Rape

Punjab and Haryana High Court
Case BriefsHigh Courts

   

Punjab & Haryana High Court: While denying for the grant of anticipatory bail for which the instant petition is preferred by the petitioner against the case filed by her fiancée under Section 376 of Penal Code, Vivek Puri, J., held that merely because the parties are engaged and are meeting each other, it does not give any right or liberty to the proposed bridegroom to sexually exploit the fiancée without her consent.

Facts:

The Roka Ceremony of the petitioner and the complainant was held on 30-01-2022 and the date of marriage was fixed on 06-12-2022. The petitioner, on several occasions, forced the complainant to form a physical relationship with him but she refused to do so. On 18-06-2022, the petitioner took the complainant to Leela Grand Hotel, on the pretext that he was tired and wants to take a rest. The complainant, despite her reluctance, was forced to enter into a physical relationship and the petitioner also made her videos while forcefully doing the act. On 17-07-2022, the mother of the petitioner disclosed to the complainant's family member that the petitioner has been quarreling for the last 2 months that he does not want to marry the victim.

Arguments:

The counsel for the petitioner contended that when the family of the petitioner came to know that the victim was having love affairs with other male friends, they decided to call off the wedding on 02-07-2022. Further, the counsel tried to prove good intention by stating the fact that the bookings of the marriage ceremonies were done by the petitioner. The counsel also contended that both the parties voluntarily visited the hotel, and the physical relationship was developed with consent. Further, the counsel contended that the WhatsApp messages were exchanged which indicate that it was a consensual relationship and therefore, there is no case made under 376 of IPC.

The counsel for the complainant opposed the bail application on the ground that serious allegations of commission of rape have been leveled against the petitioner. Further, it was contended that while indulging in the act, the petitioner also took a video.

Observation & Analysis:

The Court observed that the WhatsApp messages sought to be relied upon by the petitioner are subsequent to the occurrence and could have been exchanged on the score that the matrimonial alliance was existing at that point of time. Hence, there is lack of material to indicate that as on 18.06.2022, the complainant had consented for any such relationship.

The Court also took into account the fact that the mother of the petitioner disclosed that there was reluctance on the part of the petitioner to solemnize marriage even after the point when a physical relationship was developed.

The Court held that the petitioner cannot get any leverage to physically exploit the fiancée against the consent during the period intervening the engagement and the marriage.

[Sagar Kapoor v. State of Haryana, CRM-M-35393-2022 decided on 31-08-2022]

Advocates who appeared in this case :

For the Petitioner: Mr. Anmol Rattan Sidhu, Senior Advocate

Mr. Pratham Sethi, Advocate

For the Complainant: Ms. Trishanjali Sharma, DAG

Mr. Namit Khurana, Advocate

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a case related to allegation of murder and rape of a 12th standard school-girl, G.K.Ilanthiraiyan, J. viewed that there is no evidence to attract the offence under rape and murder and on perusal of the suicidal note of the deceased, it is very clear that the deceased felt difficulties in studies. Therefore, it is a clear case of suicide by her.

The Court observed that:

“It is an unfortunate and sorry state of affairs that the teachers who teach the students are facing threat from their students and their respective parents. It is very unfortunate that the petitioners have now been arrested and under imprisonment for advising the students to study well. Even as per the suicidal note, there is no evidence to show that the petitioners instigated the deceased to commit suicide soon before her death”

In the present case the deceased studied in 12th standard at Sakthi Higher Secondary School as a day scholar. Thereafter, she was boarded in the hostel of the said school. On 13.07.2022, the parents of the victim girl received a phone call from the school and were informed that the victim jumped from the third floor of the hostel. After 30 minutes, the parents received another call and were informed that their daughter died, and her body was kept in the Government Hospital. Thereafter the parents of the deceased verified the place of death and found that there was no evidence to show that the deceased jumped from the building,thus, her parents suspected the school authorities with regards to their daughter's death and lodged a complaint.

The FIR was initially registered under S.174 of the Criminal procedure Code, 1973 and was later altered to the offence under S. 305 of the Penal Code, 1860 and S. 75 of Juvenile Justice (Care and Protection of Children) Act, 2002 and S. 4(B)(ii) of Tamil Nadu Prohibition of Harassment of Women Act, 2002 against five accused persons.

The Court observed that the parents of the deceased compelled her to continue her studies in Residential School and the statements of the classmates of deceased revealed that the deceased felt difficulties in solving equations in Chemistry, further, as per the suicide note also, the deceased felt difficulties in solving the equations in Chemistry. Moreover, she requested the correspondent and Secretary in the suicidal note to return the tuition fees as well as the book fees to her parents. Therefore, it is a clear case of suicide and there is absolutely no evidence to show that the petitioners had instigated the deceased to commit suicide as alleged by the prosecution.

Placing reliance on the autopsy reports and expert opinion, the court observed that “the other injuries found on the body of the deceased are all ante-mortem injuries and there is no iota of evidence for rape and murder of the deceased as per the postmortem reports”. It further observed that the mark found in the right breast of the deceased happened due to gravel injuries, the blood stain in the inner garments is due to the extravasation of blood in the surrounding para vertebral muscles. Further, there is no injuries found on her private parts.

The Court observed that “when the teachers are directing their students to study well and to tell the derivation or equation, it is part and parcel of the teaching, and it would not amount to abetment to commit suicide. Therefore, the offence under S. 305 of Penal Code is not at all attracted as against the petitioners”, hence, bail was granted to all the petitioners.

[Kiruthika Jayaraj v. State of Tamil Nadu, Crl.O.P.Nos.20088,20135 and 20406 of 2022, decided on 26.08.2022]

Advocates who appeared in this case :

S.Prabakaran, Advocate, for the Petitioners;

Public Prosecutor Hassan Mohammed Jinnah and Additional Public Prosecutor A.Damodaran, Advocate, for the Respondent.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: While deliberating upon the instant appeal challenging the conviction and sentence under Section 376, IPC [rape], the Division Bench of A.S. Gadkari and Milind N. Jadhav, JJ., observed that, once the Trial Court has concluded that the prosecution has proved the offence of rape beyond reasonable doubt, then there is no reason to deviate from the statutory position and award a lesser sentence than what is prescribed by the statute.

Facts and Legal Trajectory of the case: Victim X (deaf and dumb), her husband (blind) and the accused with his family, lived jointly in her matrimonial home. The victim came to her paternal home, wherein she narrated her ordeal before her mother via sign language and gestures. She revealed that the appellant had ravished her on 16-11-2005 and threatened her with dire consequences if she divulged the details to anyone. The mother of the victim then lodged a report with Lasalgaon Police Station.

Investigation and medical examination were conducted, and witnesses were examined. The appellant was arrested and the chargesheet was filed. The matter came up before Additional Sessions Judge, Niphad, Nashik whereby the appellant was convicted for offences punishable under Sections 376 and 503, IPC. The Trial Court had observed that appellant/accused has been facing trial for 6-7 years and is 60 years old therefore leniency has been shown while sentencing him. Via Trial Court’s order dated 13-02-2013, the appellant/accused was sentenced to 5 years’ rigorous imprisonment with a fine of Rs. 1000.

Aggrieved with the afore-stated conviction and sentence, the appellant knocked on the doors of the High Court. Meanwhile the State of Maharashtra filed an appeal to enhance the sentence given by the Trial Court. The High Court too registered a suo-motu petition issuing a notice to the Additional Sessions Judge, Niphad, Nashik concerning the quantum of sentence.

