Case BriefsSupreme Court

Supreme Court: In a case where a death row convict subjected a 5-year-old girl to rape, killed her by strangulation, and then disposed of her body, tied in a gunny bag, into a stream, the 3-judge bench of L. Nageswara Rao, Sanjiv Khanna* and BR Gavai, JJ has, finding hope for reformation and rehabilitation of the appellant, commuted his death sentence to that of life imprisonment.

The Court, however, stipulated that the appellant shall not be entitled to premature release/remission before undergoing actual imprisonment of 30 years for the offence under Section 302 of the Code and further the sentences awarded shall run concurrently and not consecutively.

The trial court had recorded that the death sentence was awarded on the ground that “the crime was committed in an extremely diabolical manner and that it was cruel, barbaric and revolting.” The High Court has noted that there are no mitigating circumstances at all.

Appellant’s counsel argued that the trial court merely noticed that the appellant was of young age (23 / 25 years) belonging to a very poor family, but has not considered these as mitigating factors. The High Court has noted that there are no mitigating circumstances at all.

The State, on the other hand, brought to the Court’s notice that the data compiled by the National Crime Records Bureau shows that an average of 77 acts of rape were committed daily in India in the year 2020.  The State, hence, defended the death sentence on the grounds that the actions of the appellant constitute a grave and uncommon crime endangering the moral fabric of the society. It was argued that the matter falls in the category of ‘rarest of the rare’ cases as the appellant, under the pretext of giving biscuits, committed rape and murder of a five-year old girl, and threw her dead body into the stream. The deceased could not have provided resistance, much less provocation for the crime.

The Supreme Court, disagreeing with the observations of the Trial Court and the High Court, noted down the following mitigating factors that weighed with against imposition of death penalty which is to be inflicted only in rarest of the rare cases:

  • there is no material shown by the State to indicate that the appellant cannot be reformed and is a continuing threat to the society. On the contrary, it can be seen from the Death Sentence Prisoner Nominal Roll dated 17th July 2017 issued by the Chief Superintendent, Central Prison, Belgaum, that the conduct of the appellant in jail has been ‘satisfactory’ which reflects his desire to reform and take a humane turn.
  • the young age of the appellant at the time of commission of the offence (23 / 25 years),
  • his weak socioeconomic background,
  • absence of any criminal antecedents,
  • non pre-meditated nature of the crime,
  • the appellant has spent nearly 10 years 10 months in prison
  • the State has not shown anything to prove the likelihood that the appellant would commit acts of violence as a continuing threat to society.

The Court, hence, noticed that,

“There is no doubt that the appellant has committed an abhorrent crime, and for this we believe that incarceration for life will serve as sufficient punishment and penitence for his actions, in the absence of any material to believe that if allowed to live he poses a grave and serious threat to the society, and the imprisonment for life in our opinion would also ward off any such threat. We believe that there is hope for reformation, rehabilitation, and thus the option of imprisonment for life is certainly not foreclosed and therefore acceptable.”

[Irappa Siddappa Murgannavar v. State of Karnataka, 2021 SCC OnLine SC 1029, decided on 08.11.2021]

*Judgment by: Justice Sanjiv Khanna

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Indu Malhotra and Ajay Rastogi*, JJ., dismissed the instant appeal filed against the order of High Court, whereby the  appellant had been sentenced with imprisonment for life for killing two minor children. The Bench, while observing motive of the crime stated,

“He was living in a relationship with the complainant Anju who had two children from the previous marriage, and had taken away the life of two minor innocent children at the very threshold of their life and murdered in a brutal manner by administering celphos to them has been established.”

On the fateful day of 18-03-2013, at about 7.30 a.m., Anju (mother of the children) went to the temple or prayers. On her return, she saw both her children lying on the cot struggling for life and the appellant went away telling her that he had given poison to both the children.

The Trial Judge held the appellant guilty of an offence under S. 302 of IPC and punished him with imprisonment for life which would mean remainder of natural life and fine of Rs.5000. On an appeal preferred by the appellant the High Court revisited the record in totality and upheld the sentence imposed by the Trial Court.

