Rajasthan High Court
Case BriefsHigh Courts

   

Rajasthan High Court: The Court exercising its inherent powers under Section 482 of Criminal Procedure Code (Code), quashed the First Information Report (FIR) registered under the provisions of Section 376 of Indian Penal Code (IPC) and Sections 3 and 4 of the Protection of Children from Sexual Offences Act (POCSO Act) against a 22-year-old man for impregnating a minor.

The petitioner-accused had approached the Court for quashing the FIR on accord of entering into a compromise with the minor, which was registered against him by the Station House Officer (SHO), Devnagar, Jodhpur based on the statement of the minor upon delivering a baby boy in a Government Hospital. In her statement, she revealed that she had a love affair and voluntarily cohabited with the accused resulting into her pregnancy.

Dinesh Mehta, J while stating that ‘consent’ in cases concerning sexual act with a minor holds no legal sanctity and cannot be used as a defence, however, their personal relationship has peregrinated beyond the legal and moral bounds, resultantly therefrom conceiving an offspring.

The FIR was registered on the behest of the Investigating Officer (IO) and neither the minor nor her parents had any animosity against the petitioner and beseeched that the FIR be quashed contrary to which he will have to face incarceration for at least 10 years for an offence committed due to an immature act and uncontrolled emotions.

Statement of the parents of both the parties revealed their remorse and helplessness, expressing their concern about the situation of minor delivering due to lack of maturity, or mistake. They further submitted that due to the society’s pressure, they had to house their 2-month-old grandson in a nursery.

Thus, the Court agreed to the quashing of the FIR, listing down various reasons for reaching to its conclusion and to secure the ends of justice:

1) an adolescent girl of tender age (16 years) has fallen in love with a boy of 22 years;

2) both being immature, apparently driven by momentary emotions have fallen prey to lust, surpassing social, moral and legal limits;

3) the girl has been consistent in her stand that she consented to the physical relationship. Not only in her statements under Section 161 and Section 164 of the Code but also before this Court, the girl unequivocally accepted that she had consented to the act;

4) their fornication though may be without legal and moral sanction, has resulted in child birth;

5) parents of both – the girl and the boy having forgiven their respective children for their felony, intend to tie them in nuptial knot, when the prosecutrix attains marriageable age;

if the prosecution continues, the petitioner is sure to face conviction, as the girl is minor. The conviction will result in 10 years of incarceration which would bring more agony and misery to the girl and her newly born son, rather than securing justice and also, because, the basic ingredient of retributive theory of punishment -” avenge for the person wronged” is completely absent.

The further Court stated that “this Court cannot be a silent spectator to or turn its back on the distressed family(…). The petitioner’s prosecution and conviction will lead to pain and tears in the eyes of the family members of both the parties and future of two families, and above all, an innocent child will be at stake, whereas, if the impugned FIR is quashed, it would serve the ends of justice”

[Tarun Vaishnav v. State of Rajasthan, S.B. Criminal Misc (Pet.) No. 6323/2022, decided on 13-10-2022]


Advocates who appeared in this case :

For Petitioners: Advocate Gajendra Panwar;

For Respondents: Public Prosecutor Mool Singh Bhati;

Advocate Ashok Patel.

Case BriefsHigh Courts

   

Allahabad High Court: In an appeal against the judgment passed by Trial Court, convicting the appellant/convict under Section 376 of the Penal Code, 1860 (‘IPC’) to undergo six years rigorous imprisonment, Samit Gopal, J. said that the prosecution has proved the case beyond reasonable doubt and the version of the first information report (‘FIR’) and the prosecutrix regarding her rape does not get dented throughout the case. Further, the medical evidence corroborates with the prosecution version. Thus, the Court upheld the Trial Court’s order of conviction and directed the convict to be taken into custody to serve the sentence.

In the case at hand, one afternoon, the prosecutrix aged about 10 years was mowing grass in the field, when the convict forcibly caught hold of her and committed rape on her.

The Court said that the medical examination of the prosecutrix shows injuries on her vagina, thus the factum of rape does not remain uncorroborative, it finds support from the medical evidence. Further, it said that the defence has admitted the genuineness of these documents: FIR, the recovery memo of blood-stained clothes of prosecutrix, her medical examination report, the supplementary medical examination report, the site plan of the place of occurrence and the charge sheet. Thus, now stating that the non-examination of the doctor and the investigating officer by the prosecution would render the prosecution story and the entire trial doubtful does not hold good.