Contentions: The counsel of the appellant contended that the prosecutrix had filed a false case and that the accused/appellant was not present in the house at the time of the alleged crime. The counsel also argued that the case was a means to an end i.e., to affect a partition of the family field and property. It was also argued that there was a substantial delay of 3 days in filing the FIR.

Per contra, the respondents contended that the appellant/ accused is the brother-in-law of the victim and on the day of the crime, all the family members had gone out, except the victim, her blind husband and the accused. It was submitted that the appellant’s crime has been proved beyond reasonable doubt. The respondents thus urged the High Court to enhance the 5-year sentence given to the appellant as per Section 376 as it stood prior to the amendment in 2018.

Observations: Perusing the facts and the contentions presented, the Court made the following observations-

  • It was noted that the Trial Court adopted a proper procedure while recording the victim’s evidence through an expert witness- in this case, an impartial translator/ interpreter. The Court also noted that the testimony of the victim through the interpreter did not shake during the cross-examination by the appellant’s counsel. It was observed that the elaborate cross-examination, however, did not disprove the incident in favour of the appellant.

  • Pointing out that the defense case relied mostly on a property dispute going within the family, the Court observed that no woman would take the risk of leveling a charge such as of rape, only on the pretext of property. “No woman would put at stake her life by making such a serious allegation against her family member unless and until such a heinous act has taken place”. The Court further stated that the answers given by the victim during her cross-examination vis-a-vis the property dispute, cannot be the ground or reason to discard her evidence. Upon examining the proceedings before the Trial Court, the Division Bench was satisfied that the prosecution had proved the guilt of the accused (appellant) beyond reasonable doubt. “The victim is a helpless, deaf and dumb married woman, whose privacy has been shattered by the appellant”. It was observed that rape is not merely a physical assault but it destructs the whole personality of a helpless woman.

  • It was observed that the appellant’s misuse of his position of trust to commit such a horrific crime has shocked the conscience of the Court

  • Moving onto the issue of sentence, the Court observed that the Trial Court erred in its reasoning behind awarding 5 years’ rigorous imprisonment to the appellant. The Court pointed out that given the facts of the case and the horrific manner in which the appellant had abused the victim, the rationale applied by the Trial Court is flawed as it is against the statute.

  • Pointing out that prior to amendment of Section 376 in 2018, the provision had stated that “whoever commits rape shall be punished with Rigorous Imprisonment of either description for a term not less than 7 years, but which may extend to imprisonment for life, and shall also be liable to fine”. The Court observed that the instant matter falls under Section 376(1).

Decision: With the afore-stated observations, the Court convicted the appellant in view of Section 235, CrPC for the offence punishable under Section 376. IPC. The appellant’s sentence was enhanced to 7 years’ rigorous imprisonment and fine of Rs. 25,000.

[Madhukar Makaji Mudgul v. State of Maharashtra, 2022 SCC OnLine Bom 1674, decided on 19-08-2022]

Advocates who appeared in this case :

Ashish Satpute, Advocate, for the Appellant;

H.J. Dedhia, APP, Advocate, for the Respondent.

*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, CJ and Ajay Rastogi and Vikram Nath, JJ has issued notice to the Gujarat Government on the release of 11 men convicted for the gangrape of Bilkis Bano during the 2002 Gujarat riots. The Court has also directed that the 11 released men be impleaded as parties in the plea challenging the decision of the Gujarat Government.

Bilkis Bano was 21 years old and five months pregnant when she was gangraped. She saw 14 of her family members being killed, including her 3-year-old daughter, in the 2002 Gujarat riots that broke out after the Godhra train burning.

When on August 15, 2022, her rapists walked out of the prison after serving 15 years’ imprisonment based on Gujarat Government’s remission policy, Bilkis Bano found herself “bereft of words” and “numb”. In a statement released by her, she stated,

“Two days ago, on August 15, 2022, the trauma of the past 20 years washed over me again when I heard that the 11 convicted men who devastated my family and my life, and took from me my three-year-old daughter, had walked free. I was bereft of words. I am still numb.

Today, I can say only this – how can justice for any woman end like this? I trusted the highest courts in our land. I trusted the system and I was learning slowly to live with my trauma. The release of these convicts has taken from me my peace and shaken my faith in justice. My sorrow and my wavering faith is not for myself alone but for every woman who is struggling for justice in courts.

No one enquired about my safety and well-being, before taking such a big ad unjust decision.

I appeal to the Gujarat government, please undo this harm. Give me back my right to live without fear and in peace. Please ensure that my family and I are kept safe.”

The matter will now be taken up after two weeks.

[Subhashini Ali v. State of Gujarat, 2022 SCC OnLine SC 1083, order dated 25.08.2022]

Counsels: Sr. Adv. Kapil Sibal, AOR Aparna Bhat, Advocates Karishma Maria, Nizam Pasha, Adit Subramaniam Pujari, Rishabh Parikh, Aparajita Sinha, Maitreya Subramaniam

Gujarat High Court
Case BriefsHigh Courts

   

Gujarat High Court: The Division Bench of S.H. Vora and Rajendra M. Sareen, JJ. dismissed a criminal appeal which was filed on being dissatisfied with the order passed by Special (POCSO) Judge for the offences under section 376 of Penal Code, 1860 and also, u/s 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

The case of the prosecution was that from 26-12-2015 to 27-12-2015, the accused forcibly entered in the house of the complainant, threatened the victim to kill her parents and thereupon, forcibly made intercourse with the victim and thus, committed the offence punishable u/s 376 of IPC and also u/s 3 and 4 of the POCSO Act. After having found material against the respondent accused, charge-sheet came to be filed. After hearing both the sides and after analysis of evidence adduced by the prosecution, the trial Judge acquitted the respondent-accused of the offences, for which he was tried, as the prosecution failed to prove the case.

The Court noted that the prosecution has not brought on record any authentic and reliable evidence as to wherefrom the contents of the birth certificate being obtained and placed on record and that the victim had not disclosed anything regarding the act of intercourse when her statement u/s 164 of the Code of Criminal Procedure was recorded. In nutshell, the victim did not shout for help, or her brothers disclosed anything though were outside home for tuition and attending the school nor she sought any help by using her mobile. Not only that, she did not also disclose to any of her relatives, who came at her home despite she was asked. Thus, the Court agreed with the trial judge’s finding that birth certificate of the victim and occurrence of the incident as alleged by the victim were not reliable and trustworthy.

The Court reproduced what was said in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 and found that in the present case APP has not been able to point out to as to how the findings recorded by the trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.

The Court finally relied on Rajesh Singh v. State of Uttar Pradesh, (2011) 11 SCC 444 and in the case of Bhaiyamiyan v. State of Madhya Pradesh, (2011) 6 SCC 394 where it was established that while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court’s interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.

The criminal appeal was thus dismissed.

[State of Gujarat v. Pratap Prabhuram Devasi, R/Criminal Misc. Application No. 15092 of 2022, decided on 22-08-2022]

Advocates who appeared in this case :

CM Shah, Advocate, for the Applicant 1.

*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a rape case that resulted in suicide by the victim, the Division Bench of D.Y. Chandrachud and J.B. Pardiwala*, JJ., reversed the M.P. High Court’s order discharging accused of all the charges on the ground that there was a delay in lodging the FIR and holding the entire case put up by the parents of the deceased was doubtful. The Court remarked,

“The facts of this litigation are quite heart-breaking and at the same time, more disturbing is the utterly incomprehensible impugned judgment of the High Court discharging the accused of the offence of rape essentially on the ground of delay in the registration of the FIR.”