The grievance of the appellant was that the statement of material prosecution witnesses PW1 and PW2 had been recorded without affording reasonable opportunity to the appellant to cross-examine the prosecution witnesses as mandated under S. 230 of CrPC, 1973.

Noticing that after framing of charges, the appellant pleaded guilty, however following the rule of prudence, the Trial Court decided to examine four witnesses before recording the conviction the Bench rejected the contention of the appellant. Since, after cross examination of these two witnesses, the appellant pleaded to claim trial on and thereafter the evidence of other prosecution witnesses was recorded yet at no stage, the appellant moved any application for recalling the witnesses and this contention had been raised for the first time during second appeal.

Whether the Trial Court went ultra-vires while imposing imprisonment for remainder of natural life?

The appellant had contended that he had been sentenced with imprisonment for life which would mean a remainder of natural life which was not in the domain of the trial Court, and this could had been exercised only by the High Court or by this Court . to substantiate his claim, the appellant relied on Union of India v. V. Sriharan, 2016 (7) SCC 1, wherein it had been established that,

“The power to impose a modified punishment providing for any specific term of incarceration or till the end of the convict’s life as an alternate to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior court.”

The Bench, though, opined that it was true that the punishment of remainder of natural life could not had been imposed by the Trial Judge, but after looking into the entire case, it was held to be appropriate to confirm the sentence of imprisonment for life to mean the remainder of natural life while upholding the conviction under Section 302 IPC.

Hence, regardless of the irregularities of sentence as pointed out by the appellant, the Supreme Court agreed to exercise its jurisdiction and approve the sentence imposed by the Trial Court and dismissed the appeal.

[Gauri Shankar v. State of Punjab, 2021 SCC OnLine SC 96, decided on 16-02-2021]

Kamini Sharma has put this report together 

*Judgment by: Justice Ajay Rastogi

Case BriefsSupreme Court

Supreme Court: In a chilling case where a 21-year-old man was sentenced to death under Sections 302 and to life imprisonment under 376A of IPC for raping and killing his 2.5 years-old niece, the 3-judge bench of Justice UU Lalit*, Indu Malhotra and Krishna Murari, JJ has commuted the punishment to life imprisonment for the offence punishable under Section 302 IPC and to that of rigorous imprisonment for 25 years for the offence punishable under Section 376A IPC. The Court also affirmed the conviction and sentence recorded by the Courts below for the offences punishable under Section 376(1), (2)(f), (i) and (m) of IPC, and under Section 6 of the POCSO Act.

Sentencing under Section 302 IPC

The Court found the Appellant guilty of having committed the offence of culpable homicide amounting to murder under Section 300 IPC Fourthly. In such cases, according to the Court, it is very rare that the death sentence is awarded.

Considering the age of the victim i.e 2.5 years, the Court said that the accused must have known the consequence that his sexual assault on the child would cause death or such bodily injury as was likely to cause her death.

“The evidence on record also depicts an exceptional case where two and half years old girl was subjected to sexual assault. The assault was accompanied by bites on the body of the victim. The rape was of such intensity that there was merging of vaginal and anal orifices of the victim. The age of the victim, the fact that the Appellant was a maternal uncle of the victim and the intensity of the assault make the present case an exceptional one.”

However, it could not be held that the appellant consciously caused any injury with the intent to extinguish the life of the victim. Though all the injuries are attributable to him, his conviction under Section 302 IPC is not under any of the first three clauses of Section 300 IPC.

Sentencing under Section 376A IPC

The case at hand was a peculiar one as the offence was committed just a week after the amended Section 376A was brought into force in the year 2013. Hence, the question before the Court was whether awarding life imprisonment in the present case would mean “the remainder of that person’s natural life or with death” or not.

