Gujarat High Court Quashes POCSO Charges Against Surat Teachers, Says Conduct Against Child Harsh But 'Sexual Intent' Missing

The Gujarat High Court recently quashed the charges under POCSO Act in a case pending against teachers of a Surat school who are accused of repeatedly slapping a student, passing derogatory remarks and threatening to leak a video, which shows her "adjusting her skirt", to other students and parents.

Quashing the criminal proceedings under Section 7, 8 and 11 of POCSO against the five teachers, Justice Niral R. Mehta directed the trial court to proceed further against them as far as the offences under Sections 323, 354 (b) and 114 of the Indian Penal Code are concerned.

The court said to bring home the charges under Sections 7 and 11 of the POCSO Act, sexual intention is the foremost ingredient. However, the court said in the entire complaint, there is not a whisper about the "sexual intention" on part of the teachers.

"Further, if we consider the complaint, there is no allegation whatsoever in nature against the present petitioners that they have extended misappropriate / bad touch to the child of the complainant. The plain reading of the complaint and the allegations made therein would, prima facie, suggest that the management of the school i.e. the petitioners have extended harsh treatment to the child of the complainant under the guise of disciplinary issues. However, although the said conduct on the part of the school management is said to be harsh and disproportionate, but, certainly, cannot be said to be falling within the four corners of the provisions of the POCSO Act."

The court added that though Section 11 clarifies that "sexual intention" is a question of fact, the said fact has to be averred in the complaint so that in trial, the necessary evidence to that effect can be led.

"In the instant case, there is no such factual allegation made. Thus, in absence of any such factual allegation, it would be highly prejudiced for the petitioners to undergo and face trial for the offence punishable under the provisions of the POSCO Act," it said.

The complainant, the father of the child, had filed criminal complaint under various provisions of the IPC and POCSO against the school officials.

As per the complaint, on one occasion, the class teacher of the daughter of the complainant had remarked, "Why are you showing off your body by lifting your skirt, are you insane or a savage" in front of the entire class. On another occasion, his daughter was slapped four times on her cheek. She was also allegedly asked to tell her father to collect the school leaving certificate and threatened that otherwise the video of her "adjusting her skirt in the Computer Lab" will be leaked.

The complaint was filed against 15 accused persons including a police officer. After the police submitted a report, the Additional Sessions Judge in July 2021 found a prima facie case under Sections 323, 354(b) and 114 of the Indian Penal Code and Sections 7, 8 and 11 of the POCSO Act against five teachers.

The teachers filed a petition before the high court seeking quashing of the proceedings. The court in October last year had granted them interim relief. During the final hearing, the counsel representing the accused did not press the petition with regard to charges under IPC and limited the challenge to invocation of provisions under POCSO Act.

The bench, after hearing the both sides, noted that the sum and substance of the allegations levelled by the complainant against the teachers and the entire school management is that the child was victimised by the management.

"Contrary to that, the allegation against the child, at the instance of the management, is that the child is much misbehaved student and series of complaints from the various parents of the other students received against the child of the complainant and pursuant thereto, because some action was proposed, the complainant started alleging against the entire management approaching the various authorities of the State Government," it added.

Observing that the basic element with regard to 'sexual intention' is missing from the entire compliant, the court said the trial court, while issuing process under the provisions of the POCSO Act, appears to have not applied its judicious mind and issued summons in a mechanical manner.

"In my view, when the basic ingredients under the provisions of the POCSO Act do not exist, the learned Sessions Judge should not have issued the summons in such a casual manner, which would amount to harassment to the person, who is summoned and put on trial for such a serious offence," Justice Mehta said.

The bench further said the Supreme Court has, in no uncertain terms, held that the court concerned, while issuing summons, at least, has to give prima facie due consideration whether the alleged offence is made out and the ingredients thereof, prima facie, are satisfied or not.

"Admittedly, in the instant case, at the time of issuance of summons / process against the present petitioners under the provisions of the POCSO Act, the learned Trial Court appears to have failed to apply its mind about applicability of the provisions of the POCSO Act, and thus, according to me, the same has resulted into serious miscarriage of justice," said Justice Mehta, while partly allowing the quashing petition.

Case Title: Sujata Suraj Bhatia v. State of Gujarat