protection of children from sexual offence act 2012

POCSO Case – Petitioner filed Revision application against the order in

POCSO case judgement at Delhi High Court

  1. The present petitions under Section 397 read with Section 401
    of the Code of Criminal Procedure, 1973 („Cr.P.C.‟) have been
    CRL.REV.P. 96/2024 & connected matter Page 2 of 11
    preferred on behalf of the revisionists/petitioners, assailing order
    dated 03.11.2023, whereby learned Additional Sessions Judge-01
    (POCSO), North, Rohini District Court, Delhi („Trial Court‟) has
    allowed the application filed by the respondent/State under Section
    216 of the Cr.P.C., and has consequently directed to frame additional
    charges against the petitioners.

Brief Facts

  1. Brief facts of the present connected cases are that an FIR No.
    978/2014 was registered under Sections 363/354A/506/34 of Indian
    Penal Code, 1860 („IPC‟) and Section 12 of Prevention of Children
    from Sexual Offences Act, 2012 („POCSO Act‟), at Police Station
    Prashant Vihar, Delhi on 25.08.2014, on the complaint filed by
    victim „S‟, who had alleged that about three months prior to the date
    of incident, she had gone to attend a marriage in the neighbourhood,
    where the accused persons had given their mobile numbers to her and
    had asked her to speak to them. Next day, when she had called them,
    they had used filthy language with her, after which she did not call
    them. However, as alleged, they used to call her even at late hours in
    the night. On 16.08.2014, the victim had received a vulgar message,
    upon which she had disclosed everything to her cousin sister, who is
    also the second victim in this case i.e. victim „P‟, and had also made
    her read the message which was “Aap Mujhe apne saath sex karne
    doge mujhe aapke saath sex karna hai”. Thereafter, victim „S‟ had
    called the accused persons, who had apologized to her and told that
    they would never message or call her again. The victim „S‟ and „P‟
    had again called the accused persons at their mobile phone, when the
    accused persons had requested the victims to meet them in person to
    CRL.REV.P. 96/2024 & connected matter Page 3 of 11
    apologize. The accused person had assured that they will come alone
    for meeting. On 24.08.2014, the victim „S‟ and „P‟ had gone to meet
    accused/petitioner Luvjot at Avantika, Sector-5, Rohini and at his
    request, the victims sat inside his car. Thereafter, he had picked up
    the co-accused/petitioner Manish Maini and other co-accused from
    Rithala Road and had driven to City Centre to speak to the victims.
    While sitting in the car, accused Luv and Vaibhav had misbehaved
    and had used vulgar language with the victims. They tried to
    convince the victims to consume beer. When they had refused to
    consume beer, accused persons asked the victims to stay with them
    for 3-4 hours and had offered to give them as much money as they
    wanted. Upon being frightened by the acts of the accused persons,
    victim „S‟ had called her mother and had stepped out of the car to
    narrate the whole story and had requested her mother to reach the
    spot. Thereafter, the mother and aunt of victim „S‟ had reached the
    spot, but the accused persons had fled away. On these allegations, the
    present FIR was registered on 25.08.2014.
  2. The statements of victim „S‟ and „P‟ were recorded under
    Section 164 of Cr.P.C. Consequently, after investigation, the
    chargesheet was filed on 31.08.2016, against the accused persons
    under Sections 363/365/354A/506/34 of IPC and Section 12 of
    POCSO Act. Charges under Section 354A of IPC and Section 12 of
    POCSO Act were framed against all the accused persons vide order
