Page No.# 1/3 GAHC010143312024 2026:GAU-AS:4545 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./872/2024 MAGBUL HUSSAIN S/O LATE AJGAR ALI VILL- KARAGARI NONKE 12 NO. BLOCK, P.S. SARTHEBARI DIST. BARPETA, ASSAM VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP, ASSAM 2:JAYNAB KHATUN W/O SABUR UDDIN VILL KARAGARI NONKE 12 NO. BLOCK P.S. SARTHEBARI DIST. BARPETA ASSA Advocate for the Petitioner : MR. R ALI, MR H A AHMED Advocate for the Respondent : PP, ASSAM, MS. J BORAH (R-2) Page No.# 2/3 BEFORE HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA ORDER 30.03.2026 Heard Mr. H A Ahmed, learned counsel for the petitioner. Also heard Mr. K.K. Parashar, learned Addl. PP for the State of Assam, while none appeared for respondent No. 2, although the name of the learned counsel for respondent No. 2 has been shown in the cause list. 2. This Criminal Petition has been preferred challenging an Order dated 12.09.2023 passed by the learned Addl. Sessions Judge cum Special Judge (POCSO), Barpeta in Special POCSO Case No. 145/2023, whereby cognizance of the offenses under Section 354 (B) IPC r/w Section 4 of the POCSP Act. 3. It appears the I.O submitted Charge-sheet under Section 354 (b) r/w Section 4 of the POCSO Act. On perusal of the statement of the victim before the learned Magistrate, it appears that the allegations against the petitioner is that the grabbed the chest of the victim and kissed her in the mouth. Even in the F.I.R there is no allegation of penetrative sexual assault. 4. Based on the above, it is submitted by learned counsel for the petitioner that no offense under Section 365 IPC or under Section 4 of the POCSO Act is made out, although there is only one person involved i.e., the petitioner as per the allegations, the learned Court below has taken cognizance under Section 365/34 IPC which indicates lack of application of mind. Page No.# 3/3 5. The learned Addl. PP submits that Section 8 of the POCSO Act may be attracted and fairly concedes that Section 365 IPC is not attracted as per the contents of the F.I.R and the statement of the victim before the learned Magistrate. 6. Having regard to the above, the instant petition is disposed of, with the observation that at the time of framing of charge, the learned Court below shall consider the aforesaid aspects of matter and proceed accordingly. 7. Hence with the aforesaid observations, the petition stands disposed of. JUDGE Comparing Assistant