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* HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

+ Criminal Revision Case No.1970 of 2017

% Dated 07-05-2020

# Mondi Murali Krishna

….. Petitioner/De facto Complainant

Versus

$ 1. Dumpa Hanisha Naga Lakshmi & 3 others

..Respondents/Accused 1 to 4

5. The State, Station House Officer, Pedakakani P.S.,

Rep. by its Public Prosecutor, Guntur

... Respondent/State

! Counsel for the petitioner : Sri Nuthalapati Krishna Murthy

^ Counsel for respondent No.1 : Sri K.Surender (Not present)

^ Counsel for respondents 2&3: Smt. M.Radha

^ Counsel for respondent No.4: Sri K.Sai Mohan Rao

^ Counsel for respondent No.5: Additional Public Prosecutor

<GIST:

> HEAD NOTE:

? Cases referred

1. AIR 1969 SC 701

2. 2014 Law Suit (SC) 649

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HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

Criminal Revision Case No.1970 of 2017

Judgment:

Assailing the order dated 07-01-2016 whereby the

I Additional District and Sessions Judge, Guntur, a Special

Court constituted under Section 28 of the Protection of

Children from Sexual Offences Act, 2012 (the POCSO Act, for

short), whereby the charge-sheet was filed by the Sub

Divisional Police Officer, North Sub Division, Guntur Urban,

was returned on the ground that the provisions of the POCSO

Act are not applicable to the facts of the case, with a direction

to present the charge-sheet before proper Court, the present

revision case is preferred by the revision petitioner.

2. It is a most pathetic case where a victim girl who has

entered the precincts of the University with a fond hope on her

bright future has ended her life by committing suicide on

account of the alleged sexual assault and sexual harassment

to which she was subjected in the hands of the accused.

3. Facts germane to dispose of this revision case may be

stated as follows:

(a) As can be from the charge-sheet, the case of the

prosecution is that the daughter of the de facto complainant

by name Rishiteswari was born on 22-4-1997. She got 112

th

rank in State Level NATA Entrance Examination during the

year 2014 in the Unified State of Andhra Pradesh. Therefore,

she got seat in Acharya Nagarjuna University in Guntur

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District. She joined First Year course of Architecture in

Acharya Nagarjuna University, Guntur, on 07-9-2014. She

was a minor at that time. As she is a resident of Warangal

District in the State of Telangana, she used to stay in Indira

Priyadarshini Ladies Hostel, SPA, Type-III Quarters in the

University.

(b) Accused 1 to 3 are also the students studying in the

said University. They are her seniors. Accused No.1 with the

active support and instigation of accused No.3 used to force

the deceased to love accused No.3. When she refused for the

same, accused No.1 used to humiliate her and talk to her

sarcastically in vulgar language. Accused No.3 used to force

her and compel her to come to the upstairs of the class room

and talk to him personally. The victim girl, who was in

a panic state, went to the upstairs and met accused No.3.

At that time, he made an indecent proposal of sexual

advances to her stating that he is in love with her. Accused

No.2 also had an evil eye on her and with an intention to

satisfy his lust with her, he forced her to love him. The victim

girl was reluctant to love both accused 2 and 3. Inspite of her

reluctance, accused No.2 used to make unwanted phone calls

to her over mobile phone and unable to bear the same, she

transferred her calls to the mobile phone of L.W.1, who is her

father, by opting call forward option and when her father lifts

the phone, accused No.2 used to disconnect the calls.

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(c) In the month of February, 2015, when she went to

her native place in Warangal District from Guntur on train,

accused No.2 followed her in the train up to Madhira. When

the deceased reached her native place at Warangal, accused

No.2 made a call to her mobile phone and her mother lifted

the phone and replied that the victim girl is sleeping.

Thereafter, When the victim girl woke up, her mother informed

her about the phone call by accused No.2 and when she called

back accused No.2, he informed her that he came to Warangal

to see the places in and around Warangal with her and he

made some sexual advances and overtures at that time.

Accused 2 and 3 used to call her over her mobile phone and

express their intention to have their lust satisfied with her.

Unable to bear the said sexual harassment of the accused, the

victim girl diverted the said calls to the mobile phone of L.W.1,

who is her father. When L.W.1 received some of the said

diverted calls from accused 2 and 3, they later stopped calling

to that number. Accused No.3 with the support of accused 1

and 2 used to call the victim girl aside when she was alone

and used to talk to her indecently and they used to express

their desire to satisfy their lust with her stating that they are

in love with her. The victim girl rejected their proposals.

Since then, accused 1 to 3 started teasing and humiliating her

by spreading rumours against her character that she got

illegal contacts with L.W.3.

