The Karnataka High Court has clarified that prosecutions under the POCSO Act cannot proceed where the alleged acts lack the essential ingredients of penetrative or sexual assault, and where the victim’s own statement and medical evidence contradict the charge sheet. In a significant exercise of inherent powers under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the Court quashed proceedings against a petitioner whose conduct, even if morally questionable, did not meet the statutory threshold for criminal liability under the POCSO Act or BNS.
Background & Facts
The Dispute
The petitioner, Sohail S/o. Mahammad Gouse Nasvale, aged 23, was accused of committing offences under Sections 4, 8, and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), read with Section 64 of the Bharatiya Nyaya Sanhita, 2023 (BNS). The allegations arose from an incident on 23.10.2024 at 03.00 a.m., when the petitioner allegedly entered the house of the first informant and touched the victim’s hands and body and kissed her. The charge sheet also referenced an earlier incident in September 2024, alleging physical contact, but provided no specific date, time, or location for it.
Key Facts
- The victim, a minor below 18 years of age, was identified as the complainant.
- The charge sheet was filed based solely on the statement recorded by the Investigating Officer.
- A medical examination conducted on the victim revealed no history of penetrative sexual act.
- The victim’s statement recorded under Section 183 of BNSS, 2023 before the Judicial Magistrate First Class (JMFC) explicitly stated: "There was no physical contact between her and the petitioner."
- The petitioner admitted to visiting the victim’s house at 03.00 a.m., an act corroborated by other witnesses, but denied any sexual or physical contact.
- No medical or forensic evidence supported allegations of touching the vagina, breast, anus, or any other body part with sexual intent.
- The prosecution did not establish any act falling within the definition of "sexual assault" under Section 7 of the POCSO Act.
Procedural History
- 23.10.2024: Alleged incident occurred at 03.00 a.m. at the first informant’s residence.
- 15.11.2024: Crime No. 85/2024 registered at Ashok Nagar Police Station, Dharwad.
- 23.08.2025: Charge sheet filed by the Investigating Officer in Special Case No. 101/2024 before the II Additional District and Sessions Judge, Dharwad.
- 23.08.2025: Order of framing charges passed by the Special Court.
- 29.05.2026: Criminal Petition No. 105298/2025 filed under Section 528 of BNSS, 2023 before the Karnataka High Court, Dharwad Bench.
The Parties' Positions
For the Petitioner: Argued that the charge sheet was baseless, as the victim’s own statement under Section 183 of BNSS denied physical contact. The medical report confirmed no penetration or sexual assault. The only allegation was kissing, which does not satisfy the definition of penetrative sexual assault (Section 3) or sexual assault (Section 7) under the POCSO Act. The petitioner submitted affidavits from himself, the victim, and respondent No. 2, evidencing a mutual compromise.
For the Respondent (State): Contended that the offences under POCSO Act and BNS are non-compoundable and serious in nature, and therefore, the Court cannot interfere under Section 528 of BNSS. The State relied on the charge sheet and Investigating Officer’s report, asserting that the victim’s statement before the JMFC was not a reliable waiver of rights.
Relief Sought
The petitioner sought quashing of the proceedings in Special Case No. 101/2024, arguing that continuation of the case would be an abuse of process given the absence of prima facie evidence, the victim’s retraction, and the lack of medical corroboration.
The Legal Issue
Can the High Court exercise its inherent power under Section 528 of BNSS, 2023 to quash criminal proceedings under the POCSO Act and BNS where the alleged acts do not meet the statutory definitions of penetrative or sexual assault, the victim has retracted the allegations, and medical evidence is absent?
Arguments Presented
For the Petitioner
The petitioner relied on Gian Singh v. State of Punjab and Madhukar v. State of Maharashtra to argue that the High Court’s inherent power under Section 528 of BNSS is not confined to compoundable offences. He submitted that the absence of any act satisfying Sections 3 or 7 of the POCSO Act rendered the prosecution legally unsustainable. The victim’s affidavit and medical report were conclusive evidence that no sexual assault occurred. The continuation of proceedings, in such circumstances, would amount to abuse of process and inflict irreparable harm on the petitioner.