Two important conclusions were made by the Court:

  • The ex-post facto effect given to Section 376A inserted by the Amendment Act would not in any way be inconsistent with sub-Article (1) of Article 20 of the Constitution.
  • In view of the fact that Section 376A IPC was brought on the statute book just few days before the commission of the offence, the Appellant does not deserve death penalty or life imprisonment for the remainder of his life for said offence, however, considering the nature and enormity of the offence, the appropriate punishment for the offence under Section 376A IPC must be rigorous imprisonment for a term of 25 years.

To understand what led to this conclusion, let’s first take a look at the legislative developments that took place around the time when the crime was committed:

  • On 03.02.2013, the Criminal Law (Amendment) Ordinance, 2013 was promulgated by the President of India which substituted Sections 375, 376 and 376A of IPC;
  • The Criminal Law (Amendment) Act, 2013 received the assent of the President and was published on 02.04.2013 but was given retrospective effect from 03.02.2013.
  • The offence was committed on 11.02.2013 when the provisions of the Ordinance were in force

Here’s what the coming into force of the Ordinance and subsequently the Amendment Act meant:

  • Before 03.02.2013, the offence under Section 375 could be committed against a woman. The Ordinance sought to make the provision gender neutral and this gender-neutral provision remained in force from 03.02.2013 till 02.04.2020. However, the earlier position was restored through the Amendment Act.
  • Before 03.02.2013, the sentence for an offence under Section 376(1) could not be less than seven years but the maximum sentence could be life imprisonment; and for an offence under Section 376(2) the minimum sentence could not be less than ten years while the maximum sentence could be imprisonment for life. Section 376A dealt with cases where a man committed non-consensual sexual intercourse with his wife in certain situations.
  • As a result of the Ordinance, the sentences for offences under Sections 376(1) and (2) were retained in the same fashion. However, a new provision in the form of Section 376A was incorporated under which, if while committing an offence punishable under sub- section (1) or sub-section (2) of Section 376, a person “inflicts an injury which causes the death” of the victim, the accused could be punished with rigorous imprisonment for a term “which shall not be less than 20 years but which may extend to imprisonment for life, which shall mean the remainder of that person’s natural life or with death”. Thus, for the first time, Death Sentence could be imposed if a fatal injury was caused during the commission of offence under subsection (1) or (2) of Section 376.
  • Though the provisions of the Amendment Act restored the original non gender-neutral position vis-à-vis the victim, it made certain changes in sub-section (2) of Section 376. Now, the punishment for the offence could be rigorous imprisonment for not less than ten years which could extend to imprisonment for life, “which shall mean imprisonment for the remainder of that person’s natural life”. It was, thus, statutorily made clear that the imprisonment for life would mean till the last breath of that person’s natural life.
  • Similarly, by virtue of the Amendment Act, for the offence under Section 376A, the punishment could not be less than 20 years which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.

In the present case, when the crime was committed, the victim was about two and half years of age and the Ordinance which was holding the field. However, the sentence prescribed by Section 376(2) as amended by the Amendment Act, provided that the imprisonment for life “shall mean imprisonment for the remainder of that person’s natural life”. In such a case, the Court was posed with the question that whether such ex-post facto prescription would be consistent with the provisions of sub-Article (1) of Article 20 of the Constitution.”

The Court explained,

“An imposition of life sentence simpliciter does not put any restraints on the power of the executive to grant remission and commutation in exercise of its statutory power, subject of course to Section 433A of the Code. But, a statutory prescription that it “shall mean the remainder of that person’s life” will certainly restrain the executive from exercising any such statutory power and to that extent the concerned provision definitely prescribes a higher punishment ex-post facto. In the process, the protection afforded by Article 20(1) of the Constitution would stand negated.”

It was further held that since Section 376A as amended by the Ordinance being gender neutral so far as victim was concerned, naturally covered cases where a victim was a woman, hence, the ex-post facto effect given to Section 376A by the Amendment Act from the day the Ordinance was promulgated, would not in way be inconsistent with the provisions of sub-Article (1) of Article 20 of the Constitution.

