POCSO Act | 13 Y/O Boy's Assertion That Accused Did 'Gandi Harkat' Is Sufficient To Issue Process U/S 204 CrPC: Allahabad HC

The Allahabad High Court has observed that the statement of the 13-year-old boy that the applicant has committed an act being 'Gandi Harkat' (loosely translated as Dirty Act) would be prima facie sufficient ground to summon the accused (a lady in this case) as per Section 204 CrPC.

The bench of Justice Saurabh Shyam Shamshery further clarified that such an act, if the commission of the same is proved in the trial, could amount to an offence under Sections 7 and 8 of the POCSO Act as even touching a private part of a child with sexual intent may fall under 'sexual assault' under Section 7 of POCSO Act.

With this, the bench upheld the order of the Additional Sessions Judge/Special Judge (POCSO Act), Jaunpur who issued a summoning order to the accused after taking cognizance of the complaint moved by the father of the victim boy by way of filing an application under section 156 (3) CrPC. 

It may be noted that before issuing the process as per Section 204 CrPC, the Court had recorded and considered the statement of the complainant (father of the victim) under Section 200 Cr.P.C. and the statements of witnesses including the victim, a minor boy, who was 8 years old at the time of alleged occurrence.

Challenging this very summoning order, the accused moved to the High Court arguing that a prima facie case was not made out against her and that the victim had not narrated any act of sexual assault. It was also argued that the nature of the allegations are improbable so much as the applicant being a lady could not commit such an act.

On the other hand, the counsel for the state argued that the summoning order was proper as the victim had stated that the accused (a lady) had committed 'गन्दी हरकत' which may fall under the definition of Section 7 (Sexual Assault) of the POCSO Act.

Taking into account the statement of the victim boy and the fact that the Magistrate had taken note of the submissions of the complainant and victim, the Court while upholding the order of the POCSO Court, observed thus:

"...considering the statement of the 13-year-old boy that the applicant has committed an act being 'गन्दी हरकत' would be prima facie sufficient ground to summon the applicant for the offence under Section 7 and 8 of POCSO Act as even touch to a private part of a child with sexual intent may fall under 'sexual assault' under Section 7 of POCSO Act. The question of presence of 'sexual intent' will be the subject matter of trial. "

Consequently, the plea of the accused was dismissed.

Case title - Arti Devi v. State of U.P. and Another [APPLICATION U/S 482 No. - 9242 of 2022]

Case Citation: 2022 LiveLaw (AB) 483

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