Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 276 (MP)

Farhan Khan S/o Sagir Khan v. State of M. P.

2014-03-06

S.R.WAGHMARE

body2014
ORDER : 1. By this revision under section 397 and 401 of the Criminal Procedure Code the petitioner Farhan Khan has challenged the order dated 18-10-2013 passed by the 10th Additional Sessions Judge, Indore in Sessions Trial No. 115/13, framing charges for offence under sections 354-A(1), 354-D of Indian Penal Code and 7/8 of the Protection of Children from Sexual Offences Act (for sake of brevity called “the Act” hereafter). 2. Counsel for the petitioner has vehemently urged the fact that the police station Khajrana had wrongly registered an FIR dated 26-8-2013 against the petitioner Farhan Khan. The complainant prosecutrix is aged 15 years and stated that she had gone to take tuitions and was returning to her home when the accused petitioner Farhan and another Afsar started following her and suddenly he caught hold of her hand and Afsar put her hand around waist and stated that she should go with them to the bypass road; when she started shouting Anish came to the spot and the accused fled away and hence the FIR was lodged. The police recorded the statements and statement of the prosecutrix were recorded under section 164 of the Criminal Procedure Code. Thereafter the accused were arrested and on being produced before the Magistrate, the accused filed an application under section 227 of the Criminal Procedure Code which was also dismissed by the trial Court. The accused abjured his guilt and stated that he was falsely implicated in the matter. 3. Counsel for the petitioner has basically challenged the framing of charge; stating that the statements of the prosecutrix were recorded after 26 days. Moreover the petitioner was a computer trainer and belongs to a respectable family and has been falsely implicated. Moreover section 7 of the Protection of Children from Sexual Offences Act, 2012 reads thus:- “7. 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.” And Counsel stated that the provisions of section 7 for Sexual Offences were thus not at all fulfilled; since under the circumstances there are only allegations of the petitioner having caught hold hand of the prosecutrix. Similarly provisions of section 354-A and 354-D of the Indian Penal Code were not attracted. And since the FIR has also not been sent to the concerned Magistrate, the offence under section 354 of the Indian Penal Code cannot be imposed and the order dated 18-10-2013 framing charge were, therefore, illegal and arbitrary. Counsel prayed for quashment of the same. 4. Per contra Counsel for the respondent State has vehemently opposed the submissions of the Counsel for the petitioner. Placing reliance on the clause of section 7 of the Act; “or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault”, Counsel submitted that the offence under section 7 of the Act was completely covered and moreover in board day light the accused persons have followed the prosecutrix and the present petitioner Farhan caught hold of her hand with sexual intent and even threatened her and was trying to drag her away; when Anish arrived on the spot and the prosecutrix thus saved. Counsel submitted that the present petitioner Farhan was completely involved in the offence and in today's scenario the sexual offences against women are on the rise and he prayed for dismissal of the petition. 5. On considering the above submissions and the impugned order, I find that no interference is called for in the said order, primarily because Counsel for the petitioner seems to have lost track of the fact that the partial interpretation of the section 7 of the Protection of Children from Sexual Offences Act cannot be permitted. The words “or does any other act with sexual intent which involved physical contact” have not been taken into consideration by the Counsel. Basically section 7 of the Act has been framed by the makers of law with an intent to protect the rights of the child and to prevent sexual exploitation and sexual abuse of children. Apparently in the present case the girl is only 15 years of age and an indecent assault is alleged to have been committed on her and a child of 15 years has no defence when she was going for tuitions and unless, the provisions are vitiated in the sense even today, the petitioner has not controverted the fact that the petitioner had not done anything which did not indicate that it was an act of gross indecency. Committing such acts definitely would be within the purview of intention “to outrage the modesty of woman” and there is no getting away from the fact that there are two accused persons who were involved in the matter and the child had to seek protection of Anish (brother). In this sense the argument of the Counsel that the petitioner that the accused could at the most alleged to have held the hand of the prosecutrix is belied and although the argument is attractive at the first blush, yet the person who does “any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault” cannot be marginalised under the circumstances and it cannot be said that the act did not amount to sexual assault as per section 7 of the said Act. Considering the facts of the case I find that the petition is without merit and so also more importantly what is to be considered at the time of framing of charge is whether a prima-facie case is made out. So also it would be profitable to rely on State of M.P. vs. S.B. Johari and Others, 2000 (2) MPLJ 322 , whereby the Court held thus: “It is settled law that at the stage of framing the charge, the Court has to prima-facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima-facie case is made out for proceeding further, then a charge has to be framed.” [Also See: Umar Abdul Sakoor Sorathia vs. Intelligence Officer, Narcotic Control Bureau, 2000 (1) SCC 138 and State of Maharashtra and Others vs. Somnath Thapa and Others, 1996 (4) SCC 659 ] 6. The order of the trial Court imposing charges thus impeccable and does not call for any interference. The petition is, therefore, dismissed as being without merit.