Doing Any Act With Sexual Intent Involving Physical Contact Without Penetration Is Also Sexual Assault Under POCSO Act: Kerala HC
The Kerala High Court held that, doing any act with sexual intent which involves physical contact without penetration is also sexual assault under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
The Court held thus in a Criminal Revision Petition filed by the accused under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), challenging an Order of the Special Court.
A Single Bench of Justice A. Badharudeen observed, “Thus, dividing the act of sexual assault, the legislature dealt with three instances. The third part is, doing any other act with sexual intent which involves physical contact without penetration. Then the said overt act alone is also sexual assault for the purpose of Sections 9(f),(m) and 10 under the POCSO Act.”
Advocate Prajit Ratnakaran represented the Petitioner/accused while Public Prosecutor Renjit George represented the Respondent/State.
Brief Facts -
As per the prosecution allegation, the Petitioner/accused who was the teacher of a school, had subjected the minor victim studying in the first standard to sexual assault and when he disobeyed his command, he was allegedly beaten by the accused. The specific allegation was that the accused brought the victim to the staff room and directed him to lay on his body. When the victim refused, he had beaten on his leg and when he was called again to lay on his body, being afraid of further assault, he laid on the accused’s body. Thus, the prosecution alleged the commission of offences punishable under Sections 9(f), (m), and 10 of the POCSO Act and under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act).
The High Court had directed the Special Court to consider whether the ingredients to attract offence under the POCSO Act are attracted to frame charge. Even though the Court directed consideration of materials to frame charge for the offences under Sections 9(f) and (m) read with 10 of the POCSO Act, before framing charge, the accused filed a Petition seeking discharge from the said offences but the same was dismissed. Challenging the Order of the Special Court, the accused was before the High Court.
The High Court in view of the above facts, noted, “Here, the accused who is the teacher of the victim, brought him to the staff room and the accused had caused physical contact on the child victim by lying the child upon his body, while he also was lying on the desk. Therefore, the overt acts at the instance of the accused would show physical contact between the minor child and the accused.”
The Court said that the culpable mental state is a matter to be presumed by the Special Court, since Section 30 of the POCSO Act provides that, in any prosecution for any offence under the Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
“Thus, this Court could not held from the records that, offences punishable under Sections 9(f),(m) and 10 of the POCSO Act are not made out, prima facie to frame charge and to proceed with trial. Therefore the order impugned dismissing the discharge plea at the instance of the petitioner/accused does not require any interference”, it added.
Accordingly, the High Court dismissed the Revision Petition.
Cause Title- Ajith Prasad Edacherry v. State of Kerala (Neutral Citation: 2024:KER:85980)
Appearance:
Petitioner: Advocates Prajit Ratnakaran, Abdul Raoof Pallipath, Rajesh V. Nair, and E. Mohammed Shafi.
Respondents: Public Prosecutor Renjit George
