ORDER :

L.VICTORIA GOWRI, J.

Seeking quashment of the final report laid in Spl.S.C.No.21 of 2023 on the file of the learned Special Court for Exclusive Trial of Cases under POCSP Act, Madurai, this criminal original petition is filed.

2.The learned counsel for the petitioner submitted that the petitioner herein is the second accused in the pending Spl.S.C.No.21 of 2023 before the learned trial Court. The third respondent is the victim/ defacto complainant, on whose complaint, a First Information Report in Crime No.32 of 2021 was registered for the offences under Sections 366A and 312 of IPC, 1860 Section 5(1), 5(J)(ii) and 6 of the Protection of Child From Sexual Offences Act, 2012 and Sections 3(1)(r), 3(1)(s) and 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, against the petitioner and three others. On completion of the investigation, a final report was filed in Spl.S.C.No.21 of 2023 and the petitioner hearin, who is the second accused, is charged with offences under Sections 3(1)(r) and 3(1)(s) of SC/ST (POA) Act and Sections 16 and 17 of POCSO Act.

3.The learned counsel categorically contended that a complete reading of the charge sheet itself demonstrates that the prosecution story is false, bald, and vague with respect to the role of A2, who is the petitioner herein. No specific overt act constituting the offences charged is clearly made out. Section 16 of the POCSO Act pertains to abetment of an offence, while Section 17 prescribes punishment for abetment. A1 is the person, who allegedly committed penetrative sexual assault upon the third respondent, victim. A2, the petitioner herein, is his friend. A3 and A4 were the parents of A1. In the instant case, the petitioner was charged for the offences under Sections 16 and 17 of POCSO Act. However, the prosecution narrative in the charge sheet as against the petitioner, who is A2, will not attract the offence under Sections 16 and 17 of POCSO Act, since the primary offence of penetrative sexual assault was allegedly committed solely by A1 against the third respondent. The prosecution narrative does not satisfy all the three limbs of Section 16 of POCSO Act, explaining in what way the petitioner had instigated the first accused in committing penetrative sexual assault on the third respondent.

4.As regards the offences under Sections 3(1)(r) and 3(1)(s) of the SC/ST (Prevention of Atrocities) Act, it was pointed out by the learned counsel that, to attract these provisions, the alleged acts must have occurred within public view. However, in the instant charge sheet, it is alleged that on or after 20.08.2021, when the first accused refused to marry the victim and the victim declined to co-operate in any further sexual acts, the first accused, along with the petitioner, proceeded to the residence of the victim and allegedly assaulted her indiscriminately, using abusive language and calling her by caste names. In any stretch of imagination, a home could be interpreted as one within public view and hence, categorically contended that all the four Sections with which the petitioner is charged, should be quashed and sought for the indulgence of this Court to allow this criminal original petition.

5.The learned Government Advocate (crl.side) categorically contended that 161 (3) of Cr.P.C., statement obtained from the victim itself is sufficiently voluminous to prove the specific overt act as against the petitioner herein. He also placed before me the statement recorded under Section 164(5) of Cr.P.C., by the learned Additional Mahila Court, Judicial Magistrate, Madurai, from the victim girl, wherein she clearly stated that the petitioner, along with the first accused, had gone to her house, damaged her mobile phone, called her by caste names, and also stood on her leg and sought for dismissal of this petition.

6.The learned counsel for the third respondent relying upon the judgment passed by this Court in Crl.A.No.596 of 2019 dated 05.03.2