The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.2466 of 2022 An application under Section 482 of the Code of Criminal Procedure, 1973. Md.Abdul Salam …. Petitioner 1. State of Orissa 2. Informant -versus- …. Opp. Parties Advocates appeared in this case through Hybrid Mode : For Petitioner : Mr. Devashis Panda, Advocate For Opp. Parties : Ms. Saswata Patnaik, AGA (for O.P.1) Mr.A.K.Sarangi, Advocate (for O.P.2) CORAM: JUSTICE SAVITRI RATHO ……….………………………………………………………………….. Date of Judgment : 03.11.2023 …………………………………………………………………………… Savitri Ratho, J. This application under Section 482 Cr.P.C. has been filed by the petitioner for quashing the proceedings in G.R. Case No.26 of 2020 pending before the learned Addl. Sessions Judge-cum-Special Judge (POCSO), Kendrapara which corresponds to Kendrapara P.S. Case No.36 of 2020, where the application of the petitioner to CRLMC No.2466 of 2022 Page 1 of 25 //2// discharge him from the offences under Sections 294/341/506/354/ 354-A/354-B/354-D/509 IPC and Sections 8 and 12 of the POCSO Act has been rejected vide order dated 05.08.2022. PROSECUTION CASE 2. The brief facts as narrated in the FIR is that on 08.03.2020 at 8.30 P.M. the complainant reported that on 08.03.2020 when her daughter a student of Class 4 of the Madrasa returned home after school in the afternoon, the informant noticed that she looked upset and was on the verge of crying. When asked the reason, she started crying and told her that she would not go to school and she should not be forced to go to school. When asked the reason, she said that the petitioner was always harassing her and had also done so that day. During tiffin break, when nobody was there in the room, he called her to the room to study. When she went there, he embraced her, he pressed her cheek, made her sit on his lip and kissed her on the cheek and rubbed her body. When she questioned him and said that she would tell her mother, he gave her Rs.10/- and told her not to tell anybody. If she did so, he would beat her. He also said that he did this with the other girls and gave them money to spend and he would give her money to spend everyday. When the informant confronted the petitioner, he scolded her. She lodged FIR on the same night and the CRLMC No. 2466 of 2022 Page 2 of 25 //3// case was registered under Section – 341, 294, 354B, 506, 509 IPC and Section 12 of the POCSO Act against the petitioner. Chargesheet dated 30.04.2023 has been submitted against the petitioner for commission of offences punishable under Sections 294/341/506/354/ 354-A/354-B/354-D/509 IPC and Sections 8 and 12 of the POCSO Act. (The names of the victim and her mother – the informant are not being mentioned in the judgment to protect their privacy). 3.
Legal Reasoning
materials on record do not make out a prima facie case under Section- 294, 341, 354, 354-A, 354-B, 354-D, 506, 509 of the IPC and Section 8 and 12 of the POCSO Act against the petitioner as the necessary ingredients of the offences to justify framing of charge under the said provisions against him are lacking. But no reasons have been ascribed in the impugned order for rejecting his application, for which the order dated 05.08.2022 passed by the learned Addl. Sessions Judge- CRLMC No. 2466 of 2022 Page 4 of 25 //5// cum-Special Judge (POCSO), Kendrapara in G.R. Case No.26 of 2020 refusing to discharge him as well as the proceedings are liable to be quashed in exercise of power under Section – 482 Cr.P.C. He relies on the decision in Pooja Pal vs. UoI : (2016) 3 SCC 135 and Babubhai vs. State of Gujrat : (2010) 12 SCC 254 where it has been decided that an unfair and biased investigation vitiates the chargesheet. He has also relied on the decision in Vinay Tyagi vs. Irshad Ali : (2013) 5 SCC 762 on the same point . 6. Ms. S. Patnaik, learned Addl. Government Advocate opposed the prayer of the learned counsel for the petitioner and submitted that on a reading of the FIR, the statements of the victim recorded under Section 161 and Section 164 of the Cr.P.C., a prima facie case under Sections 294/341/506/354/354-A/354-B/354-D/509 of IPC and Sections 8 and 12 of the POCSO Act is clearly made against the petitioner for which the impugned order is not liable for interference. She has also submitted that minor discrepancies are bound to occur in view of the age of the victim and the stress she and her mother were under and the proceedings cannot be quashed on that ground. 7. The submissions of the learned Addl. Government Advocate are reiterated by Mr. A.K. Sarangi, learned counsel CRLMC No. 2466 of 2022 Page 5 of 25 //6// appearing for the opposite party No.2- the informant. Mr. Sarangi, learned counsel has submitted that in an application under Section – 482 Cr.P.C, threadbare analysis of the statements of witnesses should not be made and the contentions raised by the learned counsel for the petitioner can be considered at the time of hearing of the case by the learned trial court. He further submits that application of the petitioner for discharge has been rightly rejected by the learned trial court by a reasoned order for which the CRLMC is liable to be dismissed. FIR AND STATEMENTS OF THE VICTIM AND INFORMANT. 