Back
KARNATAKA HIGH COURT
Geetha K.B., J.
Sohail – Petitioner
versus
State of Karnataka, and Anr. – Respondents
Criminal Petition No.105298 of 2025, (482(Cr.PC)/528(BNSS))
Decided on 29.5.2026
Counsel for the Parties:
For the Petitioner:Sri. Venkatesh M. Kharvi, Advocate
For the Respondents:Sri. Jairam Siddi, HCGP For R1; Sri. Rakesh S. Hattikatagi, Advocate for R2)
IMPORTANT POINT
Aggravated penetrative sexual assault on minor girl – When Sections 4 and 6 of POCSO Act, 2012 are not attracted, then offence under Section 64 of BNS, 2023 could also be not attracted.
Headnote:
Protection of Children from Sexual Offences Act, 2012 – Sections 4, 8 and 12 – Bharatiya Nyaya Sanhita, 2023 – Section 64 – Criminal Procedure Code, 1973 – Sections 320 and 482 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Sections 359 and 528] – Aggravated penetrative sexual assault on minor girl – Medical report clearly indicates that there is no history of penetrative sexual act on victim – In statement of victim under Section 183 of BNS, 2023 before J.M.F.C., victim stated that there was no physical contact between her and petitioner – Only based on statement being recorded by Investigating Officer, charge-sheet is filed – Only if penetrative sexual assault as defined under Section 3 is committed against victim, then it is punishable under Section 4 of POCSO Act, 2012, which is lacking in this case – Offences under Sections 4, 8 and 12 of POCSO Act, 2012 would not be attracted – When Sections 4 and 6 of POCSO Act, 2012 are not attracted, then offence under Section 64 of BNS, 2023 could also be not attracted – Alleged offences under Sections 4, 8 and 12 of POCSO Act, 2012 r/w Section 64 of BNS, 2023 are non-compoundable in nature – Even then, High Court can exercise its inherent powers under Section 528 of BNSS, 2023 – Criminal proceedings quashed. (Paras 5, 6, 8, 13, 14, 15, 18, 19 and 20)
Result: Criminal Petition allowed.
ORDER (ORAL)
Geetha K.B., J.—Petitioner, respondent No.2 and victim are present before the Court and they are identified by their respective counsels. Learned counsels for petitioner and respondent No.2 have filed the application under Section 528 of Bharatiya Nagarik Suraksha Sanhita (for short, BNSS, 2023) r/w Section 359 of BNSS, 2023 praying for permission to compound the proceedings in Spl.Case.No.101/2024 registered for the offences punishable under Section 64 of Bharatiya Nyaya Sanhita (for short, BNS, 2023) and Sections 4, 8 and 12 of Protection of Children from Sexual Offences Act (for short, ‘POCSO Act’), 2012. It is accompanied by the affidavits of the petitioner, respondent No.2 and the victim.
2. Heard both sides on the compromise petition and also on the main petition.
3. This is the petition filed under Section 528 of BNSS, 2023 seeking to quash the order dated 23.08.2025 passed in Spl.C.No.101/2024 and also praying for quashing the entire proceedings in Spl.Case.No.101/2024 von file of II Additional District and Sessions Judge, Dharwad and Special Court for Trial of the offences under POCSO Act and S.C and S.T (P.O.A) Act (In short, ‘Special Court’)
4. Brief facts alleged in the charge sheet are that the petitioner knowingfully well that the victim is minor was following her, threatened her and forcibly touched her hands and body and kissed her, during September had physical contact with her; on 23.10.2024 at 03.00 a.m., he entered the house of first informant and took the victim on the top floor of the house, touched her hands and body and kissed her and forced her to have physical relationship with him and thereby committed the aforesaid offences.
5. Medical report produced along with chargesheet clearly indicates that there is no history of penetrative sexual act on the victim. In the statement of victim under Section 183 of BNS, 2023 before the learned J.M.F.C., victim stated that there was no physical contact between her and the petitioner.
6. Only based on the statement being recorded by the Investigating Officer, the charge-sheet is filed alleging the offences punishable under Sections 4, 8 and 12 of POCSO Act, 2012, R/w Section 64 of BNS, 2023 against the petitioner.
7. To attract the offence under Section 4, there shall be penetrating sexual assault which is defined in Section 3 of POCSO Act, 2012, which reads as follows:-
“3. Penetrative sexual assault.—A person is said to commit “penetrative sexual assault” if—
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.”
8. There is no allegation in the statement of victim recorded under Section 183 of BNSS, 2023 by the learned Magistrate regarding the ingredients of Section 3 of POCSO Act, 2012. Further, the medical report of the doctor does not indicate such incident. Only if penetrative sexual assault as defined under Section 3 is committed against the victim; then it is punishable under Section 4 of POCSO Act, 2012, which is lacking in this case.
9. The remaining offences alleged against petitioner are punishable under Sections 8 and 12 of POCSO Act, 2012. Section 8 would be attracted, if any person commits sexual assault. Sexual assault is defined under Section 7 of POCSO Act, 2012, which reads as follows:-
“7. Sexual assault.—Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the chi