The Court said that the age of the convict (68 years) will have no effect on the question of sentence and conviction as it is trite law that inadequacy of sentence is not in the interest of justice and if a person has been convicted and there is evidence beyond reasonable doubt about the same adequate sentence must be awarded to him. Further, it said that a relationship is not sufficient to discredit a witness unless there is motive to give false evidence to spare the real culprit and falsely implicate an innocent person, thus rejected the argument that one of the witnesses is the brother of the prosecutrix.

Placing reliance on State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 said that the testimony of a rape victim is like the evidence of an injured complainant or witness. If it is found to be reliable, by itself, it may be sufficient to convict the accused and no corroboration of her testimony is required.

The Court took note of State of Rajasthan v. Banwari Lal, 2022 SCC OnLine SC 428, and while applying the principles of law with regards to the sentencing of the convict, said that lack of sufficient time and age of the accused cannot be a ground to extend any benefit to him in the crime committed by him. Thus, the Court upheld his conviction.

[Om Prakash v State of U.P., 2022 SCC OnLine All 769, decided on 15-11-2022]


Advocates who appeared in this case:

Counsel for Petitioner- Advocate Puran Chandra Joshi;

Advocate D.N. Wali;

Advocate K.K. Misra;

Advocate Pwan Chandra;

Advocate R.K. Dhama;

Advocate Sudhir Dixit;

Counsel for Respondent- Government Advocate.


*Apoorva Goel, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In a bail application plea for the offences of kidnapping and rape of a minor Bechu Kurian Thomas, J. while dismissing the bail application, has held that the marriage between Muslims under personal law is not excluded from the sweep of the Protection of Children from Sexual Offences Act, 2012, (‘POCSO Act’). If one of the parties to the marriage is a minor, irrespective of the validity or otherwise of the marriage, offences under the POCSO Act will apply.

In the case at hand, the petitioner and the victim were both alleged to be Muslims. While the petitioner is 31 years in age, the victim is only 15 years and 8 months. The crime was registered after intimation was received from the doctor whom the victim and the petitioner had approached for a checkup on her pregnancy. Petitioner was arrested on 01-09-2022 and has been in detention since then. It was alleged that their marriage took place as per Islamic rites and customs under Mohammedan law and was registered under West Bengal Act XXVI of 1961.

Petitioner is indicted for the offences of kidnapping and rape of a minor (victim) under Sections 366, 376(2)(m) and 376(3) of the Penal Code, 1860 (‘IPC’), Sections 5(j)((ii), 5(i) and Section 6 of the POCSO Act and seeks reprieve from detention, claiming that he had validly married the victim under the personal laws applicable to them.

The Court said that the Muslim Personal Law (Shariat) Application Act, 1937, statutorily recognizes that in all questions relating to marriage, the rule of decision shall be the Muslim Personal Law (Shariat). However, after the coming into force of the Prohibition of Child Marriage Act, 2006, it is questionable whether the said personal law will prevail over the special statute relating to marriages. Under section 3 of the said Act, a child marriage shall be voidable at the option of the contracting party, who is a child, but section 12 makes a child marriage void in certain circumstances

The Court said that as the investigating officer alleges that the victim was enticed by the accused without the knowledge of her parents and the age of victim being only just above 14 years at the time of the alleged marriage, the existence of a valid marriage, even according to Muslim Personal Law, is debatable. However, the petitioner is arrested for the offences under the POCSO Act as well as the IPC, and POCSO being a special statute enacted specifically for the protection of children from sexual offences, thus, sexual exploitation of every nature against a child is treated as an offence and marriage is not excluded from the sweep of the statute.

The Court further said that it is trite law that when the provisions of a statute are repugnant to, or contrary to the customary law or personal law, in the absence of any specific exclusion of the said personal law from the statutory provisions, the statute will prevail, and the personal law or the customary law shall stand abrogated to the extent of the inconsistency.

Thus, the Court held that the marriage allegedly entered between the petitioner and the victim cannot be relied upon as a legally valid marriage. Further, the legislative intent reflected through the POCSO Act is to prohibit physical relationships with a child, even under the cover of marriage.

The Court referred to Section 42-A of the POCSO Act and held that the POCSO Act will prevail over personal laws and customary laws. Therefore, it cannot be said that after the coming into force of the POCSO Act, penetrative sexual intercourse with a child, even if it is under the guise of marriage, is an offence.

[Khaledur Rahman v. State of Kerala, 2022 SCC OnLine Ker 5833, decided on 18-11-2022]


Advocates who appeared in this case :

For Petitioners: Advocate N. Anand;

Advocate Bijith S. Khan;

Advocate Rajesh O.N.;

For Respondent: Public Prosecutor K.A. Noushad.