8. While refusing to discharge an accused, the learned trial Court is not required to give detailed reasons, but some reasons are required to be given, so that a superior court is able to examine that the learned trial Court has applied its mind to the materials available against the petitioner in order to reach a satisfaction that they are sufficient to frame charge against the accused. In the present case, as no reference had been made to the materials appearing against the petitioner, this Court had to undertake the exercise of going through the materials available against the accused. CRLMC No. 2466 of 2022 Page 6 of 25 //7// 9. The mother of the victim has stated in her FIR that her daughter the victim girl was studying in Class IV and when she returned from school on 08.03.2020, she seemed upset and was tearful. When the informant asked her the reason, she started crying and said that she would not go to school any longer as the petitioner was always harassing her and that day also during the tiffin break, when nobody was there , he called her to the room to study and then embraced her and pressed her cheek and rubbed her body, made her sit on his lap and kissed her cheek .When the victim said that she would tell her mother, he gave her Rs.10/- and asked her not to tell anybody said that he would beat her if she did . He also said that he did this to the other girls and gave them Rs.10/- for spending and that he would pay her everyday. When the informant went to the petitioner and confronted him, he scolded her. 10. In her statement recorded under Section 161 Cr.P.C., the victim has stated that she is a student of Class IV in the Madrasa .On 08.03.2020, at about 1.30 pm, when the bell rang for the tiffin break, her friends went outside to play and eat. She was alone in the class room, when the petitioner called her and told her that she should not tell anybody in her house that he was giving her money. He gave money to all the children and they were not telling anybody and she CRLMC No. 2466 of 2022 Page 7 of 25 //8// should also not tell anybody. He asked her to touch the book and say that she would not tell anybody. He embraced her, gave four kisses on her cheek. He then gave her Rs 10/-. She started crying and went home and told her mother about the actions of the petitioner and that she would not go to school. Her mother took her to the school and questioned the petitioner. He denied to have done anything and said she could do whatever she wants and threatened to kill her and her mother gave a complaint in the police station. 11. In her statement recorded under Section 164 Cr.P.C. on 09.03.2020, she has stated about the incident on 08.03.2023 and that she was called in the tiffin break by the petitioner and he said that she should not tell anybody about the money being given and that he was giving money to every child and like them she should not tell anybody. He embraced her , gave a number of kisses on her cheek and passed his hands over her body and chest and gave her Rs 10/- and when her mother questioned him , he threatened that she could not do anything and if she told anybody , he would kill her and her mother ran from there. STATUTORY PROVISIONS 12. The relevant statutory provisions necessary for consideration of this CRLMC are extracted below for convenience. CRLMC No. 2466 of 2022 Page 8 of 25 //9// Indian Penal Code Section 294. Obscene acts and songs. Whoever, to the annoyance of others, (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both. 341. Punishment for wrongful restraint.--Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both. Section 354 A Sexual harassment and punishment for sexual harassment.—(1) A man committing any of the following acts— (i) physical contact and advances involving unwelcome and explicit sexual overtures; or (ii) a demand or request for sexual favours; or (iii) showing pornography against the will of a woman; or (iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment. (2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub- section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. (3) Any man who commits the offence specified CRLMC No. 2466 of 2022 Page 9 of 25 //10// in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both Section 354 B. Assault or use of criminal force to woman with intent to disrobe.—Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine Section 354 D Stalking.—(1) Any man who— (i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or (ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking: Provided that such conduct shall not amount to stalking if the man who pursued it proves that— (i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or (ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or (iii) in the particular circumstances such conduct was reasonable and justified. (2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; CRLMC No. 2466 of 2022 Page 10 of 25 //11// and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.] Section 503. Criminal intimidation . Section 506. Punishment for criminal intimidation.— Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.-and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life , of with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Section 509. Word, gesture or act intended to insult the modesty of a woman.—Whoever, intending to insult the modesty of any woman, utters any words, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine. CRLMC No. 2466 of 2022 Page 11 of 25 //12// Protection of Children From Sexual Offences Act Section 2 .In this Act , unless the context otherwise requires: xxx (i) "sexual assault" has the same meaning as assigned to it in section 7; (j) "sexual harassment" has the same meaning as assigned to it in section 11; Section 7. Sexual Assault. Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. Sections 8. Punishment for sexual assault.—Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. Section 11. Sexual Harassment A person is said to commit sexual harassment upon a child when such person with sexual intent,-- (i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or CRLMC No. 2466 of 2022 Page 12 of 25 //13// (ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or (iii) shows any object to a child in any form or media for pornographic purposes; or (iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or (v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or (vi) entices a child for pornographic purposes or gives gratification therefore. Explanation,--Any question which involves "sexual intent" shall be a question of fact. 12. Punishment for sexual harassment.—Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine. Code of Criminal Procedure Section – 216 Court may alter charge.—(1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, CRLMC No. 2466 of 2022 Page 13 of 25 //14// after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded. Section 227. Discharge.—If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. JUDICIAL PRONOUNCEMENTS 13.1 In the case of State of Punjab vs. Major Singh : AIR 1967 SC 63, the Supreme Court observed that a specific description or definition of what constitutes an "outrage to female modesty" is not provided in the Indian Penal Code and that the essence of a woman's modesty is inherently linked to her gender. Essentially, the test for CRLMC No. 2466 of 2022 Page 14 of 25 //15// ascertaining an outrage to modesty revolves around whether the actions of the offender could reasonably be perceived as capable of shocking a woman's sense of decency In order to determine whether an act amounts to an outrage of modesty, the intention of the accused is the crucial factor. The reaction of the woman involved is relevant but not always conclusive. 13.2 In Rupan Deol Bajaj vs. Kanwar Pal Singh Gill : (1995) 6 SCC 194, where the offences alleged against the accused were under Section – 354 IPC and Section 509 I.P.C., the case of Major Singh (supra) was referred to by the Supreme Court and it observed as under: “In State of Punjab vs. Major Singh (AIR 1967 SC 63) a question arose whether a female child of seven and a half months could be said to be possessed of `modesty' which could be outraged. In answering the above question Mudholkar J., who along with Bachawat J. spoke for the majority, held that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the `common notions of mankind' referred to by the learned Judge have to be gauged by contemporary societal standards. The other learned Judge (Bachawat J.) observed that the essence of a woman's modesty is her sex and from her very CRLMC No. 2466 of 2022 Page 15 of 25 //16// birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of `modesty' and the interpretation given to that word by this Court in Major Singh's case (supra) it appears to us that the ultimate test for ascertaining whether modesty has been outraged is, is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman...” 13.3 Hon’ble Justice Bela Trivedi in the case of in Attorney General vs. Satish and another : (2022) 5 SCC 545, has held as follows : “The High Court while specifically accepting the consistent versions of the victim and her mother i.e. informant about the accused having taken the victim to his house, having pressed the breast of the victim, having attempted to remove her salwar and pressing her mouth, had committed gross error in holding that the act of pressing of breast of the child aged 12 years in absence of any specific details as to whether the top was removed or whether he inserted his hands inside the top and pressed her breast, would not fall in the definition of sexual assault, and would fall within the definition of offence under Section 354 of the IPC. The High Court further erred in holding that there was no offence since there was no direct physical contact i.e. “skin to skin” with sexual intent. CRLMC No. 2466 of 2022 Page 16 of 25 //17// Hon’ble Justice Ravidra Bhat in his concurring judgment has held as follows : “In the end, I cannot resist quoting Benjamin Cardozo that “the great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.” It is, therefore, no part of any judge’s duty to strain the plain words of a statute, beyond recognition and to the point of its destruction, thereby denying the cry of the times that children desperately need the assurance of a law designed to protect their autonomy and dignity, as POCSO does. 13.4 The decisions in Pooja Pal (supra), Babu Bhai (supra) and Vinay Tyagi (supra) are regarding further investigation by the Police and not relevant for deciding this application as no allegations have been made against the investigating officer that he was biased or that the investigation was perfunctory, other than stating that without existence of sufficient incriminatory materials against the petitioner, chargesheet has been submitted against him for commission of the offences under Section- 294/341/506/354/ 354-A/354-B/354-D/509 IPC and Sections 8 and 12 of the POCSO Act. 13.5 Regarding the power of the High Court in exercise of power under Section 482 Cr.P.C., to interfere with an order refusing to CRLMC No. 2466 of 2022 Page 17 of 25 //18// discharge an accused, in the case of C.B.I. vs. Aryan Singh etc : 2023 SCC Online SC 378, the Supreme Court has held as follows : ―9. Having gone through the impugned common judgment and order passed by the High Court quashing the criminal proceedings and discharging the accused, we are of the opinion that the High Court has exceeded in its jurisdiction in quashing the entire criminal proceedings in exercise of the limited powers under Section 482 Cr. P.C. and/or in exercise of the powers under Article 226 of the Constitution of India. 10. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr. P.C., the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution/investigating agency. Therefore, the High CRLMC No. 2466 of 2022 Page 18 of 25 //19// Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr. P.C., the Court has a very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not”. 11. One another reason pointed by the High Court is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been chargesheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried.
