The Allahabad High Court has dismissed an application saying that touching the private part of a child with a sexual intent fall under “sexual assault” under Section 7 of POCSO Act.
A single-judge bench of Justice Saurabh Shyam Shamshery passed this order while hearing an application under Section 482 filed by the victim.
Vivek Kumar Singh, counsel for applicant, in support of prayer made in application that summoning order dated 29.09.2021 passed by Additional Sessions Judge/Special Judge (POCSO Act), Jaunpur be set aside, has submitted that an application was filed under Section 156 (3) CrPC by the complainant which was considered as a complaint case by an order dated 20.03.2018.
Thereafter, the statement of complainant (the father of the victim) was recorded under Section 200 CrPC and the statements of witnesses including victim, a minor boy aged 8 years, at the time of alleged occurrence, were recorded and after consideration thereupon, the impugned summoning order was passed.
The counsel for the applicant further submitted that on the basis of above material, prima facie case is not made out against applicant. The impugned order is bereft of requisite opinion that there were sufficient grounds to proceed against the applicants.
The counsel further submitted that the nature of allegations are improbable so much as the applicant being a woman could not make such act as well as the victim has not narrated any act of sexual assault whereas the complainant (the father of the victim) has narrated version as told by the victim which appears to be exaggerated. Therefore, the summoning order as well as further proceedings may kindly be quashed.
AGA Munne Lal has assisted the Court and supported the impugned order so much as the statement of victim which may fall under the definition of Section 7 (Sexual Assault) of the POCSO Act.
At the stage of scrutinizing the summoning order passed under Section 204 CrPC, the Court has to consider whether there is an opinion that there is sufficient ground to proceed against applicants and for this purpose.
The Court relied upon the case of Lalankumar Singh v State of Maharashtra and stated: “The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons.”
“I have perused the complaint, statement of complainant as well as statement of victim which were recorded after almost 3-4 years of the incident. The complainant has stated in his statement the version as told by the victim wherein he has described the sexual assault. However, the victim in his statement has not narrated such sexual assault in detail.
For the purpose, considering the statement of 13-year-old boy that the applicant has committed an act would be prima facie sufficient ground to summon the applicant for the offence under Section 7 and 8 of POCSO Act as even touch to a private part of a child with sexual intent may fall under “sexual assault” under Section 7 of POCSO Act. The question of presence of “sexual intent” will be subject matter of trial. The Magistrate in the impugned summoning order has also taken note of both the submissions and summoned the applicant for the aforesaid offence. Therefore, in my view, the summoning order has the requisite opinion that there is sufficient ground to proceed against the applicant and it satisfies the test of Lalankumar Singh (supra).
In view of above, I do not find any reason to cause interference in the impugned order,” the Court observed while dismissing the application.