    dated 07.11.2016 by the learned Trial Court, which reads as under:
    “As per the statement of victims, they themselves went
    with accused persons to know their intent so that they can
    make a complaint against the accused persons for their
    CRL.REV.P. 96/2024 & connected matter Page 4 of 11
    indecent behavior. In these facts, charge U/s 363/365 is not
    made out against the accused persons. There is prima facie
    ground to proceed against the accused U/s. 354A IPC & 12
    POCSO Act. Charge is framed accordingly to which
    accused persons pleads not guilty and claims trial.”
  3. The victim „S‟ and victim „P‟ were both examined on
    27.03.2017, before the learned Trial Court. Witness M i.e. mother of
    victim „S‟ and witness JK i.e. aunt of victim „S‟ were also examined
    by the learned Trial Court. After examination of the all the
    prosecution witnesses, the prosecution evidence was closed, and the
    matter was posted on 01.07.2023 for recording of statement of
    accused persons.
  4. On 01.07.2023, an application was preferred by the
    prosecution under Section 216 of Cr.P.C, whereby the prosecution
    had sought addition of Section 354 of IPC and Section 10 of POCSO
    Act against all the accused persons. The prosecution had submitted
    that charges under these Sections be also framed since the accused
    persons had touched the victims „S‟ and „P‟ inappropriately.
  5. Vide impugned order dated 03.11.2023, the learned Trial Court
    had rejected the arguments of the accused persons, and had allowed
    the application filed by the prosecution and had directed to
    additionally frame charge against all the accused persons under
    Section 354 of IPC and Section 10 of POCSO Act read with Section
    34 of IPC. The concluding portion of impugned order reads as under:
    “20. From the above said observations, prima facie, it can
    be said that accused persons, in furtherance of their
    common intention with sexual intent, physically touched
    both the victims while acting in the form of a gang and
    CRL.REV.P. 96/2024 & connected matter Page 5 of 11
    thus all the ingredients of Section 354 IPC & Section 10
    POCSO Act r/w Section 34 IPC are made out.
  6. Hence, the application moved by state U/s 216 Cr. P.C.
    is allowed and accused persons are to be additionally
    charged U/s 354 IPC and Section 10 of POCSO Act
    READ WITH Section 34 IPC.”
  7. In these petitions, it is stated that the case was adjourned for
    framing additional charges on 06.12.2023. On 06.12.2023, the
    learned counsels appearing for all accused persons had prayed for
    recalling of victim for her further cross examination, in view of
    additional charges framed against the accused persons. However, the
    said prayer was rejected by the learned Trial Court vide order dated
    06.12.2023. It is further stated that in order to assail the order dated
    03.11.2023, learned counsel for the petitioner had inspected the
    judicial file on 13.12.2023 and had learnt that the Trial Court had
    inadvertently recorded, in order dated 06.12.2023, that the counsel
    for the petitioner did not want to recall the victim. It is now submitted
    that counsel appearing for the petitioner before the learned Trial
    Court on 06.12.2023 had rather prayed for recalling the victim, in
    light of additional charges framed against the petitioners. However, a
    perusal of the order sheet dated 06.12.2023, reveals that the same has
    been recorded otherwise. Therefore, an affidavit to the effect that
    counsel appearing for the petitioner before the learned Trial Court
    had prayed for recalling the victim for the purpose of examination/
    cross-examination has been filed along with the present petition.

