Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Anuja Prabhudessai, J., observed that touching private parts and kissing on the lips of a minor would not constitute to be an offence under Section 377 of Penal Code, 1860.

An application was filed by the applicant who was facing trial for offences under Sections 377, 384 and 420 of the Penal Code, 1860 and Sections 8 and 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The complainant alleged that, they found that some money from the cupboard was missing and upon inquiry, they came to know that the victim used to play online OLA PARTY game and he had paid the money to the applicant to recharge the said gaming App. The victim also told his parents that the applicant had sexually abused him.

As per the statement of the victim as well as the FIR report prima facie indicated that the applicant had touched the private parts of the victim and had kissed his lips.

Hence, in Court’s opinion, the above would not prima facie constitute offence under Section 377 of the IPC.

The offence under Sections 8 and 12 are punishable by maximum imprisonment upto 5 years. The applicant was in custody for almost one year and the charge has not yet been framed and trial not likely to commence in the immediate future.

Therefore, in view of the above applicant was granted bail on the following terms and conditions:

  • Furnish P.R. Bonds in the sum of Rs 30,000 with one or two solvent sureties in the like amount.
  • Applicant shall report once in two months on every 1st Monday
  • Applicant shall not interfere with the complainant and the other witnesses and shall not tamper with the evidence or attempt to influence or contact the complainant, witnesses or any person concerned with the case;
  • Applicant shall keep the trial Court informed of his current address and mobile contact number and/or change of residence or mobile details, if any, from time to time.
  • Applicants shall co-operate with the conduct of the trial and attend the trial Court on all dates, unless exempted.

In view of the above terms, bail application stands disposed of. [Prem Rajendra Prasad Dubey v. State of Maharashtra, Bail Application No. 3731 of 2021, decided on 5-5-2022]


Advocates before the Court:

Ms. Aneeta Vasani for the Applicant.

Ms. Rutuja Ambekar, APP for the State.

Mr. Praveen Kamble i/b. Mr. Pramod Kumbhar for the intervenor.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and Prithviraj K. Chavan, JJ., while addressing an alleged rape and murder case of two rag pickers, held that,

“…prosecution has utterly failed in connecting the dots and bringing home the guilt of the accused.”

Prosecution Case

The instant case was a sordid story of two poor, helpless and hapless victims who had not only been raped but one of them had been brutally murdered.

Victims were friends and rag pickers which was their only source of livelihood.

It was stated that Survivor-Y did not know the accused previously, however, deceased-X knew accused 1. On the fateful day, survivor-Y and deceased-X were both standing near a garden infront of railway station and at that time both the accused came over and said that they would arrange for some job, both survivor-Y and deceased-X decided to go along with the accused.

Accused offered liquor and took both survivor-Y and deceased-X below the tunnel of a bridge and raped them, on resistance, both the accused assaulted them with hacksaw blade and a knife.

Deceased-X and survivor-Y sustained multiple injuries on the vital parts of their body. However, survivor-Y escaped from the clutches of the accused and ran away from the spot. While running away, she fell down below the bridge and sustained a head injury. She became unconscious, however, deceased-X died on the spot due to the multiple injuries.

On the basis of information given by survivor-Y, an FIR came to be recorded, crime came to be registered under Sections 302, 376(2) read with Section 34 of the Penal Code, 1860.

Reference under Section 366 (1) of the CrPC had already been made by the Additional Sessions Judge for confirmation of the death sentence.

Analysis, Law and Decision

Whether the testimony of survivor-Y who herself is an injured witness can be fully accepted as a truthful version of the entire episode sans corroboration, which is significant in light of the fact that it has been held by catena of decisions that corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law but a guidance of prudence under given circumstances.

High Court stated that normally, evidence of an injured eye witness cannot be discarded in toto, particularly when the evidence is tested in the light of broad probabilities, it can be concluded that he or she was a natural eye witness and had no reason to concoct a case against the accused.

Court added that,

Merely because, she is an injured eye witness, her evidence cannot be mechanically accepted though her testimony holds more credence.

 Bench while elaborating further, stated that,

Looking to the report of the Psychiatrist coupled with the fact that survivor-Y was under the influence of liquor at the time of the incident, it would not be safe to accept her testimony as a truthful version of the incident in respect of the alleged assault by the accused.

 It was expressed that, in a criminal trial, the burden of proving the guilt of the accused beyond all reasonable doubts always rests upon the prosecution and on its failure, it cannot fall back upon the evidence.

Well Settled Principle of Law:

Corroboration is not a sine qua non for a conviction in a rape case.

Refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury.

Additional Sessions Judge appeared to have fallen into grave error in not recording the evidence of prosecution witnesses in Marathi which is the language of the District Courts in the State of Maharashtra.

In Court’s opinion, due to such a lapse on the part of the Additional Sessions Judge, a failure of justice has been occasioned and the proceedings stand vitiated.

