IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON'BLE SMT. JUSTICE ANJULI PALO

ON THE 20^th OF APRIL, 2022

CRIMINAL REVISION No. 2527 of 2021

Between:-

HIMANSHU GANDHI

S/O SHRI ADARSH GANDHI,

AGED ABOUT 21 YEARS,

OCCUPATION: STUDENT

R/O EM-25/302, IBD HALL MARK

CITY, BHOPAL

.....APPLICANT

(BY SHRI AJAY MISHRA, SENIOR COUNSEL ALONG WITH MR.

ARPIT KUMAR TIWARI, ADVOCATE)

AND

1.

THE STATE OF MADHYA PRADESH THR. P.S.

KOLAR ROAD POLICE STATION KOLAR

ROAD, BHOPAL (M.P.) (MADHYA PRADESH)

2.

VICTIM

''A''

D/O

NOT

MENTION NOT

MENTION (MADHYA PRADESH)

.....RESPONDENTS

(RESPONDENT NO.1 BY MS. GEETA YADAV, PANEL LAWYER)

This revision coming on for hearing this day, the court passed the

following:

ORDER

This revision has been filed under Section 397 read with Section 401 of

the Code of Criminal Procedure challenging the order dated 23.09.2021

passed by learned 23rd Additional Sessions Judge/Special Judge under the

Protection of Children from Sexual Offences Act, 2012 in ST No.10/2021

whereby charges for offences punishable under Sections 354, 354-A (1) (i),

354-D and 504 of the Indian Penal Code and Section 9 (l)(m)/10 of the

Protection of Children from Sexual Offences Act, have been framed against

the applicant.

2. Learned Senior Counsel has challenged the impugned order

framing charges on many grounds. The applicant and the prosecutrix are

neighbours and there is enmity between the parties and the applicant had

1

earlier made complaints against the mother of the prosecutrix due to

neighbourhood disputes. It is contended, inter alia, that the mother of the

minor prosecutrix deliberately refused for her medical examination. It is

vehemently contended that there is no ingredients for framing charges under

Sections 504, 354 and 354D of the IPC. Learned Senior Counsel has drawn

the attention of this Court to Section 3 of the Protection of Children from

Sexual Offences Act and contends that no ingredients as provided in Section

3 of the Act which deals with the penetrative sexual assault, is available with

the prosecution. The trial Court has committed error in law in framing charge

under Section 504 of the IPC against the applicant because even in the

charge-sheet offence under Section 504 of the IPC was not alleged.

3. Learned Panel Lawyer has vehemently opposed the contentions

raised by learned Senior Counsel for the applicant by placing reliance on the

decision of Hon'ble the Supreme Court in the case of Attorny General for

India v. Satish and Another, Criminal Appeal No.1410 of 2021 decided on

18.11.2021.

4. Heard learned counsel for the parties and perused the record.

The allegation against the applicant is that he used to forcibly kiss on the lips

of the prosecutrix who is aged about seven years and nine months.

5. In this context, it is appropriate to refer to the decision in the

case of Raju Prasad v. State of Sikkim, 2019 SCC OnLine Sikk 4 wherein

in paragraph 19 it has been held as follows:

"19. The crucial question is whether forcibly

kissing the minor victim a girl child of 11 years of age

and hugging her amount to "aggravated sexual assault"

as defined in Section 9 (m) of the POCSO Act, 2012.

Whoever commits sexual assault on a child below 12

years is said to have committed aggravated sexual

assault. "Sexual assault" is defined in Section 7 of the

POCSO Act, 2012. Whoever, with sexual intent touches

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the vagina, penis, anus or breast of the child or makes

the child touch the vagina, penis, anus or breast of such

person or any other person, or does any other act with

sexual intent which involves physical contact without

penetration is said to commit sexual assault. The act of

forcibly kissing the minor victim, a child below 12 years

of age and hugging her in the back seat of a car in the

absence of her guardian by a 27 year old male cannot

but be with sexual intent. The act of forcibly kissing and

hugging involves physical contact although without

penetration. Thus it is