Any Person Regardless Of Gender & Age Can Be Accused Under POCSO Act: Kerala High Court Refuses To Quash Case Against Minor

The Kerala High Court has held that any person regardless of gender and age can be an accused under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

It thus refused to quash the proceedings pending under the Act against a minor. The bench of Justice PG Ajithkumar however clarified that the minor cannot be tried in an ordinary criminal court but can only be dealt under the provisions of the Juvenile Justice Act.

“'Penetrative sexual assault' and 'sexual assault' and its aggravated forms are defined in Sections 3, 5, 7 and 9 of the PoCSO Act. A reading of those definitions and the corresponding penal provisions indicate that any person irrespective of gender and age can be a person accused of such offences, of course, subject to the general exceptions in the IPC” observed .

The petitioner, who is 13 years old, stands accused of offences under Sections 342 and 377 of the IPC and Section 3(c) read with Section 4, and Section 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act.

The counsel for the petitioner submitted that the petitioner cannot be prosecuted either under the Indian Penal Code nor the POCSO Act given that the petitioner is a child, and as such, he cannot be attributed with the criminal intent to commit such an offence. The counsel added that therefore, the investigation against the accused is illegal and liable to be quashed.

The counsel for the prosecution argued that the petitioner would be considered as an 'offender' under the provisions of the POCSO Act.

The court held law does not prescribe that it's not possible to proceed 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."

“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” concluded the court.

Counsel for Petitioner: Advocate K Rakesh

Counsel for Respondent: Advocates Vipin Narayanan (Public Prosecutor), KS Praveen

Citation: 2024 LiveLaw (Ker) 178

Case Title: Suhaib @ Kullappi Kakka v. State of Kerala and ors.

Case Number: Crl MC No. 5185 of 2020

Click here to read/download the order