High Court while taking into consideration the totality of circumstances in the case at hand as well as failure on the part of the trial Court in not promptly furnishing translated copies of English deposition to juvenile-in-conflict-with-law may vitiate the trial and it cannot be said to be a fair and impartial trial, especially when capital punishment is sought to be inflicted upon the accused.

Merely because the crime is heinous and brutal, it would not be just to get carried away sans any legal proof required to substantiate the charge of murder and rape.

Present matter at the most be a case of strong suspicious and no more.

It was apparent that the murder was neither pre-planned nor premeditated and evidence was neither clear, cogent nor credible.

Hence, there was absolutely no question of awarding death sentence to the accused, rather, it was a case wherein the accused must be given a benefit of doubt, nay, it would be a travesty of justice.

“…trial was conducted in a casual manner without ascertaining whether the legal aid provided to the accused was competent and whether the trial was just and fair in a capital punishment case. The quality and credibility of the evidence adduced is not even upto the mark.”

Since the prosecution miserably failed to bring home the guilt of the accused, there was no question of considering whether the case falls under the rarest of rare category wherein the question of award of capital punishment or otherwise would arise.

High Court opined that the decision of the Additional Sessions Judge was full of surmises and conjectures. The entire approach of the trial Court in dealing with the evidence was patently illegal and the conclusions arrived at by it were wholly untenable.

Therefore, Bench acquitted the accused of the offences punishable under Section 376 (2) (g), 302 and 326 of the Penal Code, 1860 in view of Section 368 (c) of the Criminal Procedure Code. [State of Maharashtra v. Rahimuddin Mohfuz Shaikh, Confirmation Case No. 1 of 2017, decided on 25-11-2021]


Advocates before the Court:

Ms. M.M. Deshmukh A.P.P for Appellant-State.

Ms. Rebecca Gonsalvez i/b Dr. Yug Chaudhry, appointed Advocate for Respondents.

Case BriefsHigh Courts

Bombay High Court: Milind N. Jadhav, J., addressed a matter with regard to the amendment of pleadings.

Petitioners have submitted that they are aggrieved with the Orders passed by Civil Judge, Junior Division on 17-11-2016.

Factual Matrix

Petitioners were the original defendants and respondents the legal heirs of the original plaintiff. Original Plaintiff had filed the Civil Suit against the defendants for permanent injunction in respect of the suit property. Since the original plaintiff expired in 2015, his legal heirs are present respondents.

Petitioners objected to the amendment proposed in regard to the fact that since the original defendant had expired in 2014, hence his legal heirs (present petitioners) were required to be brought on record.

The said amendment was objected to on the ground of maintainability and limitation.

It was added that, if the amendment would be allowed it would change the nature of the suit and a completely different relief would be introduced.

With regard to the limitation, it was stated that the cause of action to see the relief arose in the year 2008 and the application was filed after a period of 8 years.

Analysis, Law and Decision

Bench referred to the provision of Order 6 Rule 17 related to the amendment.

Order VI Rule 17:

“17. Amendment of pleadings. – The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

Court’s Power regarding Amendment of Pleadings

Court noted that though the Courts have very wide discretion in the matter of amendment of pleadings, Court’s power must be exercised judiciously and with great care while deciding the applications for amendment.

What does the Court need to consider while granting amendment?

Principal Condition: It is required to be considered by the Court, whether the grant of the amendment is necessary for the determination of the real controversy in the suit.

The above condition is the basic test to govern the Court’s discretion on granting or refusing amendment.

With respect to refusal or grant, the Supreme Court’s decision in Revajeetu Builders & Developers v. Narayanswamy & Sons (2009) 10 SCC 84, has to be taken into consideration.

Bench in view of the above discussion accepted the petitioner’s submissions.

Barred by Law of Limitation

Amendment has been sought after 8 years from the denial of the title. Under the provisions of Article 58 of the Limitation Act, 1963, the maximum period of limitation allowed is 3 years and thus, the action on the part of the respondents (plaintiffs) was clearly barred by the law of limitation.

Since the original suit was a suit simpliciter seeking an injunction, the amendment sought to seek declaratory relief of title could not have been allowed and granted.

Applying the principles laid down in clause (c) and (d) of the Supreme Court decision in Anathula Sudhakar v. P. Buchy Reddy (dead) by LRs., (2008) 4 SCC 594, it can be summarized that respondents’ (plaintiffs) application filed on 25-10-2016 after a time gap of almost 8 years was far beyond the allowable limitation period and was clearly barred by law of limitation.

Adding to the above, it was stated that relief of seeking declaratory title alters the nature of original suit for injunction. Hence the application being allowed for amendment needs to be set aside.[Eknath Nivrutti Hegadkar v. Aagatrao Dyanu Ghodake, 2021 SCC OnLine Bom 770, decided on 01-6-2021]


Advocates before the Court:

Mr. Surel S. Shah for the Petitioners

Mr. Prasad Kulkarni for the Respondents

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Ravindra V. Ghuge and B.U. Debadwar, JJ., upheld the decision of Additional Sessions Judge wherein a woman committed suicide along with her infant daughter within 7 years of marriage and allegations were placed that she committed suicide on the pretext of cruelty and harassment, but same could not be proved.

