IMPORTANT POINT
The court ruled that mere transportation of a minor without sexual intent does not constitute offences under IPC or PoCSO Act, allowing the quashment of proceedings.

ORDER :

A. Badharudeen, J.

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, to quash Annexure-B final report and all further proceedings against the petitioner in S.C.No.318/2021 on the files of the Additional Sessions Court for the trial of cases relating to Atrocities and Sexual Violence Against Women and Children, Thiruvananthapruam. The petitioner herein is the sole accused in the above case.

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

3. In this matter, the prosecution alleges commission of offences punishable under Sections 363, 354D and 201 of the Indian Penal Code (hereinafter referred to as ‘IPC’ for short) and under Section 11(iv) r/w 12 of the Protection of Children from Sexual Offences Act (hereinafter referred to as ‘PoCSO Act’ for short).

4. In a nutshell, the allegation is that the accused procured the minor victim, aged 16 years, from the lawful custody of her guardian at about 11.30 am on 15.09.2020 and took her in his motorbike bearing registration No.KL 22N 5037 and thereafter dropped her at her residence. The prosecution alleges that the accused did not cooperate with the investigation and thereby offence under Section 201 of IPC also is alleged against him.

5. While seeking quashment of the entire proceedings on merits as well as on the basis of settlement, in view of the affidavit filed by the victim, who now attained majority, the learned counsel for the petitioner would submit that on merits, none of the offences would attract in the facts of the case and therefore, quashment on merits is liable to succeed.

6. The learned Public Prosecutor, though opposed quashment, also read out the overt acts stated by the defacto complainant in her 161 Cr.P.C. statement and in the 164 Cr.P.C. statement. As per the statement of the defacto complainant, it has been recited that the accused is familiar to her and at 11.30 hours on 15.09.2020, when the defacto complainant was on the way to reach the tuition centre and when she reached near the ration shop run by Peter, the accused reached there on his Duke model bike and took her to sand bar, and thereafter they moved towards the bridge in Perumathura and he talked about the short film to be directed by his brother. Soon the accused received a telephone call and she was dropped near Parvathy Puthanar at 13.30 hours. The father of the victim enquired and understood that she did not reach the tuition centre as informed by the other students, and accordingly, as instructed by the father, this complaint was lodged. Similar is the version in the 164 Cr.P.C. statement of the victim.

7. In order to attract an offence under Section 11(iv) r/w 12 of the PoCSO Act, the prosecution should establish that a person repeatedly or constantly followed or watched or contacted a child either directly or through electronic, digital or any other means with sexual intent. It is true that sexual intent is a matter of presumption under Section 30 of the PoCSO Act. Going by the FIS as well as the 164 Cr.P.C. statement recorded as that of the victim, the only allegation is that the accused picked her while she was on the way to the tuition centre, and accordingly, they reached near a sand bar and then walked towards the bridge in Perumathura. While so, the accused received a telephone call and soon he took the victim and dropped her near Parvathy Puthanar and she went to her home thereafter. Thus the allegations do not show the accused repeatedly or constantly followed or watched or contacted the victim either directly or through electronic, digital or any other means with sexual intent. Only a solitary incident, whereby the accused took the victim while she was on the way to her tuition centre and thereafter dropped her without doing any act of sexual assault or without any element of sexual overtures, is the plank where fro