1. Quashing of charge sheet under POCSO Act and IPC for assault on minor girl by relative. (Para 1 , 2 )
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HIGH COURT OF KARNATAKA
H.B. Prabhakara Sastry, J
Kiran – Appellant
Versus
State of Karnataka – Respondent
CRIMINAL PETITION NO.100752/2015
Advocates:
For the Appellants/Petitioners: M.H. Patil
For the Respondents: Praveen Uppar, Dinesh M. Kulakarni
For the Appellants/Petitioners: M.H. Patil
For the Respondents: Praveen Uppar, Dinesh M. Kulakarni
Charges under Sections 17 and 18 of the POCSO Act (abetment and attempt) cannot be sustained if the charge-sheet lacks specific allegations or supporting material establishing abetment or a specific attempt to commit an offence.
Headnote:(A) POCSO Act - Punishment for Abetment and Attempt - Absence of supporting material - Where the charge-sheet contains no allegations of abetment as defined under Section 16 or any specific attempt to commit an offence, the charges under Section 17 and Section 18 of the POCSO Act cannot be sustained and are liable to be quashed. (Para 6)
(B) Criminal Procedure - Quashing of Charge-sheet - Partial Quashing - Where the materials prima facie justify the trial for certain offences (such as under the IPC), the court may quash only those charges that are bereft of supporting evidence while leaving the remainder for trial by the competent court. (Para 6)
Issues: Whether the charges under Sections 17 and 18 of the POCSO Act were sustainable given the facts alleged in the charge-sheet.
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2. Petitioner argues POCSO sections not attracted; respondents contend they are attracted due to minor victim. (Para 3 , 4 )
3. No abetment or attempt allegation in charge sheet; Sections 17 and 18 of POCSO Act not attracted. (Para 5 , 6 )
4. Absence of abetment or attempt allegation in charge sheet renders POCSO Sections 17 and 18 inapplicable. (Para 6 )
5. When is Section 17 of the POCSO Act not attracted?
Section 17 is not attracted when there is no allegation of abetment of an offence as defined under Section 16. (Para 6 )
6. When is Section 18 of the POCSO Act not attracted?
Section 18 is not attracted when the charge sheet contains no allegation of any attempt to commit a specific offence. (Para 6 )
This Criminal Petition is filed under Section 482 of the Cr.P.C. praying to quash the charge sheet filed by PSI Halageri PS under their PS Crime No.24/2015 for the offences punishable under Sections 17 and 18 of POCSO Act and Section 354A and 355 of the IPC in the interest of justice and equity which is pending on the file of the Prl. Dist and Sessions Judge, Haveri (Special Court) Dist. Haveri.
This Criminal Petition coming on for hearing through physical hearing/video conferencing hearing this day, the Court made the following:
ORDER
The present petitioner, who is the sole accused in the first respondent police station Crime No.24/2015 for the offence punishable under Sections 17 and 18 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter for brevity referred to as the 'POCSO Act') and under Sections 354A and 355 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as the 'IPC') and which matter is now said to be pending in the Court of the learned Principal District and Sessions Judge, Haveri (Special Court), has sought for quashing the charge-sheet filed in the said crime.
2. The summary of the case of the prosecution is that the complainant who is also the victim, is a minor girl and the accused who is her relative, was frequently troubling her and demanding her to accompany him and in that regard visiting her while she was staying and studying at Morarji Desai Residential School at Makanur and Hubballi. The accused since being the relative of the victim, elders in the family of the victim advised the accused suitably, still, he did not mend his behaviour. As such, on 02.03.2015, at about 4.30 pm when the victim, joined by others in her family, was passing in front of Sri Kumaraswamy Temple, all of a sudden, the accused appeared before them and removed his chappal that he was wearing and with that he started assaulting the victim girl and caused hurt to her. With this, the Investigating Officer has filed charge sheet against the accused for the offence punishable under Sections 354A and 355 of IPC and under Sections 17 and 18 of the POCSO Act.
3. Learned counsel for the petitioner in his brief argument submitted that even if the entire charge sheet papers are taken at its face value, still, neither Section 17 nor Section 18 of the POCSO Act is attracted and at best the alleged offence may attract only Section 354 of IPC, as such, the petition deserves to be allowed.
4. Per contra, learned High Court Government Pleader for respondent No.1 and learned counsel for respondent No.2 in their arguments submit that the charge-sheet papers go to show that the accused has committed the alleged offence. Since the victim is a minor girl, Sections 17 and 18 of the POCSO Act is attracted.
5. A perusal of the charge-sheet papers would go to show that the allegations made against the accused, as observed above, is of pestering the victim girl to accompany him for walking (strolling) and visiting her at the place where she was pursuing her I year Pre-University in a residential Educational Institution and also on the alleged date of the incident assaulting her with the chappal. The alleged offence are primarily Sections 17 and 18 of the POCSO Act.
6. Section 17 of the POCSO Act speaks about punishment for abetment. 'Abetment of an offence' is defined under Section 16, which in the instant case is not applicable since there is no allegation of any abetment by the present petitioner. Since abetment itself is not attracted, the question of punishment under Section 17 of the POCSO Act, naturally, does not attract. Similarly, Section 18 of the POCSO Act speaks about the 'punishment for attempt to commit an offence'. Nowhere the charge-sheet mentions as to what was the attempt made by the petitioner to commit the offence. There is no allegation of any attempt to commit any specific offence but there are specific allegations of committing the offence of outraging the modesty of a woman and assaulting a w