Present appeal was filed under Section 378(1) of the Code of Criminal Procedure, 1973 against the Judgment and Order passed by Additional Sessions Judge, whereby the five accused were acquitted for the offences under Sections 498-A, 304-B and 306 read with Section 34 of the Penal Code, 1860.

Factual Matrix

Respondent 2 and 3 are the husband and wife, whereas respondent 1 and 5 are the son and daughter of the said respondents 2 and 3.

Deceased ‘Jyoti’ was the daughter of Haribhau Laxman Karkhile and Shakuntala Haribhau Karkhile.

Further, it was stated that, with the intervention of close relatives of both the families, the marriage of deceased Jyoti with respondent 1 Vijay was settled.

At the time of settlement of marriage, respondents had expressed their desire that marriage should be solemnized in a grand manner. Respondents did not demand any gift or dowry. Haribhau and his family members agreed to the performance of marriage of deceased Jyoti and accused 1 Vijay at Kedgaon in the best of possible manner.

Matrimonial life of deceased Jyoti was normal for about 10 months after marriage. Thereafter, husband and father-in-law started insisting on her for bringing balance dowry amount of Rs 25,000 and subjecting her to cruelty for that, in the form of beating and starving her.

Deceased Jyoti used to disclose about harassment and ill-treatment meted out by husband and in-laws on account of remainder dowry amount of Rs 25,000 to her parents and brothers, whenever she visited her parental house.

In the meanwhile, Jyoti became pregnant and gave birth to a girl child but as afraid to return back to matrimonial house without the remainder of dowry. However, after some time she returned to her matrimonial house and assured her husband/accused that Haribhau would soon arrange the money and requested not to harass her.

Though Haribhau failed to arrange the money and deceased was constantly harassed and the same was disclosed to her parents.

Later, Jyoti and her daughter were both found dead by a fisherman in decomposed condition under the shrubs in the Ghod river.

Haribhau lodged report narrating over all conduct of the accused and the crime was registered for the offences punishable under Section 498-A, 304-B and 306 read with Section 34 IPC.

Additional Sessions Judge on conducting trial found that the prosecution failed to provide demand of dowry and harassment of Jyoti by the accused of non-fulfilment of remainder dowry amount. Being aggrieved of the same, State preferred the present appeal.

Crux of the matter lies in the following issues:

  1. Whether Jyoti committed suicide, along with tender aged daughter Kranti, by drowning into Ghod river;
  2. Whether, soon before the death, Jyoti was subjected to cruelty or harassment by the accused in connection with demand of dowry;

OR

(iii) Whether, by their willful conduct, accused had driven Jyoti to commit suicide along with daughter Kranti.

Bench on taking into consideration the evidence on record, gathered that Jyoti along with Kranti committed suicide by drowning in Ghod river, hence resulting in suicidal death.

Court ruled out the possibility of accused getting annoyed when Jyoti gave birth to a daughter and started harassing Jyoti more, on the contrary, in light of the evidence placed, it was found that they were happy.

PW5 Shakuntala did not tell any relative that accused were ill-treating Jyoti for insisting her to fulfil their demand of remainder dowry amount of Rs 25,000. This conduct of PW5 Shakuntala cannot be lost sight of. In the normal course, every mother shares such aspects with kith and kin or relatives.

Evidence of PW5 Shakuntala was not worthy of credence.

Further, High Court added that when Haribhau, Deepak, Shakuntala and Sudam were well aware about the fact that since more than one year accused were harassing Jyoti, on account of non-payment of remainder dowry of Rs 25,000, in normal course it was expected on their part to disclose the same to police immediately, however, they did not disclose anything about the aforesaid conduct of the accused.

During the course of recording the statement under Section 313 of CrPC, accused 1 not only stated that after birth of daughter Kranti he deposited Rs 50,000 in the Bank of Maharashtra, in the name of Kranti in fixed deposit account, but also produced on record xerox copy of the said fixed deposit receipt. The said conduct of the accused in taking care of future of Kranti, immediately after her birth, by way of depositing substantial amount in her name in bank, creates every doubt about the case set out in the FIR and deposed by PW2 Deepak, PW5 Shakuntala and PW7 Sudam that after the birth of Kranti gravity of harassment of Jyoti by accused increased.

High Court found the allegations of harassment of Jyoti by accused vague and omnibus.

In view of the facts and circumstances of the case, Bench found that Jyoti committed suicide within 7 years of marriage with accused 1 Vijay, accused cannot be held guilty, either for the offence punishable under Sections 498-A, 304-B or 306 read with Section 34 of IPC, as evidence on the aspect of subjecting her to cruelty by accused persons on account of remainder demand of dowry of Rs 25,000/- soon before her death or driving her to commit suicide by their willful conduct, is doubtful for various reasons.

