlawful conduct, did not constitute a criminal offence. Therefore, the impugned order framing the charges was perverse and liable to be quashed.
The learned Public Prosecutor and counsel for the respondent opposed the petition, submitting that at the stage of framing charges, a detailed examination of evidence was unnecessary. The impugned order was claimed to be justified and not requiring interference.
Justice Manoj Kumar Garg recorded that the victim, in her statement under Section 164 Cr.P.C., specifically stated she left home voluntarily and did not meet or interact with the petitioner during the two-month period. "She only claimed that the petitioner showed her adult videos."
To analyse the contentions, the Court referred to the relevant statutory provisions. Section 354D IPC defines stalking and criminalizes repeated contact or monitoring of a woman despite her disinterest. Section 11 of the POCSO Act outlines acts constituting sexual harassment upon a child, including showing pornographic material (Section 11(iii)) and repeated following or contacting a child (Section 11(iv)).
The Court stated: "Such conduct does not constitute a criminal offence unless the victim's statement explicitly substantiates the fact of stalking." It noted that the victim clearly denied any such interaction with the petitioner, undermining the charge under Section 354D IPC and Section 11(iv) of the POCSO Act.
On the legal standard for framing charges, the Court observed: "The framing of a charge must be grounded in prima-facie evidence that reasonably indicates the commission of the alleged offence by the accused." Since the victim explicitly stated she did not encounter the petitioner, the essential elements of stalking were absent, leading the Court to conclude that the charges under Section 354D IPC and Section 11(iv) POCSO Act could not be sustained.
However, regarding the allegation of the petitioner showing adult videos to the victim, the Court noted: "The victim has specifically alleged that the petitioner showed her adult videos." Referring to Section 11(iii) of the POCSO Act, the Court stated: "A person is said to commit sexual harassment upon a child when such person with sexual intent shows any object to a child in any form or media for pornographic purposes."
The Court further cited Section 30 of the POCSO Act, which creates a presumption of sexual intent once the commission of the act is proven. "The burden then shifts to the accused to establish, beyond reasonable doubt, the absence of sexual intent with respect to the alleged act."
In addition, the Court examined Section 354A IPC, which criminalizes showing pornography against the will of a woman. "Subsection (iii) of Section 354A IPC explicitly states that showing pornography against the will of a woman constitutes sexual harassment." Since the victim alleged that the petitioner showed her adult videos, the Court concluded that a prima-facie case was made out under Section 354A(iii) IPC.
The Court issued the following directions:
"Accordingly, the revision petition is partly allowed. The impugned order dated 09.02.2024 passed by the learned trial court to the extent of framing charge for offence under Section 354D of IPC and Section 11(iv)/12 of the POCSO Act against the petitioner is hereby set aside and the petitioner is discharged from the said offences."
"However, charge framed for offence under Section 11(iii)/12 of POCSO Act is not interfered with. Additionally, the Trial Court is directed to frame charge under Section 354A(iii) of IPC against the petitioner."
The Court also directed that the Stay application is also decided.
Advocates Representing the Parties
For the Petitioners: Mr. Jaidev Singh Bhati, Advocate
For the Respondents: Mr. Pawan Kumar Bhati, Public Prosecutor; Mr. Trilok Joshi, Advocate
Case Title: XXX v. State of Rajasthan and Another
Neutral Citation: 2025: RJ-JD:21808
Case Number: S.B. Criminal Revision Petition No. 420/2024
Bench: Justice Manoj Kumar Garg
[Read/Download order]
