Himachal Pradesh High Court
Ravi Kumar vs State Of Hp on 24 May, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 144 of 2023 Date of Decision : 24.5.2023 Ravi Kumar ....Petitioner.
.
Versus
State of HP ....Respondent.
Coram
THE HON'BLE MR. JUSTICE SANDEEP SHARMA, JUDGE
Whether approved for reporting? Yes.
For the petitioner r
For the respondents :
:
Mr. Vipin Pandit, Mr. Dinesh Kumar &
Mr. Tek Chand, Advocates.
Mr. Rajan Kahol, Mr. Vishal Panwar
Mr. B.C. Verma, Additional Advocates
General with Mr. Rahul Thakur, Mr.
Ravi Chauhan and Ms. Avni Kochhar,
Deputy Advocates General.
SANDEEP SHARMA, JUDGE (ORAL)
Instant criminal revision petition filed under Section 397 of Cr.P.C. lays challenge to order dated 18.4.2022, passed by learned Additional District & Sessions Judge, Fast Track Special Court, Solan, H.P., in Case No. 30-S/7 of 2021, titled as State Vs. Ravi Kumar, whereby petitioner came to be charged for his having committed offence punishable under Section 354-D of IPC and Section 11(iv) as punishable under Section 12 of the POCSO Act.
2. Precisely, the facts as emerge from the record are that complainant/victim/prosecutrix (name withheld), lodged a complaint to the In-charge Police Chowki, Bhojnagar, Police Station Parwanoo, ::: Downloaded on - 26/05/2023 20:30:57 :::CIS 2 District Solan, H.P., dated 21.7.2021 (Annexure P-1), alleging therein that for the last so many days, petitioner-accused (hereinafter referred to as 'the accused') has been stalking her. Prosecutrix further alleged .
that repeatedly accused compelled her to solemnize marriage with him, which offer was rejected by her, but yet, accused stalks her, as a result of which, she is under mental trauma. Prosecutrix further alleged that on 19.7.2021, while she was grazing her cattle, at around 3:30 pm, accused came on the spot and persuaded her to elope with him with a view to solemnize marriage. In the aforesaid background, FIR No. 59/2021 dated 21.7.2021 came to be lodged against the accused under Section 354-D of IPC. Since, after lodging of FIR, as detailed herein above, prosecutrix, while making deposition under Section 164 of Cr.PC before the Magistrate alleged that on 19.7.2021, accused had grabbed her hand, Section 11(iv) as punishable under Section 12 of POCSO Act came to be incorporated in the FIR.
3. After completion of investigation police presented challan in the competent court of law, which being convinced that prima facie case is made out against the accused on the basis of material adduced on record along with final report filed under Section 173 of Cr.PC, charged the accused for his having offence committed under Section 354-D of IPC and Section 11(iv) as punishable under Section 12 of the POCSO Act.
4. Being aggrieved and dis-satisfied with framing of charge under Section 11(iv) as punishable under Section 12 of the POCSO ::: Downloaded on - 26/05/2023 20:30:57 :::CIS 3 Act, accused has approached this Court by way of instant petition praying therein to set aside the aforesaid impugned order inasmuch as he has been charged for his having committed offence punishable .
under Section 12 of the POCSO Act. In nutshell, grouse of the petitioner as highlighted in the instant petition and as has been further canvassed by learned counsel for the petitioner is that since no specific allegation, if any, ever came to be lodged by prosecutrix that accused grabbed/touched the hand of prosecutrix with sexual intent, there was no occasion, if any, for learned Court below to frame charge under Section 11(iv) punishable under Section 12 of the POCSO Act.
While making this Court peruse Section 12 of the POCSO Act, learned counsel for the petitioner vehemently argued that till the time, some material is adduced on record suggestive of the fact that any part of the prosecutrix was touched by accused with sexual intent, aforesaid provision under Section 11(iv) as punishable under Section 12 of the POCSO Act cannot be invoked. Learned counsel for the petitioner further submitted that initial complaint lodged by victim, on the basis of which FIR came to be lodged, nowhere suggests that on 19.7.2021 accused had touched or grabbed hand of the victim-prosecutrix but subsequently with a view to falsely implicate accused under Section 12 of POCSO Act, prosecutrix made a statement under Section 164 Cr.PC., before the learned Judicial Magistrate that on 19.7.2021 stating therein that accused while persuading her to elope with him for solemnization of marriage, also touched/grabbed her hand. Lastly, ::: Downloaded on - 26/05/2023 20:30:57 :::CIS 4 learned counsel for the petitioner argued that since there is no material placed on record by Investigating Agency suggestive of the fact that accused had any sexual intent, while holding or grabbing the hand of .
