IMPORTANT POINT
The court ruled that the allegations did not constitute sexual assault as defined under the PoCSO Act, emphasizing the lack of sexual intent in the accused's actions.

ORDER :

1. This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, by the sole accused in S.C.No.1118/2022 on the files of the Special Court for the trial of cases under the Protection of Children from Sexual Offences Act (for short ‘the PoCSO Act’ hereinafter), Perumbavoor, arising out of Crime No.544/2022 of Thadiyattaparamba police station, Ernakulam, to quash Annexure A1 F.I.R, Annexure A2 Final Report and all further proceedings in Crime No.544/2022 of Thadiyattaparamba Police Station, Ernakulam.

2. Heard the learned counsel for the petitioner, the learned counsel appearing for the de facto complainant and also the learned Public Prosecutor, in detail. Perused the records inclusive of the affidavit filed by the de facto complainant supporting quashment.

3. In this case, the prosecution alleges commission of offences punishable under Sections 451, 354A(1)(i) and 354D(1)(ii) of the Indian Penal Code (for short, ‘the IPC’ hereinafter) as well as under Section 8 r/w Section 7 and Section 12 r/w Section 11(iv) of the PoCSO Act, by the accused.

4. Summary of the prosecution case is that, the accused, with intention to sexually exploit the de facto complainant, aged 15, made acquaintance with her through Instagram and had constant telephone calls, apart from sending messages. In continuation of the same, at about 11.30 hrs. on 21.7.2022, the accused reached the rental house where the de facto complainant has been residing with her family, as she demanded to see him. Then, the accused sexually molested her.

5. The learned counsel for the petitioner submitted that going by the First Information Statement, where lies the entire allegations, no serious overt acts with sexual intent could be foreseeable. That apart, the averments in the additional statement and in the 164 statement of the de facto complainant would show that the overt acts are at the instance of the de facto complainant. Therefore, prima facie, the offences are not made out. According to the learned counsel for the petitioner, the de facto complainant and the petitioner continued a cordial relationship and accordingly, they met at the rental residence of the de facto complainant, as she demanded to see the accused. But the petitioner has no intention to sexually assault the de facto complainant in any manner and the overt acts are much less without any sexual intent. Therefore, on merits, the matter would require quashment. In addition to that, the learned counsel for the petitioner would submit that now, the de facto complainant attained majority and she has filed an affidavit stating that she has no objection in quashing the case and the case was proceeded without properly understanding the actual facts and circumstances of the incident happened. Therefore, acting on the affidavit, otherwise, quashment is liable to be allowed.

6. The learned counsel for the de facto complainant conceded quashment.

7. The learned Public Prosecutor opposed quashment on merits as well as on the strength of affidavit pointing out the fact that the overt acts as could be borne out from the statements of the de facto complainant would show prima facie that the offences are made out. Therefore, quashment without opting procedure of trial could not be considered.

8. In the instant case, police recorded the First Information Statement of the de facto complainant. Again additional statement also was recorded. In addition to that, statement under Section 164 of Cr.P.C also was recorded by the Magistrate. In the First Information Statement, it has been stated that the de facto complainant, after completing 10^th class while waiting for plus one admission during the month of May, 2021, made acquaintance with the accused through Instagram and thereafter, they had a meeting during the month of August, 2021 at the house of the elder sister of her mother. Thereafter, during the month of June, 2022, while the de facto complainant was going to a Dental clinic