It was, hence, declared that the punishment under Section 376(2) of the IPC in the present case cannot come with stipulation that the life imprisonment “shall mean the remainder of that person’s life”.

[Shatrughna Baban Meshram v. State of Maharashtra, 2020 SCC OnLine SC 901, decided on 02.11.2020]

*Justice UU Lalit has penned this judgment

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has issued notice in a PIL filed seeking directions for formulation of laws to control the circulation of illicit content including sale of obscene and pornographic material inclusive of Child Sexual Abuse Material (CSAM), rape videos and revenge porn on social media platforms.

The plea filed by two law students from Bharati Vidyapeeth (Deemed to be University)’s New Law College, Pune, Abhyudaya Mishra and Skand Bajpai, also seeks formulation of laws to regulate social media access of minors and setting up of an efficient profile verification mechanism.

The petition states that there has been a market established wherein people are involved in the purchase, sale and transmission of obscene material and many such accounts are public accounts which defeats the purpose of “Age Appropriate Content Policy” of the intermediaries.

“When one gets reported or blocked a new one is created mentioning “Old account blocked, hence new one”. This shows scarce regard to law.”

The plea also refers to a report filed by an NGO named India Child Protection Fund in April, 2020, which stated that there has been a surge in the search for keywords like ‘Child porn’ on the internet.

“… 18% individuals exhibited explicit intent for videos where children were choking, bleeding, tortured, in pain or screaming. The demand for this kind of content grew as much as 200% during the project duration. The report also claims that a large number of individuals were found to be concealing their location and criminal activity by using virtual private networks (VPNs) to circumvent government regulation and platform security.”

Highlighting the issue of ‘revenge porn’, the petitioners state that the concept has been prevailing since 2010 and though several Nation States have expressly criminalised revenge porn in their territories, however in India there exists no such legislation.

“The evil of revenge porn and the trade relating to the private graphic information of individuals on social media violates the right to privacy of those affected.”

The petition further states that no minimum prescribed age or any other provision regarding minors’ access to social media has created a situation wherein any material is available for access to any age group, and given the subject matter of this petition, it portrays a disturbing side of these platforms. These minor children fall an easy prey and are often manipulated and exploited by the predators on these social media platforms.

“As per the terms and conditions of Facebook, an individual aged not less than 13 years or any other lawful age as per law applicable can hold an account on their platforms. Individuals agree and provide consent for several conducts on such platforms, however in India any person below the age of majority cannot give a valid consent, there is no law governing age eligibility for using social media in India.”

It is further stated that under Rule 5 of the Information Technology (Intermediaries Guidelines) Rules, 2011, the intermediary has the right to immediately terminate the access or usage rights of the users to the computer resource and also remove non-compliant information in case of non-compliance of Rule 3 that creates several obligations on the intermediaries. However,

“Even though this mechanism is in place, it has had no or very little impact on the transmission and access to the non-compliant information, barring of account under Rule 5 has no impact on the physical or human user of the account and they often create another account as mentioned in paragraph 3 herein, this may create an endless vicious cycle. This suggests the outburst of unverified and fake media profiles along with a number of catfish accounts already prevailing for ulterior motives on social media.”

The petition also seeks a direction to the Government to notify and enforce the Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 and also to include sex education in school curriculum in order to spread awareness regarding the issue. It states,

“Lack of knowledge amongst individuals regarding the functioning of these platforms, associated risks and the security features has made these platforms felicitating exploitation of many, dedicated efforts are required to spread awareness on this subject.”

[Skand Bajpai v. Union of India, Writ Petition(s)(Civil) No(s). 799/2020, order dated 13.10.2020]

Case BriefsSupreme Court

Supreme Court:

“The heinous crime committed should not be led into prosecuting a person only because he was part of the Management of the School.”

The bench of L Nageswara Rao and Hemant Gupta, JJ said while quashing the trial against a member of the School management in a case relating to sexual assault of a 6-year-old girl in her school in Haldwani.