Presumption contemplated in Section 113A or Section 113B of the Evidence Act would not support the prosecution, since Jyoti being subjected to cruelty on account of dowry demand was found to be doubtful.

The reason alone that Jyoti committed suicide, cannot be a ground to hold the accused guilty for offences punishable under Sections 498-A, 304-B or 306 read with Section 34 IPC on suspicion, when the evidence as to the demand of dowry and harassment of Jyoti by accused of the same, adduced by the prosecution was doubtful and not worthy of credence.

On re-appreciating the evidence, High Court did not find the view taken by the Additional Sessions Judge to be incorrect or improbable.

Hence the Bench concurred with the lower court’s view and dismissed the appeal. [State of Maharashtra v. Vijay Dattatraya Kolhe, 2021 SCC OnLine Bom 338, decided on 11-03-2021]


Advocates before the Court:

APP for Appellant – State: Shri R. V. Dasalkar

Advocate for Respondents No. 1, 2, 4 & 5 — Shri Amol Joshi

Case BriefsHigh Courts

Bombay High Court: A Vacation Bench of Ravindra V. Ghuge, J., allowed the petitioner, a transgender person, to contest the panchayat elections from a seat reserved for women candidate.

Backdrop

The petitioner was aggrieved by the rejection of her nomination form by the Returning Officer. She had decided to choose the female gender, and hence had tendered her nomination form for contesting the election from the ward reserved for women-general category. The reason for rejecting the nomination form was that the petitioner is a transgender. It was stated that there is no reservation for the transgender category in the instant village panchayat elections.

Submissions

A.P. Bhandari, Advocate for the petitioner, on instructions, made a categoric statement before the High Court that this was the first occasion wherein the petitioner had opted for a right to a self-perceived gender identity and had selected the female gender for all purposes during her lifetime. He submitted that the petitioner, henceforth, shall not switch over to the male gender under any circumstances anytime in future during her lifetime.

S.B. Pulkundwar, AGP, and A.B. Kadethankar, Advocate for the Election Commission, submitted that they would not argue beyond the provisions of law and would not make submissions contrary to the law laid down by the Supreme Court in National Legal Services Authority v. Union of India, (2014) 5 SCC 438. It was stated that the Returning Officer was likely to be unaware of the law and must have been in a dilemma while deciding the issue of acceptance of the nomination form of the petitioner.

Analysis & Decision

The High Court relied heavily on and followed the law laid down in the “NALSA case” [National Legal Services Authority v. Union of India, (2014) 5 SCC 438] wherein the Supreme Court has comprehensively dealt with the issue of the rights of transgender people. The Court noted that the Government of India has introduced the Transgender Persons (Protection of Rights) Act, 2019 and has permitted a transgender person to have a right to be recognised and such transgender is permitted to have a right to self-perceived gender identity.

In the present case, the petitioner had opted for the female gender as her self-perceived gender identity and made a solemn statement, which was recorded as the statement made to the Court, that henceforth in her lifetime she would not switch over to the male gender driven by opportunism and would continue to opt for the female gender, in future, save and except if there is a reservation provided for transgender in public life.

It was observed by the Court:

“It is quite apparent that the Returning Officer was handicapped insofar as the knowledge of law was concerned while deciding the fate of the nomination form of the petitioner. No other contesting candidate has taken any objection against the petitioner. It is the Returning Officer, who was circumspect about the nomination form of the petitioner and hence, opted to reject the form believing that the petitioner can neither be a male nor a female and the ward has been reserved for women general category. There is no ward reserved for the transgender.”

In view of the above, this writ petition filed by the petitioner was allowed. The impugned order passed by the Returning Officer was quashed and set aside. Since the nomination form of the petitioner was otherwise complete in all respects, the same stood accepted and she was permitted to contest the election from the ward and category which she had opted for in her nomination form. [Anjali Guru Sanjana Jaan v. State of Maharashtra, 2021 SCC OnLine Bom 11, decided on 2-1-2021]

Case BriefsHigh Courts

Bombay High Court: C.V. Bhadang, J., addressed whether the Family Court can application for reliefs under Section 18 to 22 of the Protection of Women from Domestic Violence Act, 2005.

The instant application was filed in regard to the transfer of Criminal Miscellaneous Application pending before the Judicial Magistrate for dissolution of marriage on the ground of cruelty.

Bench noted that the applicant was seeking reliefs against the respondent with regard to the dissolution of marriage and permanent custody of the children.

Respondent had filed Criminal Miscellaneous Application under Sections 12, 17, 18, 19, 20, 22 and 23(2) of the D.V. Act, seeking a residence order a protection order and monetary reliefs.