*Apoorva Goel, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In an appeal challenging the order passed by the Additional Sessions Judge convicting the Father (Appellant) under Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), the Single Judge Bench of Purushaindra Kumar Kaurav, J. upheld the judgment and order of conviction passed by the Trial Court, where the father was awarded 12-year imprisonment for raping his minor daughter.

Background

The police were informed by a caller/mother of the victim, that her husband had committed rape on their daughter, aged about seven years. The police reached the spot and found the mother of the victim with her family. She stated that she worked as a housemaid and her husband mostly stayed at home and was a habitual drinker. On 24-04-2014, she left her home for work and when she returned home after work, the victim told her that while she was not home, the victim had gone to take water, and her father had closed the window and door of the room and opened the chain of his pant and put his private part into her mouth and thereafter, he forcibly inserted his private part into the victim’s vagina. Thereafter, the police registered a case under Sections 376 and 377 of Penal Code, 1860 (Code) and under Section 6 of POCSO Act.

Submissions on behalf of the Appellant

Counsel for the appellant submitted that the judgment of conviction and sentence passed by the trial court was bad in law and deserved to be set aside as the trial court did not appreciate the evidence in proper perspective and there were material contradictions and omissions in the evidence of the prosecution witnesses. Moreover, there was no direct evidence against the appellant and the benefit of doubt should have been given to him.

It was further submitted that the testimony of the victim, mother of the victim and sister of the victim differed from each other. There were discrepancies regarding who was sleeping in the room when the alleged incident took place and the victim in her testimony stated that her mother had told her that they must teach the appellant a lesson as he was a drunkard and used to beat his wife and children. Moreover, the medical reasons for the presence of worms around the anal area of the victim could happen due to several reasons such as constipation, passing hard stool etc., and therefore, even the medical examination of the victim did not completely establish the commission of unnatural offence on the victim. Lastly, it was submitted that the Forensic Science Laboratory (FSL) Report had not been put to the accused and non-putting a vital piece of evidence was fatal to the case of the appellant.

Submissions on behalf of the Respondent

Counsel for the respondent opposed the submissions of the appellant and submitted that the offences committed by the appellant were heinous in nature and thus, the trial court had rightly convicted him. It was submitted that the Additional Sessions Judge had considered all the arguments made by the appellant and there was sufficient evidence to prove his guilt beyond a reasonable doubt. Moreover, the FSL Report also indicated presence of semen in the articles seized from the prosecutrix and appellant. Therefore, the judgment passed by the trial court was sound and did not warrant any interference.

Analysis, Law, and Decision

The Court noted that the trial court considered the following facts:

  1. whether the victim was below the age of majority.

  2. whether the victim was subjected to penetrative sexual assault.

  3. whether the penetrative sexual assault was by the victim’s father.

The age of the victim had not been questioned by either of the parties, so point ‘1’ remained unchallenged. The Court noted that the challenge in the present case was regarding points ‘2’ and ‘3’ and noted that the statement under Section 313 CrPC was recorded much before the production of FSL Report and therefore the incriminating evidence was not put before the appellant. The Court opined that the substantial right of the appellant stands violated by not putting entire incriminating material before him and therefore, the Court found it appropriate to ignore the FSL Report to be read in evidence against the appellant and proceeded to decide the matter on merits.

In relation to the testimonies of the witnesses, the Court relied on State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, wherein the Supreme Court regarding the reliability of the statement of the victim, stated that “minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault was enough for conviction and does not require corroboration unless there were compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience”. The same was reiterated in Pappu v. State of Uttar Pradesh, 2022 SCC OnLine SC 176.

The Court also referred Phool Singh v. State of Madhya Pradesh, (2022) 2 SCC 74, wherein the Supreme Court observed that “generally, if credible, conviction of the accused could be based on sole testimony, without corroboration and that the sole testimony of prosecutrix should not be doubted by the court merely based on assumptions and surmises”.

The Court opined that the testimonies of the victim, mother of the victim and sister of the victim were consistent and did not suffer from any apparent material inconsistencies. Therefore, the conviction could not be interfered with due to inconsistencies in the prosecutrix’s evidence, and the Court did not find any justification to take a contrary view. Accordingly, the conviction and sentence were upheld by the Court.

[Ram Guru v. State (NCT of Delhi), Crl. M.A. 20472 of 2022, decided on 14-11-2022]


Advocates who appeared in this case:

Anu Narula, Advocate, for the Appellant(s);

Utkarsh, Additional Public Prosecutor, for the Respondent(s).