The FIR filed by the father of the prosecuterix mentioned that a teacher had sexually assaulted his daughter. In the first statement recorded, the prosecuterix mentioned that the teacher had deliberately and repeatedly assaulted her. However, in another statement, she stated that after she returned from washroom, two Uncles came and picked her away. She also mentioned that these two persons work outside school. She said that one of them wore spectacles. The father of the prosecutrix filed an application to summon the person who wears spectacles, as identified by the victim. She then identified the appellant as the bespectacled person. The principal of the School, however, in a statement issued by her, said that the anger was directed against the Management of the School of which the appellant is a part and hence, his name was dragged in a offence he never committed.

Considering the facts and circumstances of the case, the Court noticed that the prosecutrix is a small child. It is parents of the child who have taken the photographs either from the website of the School or from the Facebook to introduce a person with spectacles as an accused. The initial version of the father of the prosecutrix and of the prosecutrix herself, as disclosed by her father in the FIR, is assault by one person. It said that even if the father of the child has basis to be angry with the Management of the School but, there is no prima facie case of any active part on the part of the appellant is made out in violating the small child. The involvement of other persons on the statement of the child of impressionable age does not inspire confidence that the appellant is liable to be proceeded under Section 319 of the Code. In fact, it is suggestive role of the family which influences the mind of the child to indirectly implicate the appellant.

“Obviously, the father of the child must have anger against the Management of the School as his child was violated when she was studying in the School managed by the appellant but, we find that the anger of the father against the Management of the School including the appellant is not sufficient to make him to stand trial for the offences punishable under Section 376(2) of the IPC read with Sections 5/6 of the POCSO Act.”

The Court also took note of the fact that the prosecution after investigations has found no material to charge the appellant. It, hence, held that statement of the child so as to involve a person wearing spectacles as an accused does not inspire confidence disclosing more than prima facie to make him to stand trial of the offences. Therefore, the order of summoning the appellant under Section 319 of the Code is not legal.

[Mani Pushpak Joshi v. State of Uttarakhand, 2019 SCC OnLine SC 1362, decided on 17.10.2019]

Hot Off The PressNews

Supreme Court: The Court has directed the Centre to fund and set up exclusive courts in every district where 100 or more cases under the Protection of Children from Sexual Offences (POCSO) Act are pending. The bench of Ranjan Gogoi, CJ and Deepak Gupta ordered that the special courts for the trial of cases of sexual offences against children should start functioning with 60 days.

“These courts will not hear any other cases except those under the POCSO Act”

The Court added that the fund will not only take care of the appointment of presiding officers but also court staff, support staff, besides the infrastructure for vulnerable court complexes.

The bench also directed the chief secretaries of all states to ensure the effective functioning of the forensic science laboratories (FSL).

The order came after amicus curiae and senior advocate V Giri submitted his report on the directions of the court. Giri said there is a lack of proper judicial infrastructure for the trial of POCSO cases.

Earlier, the Supreme Court had asked its registry to collate district-wise data from the registrars of all the high courts on the total number of child rape cases and how long these have been pending.

Centre has to file a progress report within 4 weeks.

(Source: ANI)

Hot Off The PressNews

Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ has agreed to hear the plea of three witnesses in the Kathua gangrape and murder case, alleging that they are being harassed by the state police, on May 16.

The said witnesses, who are college friends of the juvenile accused in the case, have alleged that they gave their statement to the police under coercion and that the state police was now asking them to re-appear and re-record their statements and exerting pressure in their families.

The Supreme Court had, on May 7, transferred the trial in the sensational Kathua gangrape and murder case of an eight-year-old girl from Jammu and Kashmir to Pathankot in Punjab, but refrained from handing over the probe to CBI saying there was no need as the investigation has been conducted and the chargesheet filed.

Emphasising on the concept of fair trial, the Court had said:

“In the instant case, direct victims are the family members of the deceased, although ultimately collective is the victim of such crime. The fair trial commands that there has to be free atmosphere where the victims, the accused and the witnesses feel safe. They must not suffer from any kind of phobia while attending the court. Fear and fair trial are contradictory in terms and they cannot be allowed to co-exist.”