Principle Issue 

Whether the Family Court can entertain the application, as framed and filed by the respondent before the Magistrate?

Court referred to the three decisions of Single Judges of this Court which have already covered the above issue:

  • Minoti Subhash Anand v. Subhash Manoharlal Anand (R.D. Dhanuka, J.),2015 SCC OnLine Bom 6113
  • Sandip Mrinmoy Chakraborty v. Reshita Sandip Chakraboarty ( Bharati H. Dangre, J.), 2018 SCC Online Bom 2709
  • Santosh Machindra Mulik v. Mohini Mithu Choudhari (S.C. Gupte, J.), Misc. C.A. No. 64 of 2019 decided on 15-11-2019

This Court has consistently held that in view of Section 7(2)(b) of the Family Courts Act, read with Section 26 of the Protection of Women from Domestic Violence Act, 2005, Family Court would get jurisdiction to entertain the application for reliefs under Section 18 to 22 of the D.V. Act.

“…if the Family Court can entertain an application under Sections 18 to 22, if filed under Section 26 merely because the application is styled as one under Section 12, would hardly make any difference.”

Hence, the present application was allowed and the Criminal Miscellaneous Application was transferred to the Family Court.[Hitesh Prakashmalji Mehta v. Aashika Hitesh Mehta, 2020 SCC OnLine Bom 983, decided on 28-09-2020]


Advocates who appeared before the Court:

Abhijit D. Sarwate for the Applicant.

Arvind Chavan for the Respondent.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of A.S. Chandurkar and N.B. Suryawanshi, JJ., determined the factors in regard to grant of custody of a minor child.

The instant appeal arose out of the Judgment of Family Court in proceedings filed under Sections 7, 12 and 25 of the Guardians and Wards Act, 1890 for the custody of minor daughter by the respondent (father).

The impugned judgment had allowed the application filed by the father for custody and respondent Sashanka (mother) was directed to handover the custody.

It was noted that Sameera was aged 10 years and in order to ascertain her wishes, Bench interacted with her in the Chambers. She stated that she was comfortable at her father’s place but her attachment with the mother was also explicit and hence she did show a willingness to meet her mother.

Analysis and Decision

The material point for determination:

  • Whether Family Court was legally justified in granting custody of Sameera to Prakash?

Evidence placed by Prakash revealed that Sashanka was addicted to smoking and used to drink liquor daily. She also never contributed to any household work. Even after the birth of Sameera, she never took care of the child.

Infact Prakash was the only who took care of Sameera.

One day when Prakash, Sashanka and Sameera all went together with their friends to witness a show of singer Papon, over there Sashanka got heavily intoxicated as she had consumed cocktail and she started yelling.

It was also stated that she was beyond control. After reaching home, Sashanka called her father who demanded her daughter be sent back. Though Prakash refused for the same, later Siva, Sashanka’s brother came over and Sashanka along with her daughter went to her father’s place in Rajahmundry.

Further, it was stated that Sashanka failed to take care of her daughter due to which she developed a deficiency of Vitamin-D and suffered from genu valgum/knock knee disease. In spite of this, Sashanka did not take proper care of Ku. Sameera or took her to an expert Doctor for proper treatment.

Adding to the above, it was stated that the atmosphere at the maternal home of Sashanka was not good for the upbringing of Sameera.

Sashanka further stated that Geeta wife of her brother Siva has initiated proceedings under Section 498-A IPC against Siva, her parents and herself. She further accepted that her brother Siva is charge-sheeted under Sections 420, 467, 468, 471 of IPC in the matter of huge property scam, which is sub-judice.

Trial Court, taking into consideration the fact that Sameera needed proper medical treatment for knock knee and genu valgum under the continuous supervision of Paediatrics, Paediatrics Ortho and Physiotherapist, came to the conclusion that in the interest of the welfare of Sameera, her custody was to be given to Prakash, her father.

Decision

Bench stated that it is not basing its’ conclusion only by taking into consideration the better off financial position of father Prakash but is one of the factors amongst others.

Further the Supreme Court’s decision in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, was also relied on wherein the principles in relation to the custody of minor were set out.

In Court’s opinion, Prakash and his parents seemed to be well educated who could give a better upbringing to Sameera.

Hence, Bench stated that the health and comforts of Sameera could be better looked after by father Prakash and his parents. On the comparative assessment of the rival claims for custody of Sameera invariably points out that welfare of Sameera would be better sub-served by father Prakash.

Therefore, the family court rightly and properly appreciated the evidence and granted the custody of the minor to father keeping in mind the welfare of the child.

Additional visiting rights were granted to the mother in view of Sameera’s inclination to meet her mother frequently, for which father would bear the travel and stay expenses.[Sashanka v. Prakash, 2020 SCC OnLine Bom 3497, decided on 27-11-2020]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and N.J. Jamadar, JJ., pens down the decision in the instant matter with the thought that “protector turns predator”.