Petitioners arguments

  1. Learned counsels, appearing on behalf of the petitioners
    herein, pray that the order dated 03.11.2023 framing additional
    CRL.REV.P. 96/2024 & connected matter Page 6 of 11
    charges against them, be set aside on the ground that the learned Trial
    Court had failed to appreciate that there was no material on record to
    even remotely suggest that petitioner had inappropriately touched
    victims „S‟ or „P‟ or had tried to force himself upon them. It is also
    stated that the learned Trial Court has failed to consider that the
    statement of victim „S‟ in the FIR, the statement under Section 164 of
    Cr.P.C. and her testimony recorded in her examination-in-chief are
    contradictory, inconsistent and false. It is also argued that the victim
    „S‟, on the basis of whose statement the FIR had been registered had
    not levelled any allegation, with respect to inappropriate touching by
    any of the accused persons. It is also argued that as per FIR, accused
    Luv and another co-accused Vaibhav were misbehaving with the
    victims, and not the accused Manish. It is also argued that even if the
    allegations contained in the FIR or subsequent statements are taken to
    be true on their face value, the same are insufficient to constitute any
    offence under Section 354 IPC or Section 10 POCSO Act, against the
    accused persons. It is also argued that a perusal of statement of
    Victim „S‟ under Section 164 of Cr.P.C., recorded on the same day
    reveals that the allegations levelled therein are insufficient to
    constitute any offence against the accused persons. It is now argued
    that the victim „S‟ for the first time had levelled allegations qua
    inappropriate touching by the accused persons or forcing themselves
    upon victims in her examination-in-chief, recorded on 27.03.2017. It
    is also argued that even if that testimony is taken to be true, it is not
    clear as to whom the witness is referring to, while imputing
    allegation with respect to inappropriate touching. In this regard,
    CRL.REV.P. 96/2024 & connected matter Page 7 of 11
    learned counsel has drawn this Court‟s attention to the testimony of
    victim „S‟ dated 27.03.2017. It is also argued that the allegation of
    inappropriate touching was never stated before the learned Magistrate
    while recording statement under Section 164 Cr.P.C., and therefore,
    how was it possible for the victim to recollect it after three years of
    the alleged incident when the examination-in-chief was recorded. It is
    stated that similarly, Victim „P‟ in her statement recorded under
    Section 164 Cr.P.C. has accused Vaibhav and Manish for
    misbehaving with victims, who had also touched their bodies, at the
    same time when accused Luv was driving the car. However, in the
    Court, she had given an entirely different story and had attributed the
    role of Luv to Manish. It is therefore stated that the Trial Court has
    failed to take into account the above factors and had erroneously
    invoked Sections 354/34 of IPC as well as Section 10 of POCSO Act.
    Therefore, it is prayed that order dated 03.11.2023 be set aside.

State/Police Arguments

  1. Learned APP appearing on behalf of the State, on the other
    hand, argues that there is no illegality or infirmity in the order passed
    by the learned Trial Court and that as per statements of the victims,
    they had stated that the accused persons had touched their bodies
    inappropriately and had tried to force themselves upon them. It is
    also stated that the victims in their testimony before the Court had
    also deposed so. It is, therefore, stated that physically touching the
    body with sexual intentions is covered under Section 354 of IPC and
    Section 10 of POCSO Act. It is also argued that since all the three
    accused persons were sitting in the car, were consuming alcohol and
    were forcing the victims to consume alcohol, which is apparent from
    CRL.REV.P. 96/2024 & connected matter Page 8 of 11
    the statements on record, it is clear that there was common intention
    on part of all the accused persons to commit offence under Section
    354 of IPC and Section 10 of POCSO Act. It is therefore prayed that
    these petitions be dismissed, as the same are devoid of any merit.
  2. This Court has heard arguments addressed by both the parties,
    and has considered the material placed on record as well as the trial
    court record.
  3. The impugned order has been passed on an application filed
    under Section 216 of Cr.P.C. by the prosecution, seeking alteration of
    charge. Thus, at the outset, Section 216 is reproduced hereunder for
    reference:
    “216. Court may alter charge.
    (1) Any Court may alter or add to any charge at any time
    before judgment is pronounced.
    (2) Every such alteration or addition shall be read and
    explained to the accused.
    (3) If the alteration or addition to a charge is such that
    proceeding immediately with the trial is not likely, in the
    opinion of the Court, to prejudice the accused in his
    defence or the prosecutor in the conduct of the case, the
    Court may, in its discretion, after such alteration or
    addition has been made, proceed with the trial as if the
    altered or added charge has been the original charge.
    (4) If the alteration or addition is such that proceeding
    immediately with the trial is likely, in the opinion of the
    Court, to prejudice the accused or the prosecutor as
    aforesaid, the Court may, either direct a new trial or
    adjourn the trial for such period as may be necessary.
    (5) If the offence stated in the altered or added charge is
    one for the prosecution of which previous sanction is
    necessary, the case shall not be proceeded with until such
    sanction is obtained, unless sanction has been already
    obtained for a prosecution on the same facts as those on
    which the altered or added charge is founded.
    CRL.REV.P. 96/2024 & connected matter Page 9 of 11
  4. This Court has gone through the statements recorded under
    Section 164 Cr.P.C. of the victims, the FIR registered in this case and
    the testimonies recorded before the Court.