Factual Matrix

The father of the deceased (the informant hereinafter) had assailed the impugned judgment and order of the M.P. High Court discharging the accused and setting aside the Special Court’s order framing charge against the accused for offences punishable under Section 376 of the Penal Code, 1860 and Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

On 27-04-2020, the deceased complained of severe stomach ache. Suspecting a stomach tumor, the informant immediately rushed to the hospital with his daughter for medical treatment. The informant made the deceased sit on a bench outside the hospital and went to talk to the doctor. However, before the doctor could attend the deceased, she delivered a baby.

Later on, the deceased disclosed to the informant that she had conceived through one Amit Tiwari and would take a room on rent and start living life along with Amit and the newborn. On the same evening, the deceased committed suicide by hanging herself on the rod of the OT light affixed to the ceiling with a dupatta.

Evidence Adduced

The following evidence was adduced by the prosecution to prove the offences alleged:

  • The school record indicates that the deceased was born on 20-07-2001;
  • The mother of the deceased revealed that on 07-07-2019 the deceased revealed that she had missed her period (menstruation) for the past one and a half months and that she had conceived through Amit Tiwari (the accused);
  • (C) The deceased attained majority on 20-07-2019;

The Impugned Judgment

The Special Court framed charges against the accused under Section 376 of the Penal Code, 1860 and Sections 5 and 6 of the POCSO Act. The accused filed a revision application before the High Court contending that he was in a consensual relationship with the deceased and the deceased being major at the time of the incident could be said to be a consenting party. Hence, the Special court could not have proceeded to frame the charge of rape against him.

The High Court allowed the criminal revision application and discharged the accused of all the charges.

Analysis and Opinion

The Court opined that in a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not? The truthfulness, sufficiency and acceptability of the material produced at the time of framing of a charge can be done only at the stage of trial. There must be reasons to hold that in the interest of justice and to avoid abuse of the process of the Court a charge framed against the accused needs to be quashed. occasions. The Court expressed,

“It is to be kept in mind that once the trial court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record.”

The Court reiterated that the focus of Courts need not be on the proof of the allegation rather it has to be on the material produced to form an opinion on whether there is a strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. Opining that the framing of charge is not a stage, at which stage the final test of guilt is to be applied, the Court held that to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of Criminal Procedure Code.

Unappeased by the manner in which the case has been dealt with, the Court remarked,

“One (another) disturbing feature of this litigation is that it is the unfortunate father of the deceased who had to come before this Court seeking justice. It was expected of the State to challenge the illegal order passed by the High Court.”

…

“Another disturbing feature is that the trial court thought fit not to frame charge against the accused for the alleged offence punishable under Section 306 of the IPC i.e., abetment to the commission of suicide. Unfortunately, no one has questioned that part of the order of the trial court declining to frame charge for the alleged offence of abetting the commission of suicide punishable under Section 306 of the IPC. In such circumstances, we do not say anything further in this regard.”

Referring to Thakur Ram v. State of Bihar, (1966) 2 SCR 740, the Court expressed that barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book.

Conclusion

Lastly, the Court criticized the High Court for assuming it fit to discharge the accused of all the charges on the ground that there was delay in lodging the FIR and that the entire case put up by the parents of the deceased was doubtful. The Court noted,

“What is relevant to note is that although the High Court has devoted two full paragraphs for the purpose of recording the submissions as regards the age of the deceased, ultimately no specific finding has been recorded in that regard by the High Court.”

In the light of the above, the appeal was allowed and the impugned order was set aside. The Trial Court was directed to put the accused on trial.

[Manendra Prasad Tiwari v. Amit Kumar Tiwari, 2022 SCC OnLine SC 10572, decided on 12-08-2022]

*Judgment by: Justice J.B. Pardiwala

Appearance:

For Appellant: Mr. Siddharth Singh, AOR

For Respondent(s): Mr. Swarnendu Chatterjee, AOR, Mr. Pragaya Parijat Singh, Adv. Mr. Himanshu Naidwad, Adv. Mr. Ambuj Tiwari, Adv. Mr. Yashwardhan Singh, Adv. Ms. Deepadrshi Garg, Adv. Ms. Ankita Choudhary, DAG Ms. Himanshi Shakya, Adv. Mr. Sunny Choudhary, AOR and Mr. Upendra Mishra, Adv.

*Kamini Sharma, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case of allegations of rape and sexual assault leveled against the BJP leader Syed Shehanawaz Hussain (‘petitioner’), Asha Menon, J. upheld decisions of Metropolitan Magistrate and Special Judge further directing registration of FIR immediately and to submit the final report under Section 173 Criminal Procedure Code (‘CrPC’) and conduct the investigation accordingly, on finding glaring irregularities in the conduct of the police to register FIR.

Respondent 2 filed a complaint under Section 200 CrPC read with Section 190 CrPC alleging commission of offences under Section 376/328/120-B/206 Penal Code, 1860 (‘IPC’) by the petitioner. The complainant however filed an application under Section 156 (3) CrPC seeking directions to the police for registration of the FIR which was thereby granted. The grievance of the petitioner is that the Court directed for registration of the FIR inspite of the police filing an Action Taken Report (‘ATR’) before Metropolitan Magistrate (‘MM’) which concluded that as per the inquiry the allegations were found to be unsubstantiated.

Two applications were also disposed of grieving the petitioner as one sought for recording of the statement of complainant under Section 164 CrPC and other, for carrying out medical examination of the prosecutrix and the alleged accused. Assailing these orders, a revision petition was filed before Special Judge CBI by the petitioner, which was thereby dismissed. Aggrieved by these, present petition under Section 482 CrPC was filed.

The dismissal order which is impugned in the present petition is on the grounds that that the Criminal Amendment Act of 2013 had made it mandatory for the Police to record the statement of the victim under Section 164 CrPC in cases punishable under Section 376 IPC. Moreover, with regard to the registration of the FIR, the inquiry which had been made was only a preliminary inquiry and the MM had rightly not treated the ATR as a cancellation report. As registration of an FIR is only for a proper investigation of the matter and after detailed investigation, if the police still came to the conclusion that no offence was made out, it was not precluded from filing a cancellation report.

Counsel for petitioner Senior Advocate Mr Sidharth Luthra submitted that there is no complaint on record addressed to the SHO as the complaint was an undated complaint made directly to the Commissioner of Police and therefore, the complaint to the DCP did not meet the requirements under Section 154 CrPC and thus no order under Section 156 CrPC could have been issued.

The Court, however, noted that a person giving information to the officer in charge of the Police Station may do so orally or in writing and would obviously do so in their own words. It is only when the officer in charge decides to record the information that the police officer is to follow a format. In case the police officer declines to register the complaint, the complainant can send the substance of the information to a superior police officer under Section 154(3) CrPC. The law thus gives the complainant the right to approach a superior officer in case of the commission of a cognizable offence. Thus, the contention is absolutely untenable.

Senior Advocate Siddhartha Luthra further submitted that that MM as also the Special Judge had erred in not factoring in the ATR report while passing the impugned orders. The Court noted that the record discloses that the police did not file the ATR in terms of the directions of the MM but was titled as the ‘reply of complaint under Section 156(3) CrPC‘. However, it recorded that the allegations raised in the complaint have been found to be not substantiated but the directions of the court would be abided with.

The Court further noted that the recording of the statement of the prosecutrix on four occasions is referred to in the Status Report, but there is no explanation as to why the FIR was not lodged. The FIR only puts the machinery into operation. It is a foundation for investigation of the offence complained of. It is only after investigations that the police can come to the conclusion whether or not an offence had been committed and if so by whom.

