IMPORTANT POINT
The central legal point established in the judgment is the interpretation of 'sexual intent' under Section 7 of the POCSO Act, emphasizing the requirement for an act to be considered as sexual assault.

ORDER

1. This is an application under Section 482 Cr.P.C, with a prayer to set aside and quash the criminal proceedings against the petitioner and the portion of the impugned order dated 18.11.2021 whereby, charges were framed against the petitioner in Special (POCSO) Case No. 58 of 2020.

2. Heard Mr. S.C. Chakrawarty, learned Sr. counsel along with Ms. A. Barua, learned counsel for the petitioner who has submitted that an FIR dated 23.04.2020 was lodged before the Officer-In-Charge Madanrting P.S by the respondents No. 2 & 3 herein as complainants. In the said FIR, it was alleged that on 15.04.2020, their minor daughter of nine years old, while she was playing near her house, some persons were playing cards and one of them asked her for a glass of water and at that time, he grabbed her hand, but the said minor daughter managed to run away. Another incident which happened on 19.04.2020 involving the said minor daughter and another person was also noted down in the said FIR, however, the petitioner herein is concerned only with the first incident as he is the named accused in that said FIR.

3. It is further submitted that on the FIR being acknowledged, Madanrting P.S Case No. 32(4)2020 under Section 9(m)/10 POCSO Act was registered. On investigation launched, the Investigating Officer has followed due procedure and after examination of witnesses and recording of relevant statements, has filed the final report under Section 173 Cr.P.C indicating a finding of a prima facie case under Section 9(m)/10 POCSO Act against the petitioner herein and also against the other accused person.

The charge sheet No. 52/2020 dated 08.08.2020 was accordingly brought to the knowledge of the Special Court (POCSO) for consideration. The learned Special Judge (POCSO) on consideration of the charges after hearing the parties has found it fit to frame charges against the petitioner herein under Section 354/354A IPC and under Section 7/9(m)/10 of the POCSO Act and has also directed that trial shall proceed against the petitioner herein and also against all the other accused persons. This relates to order dated 18.11.2021, the matter is now fixed for evidence of the prosecution.

4. Being highly aggrieved for being subjected to undergo trial in the said criminal proceedings, the petitioner has approached this Court with this application with the prayer as aforesaid.

5. Mr. Chakrawarty has further submitted that the alleged victim in her statement under Section 164 has stated that

'...At that time one Muslim uncle who has a shop nearby asked me to bring him a glass of water. I brought a glass of water from my house and gave it to that uncle, that time he held my hand and stroked my hand and then said my hand is very beautiful, but he did not take the glass of water...'.

However, the petitioner in his statement has denied that he knew the minor girl or her parents and it was only he was picked up by the police that he came to know about the minor girl.

6. Mr. Chakrawarty has pointed out that the learned Special Judge had frame charges against the petitioner firstly under Section 354/354A of the Indian Penal Code which speaks about assault or criminal force to woman with intent to outrage her modesty and Section 354A speaks of sexual harassment. However, the principal provision of law on which the court has relied upon is Sections 7 and 9 of the POCSO Act which speaks of sexual assault and aggravated sexual assault respectively. Contending that the alleged act of the petitioner against the alleged victim cannot come within the compass of the abovementioned provisions, in support thereof, the case of Nurai Sk. @ Nurul Sk. v. State of West Bengal wherein, vide judgment dated 15.11.2021 in 'IA No.:CRAN/1/2019', the Hon'ble Calcutta High Court while dealing with an appeal against conviction of the accused under Sections 354/354A(2)/506 IPC and Sections 8 and 12 of the POCSO Act. The High Court has held that

'... Even assuming that the appellant has committed the alle