prosecutrix, no case punishable under Section 12 of the POCSO Act is made out. In support of his aforesaid submission, learned counsel for the petitioner placed reliance upon the judgment passed by this Court in State of Himachal Pradesh Vs. Parmod, 2022 (3) Him LR 1697, decided on 23.6.2022, wherein it has been held that to hold somebody guilty of sexually assault punishable under Section 8 of POCSO Act, it is obligatory to prove that accused with sexual intent touched any part of the body of the prosecutrix. Learned counsel for the petitioner also placed reliance upon judgment passed by Hon'ble High Court of Delhi in case titled as State GNCT of Delhi Vs. Baljeet Singh, State Vs. Anil, LAWS (DLH) 2019 11 29, and Hon'ble High Court of Meghalaya in case titled as Mohammad Saimullah Vs. State of Meghalaya, LAWS (MEGH) 2022 5 21, wherein it has been categorically held that till the time, it is not proved in accordance with law that accused had sexual intent, while touching any part of the body of a child victim, provisions under Section 11(iv) as punishable under Section 12 of the POCSO Act cannot be invoked.
5. Learned Additional Advocate General while supporting the impugned order framing charge under Section 11(iv) as punishable under Section 12 of the POCSO Act, passed by learned Additional District & Sessions Judge Fast Track Special Court, Solan vehemently ::: Downloaded on - 26/05/2023 20:30:57 :::CIS 5 argued that very statement of victim-prosecutrix that on 19.7.2021 accused, while persuading her to elope with him held/grabbed her hand, is sufficient to infer sexual intent. He further argued that material .
placed on record by prosecution clearly reveals that accused had been troubling the prosecutrix for so many months prior to lodging of FIR, as a result of which, she was under mental trauma. He further argued that though statement of prosecutrix as recorded under Section 164 of Cr.PC is sufficient to infer the guilt of accused under Section 11(iv) as punishable under Section 12 of the POCSO Act, but even otherwise such aspect cannot be gone into by this Court, at this stage, because sexual intent, if any, of accused, while holding/grabbing hand of prosecutrix, shall be proved by prosecution by leading cogent, convincing and reliable evidence. While making this Court read object of POCSO Act, learned Additional Advocate General strenuously argued that very purpose and object of POCSO Act is to provide protection to the children from the offences of sexual assault, sexual harassment and pornography.
6. Lastly, learned Additional Advocate General argued that while framing charge, Court is not expected to make reference to entire material made available to him by Investigating Agency, rather Court is only required to sift evidence adduced by prosecution to infer prima facie case, if any, against the accused. He submitted that since in the instant case bare perusal of complaint coupled with the statement made under Section 164 Cr.P.C., prima facie indicates commission of ::: Downloaded on - 26/05/2023 20:30:57 :::CIS 6 offence under Section 11(iv) as punishable under Section 12 of the POCSO Act, no illegality can be said to have been committed by court, while charging the accused under Section 11(iv) punishable under .
Section 12 of the POCSO Act. Lastly Mr. Kahol argued that this Court has a very limited power/scope to interfere while exercising powers under Section 379 Cr.P.C.
7. I have heard learned counsel for the petitioner and learned Additional Advocate General for the respondent-State and also gone through the record of the case very minutely.
8. Before ascertaining the correctness and genuineness of rival submissions of learned counsel for the parties this court deems it necessary to deal with specific objection with regard to competence of this court to re-appreciate the evidence while exercising power under S.397/401.
9. Hon'ble Apex Court in case "State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri" (1999) 2 Supreme Court Cases 452 has held that this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the courts below. Relevant para of the judgment supra, read as under:-
"In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, ::: Downloaded on - 26/05/2023 20:30:57 :::CIS 7 unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
10. Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has .
held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order. Hon'ble Apex Court has held as under:
"8. The object of Section 483 and the purpose behind conferring the revisional power under section 397 read with section 401 upon the High court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to met out justice or to correct irregularity of the procedure or to met out justice. In addition, the inherent power of the High Court is preserved by Section 462.
The Power of the High court therefore is very wide, However , High Court must exercise such power sparingly and cautiously when the sessions judges has simultaneously exercised revisional power under Section 397(1) however, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or tow correct irregularities/incorrectness committed by inferior criminal court in its juridical process or illegality of sentence or order."