The order of the Special Judge, Greater Bombay has been challenged, hereunder the appellant has been convicted for the offences punishable under Sections 6 and 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). Further, in view of Section 42 of the POCSO Act, no separate sentence was imposed upon the appellant for the offence punishable under Section 376 of Penal Code, 1860 despite being found guilty.

The victim was 11 years old at the time of the alleged occurrence. Victim had come to reside with the brother of the accused whose wife was a distant relative of the victim.

Victim apprised the Court about the circumstances in which she came to reside in the house of the brother of the accused and found herself with the accused since 23-10-2014. Victim further informed that during those 4 days, while the victim and the accused were at home, the accused undressed and asked her to undress as well.

Victim was exploited on 3-4 occasions and stated the details of the same. Further, she was also threatened that in case she discloses the said incidents, then the accused will bring 3-4 more people to exploit her and thereafter kill her.

A victim stands on higher pedestal than an injured witness.

Bench stated that it is well settled that the victim of a sexual assault is not an accomplice. Nor is it an immutable rule of law that the testimony of a survivor cannot be acted without corroboration in material particulars.

Reference to the Supreme Court decision in Mohd. Imran Khan v. State Government (NCT of Delhi), (2011) 10 SCC 192, wherein it was observed that:

“It is trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury.”

“…If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.”

Further, the Court recorded that indeed there were no signs suggestive of the use of force and vaginal/anal intercourse, nor any external injuries were noticed on the person of the victim.

In view of the above background, Special Judge was persuaded to hold that there was no material to show that the victim was subjected to penovaginal intercourse by the accused. However, there was evidence to indicate that the accused committed penetrative sexual assault by way of digital penetration and sexual assault by touching and pressing breasts of the victim.

In the High Court’s opinion, the Special Judge’s approach was justifiable.

The evidence can not be appreciated bereft of the circumstances and context.

The hapless and unsuspecting victim found herself at the mercy of the accused, with nobody else in the house. Hence the victim’s claim that the accused threatened her with dire consequences and subjected her to sexual exploitation cannot be discarded.

Further adding to the observations, Bench stated that there was no material to indicate, nor an endevour was made to elicit in the cross-examination of the victim ‘M’, that the latter offered resistance. In the absence of forcible resistance, the absence of injury on the person of the victim is not sufficient to discredit the victim’s evidence.

Therefore Court found no infirmity in the impugned judgment and order of conviction for the offences punishable under Sections 6 and 10 of the POCSO Act and Section 376 of IPC.

A.P.P., P.P. Shinde submitted that no leniency should be given to the accused as he preyed a child of 11 years and left a permanent scar on the mind of the victim.

There can be no duality of opinion that the sexual assault cases are required to be dealt with sternly and the offenders deserve no leniency.

The evidence laid in the instant case undoubtedly justifies the finding of penetrative sexual assault within the meaning of clause (b) of Section 3 of the Pocso Act, 2012. The act also falls within the dragnet of clause (b) of Section 375 of the Penal Code which defines the offence of rape, as substituted by the Criminal Law (Amendment) Act, 2013.

Therefore, a sentence of rigorous imprisonment of 10 years, which is the minimum prescribed by Section 6 of the POCSO Act, would meet the ends of justice.

Impugned Judgment of Conviction for the offences punishable under Sections 6 and 10 of POCSO Act, 2012 and Section 376 (2) of IPC stands confirmed.[Fazal Mehmud Jilani Dafedar v. State of Maharashtra, 2020 SCC OnLine Bom 3380, decided on 26-11-2020]


Advocates who appeared in the instant matter:

For Appellant: Sayed Shabana M. Ali

A.P.P. for the State: P.P. Shinde

Case BriefsHigh Courts

Bombay High Court at Goa: While dismissing a writ petition under Article 227 in a dispute caused by “troubling trees”, Dama Seshadri Naidu, J., found himself bound by law that wants the spreading tree to move away from the man.

The petition arose out of a dispute between neighbours caused by the leaning of growing trees from the petitioner’s house to his neighbour’s compound. Justice Naidu noted the dispute in the following words:

Here, a couple of trees have asserted themselves and grown, as they should have, freely in the direction they liked. They have leaned, too, on to the neighbour’s compound. That has spelled trouble for them and litigation for their owners. For they faced axe, and their owner court proceedings.

The neighbour approached the statutory authorities complaining of the “trouble” caused by the trees.

Here, Justice Naidu observed that the causes people, at times, espouse in the name of constitutional remedies reveals the depths the adjudication has descended to. “In the name of a right to remedy, sometimes we trivialise”, he added. He then made a reference to an interview of Justice M.N. Venkatachaliah, former Chief Justice of India, given to “Outlook” (6-7-2015) and noted:

Not long ago did Shri Justice M.N. Venkatachaliah, the former Chief Justice of India, lamented about what we are doing in the name of constitutional adjudication: erecting our egos and prejudices into principles. …

The dispute between the petitioner and his neighbour reached the Conservator of Forests, an appellate authority under the Preservation of Trees Act, 1984. By the order of Conservator of Forests, both the parties agreed to share the cost of cutting the mango tree, and as regards the other coconut tree, the parties agreed to implement the directions of the Deputy Collector concerned. Now, aggrieved, the petitioner − owner of the trees − petitioned the High Court.

