Recently, the Kerala High Court ruled that a child can also be an offender of sexual offences as defined under POCSO Act, 2012.

The Court held thus while hearing a petition filed on behalf of a 13-year-old who was accused under Section 342 and Section 377 of IPC and PoCSO for penetrative sexual assault of a 5-year-old.
The bench of Justice P.G. Ajithkumar went through the definitions of “penetrative sexual assault”, “sexual assault” and its aggravated forms as given under the POCSO Act and observed, “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.”
Present Petition under Section 482 CrPC was filed to quash the FIR and other criminal proceedings.

Counsel for the Petitioner, Advocate K Rakesh, submitted that that no prosecution of a child for an offence punishable under the POCSO Act or sexual offence punishable under the IPC is possible as the offender, who is a child cannot be attributed with criminal intent to commit such an offence. Hence, as per him, the investigation against the child is illegal and is liable to be quashed.
The Court noted that “child” was not defined under the POCSO Act however, it was defined under the Juvenile Justice Act, 2015 as section 2(12) defined a child to be a person who has not completed 18 years of age and section 2(13) defined a child in conflict with law.
After going through various definitions the single bench inferred that a child can be an offender of sexual offences as defined under the POCSO Act. The Court further observed that a child can only be tried under the JJ Act, but this does not mean that the provisions of the POCSO Act do not apply to the child if he is an offender under the provisions of that Act.

The Court reiterated that if the offender is a child in conflict with law, whether for the offences under the PoCSO Act or any other statute, shall be inquired into only by a Juvenile Justice Board however, if the child is above the age of 16 years and the offence is one classified as heinous, the position may be different.
Accordingly, the Court found the apprehension of the petitioner that he would be tried as in the case of an adult offender as misplaced.
The Court stated that the Juvenile Justice Board is obliged to inquire at the time of filing of the final report by the investigation agency. “In that event, 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.”
Court observed.
Consequently, the Court dismissed the petition.
Cause Title: Suhaib v. The State of Kerala (Neutral Citation: 2024: KER: 19033)
Appearance:
Appellant: Adv. K Rakesh
Respondent: Adv. Vipin Narayanan, PP K.S. Praveen

Kerala High CourtJustice PG AjithkumarPOCSO Act

Tanveer Kaur