The Court observed that in the present case, there seems to be a complete reluctance on the part of the police to even register an FIR. In the absence of the FIR, at best, the police could have, as correctly observed by the Special Judge, conducted only what is a preliminary inquiry. The very fact that it was only a reply that was filed by the police before the MM, sufficiently establishes that it was not a final report that was submitted by the police. The final report is required to be forwarded to the Magistrate empowered to take cognizance of the offence in a prescribed format under Section 173 (2) CrPC. There was no reason for the MM to have treated that reply as if it was a report under Section 173 CrPC, when the FIR itself was not registered.

Thus, the Court held that there is no perversity in the orders of the learned MM directing the registration of the FIR. There is also no error in the judgment of the learned Special Judge holding that the inquiry report being preliminary in nature cannot be considered as a cancellation report.

The Court further directed the police to conduct a complete investigation after registration of an FIR and submit a report under Section 173 CrPC in the prescribed format. It also directed the MM to proceed in accordance with law.

[Syed Shahnawaz Hussain v. State, 2022 SCC OnLine Del 2428, decided on 17-08-2022]

Advocates who appeared in this case :

For Petitioner- Mr. Siddharth Luthra and Ms. Geeta Luthra, Senior Advocates with Mr. Vineet Malhotra, Mr. Vikas Arora, Ms. Shivani Luthra Lohiya, Ms. Asmita, Ms. Apoorva Maheshwari and Mr. Vishal Gohsi, Advocates;

For respondent- Mr. Ritesh Kumar Bahri, APP for the State with Inspector Manoj Kumar and SI Eshter Dazi Duo Mr. Sanjiv Kumar Singh, Advocate, for the R-2.

*Arunima Bose, Editorial Assistant has put this report together.

Andhra Pradesh High Court
Case BriefsHigh Courts

   

Andhra Pradesh High Court: In a case where the complainant alleged offence under Section 376 Penal Code, 1860 (‘IPC') and bail is sought in the instant petition, Ravi Cheemalapatti, J. granted bail to the petitioner accused as alleged sexual relationship was consensual in nature and perusal of records showed that when the relationship eventually did not work out, complaint was filed alleging serious offences.

The complainant alleged that the petitioner, on the pretext of love and marrying the de facto complainant, took her to his residence at Gollapudi, Krishna District with the consent of his parents and exploited her sexually. She was also threatened and abused by the friends of the petitioner as alleged in the complaint. The accused was thereby arrested and has been languishing in jail since 15-06-2022.

Thus, instant criminal petition was filed under Sections 437 & 439, Criminal Procedure Code (‘CrPC'), seeking regular bail, by the petitioner/ Accused 1 in crime No. 340 of 2022 of Bhavanipuram Police Station, Vijayawada City, registered for the offences punishable under Sections 376 (2)(n), 417, 420, 323, 384, 506 read with 109 IPC.

The Court observed that on perusal of the record it is clear that there was consent between the de facto complainant and the petitioner and it is also prima facie evident that when the de facto complainant felt that the relationship between her and the petitioner is not going to work out, she filed the present complaint.

Placing reliance on Ansaar Mohammad v. State of Rajasthan, 2022 SCC OnLine 886, the Court noted that when the complainant is willingly stayed and had relationship, if the relationship is not working out, the same cannot be a ground for lodging an FIR for the offence under Section 376(2)(n) of IPC. Thus, the Court categorically remarked this complaint was lodged when the relationship between the de facto complainant and the petitioner is not working out.

Thus, the Court granted bail subject to the following conditions:

(i) The petitioner shall be released on bail on his executing self-bond for Rs.25,000/- (Rupees twenty-five thousand only) with two sureties for a like sum each to the satisfaction of the learned Chief Metropolitan Magistrate, Vijayawada, NTR District;

(ii) The petitioner shall appear before the Station House Officer, Bhavanipuram Police Station, Vijayawada City, once a week i.e., every Sunday between 10.00 a.m. and 02.00 p.m. till filing of the charge sheet; and

(iii) The petitioner shall not directly or indirectly contact the complainant or any other witnesses under any circumstances and any such attempt shall be construed as an attempt to influence the witnesses and shall not tamper the evidence and shall co-operate with the investigation.

[Jatoth Aditya Rathod v. State of Andhra Pradesh, Criminal Petition No. 5704 of 2022, decided on 12-08-2022]

Advocates who appeared in this case :

Arun Kumar R, Advocate, for the Petitioner.

*Arunima Bose, Editorial Assistant has reported this brief.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J. while hearing a bail application of a man accused of raping and impregnating a 14-year-old in 2016 citing eight-year delay in trial perused the report on the pending cases of POCSO submitted by the Principal Judge. As per the said Report, there were 7 designated POCSO Courts in the City Civil Court (main branch) and six POCSO Courts at Dindoshi, out of which two courts were vacant.

By the perusal of the report, it was clear that the Special Courts are also under severe pressure of concluding the trials and therefore it is not uncommon as far as this case is concerned that the trial is not yet concluded. The Court noted a startling feature that allotment of 1228 cases with CR No.11 and 1070 cases with CR No.12. In contrast, CR No.9 is shown to have 138 cases and CR No.10 is having 116 cases. The disparity in the distribution of cases was not understood by the Court and the Principal Judge was asked to explain the same.

In relation to the two vacant posts, the Principal Judge was directed to apprise this Court about steps taken to fill up the vacant posts so that necessary directions can be issued for designated two courts for expeditious disposal of the cases, figure of which is alarming and the accused like present applicant are waiting for trial to be concluded since so many years. Also, Principal Judge was asked to give bifurcation of the years from which the cases were pending so that the reasons thereof can be ascertained and direction can be issued by this Court so that trials could be expedited.

Further, the Court opined that necessary directions are required to be issued to the Magistrates in connection with recording statement of victim immediately, as the delay at times, change the course of the trial. Principal Judge was directed to submit further report and analyze causes for delay in concluding the POCSO cases and why concerned courts are unable to adhere to the mandate, provided under the special statute keeping in mind objective underlining the same being less inconvenience and humiliation to be faced by the victim and by ensuring speedy trial.

In relation to the instant case, the Court directed the concerned Court to conclude the trial as expeditiously as possible and in any case not less than 6 months and if the trial was not concluded within six months as directed, the Applicant is at liberty to request for release on bail on the ground of long pendency of the case.

Further matter to be heard on 29-08-2022.

[Azaruddin Nihaluddin Mirsilkar v. State of Maharashtra, 2022 SCC OnLine Bom 1627, decided on 01-08-2022]

Advocates who appeared in this case :

Mr B.B. Tiwari with Azim Kazi and Aaisha F., Advocates, for the Applicant;

Smt Rutuja Ambekar, APP, Advocate, for the State.

*Suchita Shukla, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case of an FIR registered by a woman (‘respondent 2′) alleging rape charges under the influence of misguidance and ill advice, Jasmeet Singh, J. deprecated her conduct as the criminal justice system has been put in motion on account of her whims and fancies. The woman later accepted her mistake and brought before the Court regarding settling her dispute via compromise deed with the man. The Court however, directed the woman to work at blind school and the accused implicated falsely (‘petitioner’) to plant 50 trees as punishment.

An FIR was registered alleging that the petitioner offered cold drink to a woman (‘respondent 2′), after which she fell unconscious and thereafter, the petitioner raped the respondent No. 2. Subsequently, a compromise deed was filed dated 24-05-2022 stating as follows:

“1. That the Second Party acknowledges that the First Party never established physical relations with her against her will. The Second Party was having a money dispute with the First Party, due to which she was disturbed and under some ill-advice and misguidance, she got the subject FIR registered against the First Party. The Parties, have now settled all their grievances and disputes without any force, undue influence or coercion from any side, out of their sweet/free will and choice and the parties are not under collusion.”

