Code of Criminal Procedure, 1973 - s.319 and ss.161, 164 - FIR lodged by the father of prosecutrix (aged about 6 years) about sexual assault on her - Prosecutrix in her statement inter alia stated that after she returned to her classroom, two men came; one of them wore spectacles and the other did not, and took her out from there- She deposed that two men had touched her before also and assaulted her five times earlier secretly in the garden Appellant is said to be the person who was wearing spectacles, as identified by the victim - Application filed to summon the appellant - On appeal, held: Prosecutrix is a small child - Initial version of the father of the prosecutrix and the prosecutrix herself, as disclosed by her father in the FIR, is assault by one person - It is parents of the child who took the photographs either from the website of the School or from the Facebook to introduce a person with spectacles as an accused- Obviously, the father of the child must have anger against the management of the School as his child was violated when she was studying in the School managed by the appellant - But, the anger of the father against the management of the School including the appellant is not sufficient to make him to stand trial for the offences punishable u/s.376(2), IPC r/w ss. 5/6 of the POCSO Act - No prima facie case of any active part on the part of the appellant is made out in violating the small child It is suggestive role of the family which influences the mind of the child to indirectly implicate the appellant - Fact that the prosecution after investigations has found no material to charge the present appellant also cannot be ignored - Heinous crime committed should not be led into prosecuting a person only because he was part of the management of the School - Order passed by the Trial Court to summon the appellant u/s.319 of the Code is set aside - Penal Code, 1860 - s.376(2) - Protection of Children from Sexual Offences Act, 2012 - ss. 5, 6.
Allowing the appeal, the Court
HELD: 1.1 The order summoning the appellant for the offences under Section 376(2) of the Indian Penal Code, 1860 read with Sections 5/6 of the Protection of Children from Sexual Offences Act, 2012 is not sustainable in law. The prosecutrix is a small child. It is parents of the child who have taken the photographs either from the website of the School or from the Facebook to introduce a person with spectacles as an accused. The initial version of the father of the prosecutrix and of the prosecutrix herself, as disclosed by her father in the FIR, is assault by one person. But in view of statement of PW-11, the anger was directed against the Management of the School of which the appellant is a part. Even if the father of the child has basis to be angry with the Management of the School but, no prima facie case of any active part on the part of the appellant is made out in violating the small child. The involvement of other persons on the statement of the child of impressionable age does not inspire confidence that the appellant is liable to be proceeded under Section 319 of the Code. In fact, it is suggestive role of the family which influences the mind of the child to indirectly implicate the appellant. Obviously, the father of the child must have anger against the Management of the School as his child was violated when she was studying in the School managed by the appellant but, the anger of the father against the Management of the School including the appellant is not sufficient to make him to stand trial for the offences punishable under Section 376(2) of the IPC read with Sections 5/6 of the POCSO Act. [Paras 9, 13-15] [827-F-G; 828-A-D]
1.2 The statement of the child so as to involve a person wearing spectacles as an accused does not inspire confidence disclosing more than prima facie to make him to stand trial of the offences. Therefore, the order of summoning the appellant under Section 319 of the Code is not legal. The fact, that the prosecution after investigations has found no material to charge the present appellant is also cannot be ignored. The heinous crime committed should not be led into prosecuting a person only because he was part of the Management of the School. There is no prima facie case against the appellant, which warrants his trial for the offences pending before the Court. The order passed by the Trial Court to summon the appellant under Section
319 of the Code is set aside and the application is dismissed. [Paras 16-17] [828-E-G]
Hardeep Singh v. State of Punjab & Ors. (2014) 3 SCC
92 – followed.
Labhuji Amratji Thakor and Others v. State of Gujarat and Others AIR 2019 SC 734 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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