Case Note & Summary
The petitioner, accused No.1 in S.C.No.227/2018 pending before the II Additional District and Sessions Judge, Kolar, challenged the order dated 31.12.2021 by which the Sessions Court added a charge under Section 7 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) to the existing charges under Sections 366A, 506 and 34 of the Indian Penal Code, 1860 (IPC). The case arose from a complaint lodged on 01.12.2016 alleging that the petitioner, along with two other accused, kidnapped a minor girl while she was on her way to school. The victim was taken on a bike to a place called Masthi Dinne and allegedly kidnapped. The police initially filed a charge sheet only under IPC provisions. However, during the trial, the Sessions Court suo motu added the charge under Section 7 of the POCSO Act. The petitioner argued that there was no material on record to suggest any sexual intent or sexual assault, which is essential for an offence under Section 7 POCSO. The State opposed the petition, contending that the victim was a minor and the kidnapping itself could attract the POCSO Act. The High Court examined the allegations and found that the complaint and charge sheet did not contain any whisper of sexual intent or sexual assault. The court held that the essential ingredient of 'sexual intent' under Section 7 POCSO was completely absent. Relying on the inherent powers under Section 482 CrPC, the court quashed the order adding the POCSO charge, observing that allowing such a charge to stand would be an abuse of process of law. The court clarified that the trial on the existing IPC charges would continue unaffected.
Headnote
A) Criminal Procedure Code - Inherent Powers - Section 482 CrPC - Quashing of Charge - The High Court can exercise inherent powers to quash an order adding a charge if the charge is not supported by any material on record and amounts to abuse of process of court. (Para 1-2) B) POCSO Act - Sexual Assault - Section 7 - Essential Ingredients - For an offence under Section 7 of the POCSO Act, the prosecution must establish 'sexual intent' which is absent in a case of mere kidnapping without any allegation of sexual touch or assault. (Para 3-4) C) Indian Penal Code - Kidnapping - Sections 366A, 506, 34 IPC - Charge Framing - Where the allegations only pertain to kidnapping and criminal intimidation, adding a charge under the POCSO Act without any basis is impermissible. (Para 3-4)
Issue of Consideration
Whether the Sessions Court was justified in adding a charge under Section 7 of the POCSO Act in a case where the initial allegations were under Sections 366A, 506 and 34 IPC, without any material indicating sexual intent or assault.
Final Decision
The High Court allowed the petition and set aside the order dated 31.12.2021 passed by the II Additional District and Sessions Judge, Kolar, insofar as it added a charge under Section 7 of the POCSO Act. The trial on the existing IPC charges shall continue.
Law Points
- Section 7 POCSO Act requires sexual intent
- Section 482 CrPC inherent powers
- charge framing under Section 216 CrPC
- distinction between kidnapping and sexual assault