Respondent 2 submitted that she has been undergoing mental depression, as a result of which under misguided and wrong advice she has registered the FIR.

The Court noted that the allegations in the FIR and the compromise deed are totally opposite, and the conduct of respondent No. 2 is very unfair and is a total abuse and misuse of the process of law. It was also taken note of the fact that respondent 2 is staying with her family and has 4 children (one daughter aged 12 years and a set of triplets aged around 3 years.)

Taking a lenient view in light of the facts above and that respondent 2 made amends on the very next date and accepted that she was under the influence of wrong advice when she recorded her statement under 164 Criminal Procedure Code, (‘CrPC’), the Court quashed the FIR and subsequent proceedings emanating therefrom.

The Court also directed respondent 2 to work at All India Confederation of the Blinds for a period of 3 hours, 5 days a week for a period of 2 months.

The Court further directed the petitioner to plant 50 trees with the following compliance:

a) The petitioner also undertakes to plant 50 trees in consultation with the Investigating Officer, who shall get in touch with the Horticulture Department of the MCD, Rohini Zone and indicate the area, where the trees are to be planted.

b) The MCD, Rohini zone, West or South West Delhi is directed to identify the land, lane, area where the trees are to be planted. The trees need not be in one cluster but can be spread over and can be adjoining a road, a lane, an area alongside periphery wall of a building, part, etc.

c) Each tree shall have a nursery life of 3 years and the petitioners will look after their respective allotted trees for 5 years. The learned SC, for the State shall be informed with regard to each and every step in this regard. The 6 monthly status report along with photograph shall be filed. The above planting of trees shall be completed within a period of 6 weeks from today.

d) The concerned I.O. shall be in touch with the petitioner to do the needful.

e) After initial planting of trees, the I.O. will file a compliance report. The petitioners will file a status report every 6 months giving the status of trees planted along with photographs.

[Himanshu Goel v. State, 2022 SCC OnLine Del 2315, decided on 18-07-2022]

Advocates who appeared in this case :

For petitioner- Mr. Ravin Rao, Mr. Pranaveer Pratap Singh, Advs.

For respondent- Mr. Sueriya Manan with Mr. Karan Jeet, Mr. Rai Sharma for Mr. Sanjay Lao, SC for State

*Arunima Bose, Editorial Assistant has reported this brief.

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Division Bench of A.M. Badar and Rakesh Kumar Verma, JJ., while dismissing an appeal observed that a sexual assault leaves a traumatic effect on a victim of a minor age which not only affects her physically but also affects her emotionally and psychologically which ultimately leads to the destruction of her personality. Therefore, the Bench upheld the conviction of a man who raped his two minor daughters for 6 continuous years.

Background of the case

The accused, the father of the two minor female victims, was exercising the position of control and dominance over his two daughters and had repeatedly committed penetrative sexual assault on the two victims.

The Additional Sessions Judge-cum-Special Judge (POCSO), Bhojpur at Ara, in POCSO Case No.4 of 2013, convicted him for the offences punishable under Section 376(i) of the Penal Code, 1860 and under Sections 6 and 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). He was sentenced to life imprisonment for the offence punishable under Section 6 of the POCSO Act. For the offence punishable under Section 10 of the said Act, he was sentenced to suffer rigorous imprisonment for five years. The trial Court had directed that the substantive sentences shall run concurrently. Challenging the impugned order of the trial court, the accused filed an appeal.

Analysis and Decision

The Bench observed that rape is a ghastly act that leaves the victim shattered for life as it causes not only physical but emotional and psychological trauma to the victim. Further, the Bench observed, “sexual activities with a minor girl, have a traumatic effect on them, which persists throughout their life and often destroys the whole personality of the victim. The victim of a sexual assault is not an accomplice, but she is a victim of the lust of another person.” Therefore, the court while dealing with such cases of sexual assault of a minor female, the Court is expected to shoulder great responsibility and is required to deal with such cases sensibly.

At this juncture, the Bench relied on the judgment given by the Supreme Court in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, (1983) 3 SCC 217, where it was held that rarely a girl or woman in India makes a false allegation of sexual assault. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. Such a girl would be conscious of the danger of being ostracized by society or being looked down upon by society including her relatives etc.

Further, the Bench opined that the evidence of a victim stands at a higher pedestal than that of an injured witness. Evidence of a victim of a rape case is required to receive the same weight as attached evidence of an injured witness. If the totality of circumstances emerging on record discloses that the victim of such crime does not have any motive to falsely implicate the accused, then, it is not required to seek corroboration to her evidence and the Court generally needs to accept her evidence.

Hence, the Bench, by dismissing the appeal upheld the conviction of the accused under Section 376(i) of the Penal Code, 1860 and Sections 6 and 10 of the POCSO Act.

[F v. State of Bihar, 2022 SCC OnLine Pat 1926, decided on 25-07-2022]

Advocates who appeared in this case :

Vikram Deo Singh, Jitendra Prasad Singh, and Shankar Kumar, Advocates, for the Appellant/s;

Abhimanyu Sharma, APP, Advocate, for the Respondent/s.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Anoop Kumar Mendiratta, J. rejected bail to an accused allegedly kidnapping and raping a minor girl of 14 years. The Court held that merely because sometimes sexual abuse results in tying of knot between the victim and the accused in violation of provisions of law or results in birth of a child, it does not mitigate the act of the petitioner in any manner, since the consent of a minor is immaterial and inconsequential in law.

A complaint was filed by the mother of the victim alleging that some unknown person had kidnapped her daughter of 15 years, missing since 09-07-2019. On investigation, the complainant was charged for offences under Sections 363, 366 and 376 Penal Code, 1860 and Section 4 &6 Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) as the victim was recovered along with her 8-month-old female child from the house of petitioner/accused and was about 1½ months pregnant. The complainant was arrested and thus, the present bail application was filed contending that the victim is wife of the petitioner-accused and is suffering on account of incarceration of the petitioner and he needs to take care of his wife and child.

State submitted that that victim was merely 14 years and 06 months of age, at the time she was lured and kidnapped by the petitioner and the entire machinery was kept in the dark by the petitioner who deliberately concealed the particulars of the victim and misled the investigating agency on the wrong path despite filing of the Habeas Corpus petition by the mother of the victim.

The Court noted that alleged marriage with a minor as claimed by the petitioner is in violation of the provisions of the Prohibition of Child Marriage Act, 2006.

Placing reliance on Independent Thought v. Union of India, (2017) 10 SC 800 and Jayanti Lal Dabgar v State of Gujarat, (2015) 7 SCC 359 wherein it was observed that sexual intercourse or sexual act by a man, even with his own wife under 15 years of age, has been classified as rape, the Court opined that sexual relationship with minor is prohibited and the law clearly treats them as offences even if the same is based upon alleged consent of a minor.

The Court observed that such incidents of luring a minor and entering into physical relationship, accused thereafter claiming consent of the minor, cannot be treated in a routine manner. Merely because the petitioner has claimed that marriage had been performed with the victim in a temple, the same cannot sanctify the offence as the victim was a minor and under 15 years of age at the time of the incident. The claim of marriage is also yet to be proved on record.

Thus, the Court rejected the bail being devoid of evidence in favour of accused suggesting consent of the parents to take their minor daughter away from their lawful custody along with constantly misleading the Court during investigation and his claim of consent by minor for sexual intercourse being irrelevant.