(With inputs from PTI)

Case BriefsSupreme Court

Supreme Court: Taking note of the seriousness of the issue relating to the abduction, rape and murder of an eight-year-old girl in Kathua District of J&K in the month of January, the bench of 3-judge bench of Dipak Misra, CJ and Dr. DY Chandrachud and Indu Malhotra, JJ transferred the trial of the matter from the District & Sessions Judge, Kathua to the District & Sessions Judge, Pathankot situate in the State of Punjab.

Senior Advocate Indira Jaising, appearing for the family of the victim, had argued before the Court that since there have been some unwarranted situations that have occurred in and outside the Kathua Bar Association, the locality in question, the involvement of many groups and various other aspects, a fair trial was not possible at Kathua.

Stating that a fair trial is a sacrosanct principle under Article 21 of the Constitution of India and a ‘fair trial’ means fair to the accused persons, as well as to the victims of the crime, the Court issued the following directions while transferring the matter to Pathankot:

  • The learned District & Sessions Judge, Pathankot shall himself take up the trial and not assign it to any Additional Sessions Judge;
  • The learned District & Sessions Judge, Pathankot shall fast-track the trial and take it up on day-to-day basis so that there is no delay in trial;
  • The examination-in-chief and the cross-examination of witnesses shall be in a continuous manner and for no reasons whatsoever the same shall be deferred;
  • The trial shall be held in camera so that the witnesses feel protected and the accused persons feel safe;
  • As this Court is monitoring the matter, no court shall entertain any petition pertaining to this case; The transferee court shall proceed under the Ranbir Penal Code as that applies to the State of Jammu & Kashmir;
  • The statements of the witnesses that have been recorded in Urdu language shall be translated to English so that the transferee court does not face any difficulty in conducting the trial;
  • The State of Jammu & Kashmir shall provide requisite number of interpreters as directed by the learned District & Sessions Judge, Pathankot so that the deposition of the witnesses can be properly recorded and translated copies thereof can be provided to the accused persons;
  • It shall be the duty of the State of Jammu & Kashmir to transport the witnesses to Pathankot and provide all other necessary facilities, including food, etc. so that the witnesses do not face any difficulty;
  • The accused persons shall also be similarly treated so that they do not feel that solely because they are accused persons, they are presumed to be guilty, for it is the settled principle that they are innocent till they are found guilty;
  • The State of Jammu & Kashmir is granted liberty to appoint the Public Prosecutor for prosecution of the case;
  • The juvenile, who is facing the trial, shall be dealt with in accordance with law and he should be given all special care and protection as per the command of the law.

Emphasising on the concept of fair trial, the Court said:

“In the instant case, direct victims are the family members of the deceased, although ultimately collective is the victim of such crime. The fair trial commands that there has to be free atmosphere where the victims, the accused and the witnesses feel safe. They must not suffer from any kind of phobia while attending the court. Fear and fair trial are contradictory in terms and they cannot be allowed to co-exist.”

The Court also reiterated that the protection granted by it to victim’s family & lawyers via order dated 16th April, 2018, shall continue and shall not be varied till the trial is over.

[Mohd. Akhtar v. State of Jammu & Kashmir, 2018 SCC OnLine SC 494, order dated 07.05.2018]

Hot Off The PressNews

Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar & Dr. DY Chandrachud, JJ directed all High Courts to ensure that the cases of sexual assault of children are fast-tracked and decided expeditiously by special courts. The bench also asked the the high courts to instruct the trial courts not to grant unnecessary adjournments during trial of cases under the Protection of Children from Sexual Offences (POCSO) Act.  The Court also directed that the High Courts may constitute a committee of three judges to regulate and monitor the trials of sexual assault cases of children.

The Court was hearing the petition filed by advocate Alakh Alok Srivastava after the horrific incident of rape of an 8-month girl child allegedly by her 28-year-old cousin on January 28 in a locality near Netaji Subhash Place in north-west Delhi had come to light.  He had also sought the provision of death penalty in such cases and framing of guidelines that investigation and trial of cases involving rape of children below 12 years of age under POSCO Act, should be completed in six months from the date of registration of the FIR.