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(d) The victim girl was thus subjected to severe mental

agony and emotional turmoil on account of the indecent

behaviour of the accused 1 to 3 and the sexual harassment

caused to her by accused 1 to 3. She expressed her agony in

the diaries maintained by her. The deceased and other

witnesses i.e. her father L.W.1 along with L.Ws.3 and 5 met

accused No.4, who is the Principal and informed him about

the indecent behaviour of the accused 1 to 3 and also about

their acts of ragging. But accused No.4 paid deaf ear and

instructed them to inform the Head of the Department, who is

L.W.32. When they met L.W.32, L.W.32 instructed accused

No.4 to take care. Yet, accused No.4 did not take any action

in this regard. He impliedly supported accused 1 to 3.

(e) On 18-4-2015, there was a freshers’ party at

Haailand at Chinakakani Village. Seniors of the University

presented “Miss Perfect” title to the victim girl. At that time,

accused No.2 again misbehaved with her and he compelled

her to have dinner with him and he forcibly took her mobile

phone and made comments regarding the photos available on

her mobile phone and insulted her in the presence of other

students. The award of “Miss Perfect” title was presented to

her through accused No.3. At that time, taking advantage of

the situation, accused No.3 touched her hands on the dais

with an intention to outrage her modesty. While she was

stepping down from the dais, accused No.2, who is present by

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the side of the dais, caught hold of her waist with sexual

intention and insulted her in the presence of other students.

(f) By exhibiting such wilful conduct, the accused have

driven the deceased to commit suicide. Unable to bear their

torture, misbehaviour, ill treatment, sexual harassment

caused to her, spreading rumours against her character and

their acts of ragging, the victim girl ultimately committed

suicide by hanging in her hostel room on 14-7-2015.

(g) Her father lodged a report with the Police and the

Police initially registered a case in Crime No.241/2015 for the

offence punishable under Section 306 of IPC and investigated

the same. As the investigation revealed that the accused 1 to

3 subjected the deceased to sexual harassment and outraged

her modesty and harassed her and humiliated her and

indulged in the acts of ragging towards her, the charge-sheet

was filed against accused 1 to 4 for the offences punishable

under Sections 354, 354(A)(2), 354(D)(2), 306 and 109 of IPC

and under Sections 4(i) and (v) and 7(1) and 2) of the Andhra

Pradesh Prohibition of Ragging Act, 1997 and under Sections

8 and 12 of the POCSO Act.

(h) When the charge-sheet was filed before the Special

Court under the POCSO Act i.e. the I Additional District and

Sessions Judge, Guntur, the record reveals that the office took

objection as to how the offences under the POCSO Act are

made out. The Investigating Officer answered the objections

stating that the facts of the case satisfy the ingredients of

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commission of offences of sexual assault and sexual

harassment punishable under Sections 8 and 12 of the

POCSO Act by the accused against the deceased and as the

deceased was a child below the age of 18 years at the time of

commission of the said acts of sexual assault and sexual

harassment that a case under the POCSO Act is made out.

(i) However, the I Additional District and Sessions Judge,

Guntur, by the impugned order dated 07-01-2016 held that as

on the date of suicide i.e. on 14-7-2015 she was major and no

report was given by her during her life time against accused 1

to 3 alleging that they committed any offences punishable

under the POCSO Act and as such the facts of the case only

show that the offence punishable under the A.P. Prohibition of

Ragging Act is made out and the POCSO Act is not applicable

and thereby returned the charge-sheet to present it before the

proper Court. Therefore, the Investigating Officer has taken

return of the charge-sheet and filed it before the II Additional

Assistant Sessions Judge (Fast Track Court), Guntur.

(j) While the matter is coming on for framing charges

before the learned II Additional Assistant Sessions Judge (Fast

Track Court), Guntur, the de facto complainant, who is the

father of the deceased, filed a petition under Section 216 of

Cr.P.C stating that the facts of the case constitute

an offence punishable under Sections 8 and 12 of the POCSO

Act and thereby prayed to frame charges under the said Act

also.

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(k) After hearing both the parties, the learned

II Additional Assistant Sessions Judge dismissed the said

petition on the ground that Section 216 of Cr.P.C applies to

alter the charge and as charges are not yet framed that the

petition under Section 216 of Cr.P.C is not maintainable and

it is premature and also on the ground that the I Additional

District and Sessions Judge, Guntur, already held that the

facts of the case do not attract the offences under the POCSO

Act as per the order passed by the I Additional District and

Sessions Judge, Guntur, while returning the charge-sheet and

the said order is not challenged and it became final.

(l) Therefore, in view of the above observation of the

II Additional Assistant Sessions Judge that the order of the

I Additional District and Sessions Judge is not challenged and

it became final, the revision petitioner, who is the father of the

deceased, preferred this revision questioning the order of the

I Additional District and Sessions Judge, Guntur, dated

07-01-2016, whereunder he has returned the charge-sheet

filed in the Special Court to present it in the proper Court.