Allahabad High Court
Case BriefsHigh Courts

   

Allahabad high Court: In a case under Protection of Children from Sexual Offences Act, 2012 (‘POCSO’ Act), Ajay Bhanot, J. has said that it is the responsibility of the Secretary of the High Court Legal Services Committee to ensure that the counsels who are appointed by way of legal aid to represent the victim are diligent practitioners, who know the law and have mastered the facts of the case.

The Court noted its order dated 30-09-2022 and said that the Child Welfare Committee (‘CWC’) was directed to disclose whether the victim needs legal aid and has been provided with various support systems contemplated for the victims under the POCSO Act and also directed the District Legal Services Authority to file an affidavit in this regard.

The Court said that the Secretary informed the Court that a requisition has been made by the CWC for appointing a counsel under the protective provisions of POCSO Act, 2012 read with POCSO Rules, 2020.

The Court further said that the Secretary is processing the requisition and shall appoint a competent counsel to prosecute the case on behalf of the victim.

The matter will next be taken up on 17-11-02022.

[Shiva Singh v. State of U.P., 2022 SCC OnLine All 754, decided on 10-11-2022]


Advocates who appeared in this case :

Counsel for Applicant:- Advocate Pradeep Kumar Singh;

Counsel for Opposite Party:- Government Advocate.


Apoorva Goel, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Calcutta High Court: While dismissing a petitioner’s plea against an application filed by his minor daughter under the Protection of Women from Domestic Violence Act, 2005 (DV Act), alleging that he was violent towards her and her mother, Shampa Dutt (Paul), J.,  held that application filed by the minor daughter under Section 12 of Domestic Violence Act cannot be dismissed on the grounds of maintainability especially when she had attained majority before the date of final order. The Court observed that as the DV Act is a beneficial legislation, the Court should adopt a sensitive approach before nullifying a case on the ground of maintainability. .

Facts of the Case

In the instant matter, the petitioner/father filed a revision petition against a judgment of a Sessions Court that had set aside an order of a Magistrate Court dated 18-07-2018. The daughter/opposite party no. 2 filed a case against her father/petitioner under S. 12 of DV Act. The Magistrate Court dismissed the case on the ground that it is not maintainable as the case was filed by the minor and she was not represented by any of her natural guardian or next friend. The daughter/opposite party no. 2 then filed an appeal under S. 29 of DV Act against the order of Magistrate Court. Vide order dated 29-08-2019, the Sessions Court that had set aside an order of a Magistrate Court.

Contention of the Parties

The petitioner contented that the opposite party no. 2 was a minor and was not represented by her natural guardian or next friend and therefore the said application is not maintainable in the eye of law. The petitioner further contended that the learned Appellate Court failed to consider the settled principle of law that a minor cannot take any legal action without being represented by his/her natural guardian or next friend and therefore the order is not tenable in the eye of law and liable to be set aside.

The opposite party no. 2 contended that the protection of women under DV Act is a beneficial and assertive legislation for the welfare of victims of Domestic Violence and relied on Suryanarayana v. State of Karnataka, (2001) 9 SCC 129; Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64; Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341 and Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC 705.

Observation and Decision

The Court observed that no controversy would have arisen in the first place, if the mother had filed the case for herself and her minor daughter.

The Court referred to Raj Behari Lal Tandon v. Mahabir Prasad Tandon, 1955 SCC OnLine All 252, where it was held that the court is the guardian of the minors’ interest and cannot allow their interest to suffer by the action of others.

“When the fact of minority is a ‘bona fide’ question of evidence, and the defendant’s allegation is found correct, then the usual course is to suspend all proceedings and to allow sufficient time to enable the minor to have himself properly represented in the suit by a next friend.”

The Court observed that the learned Session Court has rightly set aside the order of Magistrate Court because though the opposite party no. 2 was a minor at the time of file of the case but became major on the date of final order passed by the Magistrate Court and also the relief prayed for was under an assertive and beneficial legislation

“The petition thus was an irregular one, which was regularized on the date of final order, when the petitioner was a major.”

The Court discussed Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC 705, were it was held that “2005 Act is a beneficial and assertive legislation for more effective protection of constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence.” and “Before nullifying grievances of aggrieved person on ground of maintainability, Court should adopt a sensitive approach towards the right of women under 2005 Act.”

The Court upheld the order of Session Court and held that “…it is the duty of the Courts to protect the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence.”

