IMPORTANT POINT
A Criminal Court has the discretion to frame charges based on evidence from prosecution records, regardless of the police final report.

ORDER :

This Criminal Revision Petition has been filed under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023, to set aside the charge framed by the Special Court for the trial of cases under the Protection of Children from Sexual Offences Act [hereinafter referred as ‘POCSO Act’ for short], Chavakkad, dated 09.07.2024 and 13.08.2024 in S.C. No.649/2024 arose out of Crime No.883/2023 of Chavakkad Police Station, Thrissur. The revision petitioner herein is the accused in the above case.

2. Heard the learned counsel for the revision petitioner as well as the learned Public Prosecutor, at the time of admission. Perused the charge framed by the Special Court dated 09.07.2024 and 13.08.2024 and relevant materials available.

3. In this matter, after investigation of the crime, registered alleging sexual assault against a minor girl aged 4 and half years, by the driver of the school van bearing registration No.KL-46-L-2544, who used to take the minor to the school regularly, the Police filed Final Report alleging commission of offences punishable under Section 354(B) of IPC, under Section 75 of the Juvenile Justice (Care and Protection) of Children Act and under Sections 8 read with 7, 10 read with 9(m) and 9(n) of the POCSO Act, by the revision petitioner/accused. After filing of the Final Report, the trial court framed two charges as on 09.07.2024 and 13.08.2024.

4. According to the learned counsel for the petitioner, the second charge was framed without mentioning anything as to alteration of the charge framed initially. The learned counsel for the petitioner also would submit that, even though there is no substantial difference in between the two charges, except with regard to charge No.9, where as per the initial charge framed by the court, offence punishable under Section 5(n) read with 6(1) of the POCSO Act was alleged and in the second charge the same was altered to one under Section 5(p) read with 6(1) of the POCSO Act. According to the learned counsel for the petitioner, going by the charge framed against the petitioner, for which, the petitioner is answerable, the Special Court framed charge for the offences not incorporated in the Final Report. According to him, as per the Final Report filed by the Police, aggravated sexual assault as against the victim is not alleged and by framing charge as Item Nos. 7 and 9, the court framed charge for aggravated sexual assault also.

5. According to the learned counsel for the petitioner, even though the Special Court is empowered to frame charge based on the prosecution materials, in the instant case, nothing made out from the Final Report to see commission of offences punishable under sections 5(n) and 5(p) read with 6(1) of the POCSO Act. Therefore, the charge framed for the said offences, by the Special Court is liable to be interfered.

6. The learned Public Prosecutor opposed interference in the charge, on the submission that the second charge dated 13.08.2024 is the altered charge, since there was a mistake in the first charge, while describing the offences under section 5(p) read with 6(1) as 5(n) read with 6(1) of the POCSO Act. He also pointed out that, going by the prosecution records, the said offences also made out apart from the other offences, for which, charge has been altered by the court. Therefore, no interference in the court charge is necessary.

7. While addressing the contentions raised by the learned counsel for the petitioner, I have gone through the statements of the victim. As per the statements, the version of the victim is that the accused/revision petitioner, after removing her dress, used to kiss on her face, neck and vagina. Further, it is stated that the accused/revision petitioner touched on the vagina of the victim and also put his fingers inside the vagina, after closing her mouth. Going by the statements of the victim, aggravated sexual assault dealt under section 5(p) read with 6(1) of the POCSO Act also could be gathered, even though th