Since there was a delay in preferring the revision in

questioning the said order dated 07-01-2016, the revision

petitioner has filed a petition to condone the said delay in

Crl.M.P. No.3146 of 2017 and the common High Court of

Hyderabad by order dated 31-10-2017 allowed the said

petition and condoned the delay.

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(m) Therefore, the propriety, legality, correctness of the

impugned order dated 07-01-2016 of the I Additional District

and Sessions Judge, Guntur, whereby it is held that the facts

of the case only make out an offence under the A.P.

Prohibition of Ragging Act and the Indian Penal Code and they

do not constitute any offence under the POCSO Act is being

questioned in this revision case.

4. Heard Sri Nuthalapati Krishna Murthy, learned

counsel for the petitioner; Smt. M.Radha, learned counsel for

the respondents 2 and 3; and Sri K.Sai Mohan Rao, learned

counsel for the 4

th respondent.

5. Learned counsel for the petitioner would submit that

the date of suicide cannot be taken into consideration to

ascertain whether the deceased was a child or a minor at the

time when she was subjected to sexual assault and sexual

harassment in the hands of the accused. According to him,

the date of birth of the deceased was 22-4-1997 and as such

she became major on 22-4-2015 and as the acts of sexual

harassment against her were committed by the accused prior

to 22-4-2015 i.e. from 07-9-2014 when she joined First Year

Architecture in Acharya Nagarjuna University which

continued till she attained the age of majority on 22-4-2015

and also subsequently till her death on 14-7-2015, it is

evident that she was subjected to sexual assault and sexual

harassment when she was a minor and a child from

07-9-2014 till 22-4-2015. He would contend that as per

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Section 2(d) of the POCSO Act, “child” means any person

below the age of eighteen years. Therefore, he submits that at

the time of commission of the said acts of sexual assault and

sexual harassment by the accused against her from

07-9-2014 till 22-4-2015, she was a child for the purpose of

the POCSO Act. He would then contend that the said acts of

sexual assault and sexual harassment committed by the

accused clearly constitute an offence punishable under

Sections 8 and 12 of the said Act. The acts of catching her

hands and her waist with sexual intent and constantly

following her and making a proposal to her or insisting her to

satisfy their sexual desire are all the acts which clearly

constitute an offence punishable under Sections 7 and 11 of

the Act and as these acts took place when she was a child,

a clear offence punishable under Sections 8 and 12 of the Act

are made out from the facts of the case. Therefore, he would

submit that the learned I Additional District and Sessions

Judge did not at all apply his mind to the ingredients of the

offences punishable under Sections 8 and 12 of the Act and

erroneously held that no offence is made out from the facts of

the case under the POCSO Act. Therefore, he would submit

that the impugned order returning the charge-sheet without

taking the same on to the file to try the accused for the said

offences under the POCSO Act is erroneous and

unsustainable under law and thereby prayed to set aside the

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same and direct the Special Court to take the charge-sheet on

to the file and proceed with the case according to law.

6. Per contra, the learned counsel for the respondents

would submit that there was no report lodged by the victim

girl during her life time or by any person on her behalf stating

that the accused have committed the acts of sexual assault

and sexual harassment against her and as such in the

absence of any such report by the victim girl or any person on

her behalf that there is no basis for taking cognizance of the

case for the offence under the POCSO Act. They would further

submit that the I Additional District and Sessions Judge,

therefore, rightly held that the facts of the case do not

constitute any offence under the POCSO Act and at best, they

only constitute an offence under the Andhra Pradesh

Prohibition of Ragging Act, 1997 and rightly returned the

charge-sheet without taking the same on to the file.

Therefore, they strongly supported the impugned order of the

learned I Additional District and Sessions Judge and thereby

prayed for dismissal of the criminal revision case.

7. Now, the points that emerge for determination in this

criminal revision case are:

(1) Whether the facts of the case constitute any offence

punishable under the provisions of the Protection of

Children from Sexual Offences Act, 2012 (the POCSO Act) ?

(2) Whether the impugned order of the I Additional District and

Sessions Judge, Guntur, returning the charge-sheet to

present the same before the proper Court on the ground

that the facts of the case do not constitute any offence

under the POCSO Act is sustainable under law, whether it

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warrants interference in this revision and whether the same

is liable to be set aside ? and

(3) To what relief ?

8. Points 1 and 2: As already noticed supra, this is

a pathetic case of unfortunate death of a victim girl who is

a brilliant who entered the precincts of the University after

securing good rank in the State Level NATA Entrance

Examination with a fond hope on her bright future who has

committed suicide on account of the harassment said to have

been caused to her sexually and mentally by the accused.

