“Mere Messaging or Calling Does Not Constitute an Offense Unless There is Clear Evidence of Sexual Harassment or Stalking”: Kerala High Court Quashes FIR in PoCSO Case

Court’s Decision:
The Kerala High Court quashed the FIR, final report, and all further proceedings against the petitioner. The court ruled that the prosecution failed to provide evidence of sexual intent, which is essential to establish offenses under Section 11(iv) read with Section 12 of the PoCSO Act and Section 354D of the IPC.

Facts of the Case:
The petitioner, Praveen Prakash, was accused of sending messages and making phone calls to a 17-year-old girl, which allegedly disturbed her. The case was filed under Section 354D of the IPC for stalking and Section 11(iv) read with Section 12 of the PoCSO Act for sexual harassment. The petitioner sought to quash the FIR, arguing that the prosecution did not present any messages or evidence that would indicate sexual intent.

Issues:

1. Whether the petitioner’s actions of sending messages and calls constituted sexual harassment under the PoCSO Act and stalking under the IPC.
2. Whether the lack of evidence showing sexual intent justifies quashing the proceedings.

Petitioner’s Arguments:
The petitioner contended that:

1. The prosecution failed to produce any evidence, such as messages or chat records, that indicated he had any sexual intent.
2. The victim had filed an affidavit stating that the matter had been settled, making further proceedings unnecessary.

Respondent’s Arguments:
The Public Prosecutor opposed the quashing, arguing that:

1. Settlement in PoCSO cases is not legally permissible, and the proceedings should continue despite the affidavit.
2. The actions of the petitioner still warrant prosecution under the applicable sections of the PoCSO Act and IPC.

Court’s Observations:

1. Lack of Evidence: The court emphasized that the prosecution failed to present any messages or chats that would demonstrate the accused’s sexual intent, which is a requirement under Section 11(iv) of the PoCSO Act.
2. Legal Standards: The court noted that mere messaging or calling does not constitute an offense under Section 11(iv) or 354D of the IPC unless there is clear evidence of sexual harassment or stalking. Without this, criminal culpability could not be assigned to the petitioner.
3. Settlement Not Relevant: While the victim had filed an affidavit indicating that the matter was settled, the court clarified that this was not grounds for quashing PoCSO-related charges. The case was quashed based on a lack of evidence, not because of the settlement.

Conclusion:
The Kerala High Court allowed the petition, quashing the FIR, final report, and all further proceedings in S.C. No. 280/2022 against the petitioner. The registry was directed to forward the order to the jurisdictional court for appropriate action.