Shri.Babu Ram v. The State

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** CRR/2/2025 Shri Babu Ram Vs.

The State Mr. Gopala Binnu Kumar ... for the Petitioner Mr. Sumit Karmakar ... for the State February 07, 2025 [AKB] Item no. 3 1.

This revision which has been preferred at the instance of the accused person/petitioner challenges the order dated 12th November 2024, passed by the learned Judge, Special Court (POCSO), Port Blair, Andaman & Nicobar Islands, in Special Case No. 56 of 2021. By that order, the petitioner's application under Section 227 of the Code of Criminal Procedure, 1973 (in short, the Code) was rejected. 2.

Mr. Gopala Binnu Kumar, the learned Advocate representing the petitioner, submits that the petitioner is a professional driver who used to transport schoolchildren from their school to their residences. He came to know that, based on an FIR, a case under Section 9(p)(m)/10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was filed against him, which culminated in a charge sheet. Upon reviewing the FIR, the petitioner learned that on the day of the incident, when the jeep reached a turn near Shiv Temple, Dollygunj, two girls lost their balance and fell inside the jeep. The petitioner immediately stopped the vehicle to allow them to regain their seats and advised them to hold onto the iron bar for safety. However, the FIR alleges that after one girl fell, the petitioner punched her on the waist and asked if she would not take food.

3.

Inviting my attention to the statement of the victim recorded under Section 164 of the Code, he submits that the victim alleged that the driver (the petitioner herein) punched her on the waist and asked whether she used to take food. These words, according to the victim, angered her and led to the initiation of the case. 4.

Mr. Kumar argues that a cursory reading of the FIR and the victim's statement recorded under Section 164 of the Code clearly indicates that no offences had occurred. Therefore, the petitioner filed an application under Section 227 of the Code seeking discharge from the case. However, the learned Court, without addressing the issues raised by the petitioner, returned an erroneous finding and dismissed the application.

5.

He argues that even if it is assumed, but not admitted, that the petitioner punched the child on the waist, it must be remembered that not every touch or physical contact automatically implies sexual intent. He contends that the evidence collected by the prosecution does not provide sufficient grounds to proceed with the trial. However, the learned Court below overlooked this aspect and, in a mechanical manner, rejected the application. He submits that allowing a case of this nature to proceed would result in a miscarriage of justice. He therefore prays for an order discharging the accused from the case. 6.

Per Contra, Mr.

Sumit Karmakar, learned Advocate representing the State vehemently opposes such contention of Mr. Kumar. Inviting my attention to the provision of Sections 9 (m)(p) of the POCSO Act he submits that in the present case, petitioner's act attracts the phrase 'any other act with sexual intent which involves physical contract', as used in the provisions of Section 7 of the POSCO Act. He argues that prima facie evidence has been presented by the prosecution to show that there was a physical contact. However,

whether there was a sexual intent would be determined at the time of trial. Referring to the order under assail in this petition, he argues that specific case made out by the petitioner in the application seeking discharge was that the petitioner had been falsely implicated in this case. He asserts that whether or not a person has been falsely implicated is purely a question of fact which shall also be determined at the time of trial. He submits that there is a presumption in Section 29 of the POCSO Act and he argued that at this stage it would not be appropriate to hold that the petitioner had no sexual intent and there was no ground to proceed with the trial.

7.

Before addressing the issues raised in this petition, it would be helpful to refer to the relevant provisions of the POCSO Act. Section 7 of the Act, which defines the term "sexual assault," states that any person. Section 7 of the Act, which defines the expression 'sexual assault' states that whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child 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 9 defines "aggravated sexual assault."

Section 9(m) specifies that whoever commits sexual assault on a child below the age of twelve years is guilty of aggravated sexual assault, while Section 9(p) states that whoever, being in a position of trust or authority over a child, commits sexual assault on the child in an institution, home, or elsewhere, is also guilty of aggravated sexual assault. Section 10 prescribes the punishment for aggravated sexual assault, which ranges from five to seven years of imprisonment, along with a fine.

8.

Therefore, a sexual assault is predominantly a touch by the offender with sexual intent. Applying the principle of ejusdem generis,

it can be concluded that "any other act" involving physical contact must also be with sexual intent to fall under the provisions of Section 7 of the Act. Hence, there must be "touch or physical contact with sexual intent" for the offense to be established.

9.

Notably, the FIR and the statement of the victim recorded under Section 164 of the Code prima facie suggest that there was a touch or physical contact, possibly in the form of a punch. The materials collected by the prosecution so far suggest that such act was allegedly done by the petitioner while driving a four-wheeler. 10.

Intent generally resides in the mind of the perpetrator and is manifested through their conduct or can be inferred from the surrounding circumstances. Typically, determining whether a touch or physical contact was made with sexual intent requires an inference to be drawn after assessing the evidence regarding the petitioner's conduct and the surrounding circumstances. Therefore, in the present case, the entire prosecution's case hinges on the crucial question of whether the touch or physical contact, possibly in the form of a punch, was made with sexual intent.

11.

Admittedly, the legislature has included the provisions of Section 29 in the Act, which states that when a person is prosecuted for committing, abetting, or attempting to commit any offence under Sections 3, 5, 7, or 9 of this Act, the Special Court shall presume that the person has committed, abetted, or attempted to commit the offence, unless the contrary is proved.

12.

It is a rebuttal presumption but be it noted here that the legislature has consciously used the phrase 'unless the contrary is proved'. Since, after investigation, a prima facie case against the accused person was made out, charge sheet was filed and under the scheme of Section 29, the Court has to presume that offence as alleged

was committed. Thus, Section 29 has created a jurisprudential change from the 'presumption of innocence' to the 'presumption of guilt'. 13.

Thus, being the position of scheme of the Act and the nature of the case at hand, it would not be appropriate to hold at the outset that the touch or physical contact with not done with sexual intent before assessing the evidence and thus, there was no ground for proceeding the against the accused person.

14.

The petitioner sought to make out a case before the learned Court below at the time pressing the application for discharge that he was falsely implicated. I am in complete agreement with Mr. Karmakar that to give judicial answer to the query whether an accused person has been falsely implicated, evaluation of the evidence is essential. Therefore, since certain questions of fact are involved in resolving that question whether the touch or physical contact was made with sexual intent and there is a statutory presumption, the petitioner's prayer for discharge cannot be acceded to.

15.

Therefore, based on the reasons outlined above, I find no infirmity, perversity, or error, much less any jurisdictional error, in the order under challenge in this petition that would justify any interference with the same and as such, the order dated 12th November 2024 passed in Special Case no. 56 of 2021 is affirmed. 16.

In view thereof, the petition is dismissed. However, there shall be not order as to the costs.

17.

However, it is clarified that the observations made in this order are solely for the purpose of disposing of the present petition. The learned Court below shall proceed with the trial independently, without being influenced by any of the observations made herein. (Partha Sarathi Chatterjee, J.)