9. As per the specific version of the prosecution and as

per the evidence collected during the course of investigation,

the facts as could be gleaned from the charge-sheet are that

the deceased was born on 22-4-1997 and as such when she

entered the University on 07-9-2014 that she was a child and

since the date on which she entered the University that she

was subjected to sexual assault and sexual harassment and

ragging and to other offences by accused 1 to 3 abetted by

accused No.4. It is the case of the prosecution that she

became major on 22-4-2015. Therefore, the acts of sexual

assault and sexual harassment caused to her by the accused

during the said period clearly constitute an offence under

Sections 8 and 12 of the POCSO Act. The said acts of sexual

assault and sexual harassment continued even after she

became major on 22-4-2015 till she committed suicide on

14-7-2015 unable to bear the said torture, agony and

harassment. Therefore, it is the case of the prosecution that

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the acts of sexual assault and sexual harassment caused by

the accused from 07-9-2014 when she entered the University

till she became major on 22-4-2015, clearly constitute

offences punishable under Sections 8 and 12 of the POCSO

Act and even though the Sub Divisional Police Officer

explained these facts while answering the objections taken by

the office after returning the charge-sheet by the Special Court

that the learned Judge did not properly appreciate the said

facts and arrived at an erroneous conclusion that the facts of

the case do not constitute an offence under the POCSO Act

and erroneously returned the charge-sheet.

10. Before adverting to the point whether the facts of the

case constitute any offence under the POCSO Act or not, it is

apposite to consider the Legislative history behind bringing

this enactment and the object of the said enactment.

11. Article 15 of the Constitution, inter alia, confers

upon the State the power to make special provision for

children. Article 39, inter alia, provides that the State shall in

particular direct its policy towards securing that the tender

children are not abused and that childhood and youth are

protected against exploitation. India has ratified the United

Nations Convention on the Rights of Children on

11

th December, 1992, which requires the State to undertake

all appropriate national, bilateral and multilateral measures to

prevent – (a) the inducement or coercion of a child to engage

in any unlawful sexual activity; (b) the exploitative use of

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children in prostitution or other unlawful sexual practices;

and (c) the exploitative use of children in pornographic

performances and materials.

12. Therefore, to fulfil the constitutional obligation under

Article 15 and Article 39 of the Constitution, as discussed

supra and also to give effect to the United Nations Convention

on the Rights of Children, which is ratified by India, it is

proposed to enact a comprehensive legislation to provide for

protection of children from the offences of sexual assault,

sexual harassment and pornography to safeguard the interest

and well being of a child at every stage.

13. Therefore, the Protection of Children from Sexual

Offences Act, 2012 (the POCSO Act), an Act to protect children

from offences of sexual assault, sexual harassment and

pornography and to provide for establishment of Special

Courts for trial of such offences and matters connected

therewith or incidental thereto, was brought into existence.

The object of the said enactment is to see that the law

operates in a manner that the best interest and well being of

the child are regarded as being of paramount importance at

every stage, to ensure the healthy, physical, emotional,

intellectual and social development of the child and his or her

right to privacy and confidentiality be protected and respected

by every person by all means and through all stages of judicial

process involving the child.

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14. While the above is the Legislative history in bringing

the enactment and the object and reasons of the enactment, it

is expedient to notice few provisions in the scheme of Act,

which are relevant in the context. Section 2(d) of the Act

defines “child” which means any person below the age of

eighteen years. So, a person below the age of 18 years is

considered to be a child for the purpose of this Act. Sections 3

to 12 in Chapter II of the Act pertain to sexual offences against

women. Sections 7, 8, 11 and 12 are relevant for the purpose

of this case. Section 7 defines the offence of sexual assault

and Section 8 deals with punishment for the offence of sexual

assault. Section 7 of the Act reads as follows:

“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.”

15. A perusal of the aforesaid Section shows that

whoever with sexual intent touches any private parts like

vagina, penis, anus or breast of the child or does any other act

with sexual intent which involves physical contact without

penetration is said to have committed the offence of sexual

assault. Thus, the Section is in two parts, since the

adjunctive “or” is used in it. The first part deals with touching

the private parts of a child like vagina, penis, anus or breast

with sexual intent and the second part deals with doing any

other act with sexual intent which involves physical contact

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without penetration which also constitutes an offence of

sexual assault. The expression “doing any other act with

sexual intent” used in the second part is wide enough to

include in it various other acts which are committed by the

culprits against a child with sexual intent. Therefore, in the

considered view of this Court, the second part of the above

Section attracts to the present facts of the case.

16. As can be seen from the contents of the charge-

sheet, it is stated that on 18-4-2015, there was a freshers’

party at Haailand at Chinakakani Village. In the said

function, the seniors presented “Miss Perfect” title to the

deceased. At that time, accused No.2 demanded L.W.3 to

inform the deceased to sit by his side and when L.W.3

informed the same to the deceased that she grew wild and

questioned accused No.2 for calling her to sit beside him and

at that time, accused No.2 talked to her in indecent manner

stating that he is interested in her and also forcibly took her

mobile and commented on the photos available on her mobile.

