IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3293/2016 BETWEEN:
MOHAMMED SUHAIL @ SALEEM S/O. SAHEBLAL, AGED ABOUT 19 YEARS, RESIDENT OF No.36/31, 5TH "A" CROSS, RMV 2ND STAGE, BHOOPASANDRA, BENGALURU-560 094.
(BY SRI SURAJ MUTNAL FOR SMT. VIJETHA R NAIK, ADVOCATE) AND:
1. STATE OF KARNATAKA THROUGH SANJAYANAGAR POLICE STATION, REP. BY STATE PUBLIC PROSECUTOR ... PETITIONER HIGH COURT OF KARNATAKA BUILDING BENGALURU-560 001.
2. KUM. RACHANA T.A D/O AYYAPPA T.B AGED ABOUT 18 YEARS RESIDENT OF No.307 E STRING APARTMENT KALPANA CHAWLA ROAD RMV 2ND STAGE BHOOPASANDRA, BENGALURU-560 094.
... RESPONDENTS (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1; SRI YATHISH J. NADIG ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE COMPLAINT, FIR IN CR.No.191/2014, CHARGE SHEET IN J.C.No.48/2015 AND ORDER OF TAKING COGNIZANCE DATED 12.03.2015 FOR OFFENCES PUNISHABLE UNDER SECTION 12 OF THE POCSO ACT, 2012 AND ALL FURTHER PROCEEDINGS IN J.C.No.48/2015 PENDING ON THE FILE JUVENILE JUSTICE BOARD, BENGALURU THE COPIES OF WHICH ARE PRODUCED HEREWITH AND MARKED AS ANNEXURES- A,B,C,D TO THE CRIMINAL PETITION.
THIS CRIMINAL PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The only contention urged in this petition is that, the offence charged against the petitioner under Section 12 of the Protection of Children from Sexual Offences Act, 2012, is a non-cognizable offence and therefore, initiation of the proceedings and the cognizance taken by the learned Magistrate without prior authorization or sanction under Section 155(2) of the Code of Criminal Procedure has vitiated the entire proceedings and consequently, the impugned proceedings are liable to be quashed.
2. Section 12 of the Protection of Children from Sexual Offences Act, 2012, provides for punishment for sexual harassment. The section reads as under:
“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.”
3. Neither the POCSO Act nor the Indian Penal Code specify as to whether the offence under Section 12 of POCSO Act as cognizable or non-cognizable offence. Therefore, we have to fall back upon the classification of the offences as per Schedule-I to the Code of Criminal Procedure, 1973. Under the said classification, “if the offence if punishable with imprisonment for less than three years or with fine only”, the same is made non- cognizable; whereas, the offence “ if punishable with imprisonment for three years and upwards, but not more than seven years” is made cognizable. In the instant case, Section 12 uses the expression “which may extend to three years and shall also be liable to pay fine”.
4. The Hon’ble Supreme Court in the case of Rajeev Chaudhary Vs. State (NCT) of Delhi reported in [(2001) 5 Supreme Court Cases 34], while dealing with the expression “imprisonment for a term of not less then 10 years’’ occurring in Section 386 IPC observed that, where the punishment provided is, ‘imprisonment of either description for a term which may extend to 10 years and also fine’ means, imprisonment can be for a clear period of 10 years or less. Applying the said analogy to the expression used in Section 12 of the Protection of Children from Sexual Offences Act, 2012, it means, for a clear period of three years. It means that the punishment prescribed under the said provision can be for three years. As a result, the offence falls within the description “if punishable with imprisonment for three years and upwards’ which is cognizable. Hence, the contention of the learned counsel for the petitioner is rejected. No other contentions are urged. Consequently, the petition is dismissed.
Sd/-
JUDGE tsn*