J&K High Court Sets Aside POCSO Charges | Statements Of The Victims Do Not Make Out Any Offence | No Grave Suspicion Against Accused
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar set aside the order framing charges under Sections 363 and 376 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences (POCSO) Act against the petitioner. The Court held that the material collected during the investigation failed to disclose grave suspicion or prima facie evidence necessary to proceed against the accused. Consequently, the order of the Special Judge (POCSO Cases), Srinagar, dated 9 March 2022, was quashed, the petitioner was discharged, and the charge sheet against him dismissed.
The proceedings originated from FIR No.83/2021 dated 10 June 2021, registered at Police Station Batamaloo on the basis of a written complaint by the father of a minor girl. In the complaint, it was stated that the complainant’s daughter, aged around 14–15 years, had gone missing on 9 June 2021. It was further reported that she had left home in the company of another minor girl of similar age and had failed to return.
The next day, on 10 June 2021, both girls were produced before the police by their family members. Upon medical examination, it was found that the girls had been subjected to sexual intercourse, though the vaginal swabs did not test positive for spermatozoa. During the investigation, statements under Section 161 and Section 164 of the CrPC were recorded. The two minor girls stated that they had boarded a vehicle voluntarily for a visit to Dargah Hazratbal, Srinagar, and had not returned home due to it being too late. They mentioned that the driver of the vehicle had arranged accommodation for them at a hotel, where they stayed separately and the driver slept in another room.
The petitioner was identified as the driver of the vehicle. Alleging that he had enticed the girls and committed sexual offences, the investigating officer incorporated Sections 376 IPC and Section 4 of the POCSO Act into the FIR. A charge sheet was filed before the Special Judge (POCSO Cases), Srinagar. On 9 March 2022, the court framed charges against the petitioner under Sections 363, 376 IPC and Section 4 of the POCSO Act.
Challenging the order of framing charges, the petitioner contended that there was no allegation in any of the witness statements implicating him in kidnapping or sexual assault. It was submitted that the two girls had voluntarily left their homes, boarded the vehicle of their own accord, and there was no inducement or threat involved. It was argued that the materials on record did not raise any grave suspicion against the petitioner and that framing of charges was unjustified in law.
The medical report stated that the girls had been subjected to sexual intercourse about two days prior to the examination. However, there was no forensic evidence linking the petitioner to the alleged act, nor any allegation made by the girls suggesting sexual assault by him. Further, statements of family members of the girls did not implicate the petitioner either directly or indirectly.
The petitioner contended that the charge of kidnapping under Section 363 IPC could not be sustained in the absence of inducement or force and that there was no basis to invoke Section 376 IPC or Section 4 of the POCSO Act, as the alleged sexual act was not attributed to him by the victims. The petitioner therefore prayed for setting aside the order of framing charges and for dismissal of the charge sheet.
The Court considered the legal standard applicable at the stage of framing of charges and the scope of judicial scrutiny under Sections 227 and 228 of the CrPC. Referring to the Supreme Court’s decision in Union of India v. Prafulla Kumar Samal, the Court observed:
“The Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.”
The Court stated that at the stage of framing charges, it is necessary for the judge to ascertain whether the allegations made are supported by the material collected during investigation: “It is open to the Court, at the stage of framing of charge, to ascertain as to whether the allegations made in the charge sheet against the accused are supported by the material collected by the I.O during investigation of the case.”
Regarding the statement of one of the victim girls, Ms. X, the Court recorded:
“Ms. X in her statement recorded under Section 164 of Cr. P. C has stated that she along with her friend had gone to have a visit of Dargah Hazratbal… They boarded the said vehicle. After driving for some time, it got very late… they were apprehending that their family members would deal with them strictly. Thereafter the driver offered to make arrangement for the two girls in a hotel… the driver slept in a separate room.”
Similarly, the statement of the second girl, Ms. Y, was noted: “Ms. Y made a statement under Section 164 of Cr. P. C exactly on similar lines.”
Based on these statements, the Court recorded: “Both the victim girls have stated that they could not get any vehicle for returning to their home and they boarded the vehicle of the petitioner out of their own will and volition.”
The Court recognised that under the POCSO Act, the consent of minor victims is legally irrelevant. However, it stated: “The two girls, in their statements under Section 164 of the Cr. P. C, have not even whispered that the petitioner had asked them to board his vehicle… they had left their home completely uninfluenced by any promise and inducement emanating from the petitioner.”
With respect to the offence under Section 363 IPC, the Court observed: “When the statements of both the victim girls are read in conjunction with the statements of their immediate family members, it comes to the fore that the victim girls were neither taken nor enticed by the petitioner to go with him. Therefore, offence under Section 363 of IPC is not made out.”
On the issue of rape and penetrative sexual assault, the Court held: “Both of them have not stated anything about this aspect of the matter. None of them have stated that they were subjected to sexual assault by the petitioner.”
Referring to the medical report, the Court recorded: “Merely on the basis of the opinion of the doctor that the two girls had been subjected to sexual intercourse a couple of days back, it cannot be inferred that the petitioner was the author of such sexual intercourse.”
The Court concluded: “There is absolutely no evidence on record to show that the petitioner has either kidnapped the two victim girls or he has committed sexual assault upon them… The learned Special Judge, without sifting the material collected by the Investigating Agency for the limited purpose of framing opinion as to whether prima facie offence is committed… has proceeded to frame charges… The impugned order… is therefore unsustainable in law.”
The Court allowed the petition and set aside the order dated 09.03.2022 passed by the Special Judge (POCSO Cases) (Principal Sessions Judge) Srinagar, by which charges had been framed against the petitioner.
The petitioner was discharged, and the challan against him was dismissed. A copy of the order was directed to be sent to the Special Court for information.
Advocates Representing the Parties
For the Petitioners: Mr. Adnan Fayaz, Advocate
For the Respondents: Mr. Mohsin Qadiri, Senior Additional Advocate General, with Ms. Nadiya Abdullah, Assisting Counsel
Full Case Title: XXX v. Union Territory of Jammu & Kashmir
Case Number: Crl. R. No.12/2022
Bench: Justice Sanjay Dhar
[Read/Download order]