Now it is significant to note that in the said function when the

deceased was on the dais receiving her award through

accused No.3 that he caught her hand with an intention to

outrage her modesty and when she was alighting the dais that

accused No.2 caught her waist with sexual intent and insulted

her modesty in the presence of other students. Therefore,

these two acts of accused 2 and 3 i.e. accused No.2 catching

hold of her hand with sexual intention at the time when she

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was receiving the award on the dais with an intention to

outrage her modesty and also accused No.3 placing his hand

on the waist of the deceased while she was alighting the dais

with an intention to outrage her modesty in the presence of

other students clearly amounts to doing the other act with

sexual intent which involves physical contact which is clearly

an offence of sexual assault under Section 7 of the Act. It may

be seen here that touching the private parts like vagina, penis,

anus or breast of a child is made an offence of sexual assault

under the first part and doing any other act with sexual intent

which involves physical contact without penetration is also

made an offence of sexual assault under the second part of

the Section. So, these acts regarding which evidence was

collected during the course of investigation, which were

committed against the deceased by the accused 2 and 3 on

18-4-2015, by which time she was a child and not a major,

prima facie, constitute an offence of sexual assault under

Section 7 of the Act. As per Section 8, whoever commits any

such offence of sexual assault is liable for punishment for not

less than three years which may extend to five years and also

shall be liable to fine.

17. Now, Sections 11 and 12 of the POCSO Act deal with

commission of offence of sexual harassment. Section 11

defines the offence of sexual harassment and Section 12 deals

with punishment for the said offence of sexual harassment.

Section 11 reads as follows:

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“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.”

18. It covers six situations which constitute an offence of

sexual harassment. For the purpose of this case, Clauses (i)

and (iv) of Section 11 are relevant to consider. As per Clause

(i), a person is said to commit the offence of sexual

harassment upon a child when such person with sexual intent

utters any word with an intention that such word shall be

heard by the child. As per Clause (iv), when any person with

sexual intent repeatedly or constantly follows or contacts

a child either directly or through electronic, digital or any

other means is said to have committed an offence of sexual

harassment.

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19. The facts of the case show that accused 2 and 3

uttered directly before the deceased that they are interested in

her and they intend to satisfy their sexual lust with her.

As per the contents of the charge-sheet, on one occasion,

accused No.3 forced her to come to the upstairs of the class

room to talk to her personally and when the deceased, out of

fear, went to the upstairs of the class room and met accused

No.3 that accused No.3 made indecent proposal of sexual

advances. Similarly, accused No.2 also expressed his

intention to satisfy his sexual desire with her. Accused No.2

also made unwanted calls to her over mobile phone and

unable to bear the said act of stalking, that she transferred

the said calls to her father L.W.1 by opting call forward option

and when her father used to lift the phone that accused No.2

used to disconnect the call. It is also the case of the

prosecution that accused No.2 followed the deceased in train

when she went to her native place from Guntur and he also

called her over her mobile phone and informed her that he

came to Warangal to see the places in and around Warangal

along with her and also made some sexual advances and

overtures at that time. L.Ws.1 and 2, who are the parents of

the deceased, were cited as witnesses in proof of these acts.

It is also the case of the prosecution that accused 2 and 3

used to call the deceased over her mobile phone and express

their lust which they had towards her. It is also the case of

the prosecution that with the support of accused No.1,

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accused 2 and 3 used to call the deceased while she was

lonely and talk to her indecently expressing their intention to

have their lust satisfied with her and when she rejected for the

same that accused 1 to 3 harassed her, humiliated her and

also spread rumours against her character stating that she

got illegal contact with L.W.3. The contents of the charge-

sheet further show that the deceased has been subjected to

severe mental agony and emotional turmoil on account of the

said sexual harassment caused to her and on account of

behaviour of the accused and that she has also written about

her agony in this regard in her diaries maintained by her.

Therefore, these acts of following her constantly both

physically and by mobile phone clearly attracts the offence

under Clause (iv) of Section 11 which says when any person

with sexual intention repeatedly or constantly follows or

watches or contacts such child either directly or through

electronic, digital or any other means is said to have

committed the offence of sexual harassment as contemplated

under Section 11 of the Act. The explanation appended to

Section 11 says that any question which involves “sexual

intent” shall be a question of fact. Section 12 deals with

punishment for the offence of sexual harassment and whoever

commits any such offence of sexual harassment is liable for

punishment which may extend to three years and shall also

be liable to fine.