[Jagbir v. State, 2022 SCC OnLine Del 2159, decided on 22-07-2022]

Advocates who appeared in this case :

Mr. Lokesh Kumar Mishra, Mr. Himanshu Sharma and Mr. Haider Khan, Advocates, for the Petitioner;

Mr. Adhishwar Suri, Advocate for Ms. Supriya Juneja, Advocate for complainant with Complainant in-person, for State.

*Arunima Bose, Editorial Assistant has reported this brief.

Tis-hazari
Case BriefsDistrict Court

Tis Hazari Court, Delhi: While deciding a bail application, Kamini Lau, J. granted anticipatory in a case where the complainant-girl was a major and was held to be in a consensual relationship and thus, consent forms part of the subject matter in the said case. The Court granted bail since the accused joined the investigations and therefore, his custodial interrogation was not warranted.The applicant/accused got into a relationship with the prosecutrix/complainant after getting acquainted at work. The applicant had also introduced the complainant to his parents, and they approved of her. Subsequently, since March 2021, they started developing sexual relations on various occasions at different places like his residence, office and different hotels. The complainant alleged that these relations were non-consensual, and she was coerced based on the false promise of marriageby the applicant. The applicant contended that due to professional and personal issues he had been unable to marry the complainant, but she was pressurizing him to marry her. However, the complainant contended that after their last encounter on 11-06-2022, the applicant started ignoring her and avoided all communication with her. Pursuant to this,, the complainant filed a case against the applicant under Sections 354-D and 376 Penal Code, 1860 (‘IPC’). The applicant filed the instant anticipatory bail application under Section 438 Criminal Procedure Code (‘CrPC’)

The Court vide order dated 12-07-2022 granted interim protection to the applicant/accused and directed them to file a detailed report at the next hearing. Thus, a detailed report was filed by the Investigating officer who admitted that the applicant/accused Rahul Sharma joined investigations on 13-07-2022.

The Court observed that there is rarely any cogent or tangible proof to establish/ prove the existence of a criminal intention which has to be gathered, deciphered or inferred from circumstances.

Placing reliance on Uday v. State of Karnataka (2003) 4 SCC 46, and Jayanti Rani Panda v. State 1983 SCC OnLine Cal 98, the Courtobserved that “it is evident that there is no straitjacket formula which can be evolved for determining whether the consent was given under a misconception of fact or not and it has to be deciphered from the facts and circumstances of each case.”

The court concluded to note that, according to the applicant, he was ready and willing to marry the complainant, but it was the family of the complainant who had an issue with an inter-caste marriage. Additionally, the applicant joined the investigation and therefore, his custodial interrogation is not required , thus, the court granted anticipatory bail to the applicant on a bail bond of Rs. 1 lakh subject to the conditions as mentioned in the order.

[Rahul Sharma v. State, 2022 SCC OnLine Dis Crt (Del) 27, decided on 19-07-2022]

Advocates who appeared in this case :

Mr Pankaj Bhatia, Advocate, for the State;

Mr Kapil Madan, Mr Gurmukh Singh Arora and Mr Saurabh Gauba, Advocates, for the Applicant/Accused;

Complainant in person with Ms Sudershna Chakraborty Advocate from Delhi Commission, for the Women.

Madras High Court
Case BriefsHigh Courts

Madras High Court: Abdul Quddhose, J. permitted the termination of pregnancy of 27+ week of a minor child victim of offence under Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) on the recommendations of well qualified doctors, as the victim was observed to not be so mentally strong to be able to withstand the pregnancy and later take care of the child even financially.

The instant case has been filed by the desperate father of a victim girl seeking medical termination of his minor daughter’s pregnancy. The rape victim girl X was impregnated by the accused who has been charged with the offence under sections 5(j)(ii) r/w 6 of POCSO Act.

A team of doctors were nominated vide order dated 14-07-2022 who medically examined the rape victim girl and submitted a feasibility report stating that that the victim girl X is about 28 weeks + 3 days pregnant.

Dr. S. Amutha, DDVL, Joint Director (MTP), Directorate of Family Welfare, Chennai and Dr.Vijaya Murali, Deputy Director (Inspection), Directorate of Family Welfare in open Court and they expressed that it is feasible to terminate the pregnancy of the petitioner’s daughter. The rape victim is mentally weak and not in a position to deliver a child at such a young age.

Dr. Arumai Kannu, HOD of Obstetrics and Gynecologist, Government Thiruvannamalai Medical College Hospital reiterated that it is feasible to terminate the pregnancy of the victim girl even though the gestational period is 28 weeks + 3 days.

Placing reliance on Murugan Nayakkar v. Union of India, 2017 SCC Online SC 1092, it was noted that the Supreme Court allowed termination of pregnancy in the case of 13-year-old child and in Sarmishtha Chakraborty v. Union of India, (2018) 13 SCC 339, termination of pregnancy was permitted even when the gestational age was 26 weeks, in view of the recommendations of the medical board.

The Court observed that while exercising powers under Article 226, this Court has got wider powers than what is prescribed under section 3(2) of the Medical Termination of Pregnancy Act, 1971, which permits the registered medical practitioner to terminate the pregnancy only when the length of pregnancy does not exceed a maximum period of twenty weeks. In the case on hand, the victim girl is 28 weeks + 3 days pregnant. However, considering the fact that the medical report recommends termination of her pregnancy and after giving due consideration to the fact that the victim girl is small statured and is only 13 years old, this Court exercising powers under Article 226 of the Constitution of India has got the powers to take judicial notice of those facts and can permit termination of victim’s pregnancy.

It was also observed that the petitioner is an agricultural laborer and surviving on hand to mouth existence. If the minor victim girl is allowed to deliver a child, not only the victim, but also her parents will suffer. The petitioner has also stated that he came to know about her minor daughter’s pregnancy only after coming to know that she did not get her menses for a long time.

The Court directed respondent 1 “to nominate Team of specialised Doctors on 18-07-2022 who shall terminate the pregnancy of the petitioner’s minor daughter on the very same date. However, after terminating the victim’s pregnancy, the first respondent shall preserve the foetus for carrying out the medical test for the purpose of criminal case pending against the accused for the offence under section 5(j)(ii) r/w 6 of POCSO Act.”

The Court further directed the Child Welfare Committee, Thiruvanamalai District to render all possible assistance both to the victim girl and her parents during the period of their stay in the Hospital.

[K Vijayakumar v. State of Tamil Nadu, 2022 SCC OnLine Mad 3724, decided on 15-07-2022]

Advocates who appeared in this case :

P Sevli, Advocate, for the Petitioner;

B Vijay, Advocate, for the Respondent.

*Arunima Bose, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: The Single Judge Bench of Yogesh Khanna, J., ordered the release of a 27-year-old accused of rape on bail, as the prosecutrix has already been examined as per the requirements of Section 164, CrPC, thus there is no apprehension that the petitioner may influence the prosecutrix. The Court also pointed out that the arguments raised by the petitioner vis-a-vis delay in lodging of FIR; discrepancy in the place of incident and photographs taken thereafter and a legal notice regarding refund of ‘roka‘ expenses without there being an iota of rape allegation- such facts do make out a case for bail.

Facts of the Case: The petitioner is a businessman running a restaurant and beverage business. The petitioner and the prosecutrix met through mediators and their marriage was later fixed through the roka ceremony on 14-02-2021. At the petitioner’s birthday party, the two allegedly got intimate. It was also alleged that the prosecutrix entered into such intimacy, in order to save their relationship. The prosecutrix alleged that the petitioner demanded dowry from her. Thus, an FIR was registered alleging rape on the false pretext of marriage and demand for dowry under Sections 376/354-A/406/506/34 of IPC read with Section 4 of Dowry Prohibition Act, at Paschim Vihar West, Delhi Police Station.