11. It is quite apparent from the perusal of aforesaid law laid down by Hon'ble Apex Court that when the High Court notices that there is a failure of justice or misuse of judicial mechanism or procedure or sentence or order is not correct, it is salutory duty of the High Court to prevent abuse of the process or miscarriage of justice or to correct irregularities committed by inferior Criminal Court in its judicial process or illegality of sentence or order.
::: Downloaded on - 26/05/2023 20:30:57 :::CIS 812. In the instant case, material made available to this Court clearly reveals that, at the first instance, victim-prosecutrix, though .
lodged complaint to the Police that she is being continuously stalked and harassed by accused, but at no point of time levelled allegations that on 19.07.2021, accused, while persuading her to elope with him for solemnization of marriage, held/grabbed her hand. It is only after lodging of FIR that the prosecutrix, while getting her statement recorded under Section 164 Cr.P.C. alleged that on 19.07.2021, accused held/grabbed her hand and compelled her to run away with him. Save and except statement of prosecutrix, as taken note above, there is no evidence suggestive the fact that accused, while persuading prosecutrix to solemnize marriage, ever attempted to touch hand or other part of the body of the prosecutrix with sexual intent.
13. Before ascertaining correctness of rival submissions made by learned counsel for the parties, it would be apt to take note of the provisions contained in Section 11(iv) of the POCSO Act. Very initial lines of aforesaid provisions contained under POCSO Act clearly suggests that a person can be said to have committed sexual harassment upon a child, when such person with sexual intent, utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with sexual intent, that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the ::: Downloaded on - 26/05/2023 20:30:57 :::CIS 9 child. The aforesaid provision of law further reveals that if a person shows any object to any child or victim in any form or media for pornographic purposes with sexual intent, an offence is made out. To .
invoke Section 11(iv) of the POCSO Act, it is incumbent/obligatory upon the prosecution to prove that person alleged to have committed sexual harassment, touched any part of the body of the child victim with sexual intent.
14. In the instant case, though very allegation of victim that on 19.07.2021, accused held/grabbed her hand, while persuading her to run away with him, has become doubtful on account of initial statement given to the Police on the basis of which, FIR came to be lodged, but even, if it is presumed that on 19.07.2021, accused held/grabbed hand of the victim-prosecutrix, that would not automatically constitute offence under Section 11(iv) punishable under Section 12 of the POCSO Act, rather to bring the case within the ambit of Section 11 (iv) of the POCSO Act, the prosecution is required to prove that accused held/grabbed hand of the victim-prosecutrix on the date of alleged incident with sexual intent, which in the instant case is totally missing.
15. At this stage, reliance is placed upon the judgment rendered by this Court in Case titled as "State of Himachal Pradesh versus Parmod reported in (2022) 3 Him LR 1697.
"9. If the statement made by victim/prosecutrix, i.e. PW-1, Kumari Akriti, is perused in its entirety, there is no allegation, if any of sexual assault and sexual harassment, rather in her statement recorded under Section 154 Cr.P.C, which subsequently came to be reiterated in her deposition, as PW-1 before trial court, is perused in its entirety, she nowhere levelled ::: Downloaded on - 26/05/2023 20:30:57 :::CIS 10 allegation of sexual assault and sexual harassment, rather her precise allegation against the accused is that on 27.1.2019, at about 5 P.M., while she was coming back from tuition and was going near the lift of Amarawati Apartment, accused having found her alone, all of a sudden, came in front of her and wrongfully restrained her. She alleged that accused put knife on her neck and told her that in case, she raised alarm, he would kill her. She also alleged that accused caught hold her tightly and out of fear, she cried and on hearing her cries, one lady came there and accused tried to run away. There is no allegation that accused with .
sexual intent touched any part of body of victim/prosecutrix. Though statement made by victim/prosecutrix suggests that accused caught hold of her tightly, but since, there is no material available on record to suggest that accused came in physical contact of victim/prosecutrix with intent to commit sexual offence, no offence, if any, can be said to have been committed by the accused punishable under Sections 8 & 12 of POCSO Act. Similarly, there is no allegation of sexual harassment. It would be apt to take note of Sections 7,8, 11 & 12 of POCSO Act, which read as under:-
"Section 7. Sexual assault.- Whoever, with sexual intent touches 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.