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20. Therefore, when the facts of the case, as discussed

supra, prima facie constitute the offences of sexual assault

and sexual harassment as defined under Sections 7 and 11 of

the Act as per the ingredients of the said Sections, without

even considering the provisions of the POCSO Act and

discussing the same, the learned I Additional District and

Sessions Judge haphazardly arrived at an erroneous

conclusion by a cryptic order and erroneously held that the

facts of the case do not attract any offences under the POCSO

Act. He also grossly erred in stating that as on the date of her

death on 14-7-2015 that she is a major and as such the

POCSO Act has no application. The learned Judge completely

lost sight of the fact that the above acts of sexual assault and

sexual harassment which are the offences under Sections 7

and 11 of the Act were committed when she was a child below

the age of eighteen years commencing from 07-9-2014 when

she entered the University, even till the date when she became

major on 22-4-2015 and subsequently also till her death. So,

it shows the total non-application of mind of the learned

Judge of Special Court to the provisions of the POCSO Act and

also to the facts of the case which ultimately made him to

arrive at an erroneous conclusion in returning the charge-

sheet without taking it on to the file of the said Special Court

which amounts to causing gross miscarriage of justice in this

case. It also amounts to defeating the very object of the

enactment as discussed supra. It is already noticed supra at

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the inception while dealing with the Legislative history and

objects and reasons of the enactment that to prevent the

inducement or coercion of a child to engage in any unlawful

sexual activity and also to prevent a child from sexual assault

and sexual harassment and to punish such persons who

commit any such offences of sexual assault and sexual

harassment etc. against a child that the POCSO Act

is brought into existence. Unfortunately, the learned

I Additional District and Sessions Judge without going

through the provisions of the enactment to ascertain whether

the facts of the case constitute any such offences or not,

by a slipshod and a cryptic order erroneously returned the

charge-sheet without taking it on to the file. It shows that the

learned Judge has casually and routinely dealt with the

matter.

21. Section 16 of the POCSO Act deals with abetment of

an offence. Whoever instigates any person to do that offence

and also any act of illegal omission which has taken place in

doing that act and also intentional aid given to commit the

said offence is said to have abetted the said offence. It is the

case of the prosecution that accused No.1 aided accused 2

and 3 in the commission of the said offences of sexual assault

and sexual harassment. It is also the case of the prosecution

that accused No.4, who is the Principal, by his act of illegal

omission in not taking any action against accused 1 to 3 when

the said acts of sexual assault and sexual harassment and

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CMR, J.

crlrc_1970_2017

also the acts of ragging are complained to him by L.W.1, who

is the father of the deceased. Therefore, even accused 1 and 4

are also, prima facie, liable for abetment of the said offences

under Section 16 of the POCSO Act. Section 17 of the POCSO

Act makes the said act of abetment punishable and the person

who abetted such offence is liable for punishment.

22. Although the accused are also charged with other

offences under Sections 354, 354(A)(2), 354(D)(2), 306 and

109 of IPC and Sections 4(i)&(v) and 7(1)&(2) of the Andhra

Pradesh Prohibition of Ragging Act, 1997 and outraging the

modesty of a woman punishable under the Indian Penal Code

and also under Section 366 of IPC along with the offences

under the POCSO Act, a reading of Clause (2) of Section 28 of

the POCSO Act which deals with designation of Special Courts

to try the offences punishable under this Act makes it

manifest that while trying an offence under this Act, a Special

Court shall also try an offence, with which the accused may,

under the Code of Criminal Procedure be charged at the same

time. Section 31 of the Act further mandates that the

provisions of the Code of Criminal Procedure shall apply to the

proceedings before a Special Court and for the purpose of the

said provisions, that the Special Court shall be deemed to be

a Court of Session. Therefore, when the accused are charged

for the other offences under the Indian Penal Code along with

the offences under this Act, the Special Court is empowered to

try the accused even for the other offences also under Clause

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CMR, J.

crlrc_1970_2017

(2) of Section 28 of the Act. Therefore, there is no difficulty in

taking the charge-sheet on to the file and also in taking

cognizance of the case for the other offences also and in

proceeding against the accused as per law.

23. It is pertinent to note Section 42 of the POCSO Act

also clarifies that when an act or omission committed by the

accused constitute an offence punishable under this Act and

also under Sections 166A, 354A to 354D, 370, 370A, 375,

376, 376A, 376C to 376E or under Section 509 of IPC, then

notwithstanding anything contained in any law for the time

being in force, that the offender found guilty of such offence

shall be liable for punishment under this Act or under the

Indian Penal Code as provides for punishment which is

greater in degree. Section 42A also mandates that the

provisions of this Act shall be in addition to and not in

derogation of the provisions of any other law for the time being

in force and in case of any inconsistency, the provisions of

this Act shall have overriding effect on the provisions of any

such law to the extent of inconsistency. Thus the Legislature

has taken many safeguards to overcome any technical

objections relating to trial of the case under the provisions of

this Act by the Special Court along with the offences under the

Indian Penal Code including the sentence to be passed in

such a situation. It has also taken care under Section 42A in

dealing with the inconsistency between the provisions of this

Act and the provisions of the other enactments stating that

26

CMR, J.

crlrc_1970_2017

the provisions of this Act will prevail and have overriding effect

on the provisions of the other enactments. So, there is

absolutely no difficulty in taking the charge-sheet on to the file

and to take cognizance of the case not only for the offences

under this Act but also for the offences under the Indian Penal

Code and the offences of ragging under the A.P. Prohibition of

Ragging Act, 1997. It is also pertinent to note that even

Section 8 of the A.P. Prohibition of Ragging Act, 1997 says

that the provisions of the said Act shall be in addition to and

not derogation to any other law for the time being in force.

