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Judgment
This Revision has been filed challenging the order dated 14. 06.2022 passed by the Special Judge (POCSO Act), Balod, District Balod in Special Sessions Case No.50/2022 for adding the charge under Section 5 (n) of the Protection of Children against Sexual Offences Act, 2012 (for short ‘the POCSO Act’) in Crime No.270/2022, P.S Gurur, District Balod as the offence has been committed by the relative of the victim.
Learned Counsel for the Applicant submits that as Non-Applicant No.2 is the son of the maternal uncle of the victim, therefore, the charge under Section 5 (n) of the Act is also attracted and prays to allow the Petition with a direction to the concerned Court for altering the charge accordingly.
Per contra, Shri Thakur, learned Counsel for the State/Non-Applicant No.1 supports the contention of learned Counsel for the Applicant but Shri Shrivastava, learned Counsel for Non-Applicant No.2 opposed the prayer while submitting that the order is interlocutory in nature and no blood sample has been collected during the investigation which shows that Non-Applicant No.2 is the relative of the victim, therefore, no interference is required and the Revision is liable to be dismissed.
As it has been alleged that Non-Applicant No.2 is the son of the maternal uncle of the victim, therefore, this Court finds that prima facie, Section 5 (n) of the POCSO Act is also attracted in the case which reads as under:-
“5(n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child”.
It has been held in the matter of Asian Resurfacing of Road Agency Private Limited and Another vs. Central Bureau of Investigation reported in (2018) 16 SCC 299 that the order framing charge was not purely interlocutory order and was liable to be interfered with under Section 397(2) or even under Section 482 Cr.P.C.
In view of the foregoing discussion, this Petition is allowed.
The trial Court is directed to alter the charge under Section 216 of the Cr.P.C accordingly and provide sufficient opportunity to both the parties for adducing evidence.