GAURAV UPADHYAYA Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is an application filed under Sec. 528 of the BNSS 2023 read with Article 227 of the Constitution of India, challenging the exercise of power by the learned Session Judge, Karbi Anglong, Diphu in hearing POCSO case being POCSO Case No. 37/2021 registered under Sec. 345/345A of the IPC read with Sec. 10 of Protection of Children from Sexual Offences Act, 2012 (herein after shortly as POCSO Act) as well as challenging the order dtd. 18/6/2025 passed by the learned Session Judge, Karbi Anglong, Diphu by which the charge was framed against the accused person. The petitioner has also challenged the order of framing charge on the additional ground that the learned Session Judge, Karbi Anglong, Diphu framed the same in absence of the accused person. FACTS

(2.) The prosecution case as is unfolded by the FIR reveals that the petitioner who was the Superintendent of Police, Karbi Anglong, Assam allegedly molested the 13 year old daughter of the informant on 31/12/2019 in his official residence in Diphu, Karbi Anglong. The informant stated that on the said day, the accused and his wife invited the informant along with her victim daughter as well as 9 year old son to attend the birthday party of his elder son, to which they attended and during the party, the accused person took the informant as well as her children to his tower building and on reaching the same when the informant went to the washroom, the accused person was stated to have forcibly kissed the victim on her lips and that it was witnessed by her son. She further stated that the accused person had arranged a room for the informant and her family to stay at night and went to drop them after the party was over and on reaching the suite, the accused person put his hand on the stomach of her daughter from behind and touched her private parts on the pretext of showing a video and that again on leaving the said place, the accused person is stated to have tried to kiss the victim which the victim resisted. The informant also stated that the victim did not tell her about the incident on the said night but on the next day she told the informant and that the informant asked the accused person and confronted him to which the accused person admitted his actions and said that he had done so in an inebriated state and that thereafter the FIR was lodged. On receipt of the said FIR, the police registered the case as All Women P.S. Case No. 5/2020 under Sec. 354 IPC read with Sec. 10 of POCSO Act, 2012 and investigated the case.

(3.) Thereafter, the said case was transferred to CID by order dtd. 6/1/2021 by the DGP, Assam. During the investigation, the Investigation Officer made a prayer for adding Sec. 354(4) of the IPC and the provision of Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act (shortly as STSC Act), which was allowed by the Magistrate. The addition of the provision of STSC Act was put to challenge by the petitioner in a criminal petition as well as in writ proceedings before the High Court. During the said proceedings, an interim order was passed by which the provision of the STSC Act was directed not to be applied in the present proceeding until the issue of the victim being a Schedule Tribe is settled by the State Level Caste Scrutiny Committee.