Court Observation

  1. A perusal of the record would reveal that the victims in their
    testimonies before the learned Trial Court have categorically
    mentioned that the accused persons were touching them
    inappropriately. Victim „S‟ in her testimony has deposed that
    “Accused persons were touching us inappropriately and were trying
    to force them upon us.”, and similarly, victim „P‟ has also deposed in
    her testimony that “Accused Luv and Bhuvan @ Vaibhav started
    misbehaving with prosecutrix and they started touching us
    inappropriately.” In the statement recorded under Section 164 of
    Cr.P.C. also, the victim „P‟ had stated about accused persons
    touching their bodies inappropriately. Furthermore, this Court notes
    that in the first message which was sent by the accused Luv to the
    victim X, as alleged, he had asked her to have physical relations with
    her. Thereafter, he had taken his friends along with the victims in his
    car, and they had forced them to have alcohol and were also touching
    them. One of the accused was driving the car. Thus, the record
    reveals that accused Luv had taken the victims along with his friends
    Manish and Bhuvan in the car, and had earlier asked the victims to
    have physical relations with him, and where accused persons were
    allegedly touching the victims inappropriately. In these
    circumstances, the conduct of the accused persons is prima facie
    reflective of their connivance with each other and acts committed in
    CRL.REV.P. 96/2024 & connected matter Page 10 of 11
    furtherance of their common intention. The specific allegations
    regarding the inappropriate touching of their bodies by the accused
    persons and forcing them to have alcohol, sending them messages to
    have physical relations with them would, at this stage, for the purpose
    of amending the charge, are sufficient to drive to a conclusion that
    the same were with sexual intent.
  2. Considering the same, this Court holds that the learned Trial
    Court did not commit any error while amending the charge under
    Section 216 of Cr.P.C. on the basis of the material on record.
    Therefore, the order dated 03.11.2023 is upheld.
  3. However, during the course of arguments, another issue was
    addressed by the learned counsels for petitioners that vide order dated
    06.12.2023, the learned Trial Court had declined to grant an
    opportunity to the accused persons to re-call the victims for
    cross-examination, and thus, had curtailed a crucial right of the
    accused. It has been submitted on behalf of petitioners that no
    submission was made before the learned Trial Court that the counsels
    for the accused did not wish to cross-examine the victims, but the
    same finds mention in the order dated 06.12.2023 and on its basis, the
    right to cross-examine the victim again was closed. Having gone
    through the contents of order dated 06.12.2023, this Court finds merit
    in the said argument, since Section 217 of Cr.P.C. mandates that
    whenever a charge is altered or added in a case, the prosecution and
    accused must be allowed to recall the relevant witnesses, except in
    cases where Court is of the opinion that such a request is made to
    delay the proceedings or to defeat ends of justice or is vexatious. No
    CRL.REV.P. 96/2024 & connected matter Page 11 of 11
    such finding has been given by the learned Trial Court in order dated
    06.12.2023. Therefore, at the oral prayer made by the petitioners, the
    order dated 06.12.2023 is set aside to this extent. It is directed that
    the counsel for petitioners shall be allowed to cross-examine the
    prosecutrix, in one single opportunity, only to the extent of putting
    questions to her in respect of which additional charge has been
    framed by the learned Trial Court.

Court Decision

  1. In view of the foregoing discussion, the present petitions stand
    dismissed alongwith pending applications if any.
  2. It is however clarified that the observations made hereinabove
    shall not be construed as opinion of this Court on the merits of the
    case.
  3. The judgment be uploaded on the website forthwith.
    SWARANA KANTA SHARMA, J
    FEBRUARY 5, 2024/at
Acts and Facts: The Protection of Children from Sexual Offences Act, 2012
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