THE HON’BLE SMT.JUSTICE TIRUMALA DEVI EADA

ORDER:

This Criminal Petition is filed by the petitioner-accused seeking to quash the proceedings in SC (POCSO) No.29 of 2024 on the file of the Principal District and Sessions Judge, Asifabad, for the offences under Sections 64(2)(m), 65(1) of BNS and Section 6 of the Prevention of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’).

2. Heard Sri S. Surender Reddy, learned counsel for the petitioner and Sri Jithender Rao Veeramalla, learned Additional Public Prosecutor for the respondent-State.

3. Learned counsel for the petitioner has submitted that the complaint is filed with a delay of one year and the reason for the delay is not explained by the complainant and that the age of the accused as on the date of offence is less than 18 years and he is a minor and that the provisions under the Juvenile Justice Act has to be invoked against the accused, but the prosecution has made an error in filing the case for the offences under BNS and that the petitioner cannot be prosecuted as an adult. He further submitted that while calculating the age of the victim, the prosecution has taken the date of offence i.e. October, 2023, but while calculating the age of the petitioner- accused, they have calculated his age as on the date of lodging the FIR i.e. November, 2024 and considered him as an adult, as he has crossed 18 years. The date of offence is October, 2023, and in October, 2023, the age of the petitioner-accused was 17 years 6 months only. But, while calculating the age of the victim, the same analogy was not applied by the prosecution as was applied while calculating the age of the petitioner-accused. Hence, calculating the age of the petitioner-accused as on the date of lodging the FIR, is not justified. He further submitted that the petitioner is facing false allegations and the said discrepancy itself discloses that the petitioner is falsely implicated in the case and hence, prayed to quash the proceedings.

4. Learned Additional Public Prosecutor has submitted that the said offence continued till October 2023, and hence, the age of the petitioner-accused has been taken as on the date of lodging the FIR and that if the age of the victim is taken and calculated as in October, 2024 even then she is a minor while the petitioner-accused is a major, therefore, there is no mistake committed by the prosecution and hence, prayed to dismiss the petition.

5. Perused the record.

6. The date of birth certificate of the petitioner, as filed by him, points out that he was born on 08.04.2006. Thus, if the age of the petitioner-accused is taken as on the date of offence, he is a minor i.e. 17 years six months old. But, the recitals of the charge sheet shows that the offence continued till October, 2024 and the FIR is registered in November, 2024 vide FIR No.48 of 2024 dated 06.11.2024. Thus, the prosecution has calculated the age of the petitioner-accused as in October, 2024 as it was a continued offence till October, 2024 and therefore, the age of the accused is taken as 18 years.

7. The victim is a minor if her age is calculated as per the date of the offence or as per the date of the complaint. The date of birth of the victim is disclosed from the record as 22.06.2008. Therefore, even if it is taken as on the date of complaint i.e. October, 2024, she is less than 18 years. Therefore, the victim is a minor, but the petitioner-accused is not a minor. The contention of the learned counsel for the petitioner in this regard is not tenable. However, the other contention of the learned counsel for the petitioner is that the petitioner is facing false allegations. The alleged offences are heinous in nature and the case is pending for trial vide SC No.29 of 2024 on the file of the Principal District and Sessions Judge, Asifabad. Hence, in the facts and circumstances of the case, it is not a fit case to quash the proceedings against the petitioner at this stage. However, it is deem