The Union Cabinet had on April 21 approved the ordinance to provide stringent punishment, including death penalty, for those convicted of rape of girls below 12 years. The move of the Centre came after a public outcry for award of death penalty to such sexual offenders, including the assaulters of an 8-year-old girl who was gang raped and killed at Kathua district of Jammu and Kashmir recently.

Source: PTI

Hot Off The PressNews

Supreme Court: Taking suo motu cognizance in the Kathua rape and murder case, the Court has issued notice to Bar Council of India, Jammu and Kashmir Bar Association, Jammu High Court Bar Association and Kathua Bar Association on a plea filed against the lawyers for allegedly blocking the filing of charge sheet in the matter and obstructing a lawyer from representing the victim’s family

Earlier this week, lawyers held a protest against the charge sheet filed against seven people accused of kidnapping, raping and killing an eight-year-old girl in January. The Bar Association of Jammu reportedly supported the lawyers and also organised a strike against the FIR.

The Bench headed by CJI Dipak Misra said that it is impermissible under law and ethics to prevent the filing of a chargesheet or oppose the representation of the victim’s family by a lawyer.

In the horrific Kathua case, an 8-year-old girl was held captive, sedated and raped for several days at a temple before she was murdered in Kathua district.

The Court will now hear the matter on April 19.

Source: ANI

Case BriefsSupreme Court

Supreme Court: Taking note of the rise in the crimes against children, the bench of Madan B. Lokur and Deepak Gupta, JJ said that the definition of the expression “child in need of care and protection” under Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2000  should not be interpreted as an exhaustive definition. The provisions of the Protection of Children from Sexual Offences Act, 2012 do not provide any definition of a child in need of care and protection. But no one can deny that a child victim of sexual abuse or sexual assault or sexual harassment is a child in need of care and protection. Similarly in a given case, a child accused of an offence and brought before the Juvenile Justice Board or any other authority might also be a child in need of care and protection.  The Court said that it would be unfortunate if certain categories of children are left out of the definition, even though they need as much care and protection as categories of children specifically enlisted in the definition.

The bench also gave elaborate directions in order to ensure the welfare of the children in need of care and protection, some of the important directions are as follows:

  • The Union Government and the governments of the States and Union Territories must ensure that the process of registration of all child care institutions is completed positively by 31.12.2017 with the entire data being confirmed and validated. Inspection Committees should also be set up on or before 31.07.2017 to conduct regular inspections of child care institutions and to prepare reports of such inspections.
  • The governments of the States and Union Territories should draw up plans for full and proper utilization of grants (along with expenditure statements) given by the Union Government under the Integrated Child Protection Scheme.
  • The schemes of the Government of India including skill development, vocational training etc must be taken advantage of for the rehabilitation and social re-integration of children in need of care and protection.
  • Individual child care plans are extremely important and all governments of the States and Union Territories must ensure that there is a child care plan in place for every child in each child care institution on or before 31.12.2017.
  • State and Union Territory Government must establish State Commission for Protection of Child Rights on or before 31.12.2017. The SCPCRs so constituted must publish an Annual Report so that everyone is aware of their activities and can contribute individually or collectively for the benefit of children in need of care and protection.
  • The process of conducting a social audit must be taken up in right earnestness by the National Commission for the Protection of Child Rights as well as by each State Commission for the Protection of Child Rights to bring transparency and accountability in the management.

Stating that every child in need of care and protection must not be placed in a child care institutions, the Court said that alternatives such as adoption and foster care need to be seriously considered by the concerned authorities. The Court said that a status report of the compliance of the aforementioned directions be submitted before the Court on or before 15.01.2018. [Re: Exploitation of Children in Orphanages in the State of Tamil Nadu v. Union of India, 2017 SCC OnLine SC 534, decided on 05.05.2017]