Arguments
I have heard Mr. D. Panda learned counsel for the petitioner, Ms S Patnaik learned Addl. Govt. Advocate and Mr. A.K. Sarangi, learned counsel for the informant. I have also gone though the impugned order, the written note of submission filed on behalf of the petitioner, the copy of the FIR and the statements of the victim recorded under Section 161 Cr.P.C and Section- 164 Cr.P.C. which have been annexed to the CRLMC. IMPUGNED ORDER 4. The learned trial Court after recording the contentions of the learned counsel has perused the statement of the victim and informant and other witnesses recorded under Section – 161 Cr.P.C. and the statement of the victim recorded Section – 164 Cr.P.C. has held that the contents of the case diary do not substantiate the prayer of the petitioner and has rejected the petition for discharge. CRLMC No. 2466 of 2022 Page 3 of 25 //4// SUBMISSIONS 5. Mr. Panda, learned counsel for the petitioner has submitted that false allegations have been made by the complainant who has been set up by two teachers at the Madrassa , against whom the petitioner had complained to the Block Education Officer, Kendrapara. There is a variance between the FIR lodged by mother of the victim, statement of the victim recorded under Section – 161 Cr.P.C. and Section – 164 Crl.P.C. He further submits that law is well-settled that charges cannot be framed mechanically or whimsically and the court should not act as a post-office of the prosecution but must apply it’s independent judicial mind to the materials on record before concluding that the materials on record justify framing charges and while refusing to discharge an accused from the trial, reasons must be given. He also submits that the
Decision
12. In view of the above and for the reasons stated above, when the High Court has exceeded in its jurisdiction in quashing the entire criminal proceedings and applying the CRLMC No. 2466 of 2022 Page 19 of 25 //20// law laid down by this Court in catena of decisions on exercise of the powers at the stage of discharge and/or quashing the criminal proceedings, the impugned common judgment and order passed by the High Court quashing the criminal proceedings against the accused is unsustainable and the same deserves to be quashed and set aside.” ANALYSIS AND DISCUSSION 14. In order to decide whether the impugned order calls for any interference, it is necessary to examine if the allegations against the petitioner fulfill / attract the ingredients of the offences alleged against him and if they can be ignored on the plea of false implication. 15. In order to attract the offence under Section 341, which provides for punishment for wrongful restraint, it (i) has to be proved that there was obstruction by the accused; (ii) such obstruction prevented a person from proceeding in a direction to which he had a right to proceed; and (iii) the accused caused such obstruction voluntarily. The obstructor must intend or know or would have reason to believe that the means adopted would cause obstruction to the complainant. In the present case, after classes were over and she CRLMC No. 2466 of 2022 Page 20 of 25 //21// should have left for home, the victim girl was called to the classroom for which she could not leave for home. So there is no infirmity in the order refusing to discharge the petitioner from the offence of Section 341 I.P.C. 16. The ingredients of the offence under Section – 506 of the IPC are that that there must be a threat must given to a person of causing an injury to the person, his / her reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do. The threat must be with intention to cause alarm to the person to do or omit to do any work. There must be material on record to show that the intention is to cause alarm to the complainant. In the present case, the victim girl as well as her mother- the informant have been threatened by the petitioner. So no interference is necessary with the order so far as it relates to the offence under Section 506 of the IPC. 17. The essential ingredients of Section 509 IPC are as under: (i) Intention to insult the modesty of a woman; (ii) The insult must be caused by: CRLMC No. 2466 of 2022 Page 21 of 25 //22// (a) uttering any words, or making any sound or gesture, or exhibiting any object intending that such word or sound shall be heard or that the gesture or object shall be seen by such woman, or (b) intruding upon the privacy of such a woman. The allegations against the petitioner is that he embraced the victim girl, kissed her and touched her