POCSO Act | Sexual Harassment Of A Child Is A Cognizable And Non-Bailable Offence: Delhi High Court

The Delhi High Court has ruled that sexual harassment of a child, which is punishable under Section 12 of Protection of Children from Sexual Offences (POCSO) Act, 2012, is a cognizable and non-bailable offence.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad said that the offence would fall within the scope of the second category of Part II of Schedule I of the Code of Criminal Procedure.

The said category states that if the offence is punishable with imprisonment of three years and upwards but not more than seven years, then it will be a cognizable and non-bailable offence and will be triable by a judicial magistrate of first class.

"Section 12 of the POCSO stipulates that whoever commits sexual harassment upon a child shall be punished with imprisonment which may extend to three years. A perusal of Part II of Schedule I of the CrPC enumerates that if an offence is punishable with imprisonment for 3 years and upwards, but not more than 7 years, then it will be a cognizable and non-bailable offence, and shall be triable by a Magistrate of the first class (second category)," the bench said.

Sexual Harassment is defined under Section 11 of the POCSO Act.

The court was dealing with a public interest litigation seeking application of Item III of Part II of Schedule I of CrPC to the offence under Section 12 of POCSO Act. The said category states that where the offence is punishable with imprisonment of less than three years or with fine only, the offence will be non-cognizable and bailable, and triable by a magistrate.

The PIL filed lawyer R.K. Tarun in 2017 argued that there was an "ambiguity" in the classification of Section 12 of POCSO Act. The question raised in the matter was whether offence punishable under Section 12 is a cognizable and non-bailable offence or a non-cognizable and bailable offence?

On November 24, the bench was informed about a recent ruling of the Supreme Court in Knit Pro International v. State of NCT of Delhi and Anr wherein it was held that offence under Section 63 of Copyright Act would be a cognizable and non-bailable offence.

Setting aside a Delhi High Court ruling which had held Section 63 of the Copyright Act to be a bailable offence, the apex court on May 20 said, "Thus, for the offence under Section 63 of the Copyright Act, the punishment provided is imprisonment for a term which shall not be less than six months but which may extend to three years and with fine. Therefore, the maximum punishment which can be imposed would be three years. Therefore, the learned Magistrate may sentence the accused for a period of three years also. In that view of the matter considering Part II of the First Schedule of the Cr.P.C., if the offence is punishable with imprisonment for three years and onwards but not more than seven years the offence is a cognizable offence. Only in a case where the offence is punishable for imprisonment for less than three years or with fine only the offence can be said to be non-cognizable." 

With regard to Section 12 of POCSO Act, the high court division bench thus said:

"A comprehensive reading of the above [SC ruling] demonstrates that a similar rationale will be applicable to the instant case and that Section 12 of the POCSO Act will also fall within the scope of the second category of Part II of Schedule I of the CrPC".

Disposing of the PIL, the court said it finds no reason to pass any order when the Supreme Court has already settled the matter.

In a related development, the Kerala High Court recently held that the offence punishable under Section 21 of the POCSO Act is a bailable offence. Section 21 makes the failure to report an offence under POCSO Act punishable with imprisonment upto six months or if the person is in charge of an institution or company, imprisonment can extend upto one year.

Title: R.K. TARUN v. UNION OF INDIA & ORS.

Citation: 2022 LiveLaw (Del) 1117

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