Section 8. Punishment for sexual assault Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. Section 11. Sexual harassment- A person is said to commit sexual harassment upon a child when such person with sexual intent,-- (i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or (ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or (iii) shows any object to a child in any form or media for pornographic purposes; or (iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or (v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or (vi) entices a child for pornographic purposes or gives gratification therefor. Explanation.--Any question which involves '[sexual intent" shall be a question of fact.
Section 12. Punishment for sexual harassment.-Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine."
10. Careful perusal of aforesaid provisions of law reveals that to hold somebody guilty of sexual assault punishable under Section under Section 8 of POCSO Act, it is obligatory to prove that accused with sexual intent touched vagina, penis, anus or breast of the child or made the child touch the vagina, penis, anus or breast of such person or any other person, or did any other act with sexual intent which involves physical contact without penetration. To prove guilt of sexual assault, if any committed by accused, sexual intent, if any, of the accused is necessarily required to be proved. Similarly, to punish somebody, under Section 12 of the POCO Act, it is necessarily required to prove on record that sexual harassment was committed upon the victim child. Sexual harassment is defined in Section 11 of the Act, which has been reproduced hereinabove. None of the ingredients of Section 11 have been proved in the case at hand, rather there is no allegation at all of sexual harassment and sexual assault and as such, no fault, if any, can be said to have been committed by court below while acquitting the accused of charged framed against him under Sections 8 & 12 of POCSO Act.
::: Downloaded on - 26/05/2023 20:30:57 :::CIS 1116. Reliance is also placed upon the judgment rendered by Hon'ble High Court of Delhi in Case titled as "State GNCT of Delhi versus Baljeet Singh reported in Laws (DLH) 2019 7 9 .
.
"8. Perusal of the record as also the statement given by the prosecutrix does not prima facie show that any act was done by the respondent with any sexual intent. The Trial Court has rightly appreciated the facts of the case and held that that there was nothing on record to show that the respondent had done anything with any sexual intention. The allegations against the respondent, who is the first cousin of the victim, showed that he was upset with the victim not talking to him.
9. The substantive offence (Section 11) for which punishment is prescribed under Section 12 POCSO, clearly indicates that the precondition for the section to be attracted is that an act, as enumerated therein, is done with sexual intent. Clearly in the subject case, from the allegations against the respondent, no such intention even prima facie is coming forward."
17. Reliance is also placed upon the judgment rendered by Hon'ble High Court of Delhi in Case titled as "State Vs. Anil reported in Laws (DLH) 2019 11 29.
5. On perusal of the impugned order, it is revealed that the learned ASJ had observed that the statement of the victim and the complainant, recorded under Section 164 Cr.P.C, did not reflect that the respondent committed any offensive act upon the victims or he had any sexual intent. It is further observed that the main ingredients of Section 12 of the POCSO Act, i.e., sexual intent is missing in the entire act of the respondent and therefore the prima facie offence of sexual harassment was not made out against him and he was accordingly discharged.
6. On perusal of statement under Section 164 Cr.P.C of the victim wherein she stated that she along with her four friends were playing on the railway lines when the respondent asked them that after playing, they all should come to his house and he will give them ₹2. She did not go to his house and told this fact to her elder sister.
18. Reliance is also placed upon the judgment rendered by Hon'ble High Court of Meghalaya in Case titled as "Mohammad Saimullah versus State of Meghalaya reported in Laws (MEGH) 2022 5 21.
"19. In the case of Bandu Vitthalrao Borwar (supra) cited by the learned Sr. counsel for the petitioner, the facts therein is that an incident occurred on 30.08.2013 at 10:30 am when the victim was proceeding to her school, she was accosted by the appellant therein who stopped her and put a question to her as to why she did not love him and on getting a negative reply, he slapped the victim in her face. An FIR was registered on a complaint and the trial proceeded accordingly. The appellant was thereafter convicted for the offences punishable under Section 354D IPC and Section 12 of the POCSO Act. In the ::: Downloaded on - 26/05/2023 20:30:57 :::CIS 12 said case, the Hon'ble Judge while dealing with the expression 'sexual intent' has opined that:
"It is obvious that the intent, which is nothing but the state of mind, must be to establish some sort of physical contact or must be related to or associated with sex or indicative of involvement of sex in the relationship, if it is to be considered as sexual, I have already stated that the utterance indicating an expectation of a person that the other person should love him would not by itself amount to sexual intent as contemplated by the .
legislature".
The appellant therein was acquitted of all charges against him.