Section 7(2) of the A.P. Prohibition of Ragging Act mandates

that if a student commits suicide due to or in consequence of

ragging, the person who commits such ragging shall be

deemed to have abetted such suicide. Therefore, in view of

Section 8 of the A.P. Prohibition of Ragging Act and in view of

Section 42A of the POCSO Act, it is clear that when the acts

committed by the accused constitute offences under both the

enactments, they can be tried for both the offences under both

the enactments.

24. The proposition of law that when the acts or

omissions committed by the accused constitute two offences

under two different enactments that they can be tried for both

the offences under both the enactments has been well settled.

In the case of T.S. Baliah v. ITO

1, the question that arose for

consideration before the Supreme Court was whether the

1

AIR 1969 SC 701

27

CMR, J.

crlrc_1970_2017

appellant therein could be simultaneously prosecuted for the

offence under Section 177 of IPC and also for violation of

Section 52 of the Income Tax Act, 1922. Considering the

provisions of Section 26 of the General Clauses Act, the

Supreme Court held as under:

“A plain reading of the section shows that there is no bar to the

trial or conviction of the offender under both enactments but

there is only a bar to the punishment of the offender twice for

the same offence. In other words, the section provides that

when an act or omission constitutes an offence under two

enactments, the offender may be prosecuted and punished

under either or both the enactments but shall not be liable to

be punished twice for the same offence.”

25. However, the law is also well settled that when the

same act committed by the accused constitute an offence

under more than one Act, if they are two distinct and

separate offences with different ingredients under two

different enactments, a double punishment is not barred. The

said proposition of law is laid down in the case of State of

NCT of Delhi v. Sanjay; State of Gujarat

2. At para-28 it is

held as follows:

“ ... ... ... If there are two distinct and separate offences with

different ingredients under two different enactments, a double

punishment is not barred. ... ... ...”

26. In the instant case, the acts committed by the

accused as alleged by the prosecution constitute distinct and

separate offences with different ingredients under various

enactments viz., the POCSO Act, the Indian Penal Code and

2

2014 Law Suit (SC) 649

28

CMR, J.

crlrc_1970_2017

also the A.P. Prohibition of Ragging Act. Therefore, they can

be tried simultaneously for the said offences under all the

aforesaid enactments and double punishment is also not

barred.

27. While dealing with Sections 7 and 11 whereunder

the offences of sexual assault and sexual harassment are

defined, it is noticed above that the said acts of sexual assault

and sexual harassment are required to be committed by the

accused with sexual intention. The explanation appended to

Section 11 of the POCSO Act says that the question of “sexual

intent” shall be the question of fact.

28. Now, it is relevant to consider Section 30 of the

POCSO Act which is relating to presumption of culpable

mental state. It says that in any prosecution for any offence

under this Act which requires a culpable mental state on the

part of the accused, the Special Court shall presume the

existence of such mental state and 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. The explanation appended to Section 30 of the

Act makes it clear that “culpable mental state” includes

intention, motive, knowledge of a fact and the belief in,

or reason to believe, a fact. Therefore, as per the said

explanation, even when the accused commits an act of sexual

assault and sexual harassment, with knowledge or reason to

believe that such act committed by him would result into

29

CMR, J.

crlrc_1970_2017

sexual assault and sexual harassment towards a child, it can

be construed as an act of culpable mental state or as an act of

sexual intent as required under the Act. The Court can

presume that such acts are committed by the accused with

such culpable mental state and it is a rebuttable presumption

which can be displaced by the accused. Ultimately, after

considering the facts of the case, evidence on record and the

presumption available under Section 30 of the POCSO Act as

per Clause (2) of the said Section, a fact is said to be proved

only when the Special Court believes it to exist beyond

reasonable doubt and not by preponderance of possibilities.

As per Section 33 of the POCSO Act, a Special Court can take

cognizance of any offence without the accused being

committed to it for trial, upon receiving a complaint of facts

which constitutes such offence or upon a Police report of such

facts. Therefore, when facts of the case prima facie constitute

an offence under the POCSO Act, the Special Court is under

legal obligation to take the charge-sheet on to the file and take

cognizance of the case against them and try the accused

according to law. It cannot abrogate its lawful duty and refuse

to take the case on to the file and defeat the very object of the

Act and the purpose of establishing the Special Court.