For the Respondent
The State contended that offences under the POCSO Act are non-compoundable and of grave public importance, and therefore, cannot be quashed even on the basis of compromise. It argued that the victim’s statement before the JMFC was not a valid waiver of rights, and that the Investigating Officer’s report, though uncorroborated, was sufficient to maintain the charge sheet. The State emphasized the need to protect minors and avoid judicial interference in sensitive cases.
The Court's Analysis
The Court undertook a meticulous analysis of the statutory definitions under the POCSO Act and the evidentiary record. It emphasized that Section 4 of the POCSO Act requires proof of "penetrative sexual assault" as defined under Section 3, which includes penetration of the penis, object, or body part into the vagina, anus, urethra, or mouth of the child. The Court noted that no such act was alleged or proven. The victim’s statement under Section 183 of BNSS explicitly denied any physical contact, and the medical report confirmed the absence of any such incident.
"There is no allegation in the statement of victim recorded under Section 183 of BNSS, 2023 by the learned Magistrate regarding the ingredients of Section 3 of POCSO Act, 2012. Further, the medical report of the doctor does not indicate such incident."
The Court further examined Section 7 of the POCSO Act, which defines "sexual assault" as physical contact involving the vagina, penis, anus, or breast with sexual intent. The Court held that kissing, without more, does not constitute sexual assault under this provision unless it involves direct contact with the specified body parts with sexual intent. The charge sheet contained no such specific allegation.
The Court then turned to the applicability of Section 528 of BNSS, 2023, which mirrors the inherent powers under Section 482 CrPC. It relied on Gian Singh v. State of Punjab to affirm that the High Court may quash proceedings even for non-compoundable offences if the continuation would amount to abuse of process and the possibility of conviction is remote. The Court distinguished heinous crimes like murder or rape from cases where the alleged conduct, even if inappropriate, lacks the statutory ingredients of the offence.
"The criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing... the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak."
The Court found that the present case fell squarely within this category. The victim, now a minor, had unequivocally withdrawn her allegations. The State had no independent evidence to sustain the charges. The continuation of the case would serve no public interest and would only perpetuate trauma and injustice to the petitioner.
The Verdict
The petition was allowed. The High Court quashed the proceedings in Crime No. 85/2024 and Special Case No. 101/2024 against the petitioner for offences under Sections 4, 8, and 12 of the POCSO Act, 2012, and Section 64 of the BNS, 2023. All pending applications were disposed of. The Court held that the absence of statutory ingredients, the victim’s retraction, and the lack of medical evidence rendered the prosecution unsustainable, and its continuation would constitute an abuse of process.
What This Means For Similar Cases
Prosecution Requires More Than Allegation
- Practitioners must scrutinize whether the charge sheet satisfies the precise statutory definitions under the POCSO Act before proceeding.
- Kissing or non-penetrative touching without contact with the vagina, anus, breast, or penis cannot sustain charges under Sections 4 or 8 unless explicitly alleged and proven.
- Victim statements recorded under Section 183 BNSS carry significant weight and cannot be ignored if they contradict the charge sheet.
Medical Evidence Is Decisive in POCSO Cases
- In the absence of medical corroboration, especially for penetrative or sexual assault, courts must critically assess whether the prosecution has a prima facie case.
- Courts may now be more willing to quash proceedings where medical reports are exculpatory and the victim’s testimony is inconsistent with the allegations.
Section 528 BNSS Expands Judicial Discretion
- The judgment affirms that Section 528 BNSS empowers High Courts to quash non-compoundable offences under POCSO and BNS if the case is legally unsustainable.
- Compromise alone is not sufficient; the court must find that conviction is remote and continuation is an abuse of process.
- This sets a precedent for similar cases involving minor allegations under special statutes where evidence is lacking.