It is also pertinent to mention that after the prosecutrix’s mother also issued a legal notice to the petitioner on 07-09-2021, seeking refund of the expenses incurred during the roka ceremony.

The petitioner’s bail application was already denied by the Tis Hazari Court; therefore, the High Court was approached to with the instant application.

Contentions: The State vehemently opposed the bail application on the grounds that once out, the petitioner may seek to influence the prosecutrix.

Per contra, the counsels for the petitioner argued that the petitioner is a law-abiding citizen with no criminal antecedents and the allegations of rape on the false pretext of marriage are an afterthought in as much the IO has not collected any exculpatory evidence for the same. The petitioner also contends that the legal notice to refund the expenses of roka ceremony also does not mention any allegations as to rape.

Observations: Though the Court did not give any opinion on the merits of the case, it took into consideration the facts related to the delay in lodging of FIR etc. The Court also pointed out that the prosecutrix has already recorded her deposition as per the requirements of CrPC. Hence, the Court ordered that the accused who was in custody since 27-11-2021, be released on bail during the pendency of the trial, upon execution of a personal bond of Rs. 1 Lac with surety. The petitioner was directed to not contact or threaten the prosecutrix in any way, which shall become grounds for cancellation of bail.

[Manmeet Singh v. State (N.C.T. of Delhi), 2022 SCC OnLine Del 2052, decided on 12-07-2022]

Advocates who appeared in this case :

Sanjay Vashistha, Shakir Khan, Rahul Kumar, Advocates, for the Petitioner;

Mukesh Kumar, APP for State and L.S. Saini, Advocate, for the Respondents.

*Sucheta Sarkar, Editorial Assistant has reported this brief.

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Rohit Arya and Milind Ramesh Phadke, JJ. took strong exception to the functioning of the Police force in the State while lambasting the authorities for blatant callousness and failure in tracing an 11-year-old missing minor girl.

The writ petition was filed by an unfortunate father in the year 2017 with the pious hope that this Court in exercise of its extraordinary constitutional jurisdiction shall come to his rescue for tracing her missing minor girl aged about 11 years.

Counsel for the petitioner complained that at some point of time, though there was a breakthrough situation during investigation with the incriminating material found, still the investigation was put to a standstill. It further appeared that despite three SITs constituted to search for the missing corpus, the corpus so far has not been found out. It shows incompetence of such police officials, who were members of the SITs. There was a disclosure of the fact by a person of having raped, killed and buried the body of the missing corpus, but so far no action has been taken against him. The photographs of the minor girl on record reflect how ruthlessly she was beaten black and blue, smashed her face and the whole body looked totally mutilated.

The Court pointed that despite repeated orders callousness on the part of the police force is well evident. The Court while lambasting police officials stated that the height of absurdity on the part of the Police officials is writ large, as despite the said knowledge of demise of the corpus, subsequent reports are being submitted that the missing corpus is being searched.

Affidavit submitted by the DGP was called merely a lip service as no substantial steps have been taken for action against such assailant, who was alleged to have stated about the rape and murder of the deceased missing corpus.

The Court was further surprised to note that so far, no FIR has been lodged to start the investigation on aforesaid disclosure of the fact of the death of the deceased corpus.

We are constrained to observe so, despite repeated orders by this Court, DG Police Madhya Pradesh since the year 2020 has maintained blissful silence for the reasons best known to him. We take strong exception to the functioning of the Police force in the State particularly, in the Guna district relevant to the facts of this case.

The Court observed that Safety and protection of public at large against invasion on their personal liberty and property appears to be seriously jeopardized quoting “There is no one to Police the Police Man in this State”.

The Court called for the presence of the Inspector General of Police on 08-07-2022 for further hearing.

[Ganjendra Singh Chandel v. State of Madhya Pradesh, 2022 SCC OnLine MP 1599, decided on 05-07-2022]

Advocates who appeared in this case :

Shri Anil Kumar Shrivastava, Advocate, for the Petitioner;

Shri M.P.S. Raghuvanshi, Additional Advocate General, for the respondent-State.

*Suchita Shukla, Editorial Assistant has reported this brief.

 

Supreme Court
Case BriefsSupreme Court

Supreme Court: In a significant case, the Division Bench of Indira Banerjee and J.K. Maheshwari, JJ., upheld pre-arrest bail of actor-producer Vijay Babu who was alleged to have committed rape of an actress.

The Court, however, modified the bail condition that the accused can be interrogated for the next seven days i.e., from 27-06-2022 till 03-07-2022, and directed that the accused may be interrogated as and when necessary, even after 03-07-2022.

Vijay Babu was alleged to have committed rape on the victim, a struggling actress, with the promise of a role in a movie and also of marriage. He has allegedly even caused physical injuries to her. The prosecution further alleged that on coming to know about the registration of the crime, the applicant went abroad in an attempt to flee from the law.

Pertinently, by the impugned order, Single Judge of the Kerala High Court had granted pre-arrest bail to the accused by holding that there is no restriction in law that pre-arrest bail cannot be granted to a person sitting abroad; which was doubted by a co-equal Bench of the High Court. Consequently, the question as to whether pre-arrest bail can be granted to a person sitting abroad was referred to a larger Bench. Though the Supreme Court did not refer to the aforementioned question, it has upheld the grant of pre-arrest bail to the accused.

After considering the pleadings and other materials on record, the Court declined to interfere with the impugned order. The Court stated,

“We are also not inclined to interfere with the conditions imposed in the impugned order for grant of pre-arrest bail, except sub-paragraph (2) of paragraph 27 of the impugned order which reads as under:

(2) The petitioner can be interrogated for the next seven days i.e., from 27-06-2022 till 03-07-2022 (inclusive) from 09.00 AM till 06.00 PM every day, if required. The petitioner shall be deemed to be under custody during the aforesaid period for facilitating the requirements of investigation.”

Hence, the Court modified the bail condition by deleting the words “for the next seven days i.e., from 27-06-2022 till 03-07-2022 (inclusive)” and held that the accused may be interrogated as and when necessary, even after 03-07-2022.

The accused was directed to comply with all other conditions imposed by the High Court as also the conditions for grant of pre-arrest bail enumerated in Section 438(2) of the CrPC. Bail conditions affirmed by the Court are as follows:

  1. The accused shall not leave the State of Kerala without prior permission of the jurisdictional Court;
  2. shall appear before the Investigating Officer as and when called;
  3. shall not contact or interact with the victim or any of the witnesses;
  4. shall not indulge in any form of attack on the victim or her family through social media or any other mode;
  5. shall not harass, defame, denigrate or ridicule the petitioner or members of her family in any manner whatsoever or publish or post any comments, writing, picture, etc. in relation to the incident on social media or otherwise;
  6. shall not commit any other offence while on bail
  7. shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police officer;

  8. if the impounded passport of the accused is returned or if he is issued with a fresh passport, he shall immediately surrender the same to the Investigating Officer.

[x v. Vijay Babu, 2022 SCC OnLine SC 805, decided on 06-07-2022]

Advocates who appeared in this case :

Mr. Arjun Singh Bhati, AOR, Mr. C. K. Sasi, AOR, Advocate, for the Petitioner;

Mr. Siddharth Luthra, Sr. Adv., Mr. S. Udaya Kumar Sagar, Adv., Ms. Sweena Nair, Adv., Mr. Lakshay Saini, Adv., Ms. Anasuya Choudhury, Adv. and Mr. Angaj Gautam, Advocates, for the Respondent(s).

