• Wrongly accused under POCSO Act

Hello, my brother has been falsely accused under POCSO act. He was running a franchise of kidzee school. A 3 year old girl is said to have pointed to my brother when asked who did it. According to girls divorcee mother and her brother, incident happened on 23 Feb. The duo went thrice to local police station to extort money from my brother. On failing to extort money this way, they did not file the FIR same day but on 26 the Feb stating that my brother has tried to rape in the kitchen area of the school. There has been news from another franchisee where this duo has done the same thing with the motive of extorting money. Police has done medical examination today in which it is mentioned that some tampering has been done with the girls private parts but also clearly denies any act of sexual harassment. The girl when taken to the kitchen area of the school which was supposedly the place of incident, could not identify or recognize the place. CCTV footages were also shared with police. Only on the basis of girls accusation, without any proofs found in the CCTV footages, or elsewhere, my brother has been sent to jail under judicial custody. Parents of other kids are also against this accusation and agree that their kids have been going well to the school without any complaints. There is not a single proof against my brother .Media is also completely against us. Because my family is a reputed big family of gwalior with pole at very high posts. Please help in whatever way you can . Entire family very upset . Kindly advice what we can do get my brother out of jail at the earliest.
Asked 7 years ago in Criminal Law
Religion: Hindu

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4 Answers

Under Section 22(1) of the POCSO Act, any person who make a false complaint or provides false information against any person in respect of an offence committed under section 3,5,7 and section 9 solely with the intention to humiliate, extort or threaten or defame him shall be punished with imprisonment for a time which may extend to six months or with fine or with both.

2) Section 22 (2) provides that when a false complaint has been made or false information has been provided by a child no punishment shall be imposed on such a child.

3) Section 29 provides where a person is prosecuted for committing or abetting or attempting to commit any offence under section 3, 5, 7 or 9 of this Act, the special court shall presume that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

4)generally there is no eye witness. It is a claim of a child against an adult which is denied by the adult.

5)i n cases of penetrative sexual assault the court does not grant bail in POCSO cases.

6)Bail is always the discretion of the Court. since charges are serious your brother has been denied bail

7) your brother can may make a fresh Application for grant of bail pursuant to the filing of charge-sheet by the Police.

Ajay Sethi
Advocate, Mumbai
95215 Answers
7611 Consultations

5.0 on 5.0

Your brother has been remanded to judicial custody. It is not clear from your query as to what is the duration of judicial custody and whether any bail application was moved by him when he was presented before the court after arrest. If the bail application has been moved and disallowed then a fresh bail application can be moved at the expiry of the judicial custody, whereas if the bail application is again dismissed then he has to move the High Court for bail.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

you should file a petition under section 482 crpc, before the high court for quashing of FIR/complaint.

if there is no prima facie case established against the accused then according to ratio laid by the supreme court in state of haryana vs bhajan lal AIR 1992 SC , such FIR/complaint shall liable to be quashed.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

POCSO Act which came into force on 20.06.2012 was enacted in order to protect the children of our country from the heinous offences of sexual assault, sexual harassment and pornography and to secure such object provisions have been made in the said Act for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto. Section 29, if a person is prosecuted for committing or abating or attempting to commit any offence under S. 3, 5, 7 & 9 of POCSO Act, the special Court shall presume that such person has committed or abated or attempted to commit the said offence as the case may be unless the contrary is proved.

S. 30 POCSO Act, 2012, clearly states that in any prosecution for an offence under this Act which requires a culpable mental state on the part of the accused, the special Court shall presume the existence of said mental state. Though it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Thus the presumption of mental state on the part of the accused also exists in view of S. 30 POCSO Act and the onus shifts upon the accused to prove to the contrary that he had no such mental state.

Truthfulness or falsity of the allegations essentially pertains to the realm of evidence and the same cannot be pre-judged at the initial stage. So in the present situation the only remedy available is

1. File a fresh bail application. If the bail application is again dismissed then move to High Court for bail.

2. Wait for charge sheet and face the trail and establish your innocence and establish that your brother has no culpable mental state and false charge was imposed on your brother.

Ajay N S
Advocate, Ernakulam
4080 Answers
111 Consultations

5.0 on 5.0

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