chest which she found to be offensive as she refused to go to school on account of these acts. There is no material to show that these acts were done by mistake or unwittingly. These acts necessarily and prima facie intrude on the privacy of the victim girl and were done intentionally. Therefore there is no error in the order refusing to discharge the petitioner from the offence under – 509 IPC. 18. As per Section – 354 A ( i ) of the IPC , physical contact or advances by the accused involving “unwelcome and explicit sexual overtures” will constitute an offence. The overt acts of the petitioner embracing the victim, kissing her, making her sit on his lap and touching her body were obviously unwelcome to the victim girl as she was crying and had told her mother that she did not want to go to school . So the offence under Section 354 A IPC is prima facie made out against him. CRLMC No. 2466 of 2022 Page 22 of 25 //23// 19. Neither the FIR, the statements of the victim recorded under Section 161 and Section 164 Cr.P.C. contain allegations to make out a case under Section 354B of the IPC against the petitioner, as there is no allegation that the petitioner has disrobed or tried to disrobe the victim. 20. As regards the offence of stalking under Section – 354 D of the IPC, as the mother of the victim girl has stated that the victim told her that the petitioner has committed the overt acts on a number of occasions, this would prima facie attract Section – 354 D of the IPC against the petitioner, which provides that the accused “ follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman”. 21. As regards the offences under Section 8 and Section 12 of the POCSO Act, the necessary “sexual intent” to make out the said offences of the petitioner is prima facie apparent from the allegation that after detaining the petitioner during lunch break when all her class mates had left the classroom, the petitioner had embraced her, kissed her and touched her chest which was offensive to the victim for which she did not want to go to school and had disclosed the CRLMC No. 2466 of 2022 Page 23 of 25 //24// incident to her mother. The requirements to frame charge against the petitioner under Section 7 of the POCSO Act are fulfilled. 22. As the mother of the victim has stated in the FIR that the victim told her that the petitioner used to call her on different occasions , the ingredients of Section 11 ( iv) of the POCSO Act to frame charge for sexual harassment are available against the petitioner . The effect of the victim to mention this specifically in her statement recorded under Section 164 Cr.P.C. is a matter to be considered by the learned trial Court during trial after recording of evidence. 23. The plea regarding false implication at the instance of two teachers in the Madrasa against whom the petitioner had allegedly complained to the BEO is a defence plea and is to be considered by the learned trial Court in accordance with law, if raised during trial. 24. On a careful reading of the FIR, statements of the informant and the victim recorded under Section – 161 and 164 Cr.P.C. and keeping in mind the scope of exercise of power under Section 482 of the Cr.P.C. while considering an application for discharge, I do not consider this to be a fit case for exercise of power under Section 482 of the Cr.P.C. to set aside the order dated 05.08.2022 passed by the learned trial Court, refusing to discharge the petitioner from the CRLMC No. 2466 of 2022 Page 24 of 25 //25// offences under Section - 294/341/506/354/ 354-A/354-B/354-D/509 IPC and Sections 8 and 12 of the POCSO as I find the materials available against the petitioner are sufficient to frame charge against him for commission of offences under Sections 341 , 354-A , 354-D, 506 and 509 IPC: and Sections 8 and 12 of the POSCO Act. 25. The petitioner is at liberty to raise all his contentions during the trial which will be considered in accordance with law by the learned trial Court. It is needless to say that if the learned trial Court, after examination of the materials on record finds that there are no materials on record to make out the offence under Section 354 B of the IPC against the petitioner, it is at liberty to exercise power under Section 216 of the Cr.P.C. to alter the charge accordingly. 26. The CRLMC is dismissed with the aforesaid observation. …………….……. (Savitri Ratho) Judge Orissa High Court, Cuttack Dated.3rd November 2023 /Bichi Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 11-Jun-2024 14:28:17 CRLMC No. 2466 of 2022 Page 25 of 25