20. In the facts and circumstances of the case of the petitioner, this Court is inclined to agree with the opinion of the Hon'ble Bombay High Court and is also of the opinion that the action of the petitioner in holding the hands of the alleged victim girl and saying that her hands are beautiful would not in any way amount to sexual intent and thereby, would not be considered an act of sexual assault."
19. If the aforesaid judgments passed by this Court as well as other High Courts are perused in entirety, they clearly suggest that mere touching of hand or other body part may not be sufficient to hold accused guilty of his having committed offence punishable under Section 11 of the POCSO Act, rather for that purpose, it is mandatory to prove that accused, while holding hand or touching any part of the child victim, had a sexual intent. In the case at hand, statement of victim-prosecutrix given to the police or thereafter to the Magistrate under section 164 Cr.PC., nowhere suggests that the accused while persuading her to elope with him for marriage, touched/grabbed with a sexual intent.
20. At this stage, learned Additional Advocate General vehemently argued that since 'sexual intent' has not been defined in the Act, it can only be inferred from the conduct of the accused as well as appreciation of evidence collected on record. In support of his afore contention, he invited attention of this Court to explanation to Section 11(iv), which provides that any question which involves sexual intent, ::: Downloaded on - 26/05/2023 20:30:57 :::CIS 13 shall be question of fact, meaning thereby, sexual intent, if any, can be inferred on the basis of facts or evidence collected on record by Investigating Agency.
.
21. No doubt 'sexual intent', if any, shall be proved by leading cogent and convincing evidence during trial, but this Court cannot lose sight of the fact that prosecution is expected to prove its case against accused on the basis of material placed before trial court along with final report under Section 173 of Cr.PC. Having carefully perused entire material placed on record before learned Magistrate along with final report under Section 173 of Cr.P.C., this Court finds that there is nothing on record to suggest that accused had any kind of sexual intent, while touching/grabbing the hand of the victim on the date of alleged incident. If the version put-forth by the victim is read in its entirety, it clearly suggests that accused had a liking for victim-
prosecutrix and he had been repeatedly persuading her to marry him.
In the complaint, victim has nowhere stated that complainant ever lodged complaint to her parents or police that the accused behaved indecently or tried to sexually assault her.
22. Another submission made by learned Additional Advocate General that, while framing charge, trial court is not expected to deal with entire evidence adduced on record by prosecution under Section 173 Cr.PC. has been elaborately dealt with by this Court, while delivering judgment in case titled as Varun Bhardwaj Vs. State of Himachal Pradesh HLJ 2017 HP 707, wherein this Court, having ::: Downloaded on - 26/05/2023 20:30:57 :::CIS 14 taken note of various judgments passed by Hon'ble Apex Court from time to time, has categorically held that Court is neither substitute nor an adjunct of the prosecution, rather once a case is presented to it by .
prosecution, its bounden duty is to sift through the material to ascertain, whether prima-facie case has been established, which would justify and merit the prosecution of a person.
23. True it is, at the initial stage of framing of charge, the court is concerned not with proof but with the strong suspicion whether the accused has committed an offence, which if put to trial, could prove him guilty, but at the same time, Court, while framing charge should come to conclusion that prima-facie case, if any, exists to the satisfaction of the Court against the accused. It has been repeatedly held by Hon'ble Apex Court and this Court in catena of judgments that though courts need not undertake an elaborate enquiry, while sifting and weighing the material but court needs to consider whether evidentiary material on record, if generally accepted would reasonably connect the accused with crime or not?
24. Since in the case at hand, this Court, after having examined material placed on record by prosecution vis-a-vis reasoning assigned in the impugned order, is convinced that no charge ought to have been made against the accused under Section 11(iv) of the POCSO Act punishable under Section 12 of the POCSO Act and as such, this Court is justified in exercising powers under Section 397 of the Cr.PC to correct the irregularity of Criminal Court below. Moreover, ::: Downloaded on - 26/05/2023 20:30:57 :::CIS 15 this court finds that no prejudice, if any, shall be caused to the complainant, in case, accused is discharged from offence under Section 11(iv) punishable under Section 12 of the POCSO Act .
because, allegations otherwise leveled against the accused, are covered by Section 354-D of the IPC.
25. Consequently, in view of above, this Court finds merit in the instant petition and the same is allowed. Impugned order dated 18.4.2022 is quashed and set aside inasmuch as accused has been charged for commission of an offence under Section 11(iv) punishable under Section 12 of the POCSO Act.
(Sandeep Sharma) Judge May 24, 2023.
(Guleria) ::: Downloaded on - 26/05/2023 20:30:57 :::CIS