IMPORTANT POINT
The court confirmed that allegations of sexual assault against a minor teacher constitute a prima facie case under the POCSO Act, warranting trial.

ORDER :

A. Badharudeen, J.

This Criminal Revision Petition has been filed under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the order dated 02.08.2024 in Crl.M.P. No.414/2024 in S.C. No.143/2017 on the files of the Special Court for the trial of offences under the Protection of Children from Sexual Offences Act [hereinafter referred as ‘POCSO Act’ for short], Kasaragod. 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, in detail. Perused the impugned order and relevant records from part of the case diary placed by the learned Public Prosecutor.

3. The prosecution allegation in this case is that, the accused, who is none other than the teacher of St.Paul’s A.U.P. School, Thrikkaripur, subjected the minor victim, studying in the 1st std., to sexual assault and when he disobeyed his command, he was beaten by the accused. The specific allegation as per the FIS and 164 statement as that of the victim is that, the accused, who is the teacher of the victim, brought the victim to the staff room and directed him to lay on his body. When the victim refused, the accused beaten on his leg and when he was called again to lay on his body, afraid of further assault, he laid on the body of the accused. Thus, the prosecution alleges commission of offences punishable under Sections 9(f),(m) and 10 of POCSO Act and under Section 23 of the Juvenile Justice (Care and Protection of Children) Act [hereinafter referred as ‘JJ Act’ for short].

4. While disposing of Crl.M.C. No.2525/2018, this Court found that, offence under Section 23 of the JJ Act is made out, prima facie and directed the Special Court to consider whether the ingredients to attract offence under Section 9(f) and (m) of the POCSO Act, has been made out to frame charge and to frame charge for the offences made out from the prosecution records to proceed with trial. Even though this Court directed consideration of materials to frame charge for the offences under Sections 9(f) and (m) read with 10 of the POCSO Act, before framing charge, the petitioner filed Crl.M.P. No.414/2024 seeking discharge from the said offences. The learned Special Judge as observed in paragraph No.8 of the order, dismissed the petition as under :

8. The specific case of the prosecution is that the petitioner/accused being the teacher took the victim child around three times into the staff room and forcibly caused him to lie down on his body and whenever refused the child was beaten with cane. A plain reading of Section 7 of the POCSO Act would make it clear that whatever forms of contact would include a sexual assault. As explicit from the definition touching of a private parts of a child with sexual intent would prima facie attract the offence of sexual assault. However, the definition of the offence is not limited to the touching or doing of anything on or with the private parts such as vagina, penis, anus or breast but also any other act with sexual intent which involves physical contact without penetration. In the instant case, it is prima facie shown that the petitioner/accused has caused physical contact with the victim child more than once by lying the child upon his body while he was in a lying position upon the desk in the staff room while nobody in the staff room other than the child and the petitioner/accused. So, the special Court is bound to draw the presumptions U/s. 29 & 30 of the Protection of Children from Sexual Offences Act that the said act has been done with a sexual intent as canvassed by the prosecution since there is no probable and plausible explanation is forthcoming from the side of defence so as to eschew the elements of a sexual intent. Therefore, I am of the considered view that the petitioner/accused is not entitled to get an order of discharge U/s. 227 of Cr.P.C as prayed for herein. Accordingly, the point is found against the petitioner