J&K&L HC Quashes Supplementary Chargesheet Adding POCSV Charges After 5 Yrs; Says Further Probe Can't Convert 'Attempt' Into 'Completed Act'

The Court was hearing a petition filed by an accused seeking quashing of FIR under Section 377 RPC and all consequential proceedings, including a supplementary chargesheet that added offences under Sections 3/4 of the POCSV Ordinance, 2018 along with Sections 377/506 RPC. The original chargesheet filed in 2019 was under Sections 377/511 RPC (attempt to commit unnatural offence), based on the victim's initial statement and medical examination that found no external or internal injury in the anal region.

Quashing the supplementary challan, the bench of Justice Sanjay Parihar observed,

“The subsequent version of the victim is not a mere elaboration but constitutes a material improvement affecting the very genesis of the prosecution case. The transition from an allegation of attempt to a completed act of penetrative assault, coupled with change in the place of occurrence, clearly indicates that the prosecution has sought to improve its case at a belated stage. Such conduct, viewed in its entirety, suggests a deliberate attempt to upgrade the case and bring it within the fold of a graver offence.”

Background:

The case arose from a complaint lodged in 2018 by the father of a minor victim, alleging that the petitioner had subjected his son to indecent sexual assault at a shop. The victim was medically examined on the same day, and the medical expert recorded that no external or internal injury was found in the anal region. The initial investigation, based on the victim's statement to his mother and the medical opinion, led to a chargesheet under Sections 377/511 RPC (attempt to commit unnatural offence). The petitioner was arrested and put to trial.

For nearly five years, from February 2019 to June 2023, no prosecution witness was examined. In June 2023, the prosecution moved an application seeking alteration of charge to include offences under the POCSV Ordinance, 2018. The Trial Court, instead of altering the charge, directed further investigation, a direction that remained unchallenged by the petitioner. Pursuant to this, further investigation was conducted, during which the victim (then around 15 years old, though the incident occurred when he was nine) was re-examined and his statement under Section 164 CrPC was recorded.

In this subsequent version, the victim materially altered his account as he shifted the place of occurrence from inside the shop to a compound and thereafter to a washroom, and alleged for the first time that the accused had committed an act amounting to penetrative sexual assault, causing pain, whereafter he raised an alarm.

Based on this improved version, a supplementary chargesheet was filed on August 21, 2023, adding offences under Sections 3/4 of the POCSV Ordinance, 2018. The Trial Court framed charges under Sections 377/506 RPC read with Sections 3/4 POCSV, leading to the present quashing petition.

Court's Observation:

The Court first addressed the objection that once charges are framed, the proceedings cannot be quashed. Relying on the Supreme Court's position, the Court held that the mere framing of charges does not operate as an absolute bar on the exercise of inherent jurisdiction under Section 482 CrPC (now Section 528 BNSS) to prevent abuse of process.

The Court then conducted a comparative analysis of the two versions. The court noted that the initial version, based on the victim's disclosure to his mother and the contemporaneous medical report, indicated only an attempt as the accused had removed the child's trousers, the child raised an alarm, and the accused fled. The subsequent version, recorded during further investigation five years later, alleged a completed act of penetrative sexual assault at a different location, the court recorded.

The Court noted a stark contradiction as the subsequent version alleging penetration stood in direct opposition to the medical report, which had categorically ruled out any act of penetration. “Had there been any act of penetration, whether partial or otherwise, the petitioner would have been charged under Section 377 RPC simpliciter, rather than under Sections 377/511 RPC,” the Court observed.

The Court held that further investigation cannot be resorted to for the purpose of filling up lacunae or to bring about a complete transformation of the original case. Relying on Vinay Tyagi v. Irshad Ali (AIR 2013 SCW 220) and K. Chandrasekhar v. State of Kerala (1998 5 SCC 223), the Court reiterated that investigation is meant for collection of evidence, not for creation of a new case altogether.

The Court found that the subsequent improvements in the form of change in place of occurrence and upgrade from attempt to completed act were not minor elaborations but material improvements affecting the very genesis of the prosecution case. The Court remarked,

“… the subsequent version of the victim is not a mere elaboration but constitutes a material improvement affecting the very genesis of the prosecution case. The transition from an allegation of attempt to a completed act of penetrative assault, coupled with change in the place of occurrence, clearly indicates that the prosecution has sought to improve its case at a belated stage”

Accordingly, the Court quashed the supplementary chargesheet and all consequential proceedings to the extent they incorporated offences under Sections 3/4 of the POCSV Ordinance, 2018. However, the Court clarified that the Trial Court shall proceed with the original charges under Sections 377/511 RPC along with Section 506 RPC and Sections 7/8 of the POCSV Ordinance, 2018, and conclude the trial expeditiously.

Case Title: Aqib Ahmad Vs UT of J&K

Citation: 2026 LiveLaw (JKL)

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