The Allahabad High Court in its order dated November 04, 2022 has observed that the statement of a 13-year-old boy would be prima facie sufficient ground to summon the accused as per Section 204 CrPC.
This case pertains to a minor boy accusing an adult woman of committing ‘Gandi Harkat’ (Dirty Act).
The victim was around 8-years-old when the alleged incident occurred. 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 CrPC and the statements of witnesses including the victim who was 8-years-old then.
Additional Sessions Judge/Special Judge (POCSO Act), Jaunpur had issued a summoning order to the accused woman Arti Devi 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.
Challenging this summoning order, the accused woman moved to the High Court.
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Submission by Accused Woman
Counsel for the accused woman argued 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.
Defense By Minor Victim
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.
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Allahabad High Court
The bench of Justice Saurabh Shyam Shamshery 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.
The high court took the statement of the minor boy on record clubbed with the fact that the Magistrate had taken note of the submissions of the complainant and victim, the Court preferred not to interfere with the POCSO court’s order. The high court thus observed,
I have perused the complaint, statement of complainant as well as statement of victim which were recorded after almost 3-4 years of the incident. The complainant has stated in his statement the version as told by the victim wherein he has described the sexual assault. However, the victim in his statement has not narrated such sexual assault in detail except he has used word “गन्दी हरकत ”.
Adding further, the High Court said,
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.
The accused woman’s plea was thereby dismissed.
READ ORDER | Minor Boy's Statement Alleging Woman Committed "Gandi Harkat" Sufficient To Summon Accused: Allahabad High Court— Voice For Men India (@voiceformenind) November 8, 2022
▪️Accused woman's counsel: "Nature of allegations are improbable as applicant being lady couldn't commit such act"#VoiceForMenhttps://t.co/VVbf72wwIW
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