The dilemma of a Judge while deciding a cause on misplaced priorities of man can be best put in the words of Justice Naidu as he expressed while delivering the oral order: (*liberty to weave a verse out of Judge’s expression is taken)

A seed or a sapling believes it owns the earth, so it anchors itself with its roots deep into the ground.

It feels it owns the sky, so it tries to grow higher and higher, as if to touch the sky.

It also feels even the space between these two belongs to it. So it spreads, sways, and hangs from above, as it grows.

But it does not know man—almost an alien to planet earth—has invaded it, colonised it. As every coloniser does, he pounds, plunders and pillages it.

So man makes laws and the laws are human-centric. He commands the aborigines, the trees, to behave themselves. Poor trees, they do not know how?

So the axe falls, for the law is amoral—almost; for the law brooks no disobedience—always.

 Nature expects the man to move away from a spreading tree, but the law wants the tree to move away from the man.

And I am bound by law; though not a tree, I am not free. Therefore, I decide this case, decide it in the man’s favour, and against the tree.

So it is the requiem for a falling tree and a failing human.

In the ultimate analysis, Justice Naidu noted that impugned order passed by the Conservator of Forest was seemingly a consensual one, reflecting the will of the parties rather than the power of the court or authority. Besides, there was no reason to exercise the supervisory jurisdiction against an order passed by supposedly an expert in the field. Failing to spot perversity in the order impugned, the Court dismissed the writ petition. [Vithal Kamat Sambari v. State of Goa, 2019 SCC OnLine Bom 12709]

Case BriefsHigh Courts

Bombay High Court: Manish Pitale, J., referred questions of seminal importance for consideration of a larger bench.

One significant question in the present petition is as follows:

Question pertains to Section 5 (3) of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977 [MEPS Act] and Rule 15 of the Maharashtra Employees of Private School (Conditions of Service) Regulation Rules, 1981 [MEPS Rules].

Controversy

Whether entire sub-rules (1) to (6) of Rule 15 of the MEPS Rules apply to an employee appointed on probation or only sub-rule (6) of Rule 15 of MEPS Rules applies to such an employee appointed on probation, when read with Section 5(3) of the MEPS Act.

M.M. Agnihotri, Petitioners Counsel submitted that only sub-rule (6) of Rule 15 of the MEPS Rules read with Section 5(3) of the MEPS Act would apply to an employee appointed on probation.

Termination of Service

In the present case, the service of respondent 1 was terminated during the period of probation by stating that his service was found to be unsatisfactory during such a period.

Supreme Court in Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36, held that where a person was appointed on probation, the termination of his service during or at the end of the period of probation will not ordinarily and by itself be a punishment and a person so appointed had no right to continue to hold such post.

Supreme Court in High Court of Judicature, Patna v. Pandey Madan Mohan Prasad, (1997) 10 SCC 409, considered the validity of the termination of service of a Munsif appointed on probation in the context of non- communication of adverse remarks in confidential reports to the employee.

In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta, (1999) 3 SCC 60, in the context of when an order of termination of service of an employee appointed on probation could be said to be stigmatic, the Supreme Court specifically held that use of words ‘unsatisfactory work and conduct’ in the termination order will not amount to a stigma.

The above-mentioned decisions clearly distinguish the rights that an employee appointed on probation can claim, as compared to a confirmed employee. This is particularly so when the order of termination of service cannot be said to be stigmatic in nature.

Crux of the controversy

While taking action of termination of service under Section 5(3) of the MEPS Act for unsatisfactory work or behaviour of an employee appointed on probation, only sub-rule (6) of Rule 15 of the MEPS Rules applies or all the sub-rules i.e. sub-rules (1) to (6) of Rule 15 of the MEPS Rules apply to such an employee?

In the Supreme Court’s decision in Progressive Education Society v. Rajendra, (2008) 3 SCC 310 Court had an occasion to refer to Section 5(3) of the MEPS Act and Rules 14 and 15 of the MEPS Rules.

In the above-stated decision, the Supreme Court specifically found that the documents upon which the Management was placing reliance were not above suspicion and that the requirement of Rule 15(6) and 14 of the MEPS Rules had not been complied with prior to the invocation of powers under Section 5(3) of the MEPS Act.

In the said case, it has been interpreted that failure to communicate adverse remarks would mean that the work of the probationer was satisfactory.

Analysis

A perusal of the various judgments clearly shows that there are two sets of views on the same material.