Also Read

Kerala High Court grants anticipatory bail to cine artist & producer Vijay Babu in a rape case

Kerala High Court| Can pre-arrest bail be granted to accused sitting abroad? Co-equal bench doubts order in Vijay Babu’s case; Larger Bench to decide

*Kamini Sharma, Editorial Assistant has put this report together

Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court: Bharati Dangre, J. while adjudicating a bail application which dealt with an unfortunate incident of a girl (14 years) alleged to have been sexually ravaged by the applicant, expressed disappointment over the snail speed of the trial. The Court emphasized on the purpose of the Protection of Children from Sexual Offences (POCSO) Act, 2012 which came to be enacted by establishing special courts for trial of such offences.

The girl later had given birth to a child and the APP was directed to ascertain the status of the trial. The Court reminded that it was only when the writ was issued by this Court, the trial commenced with a snail speed, with a result that as on date only one witness has been examined in the current case. The statement of the victim girl itself came to be recorded after five years. It was further added that the pace of the trial was defeating the very purpose of the POCSO Act. The Court mentioned that the manner in which the Special Courts are proceeding with the POCSO trial, dealing with the offenders under the Special Statute, enacted with a specific avowed purpose, to prevent exploitation of minor/children and punish the offenders itself is being defeated by the procedure that is adopted by the Special Courts.

The Court was disturbed by the fact that only one Court is a Special Court for trying the offences under the POCSO Act, whereas other Courts which are assigned with POCSO cases are also required to take some other assignment. The Court directed Principal Judge of the Court of Sessions at Greater Mumbai, to submit a report about the pending POCSO cases in Mumbai and also provide the details about how many POCSO Courts were designated as ‘Special Courts' along with number of cases pending with these Courts. The in-charge Judge was also asked to submit a report about the appointment of Special Public Prosecutors in the POCSO Court as well as compliances which were mandated, including the interpreter or expert as contemplated under section 38 of the POCSO Act.

[Azaruddin N. Mirsilkar v. State of Maharashtra, Bail Application No.466 of 2021, decided on 21-06-2022]

Advocates who appeared in this case :

Ms Aishwarya Agarwal with Azimuddin N. Kazi, Advocate, for the Applicant;

Mrs Anamika Malhotra, APP, for the State

*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar, Dinesh Maheshwari* and CT Ravikumar, JJ has refused to commute the death sentence to life imprisonment of a man convicted for brutal rape and murder of a 7-year-old physically and mentally challenged girl. The Court noticed that it is unlikely that the appellant, if given an absolution, would not be capable of and would not be inclined to commit such a crime again.

The facts of the case are such that the Supreme Court was left with no choice but to confirm his death sentence, even though in several cases, the Courts have refrained from awarding or approving death sentence even in the cases of gruesome killings, essentially on the premise that even a semblance of probability of reformation of the convict ought to be given a chance, rather than awarding capital punishment, which is of irretrievable nature.

The Crime(s)

The appellant kidnapped the victim girl, who was only 7½ years of age, who was even otherwise a mentally and physically challenged child, with betrayal of trust when the victim girl got lured with confectionary items given by him. He then brutally raped the victim girl and eventually mercilessly killed the girl by causing horrid injuries on her head. All these crimes were committed by using a stolen motorcycle.

The appellant, who was about 28 years of age and was having the family of wife, a daughter who was also about 8 years of age and aged parents, was continuously involved in criminal activities even prior to this crime ranging from Section 3 of Prevention of Damage to Public Property Act, 1984, Section 379 IPC and even 307 IPC.

It is important to note that the appellant’s criminal acts did not stop even after his conviction for this beastly crime. Even while in jail, the appellant’s conduct has not been free from blemish where, apart from quarrelling with other inmate and earning 7 days’ punishment, the appellant had been accused and convicted of the offence of yet another murder, this time of a co-inmate, a Pakistani National, while joining hands with three other inmates.

Aggravation/Mitigating Circumstances

The appellant has a family with wife and minor daughter and aged father and the crime was committed when he was only 28 years of age. However, these mitigating factors are pitted against following factors pertaining to the appellant himself.

  1. Contiuously involved in criminal activities prior to commission of the crime in question.
  2. The crime itself was carried out with the aid of a stolen motorcycle.
  3. Postconviction he not only earned 7 days’ punishment in jail for quarrelling with a co-inmate but he has been convicted of the offence of murder of another jail inmate.

When an attempt was made before the Court to suggest on behalf of the appellant that his overall conduct in prison is without any blemish except the allegation of his involvement in a case of murder, it observed,

“We could only wonder what more of criminal activity would qualify as blemish, if not the involvement and conviction in a case of murder of a fellow jail inmate! This is apart from the other 7 days’ punishment earned by the appellant for quarrelling with another jail inmate.”

Hence, the Court observed that read as a whole, the fact-sheet concerning the appellant leads only the logical deduction that there is no possibility that he would not relapse again in this crime if given any indulgence.

The Court confirmed the conviction of the appellant of offences under Sections 363, 365, 376(2)(f), 302 of the Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences Act, 2012; and the sentences awarded to the appellant, including the death sentence for the offence under Section 302 of the Penal Code, 1860.

[Manoj Pratap Singh v. State of Rajasthan, 2022 SCC OnLine SC 768, decided on 24.06.2022]

*Judgment by: Justice Dinesh Maheshwari

Counsels

For appellant: Senior Advocate A. Sirajudeen

For State: Dr. Manish Singhvi

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J. rejected an anticipatory bail application which was filed apprehending arrest for the offences punishable under Sections 376(2)(n), 376(2)(h) and 417 of the Penal Code, 1860.

The complainant who is 22-year-old girl who was briefly acquainted with the applicant along with her friend had visited residential premises of a third friend and the applicant was alleged to have committed forcible sexual intercourse with her. She alleged that when she opposed, he expressed that he likes her and, in any case, he was going to marry her. Thereafter, on multiple occasions, the act was repeated. The complainant conceived and was found to be carrying six weeks’ pregnancy, she informed the applicant, but he refused to take up any responsibility and on the other hand, attributed her a bad character and alleged that she was in relationship with some other person.

The Court observed that reading of the complaint revealed that the girl, who is major, developed a liking for the applicant, but her version as far as the sexual relationship was concerned, is that she gave her consent, since the applicant gave a promise of marriage. However, when the girl conceived, the applicant attributed infidelity, but once again committed forcible sexual intercourse with her on the last date as mentioned in the complaint.

The Court stated that merely sharing friendly relationship with a girl does not permit a boy to take her for granted and construe it as her consent to establish physical relationship.

This friendship with the person of fairer sex, does not confer a licence upon a man to force himself upon her, when she specifically refuse copulation. Every woman expects ‘Respect’ in a relationship, be it in the nature of friendship based on mutual affection.

The Court rejected the application and held that accusations faced by the applicant definitely requires a thorough investigation to ascertain the version of the prosecutrix that she was forced to give her consent for sex.

[Ashish Ashok Chakor v. State of Maharashtra, 2022 SCC OnLine Bom 1349, decided on 24-06-2022]

Advocates who appeared in this case :

Dr Samarth S. Karmarkar with Mr. Haresh R. B. (Karmarkar & Associates), Advocate, for the Applicant;

Ms. Anamika Malhotra, A.P.P., Advocate, for the State/Respondent.

*Suchita Shukla, Editorial Assistant has reported this brief.