29. As regards the contention of the respondents and

also the finding of the learned Sessions Judge that there was

no report given by the deceased during her life time that any

such acts of sexual assault and sexual harassment were

30

CMR, J.

crlrc_1970_2017

caused by the accused towards her or by any person on her

behalf, that it shall be held that no offence under this Act is

constituted, the said contention is absolutely devoid of any

merit. Chapter V of the POCSO Act deals with procedure for

reporting of cases. As per Section 19 of the said Act,

notwithstanding anything contained in the Code of Criminal

Procedure, any person (including the child) who has

apprehension that an offence under this Act is likely to be

committed or has knowledge that such an offence has been

committed, he shall provide such information to the Police

which shall be entered into a book to be kept by the Police

Unit. So, a careful reading of the Section makes it clear that

the report relating to commission of any such offence need not

necessarily be given by the child who has been subjected to

any such sexual assault or sexual harassment. The word

“any person” used is of vital significance which is wide enough

to embrace every person within its ambit. So, the report

relating to the offence under this Act can be lodged with the

Police by any person without any limitation. It is important to

note that the Section starts with non-abstante clause

overriding the provisions of the Code of Criminal Procedure in

this regard relating to locus standi of a person if any to set the

criminal law in motion by lodging a report with the Police or

furnishing information to the Police under this Act.

30. In the instant case, L.W.1 is the person who lodged

the report with the Police after the death of the deceased.

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CMR, J.

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He is the father of the deceased. The material on record

shows that the deceased informed him about these acts of

sexual assault and sexual harassment committed by the

accused to him during her life time. L.W.1 also reported the

matter to the Principal i.e. accused No.4 who did not take any

action in this regard. The phone calls made by accused 2 and

3 to the deceased were also diverted by her to the mobile

phones of her parents L.Ws.1 and 2 as per the record. It is

also the case of the prosecution as can be seen from charge-

sheet that the deceased expressed her agony in this regard in

the diaries written by her. Therefore, when L.W.1 who comes

within the purview of the expression “any person” used in

Section 19 of the POCSO Act who can furnish information of

commission of such offence under the Act to the Police, has

lodged report with the Police and when Police registered the

said report and investigated the same and when the

investigation revealed that these accused have committed the

said offences under this Act along with other offences under

the Indian Penal Code and under the A.P. Prohibition of

Ragging Act, the case of the prosecution cannot be thrown

away outright on the sole ground that there was no report

from the victim girl. When evidence was collected during the

course of investigation that the accused committed the said

acts of sexual assault and sexual harassment against the

victim girl and that she was subjected to such sexual assault

and sexual harassment in their hands and when the Police

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CMR, J.

crlrc_1970_2017

filed charge-sheet stating that the accused committed the

offences punishable under the POCSO Act, the Special Court

is under the legal obligation to take the said charge-sheet on

to the file and proceed according to law when prima facie the

facts of the case show that it constitutes an offence under the

POCSO Act. Whether the said evidence is sufficient to record

a conviction or even as to the admissibility of the said

evidence etc., is altogether a different aspect which are all the

matters to be considered after the trial in the final

adjudication of the case. When the record prima facie reveals

as per the evidence collected by the prosecution that the facts

of the case constitutes an offence under the POCSO Act, the

Special Court is not justified in returning the charge-sheet on

flimsy grounds. So, the learned Judge grossly erred in

rejecting the charge-sheet on the ground that there was no

report from the victim girl. He has completely ignored Section

19 of the Act.

31. Therefore, the impugned order of the I Additional

District and Sessions Judge, Guntur, dated 07-01-2016

returning the charge-sheet is clearly unsustainable under law

and it warrants interference in this revision case and the same

is liable to be set aside.

32. Before parting with the case, it is made clear that the

facts of the case are considered and discussed in this order

only to ascertain whether any prima facie case is made out

constituting an offence punishable under the Act or not.

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CMR, J.

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Therefore, the Special Court shall independently consider the

evidence on record in the light of the various legal provisions

contained in the POCSO Act and dispose of the said case

independently on proper appreciation of evidence, law and

facts of the case.

33. Point No.3: In fine, the criminal revision case is

allowed setting aside the impugned order dated 07-01-2016

on the file of the I Additional District and Sessions Judge,

Guntur cum Special Court under the POCSO Act. The Special

Court is directed to take the charge-sheet on to the file and

take cognizance of the case and dispose of the said case

according to law.

34. Since this is an old case of the year 2015, the

learned I Additional District and Sessions Judge cum Special

Court under the POCSO Act, Guntur, is directed to dispose of

the case in accordance with law as expeditiously as possible,

preferably within six months from the date of receipt of a copy

of this order.

35. Pending applications, if any, shall stand closed.

__________________________________________

CHEEKATI MANAVENDRANATH ROY, J.

07

th May, 2020.

Ak

Note:-

L.R. Copy to be marked.

(B/o)

Ak

34

CMR, J.

crlrc_1970_2017

HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

Criminal Revision Case No.1970 of 2017

07

th May, 2020.

(Ak)