IMPORTANT POINT
The judgment establishes that intentional aiding in the commission of sexual offences against a minor, as per the provisions of the PoCSO Act, constitutes abetment, and the legal fiction of presumption shifts the burden of proof to the accused.

ORDER :

P.G. AJITHKUMAR, J.

The petitioner is the 2nd accused in S.C.No.154 of 2021 pending on the files of the Fast Track Special Court, Changanassery. He filed Crl.M.P.No.184 of 2021 seeking discharge. The learned Special Judge dismissed that petition as per the order dated 14.12.2021. Challenging that order, the petitioner has filed this petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code).

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

3. The offences alleged in the final report are punishable under Sections 363, 368 and 376(2)(n) read with Section 34 of the Indian Penal Code, 1860 (IPC) and Sections 4 r/w 3 and 6 r/w 5(l) of the Protection of Children from Sexual Offences Act, 2012 (PoCSO Act). The Special Judge held that the petitioner is not answerable even constructively for the charges of kidnapping and rape. However, it was held that the petitioner is liable to be tried for the offence of abetment punishable under Section 17 of the PoCSO Act. The learned counsel for the petitioner would submit that such an offence was not alleged in the final report and the materials produced by the prosecution would not make out such an offence as against the petitioner. The statement of the victim itself reveals that the petitioner, who is her friend, helped her on her request to find a flat. The further overtact is that he dropped the de facto complainant and the 1st accused near the flat and that he purchased a mobile phone and gave to her. In the view of the learned counsel for the petitioner by any stretch of imagination those acts would not attract an offence of abatement to commit kidnapping and penetrative sexual assault. Accordingly, the learned counsel submits that the impugned order is liable to be set aside and the petitioner discharged.

4. The learned Public Prosecutor, on the other hand, would submit that when the petitioner, knowing fully that the victim was a child, facilitated to avail a flat and stay there along with the 1st accused, that would amount to aiding him for the commission of the sexual offences. It is contended that the statement of the victim coupled with assertions by charge witness Nos.7 and 8 establishes the complicity of the petitioner in facilitating commission of such an offence and therefore he is answerable to a charge of abetment.

5. From the statement of the victim given to the investigating officer under Section 161 of the Code, Annexure A4, it is seen that the petitioner is her friend and on her request only the petitioner had helped her to avail the flat on rent where the alleged offences of sexual assault occurred. It is also stated that he took her along with the 1st accused near the flat. On her request only a mobile phone was made available to her by the petitioner. From the statements of charge witness Nos.7 and 8, it is evident that it was the victim who took initiative to avail the flat on rent. It is, however, seen from the victim's statements that the petitioner was also along with them for availing the flat. When that is the evidence proposed by the prosecution to prove the complicity of the petitioner, his contention that the said acts would not amount to any offence has to be considered in the light of the provisions of Sections 16 and 29 of the PoCSO Act.

6. Section 16 of the PoCSO Act which defines abetment has three clauses. If an act of a person falls within the purview of any of those clauses it would amount to abetment. The third clause, at the best, applies to the present case. The third clause is hence reproduced here:

"A person abets the doing of a thing who intentionally aids, by any act or illegal omission, the doing of that thing". The scope of the word "aids" has been clarified in Explanation-II, which reads:

"Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to