IMPORTANT POINT
The absence of sexual intent in the victim's statements negated the applicability of the alleged offences under the IPC and POCSO Act.

ORDER :

1. This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, seeking quashment of the proceedings in S.C. No. 637/2023 on the files of the Fast Track Special Court for the trial of offences under the Protection of Children from Sexual Offences Act [hereinafter referred as ‘POCSO Act’ for short] cases, Nedumangad. The petitioner herein is the sole accused in the above case.

2. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the defacto complainant, in detail. Perused the relevant materials available.

3. In this matter, the prosecution alleges commission of offences punishable under Sections 354-D and 363 of IPC as well as under Section 11(iv) read with 12 of the POCSO Act.

4. While seeking quashment of the proceedings, the learned counsel for the petitioner would submit that, going by the statements of the victim viz. FIS and 161 statement, none of the above said offences made out, prima facie. Therefore, quashment of the proceedings sought for, on merits would succeed. He also would submit that, apart from meritorious interference in this matter by way of quashment, the matter has been now settled and the mother of the victim has filed an affidavit supporting the settlement. Therefore, quashment of the proceedings sought for, is liable to be allowed on merits or otherwise in view of the affidavit supporting settlement.

5. The learned Public Prosecutor opposed quashment of the matter on merits and on the ground of settlement. At the same time, the learned Public Prosecutor also conceded that, in the statements given by the victim, no serious allegation as to sexual overtures at the instance of the accused could be seen, prima facie, though there is allegation to the effect that the accused brought the minor victim on his motor bike and dropped her near the tuition centre.

6. As far as the quashment sought for on the ground of settlement is concerned, the same is not legally permissible. Therefore, quashment on the ground of settlement is liable to fail.

7. Coming to the prayer for quashment on the ground of merits, the statement of the victim dated 31.12.2022, which led to registration of this crime, would show that the victim was a student of VHSS, Vattiyoorkavu, studying in 9th standard and she maintained a love affair with the accused for three months. While so, when she used to go for tuition, she would reach Nettayam by bus, the accused would take her on his motor bike and drop her near the tuition centre and there they used to chat for ten minutes. The accused had taken the victim to the tuition center for two days and there was chatting between them on those days. On 31.12.2022, when the victim traveled on the motor bike of the accused and reached near the tuition centre, the same was detected by her mother and she was scolded for the same. When the 161 statement given by the victim is gone through, the allegation is more lightened stating that she called the accused and accordingly he brought her to the tuition centre. She also stated that the accused did not take her to any other place and he did not abuse her, in any manner.

8. In view of the rival arguments and the prosecution allegations as espoused, the ingredients to attract offence punishable under Section 11(4) read with 12 of the POCSO Act, required to be addressed. For this purpose, reference to Section 11(4) read with 12 of the POCSO Act, is necessary. The same are as under:

11. Sexual harassment - A person is said to commit sexual harassment upon a child when such person with sexual intent:

(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child.

(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person.

(iii) shows any object