There cannot be any doubt about the fact that only sub-rule (6) of Rule 15 of the MEPS Rules refers to “an employee appointed on probation”. This has some significance.

Whether, the position of law laid down by the Supreme Court and this Court in series of judgments as regards the rights of an employee appointed on probation, while challenging a non-stigmatic order of termination of service issued during or on completion of probation, enjoins that only sub-rule (6) of Rule 15 of the MEPS Rules read with Section 5(3) of the MEPS Act would apply to the case of an employee governed by the said Act and Rules, or that entire Rule 15 of the MEPS Rules read with Section 5(3) of the MEPS Act would apply?

Supreme Court has specifically observed that the rights of an employee appointed on probation under the said Act and Rules create a different situation.

In the decision of Progressive Education Society v. Rajendra, (2008) 3 SCC 310, it was stated that although Rules 14 and 15 of the MEPS Rules have been specifically referred to, particular emphasis has been placed by the Supreme Court only on sub-rule (6) of Rule 15 of the MEPS Rules.

While Rules 14 and 15 of the MEPS Rules cannot override Section 5(3) of the MEPS Act, the requirements of sub-rule (6) of Rule 15 of the MEPS Rules would be a factor which the School Management has to take into consideration while exercising power, which it undoubtedly has and is recognized under Section 5(3) of the MEPS Act.

In the case of High Court of Judicature at Patna v. Pandey Madan Mohan Prasad Sinha, (1997) 10 SCC 409 Supreme Court specifically held that non-communication of adverse remarks cannot be a ground to hold that an order simplicitor terminating the service of a probationer stands vitiated.

Bench in view of the above decisions found substance in the contention raised on behalf of the petitioners that only sub-rule(6) of Rule 15 of the MEPS Rule would apply to an employee appointed on probation under the aforesaid Act and Rules and it is the requirement of only the said sub-rule that needs to be satisfied in the context of the action that the Management can take under Section 5(3) of the MEPS Act.

Section 5(3) of the MEPS Act, the Management can terminate the service of an employee appointed on probation not only for unsatisfactory work, but also for unsatisfactory behaviour.

Rule 15 (6) of the MEPS Rules, refers to an employee appointed on probation and it requires the Head only to objectively assess an employee appointed on probation and to maintain a record of such assessment.

This, coupled with the decisions of the Division Bench of this Court and followed by Single Judges of this Court held that only Rule 15 (6) of the MEPS Rules applies to an employee appointed on probation, shows that there is a clear conflict of opinions in this matter.

Hence, the bench held that the above-stated controversy needs to be put to rest by an authoritative pronouncement of a larger bench of this Court.

Court stated that papers be placed before the Chief Justice to consider whether the present writ petition can be more advantageously heard by a Larger Bench of this Court on the following questions:

(i)  Whether only sub-rule (6) of Rule 15 of the MEPS Rules applies to an employee appointed on probation when the Management seeks to take action under Section 5(3) of the MEPS Act or entire Rule 15 from sub-rules (1) to (6) of the MEPS Rules apply to such an employee appointed on probation?

(ii)  Whether the judgment of the Hon’ble Supreme Court in the case of Progressive Education Society and another v. Rajendra and another (supra) lays down that entire Rule 15 of the MEPS Rules applies to an employee appointed on probation, particularly in the context of power available to the Management under Section 5(3) of the MEPS Act?

(iii)  Whether failure to adhere to requirements of sub-rules (3) and (5) of Rule 15 of the MEPS Rules would ipso facto vitiate an action taken by the Management under Section 5(3) of the MEPS Act, despite the fact that the Management satisfies the requirement of sub-rule (6) of Rule 15 of the MEPS Rules by ensuring that performance of an employee appointed on probation has been objectively assessed by the Head and record of such an assessment has been maintained?

(iv) Whether non-compliance of sub-rule (5) of Rule 15 of the MEPS Rules would vitiate an order of termination of service simplicitor issued by the Management under Section 5(3) of the MEPS Act when the said sub-rule deems that “work of an employee is satisfactory”, while Section 5(3) of the MEPS Act gives power to the Management to terminate the service of an employee appointed on probation not only for “unsatisfactory work”, but also for “unsatisfactory behaviour”?

(v) Whether it would be sufficient compliance on the part of the Management while acting under Section 5(3) of the MEPS Act, if it complies with only sub-rule (6) of Rule 15 of the MEPS Rules by ensuring that the performance of an employee appointed on probation is objectively assessed and the Head maintains a record of such assessment, and principles of natural justice stand satisfied by issuing notices/warnings for unsatisfactory work to such an employee appointed on probation, considering the limited rights available to such an employee as per the law laid down from the case of Parshotam Lal Dhingra v. Union of India (supra) in the year 1958 and onwards? [Gramin Yuvak Vikas Shikshan Mandal, Kinhi Naik v. Shivnarayan Datta Raut, 2020 SCC OnLine Bom 966, decided on 22-09-2020]