Kerala High Court refuses to quash POCSO case against minor accused of sexually assaulting 5-year-old

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The Kerala High Court recently refused to quash a case registered against a 13-year-old boy who was accused of sexually assaulting a 5-year-old boy.

Justice PG Ajithkumar went through the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) and concluded that a minor can also be an offender under the POCSO Act.

However, the Court clarified that the accused child could be dealt with only as per the JJ Act and not in an ordinary criminal court.

“The aforementioned definitions (in the POCSO Act and the JJ Act) would enure an inference that a child can be an offender of sexual offences as defined in the PoCSO Act. Needless to say, when a child is the offender, he cannot be tried in the ordinary criminal court, but can be dealt with only as provided under the provisions of the JJ Act. That does not, however, mean that no proceedings against a child in conflict with law concerning an offence under the PoCSO Act, which was enacted essentially for the protection of children from sexual offences is possible”, the Court said.

Justice PG Ajithkumar
The Court passed the order on a petition moved on behalf of the 13-year-old boy to quash the first information report (FIR) registered against him for allegedly subjecting a 5-year-old boy to penetrative sexual assault.

The 13-year-old stands accused of having committed offences punishable under Sections 342 (wrongful confinement) and 377 (unnatural offences) of the Indian Penal Code as well as the provisions of the POCSO Act.

The counsel for the accused boy had argued that a minor could not be prosecuted for the offences alleged. Since the accused was a child, no criminal intent could be attributed to him to commit such offences, the counsel added. It was contended that the investigation against the accused child was illegal and liable to be quashed.

The Court, however, failed to find merit in this argument and said that the child could be prosecuted for the offences, but only as per the provisions of the JJ Act.

“I am of the view that in the event of filing of final report by the investigating agency, after due investigation with a finding that the petitioner has committed the offence, the Juvenile Justice Board is obliged to inquire into as provided under the JJ Act. In that event, the interest of the child in conflict with law shall certainly be protected inasmuch as the process of inquiry is not to convict a child, but to reform and reintegrate it to the main stream of the society,” the Court said.

Consequently, the Court dismissed the petition but directed the police to complete the investigation within two months and cautioned them from harassing the accused child in any manner.

The accused child was represented by advocate K Rakesh.

The victim child was represented by advocate KS Praveen. Public Prosecutor Vipin Narayanan appeared for the State.

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