The Court directed the learned Magistrate, 3rd Court, Serampore to consider the case afresh in accordance with law and dispose of the same within three months from the date of communication of this order.

[Srikant Ray v. State of W.B., CRR 2923 of 2019, order dated 01.11.2022]


Advocates who appeared in this case:

Mr. Sanjib Mitra and Mr. Suryasarathi Basu, Counsel for the Petitioner

Mr. Narayan Prasad Agarwal and Mr. Pratick Bose, Counsel for the State

Mr. Prabir Kumar Mitra, Mr. Pinak Kumar Mitra and Ms. Ariba Shahab, Counsel for Opposite Party No. 2


Ritu Singh, Editorial Assistant has put this report together

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In a criminal miscellaneous petition challenging the order passed by the Sessions Court, wherein the Court dismissed the accused’s application for joint trial of his two criminal cases, Kauser Edappagath, J. upheld the said order stating that the victims are different, and the offences are not of the same kind, and Section 219 of the Code of Criminal Procedure (‘CrPC’) is only directory in nature, thus, there was no illegality or impropriety in the said order.

The offences alleged against the petitioner are punishable under Sections 354(A)(1)(i) and 506 of the Penal Code, 1860 (‘IPC’), Section 8 read with Section 7 and Section 10 read with Section 9(n) of the Protection of Children from Sexual Offences Act (‘POCSO Act’) and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (‘JJ Act’). Further, he is also accused in another case for offences under Sections 354-A(1) IPC, Section 12 read with Section 9(n) and (m) of the POCSO Act and Section 75 of the JJ Act. The petitioner filed an application for joint trial invoking Section 219 CrPC on the grounds that the incident in these two cases took place within a period of 12 months.

The Court referred to section 219 CrPC, that provides when a person is accused of more offences than one of the same kinds committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.

The Court said that it is true that the accused in both cases is one and the same, but the victims are different, and the only similarity is that they are sisters. Further, the incidents are different and Section 219 CrPC is only directory.

Thus, the Court found no illegality impropriety in the impugned order, that if the cases are tried together, that will cause inconvenience and will create obstruction in the smooth trial of the two cases, and that fair trial demands that the two cases are tried separately and not jointly as claimed by the accused.

[X v. State of Kerala, 2022 SCC OnLine Ker 5550, decided on 1-11-2022]


Advocates who appeared in this case :

For Petitioner: Advocate Rajit;

Advocate Ramakrishnan M.N.;

For Respondents: Senior Public Prosecutor P.G. Manu.


*Apoorva Goel, Editorial Assistant has reported this brief.

Meghalaya High Court
Case BriefsHigh Courts

   

Meghalaya High Court | While quashing the FIR and the resultant criminal proceedings under POCSO Act, 2012, W. Diengdoh, J., held that ‘Sexual Assault’ under POCSO Act, 2012 cannot be attributed to an act where there is mutual love and affection between young boyfriend and girlfriend.

In the instant matter, the mother of a minor girl filled a FIR on 18-12-2020, complaining that her minor daughter was sexually assaulted by the accused. The mother alleged that her minor daughter, who was found absent from her room by the teacher at the school where she was studying and who had accordingly reported the matter to her, narrated that she was sexually assaulted by the accused on two occasions i.e. on 11-12-2020 and 16-12-2020. The accused was arrested by the police under S. 5(1)/6 of the POCSO Act and he got bail after he was in custody for about 10 months.

It is evident from the materials on record that the minor daughter of the mother was having an affair with the accused. The instant petition was filed by the accused (petitioner 1) and the minor girl’s mother (petitioner 2) on mutual understanding for quashment of FIR.

The counsel for the petitioners contended that the minor girl in her statement under S. 161 CrPC as well as S. 164 CrPC admitted that the accused was her boyfriend and her relationship with him was consensual and out of her own free will. The counsel for the petitioners also contended that the fact that both the accused and mother of minor girl has jointly and on mutual understanding filed the instant petition before the Court reflected the bonafide of the petitioners.

The counsel for the petitioners further contended that “this is a case where two teenagers are involved in a romantic relationship and being unaware of the legal restrictions, had indulged in a physical relationship out of their own free will and consent” and therefore this no case of sexual assault can be made under the provisions of the POCSO Act.

The counsel for the petitioners also submitted that the instant matter does not involve extreme depravity, perversity or cruelty and since there was no ill-motive or mens rea on his part, he may not be penalized for the same.

Discussing the effect of rape or sexual assault on victim and the need for stringent provisions under POCSO Act, the Court observed that “in a case where there is mutual love and affection between a child and a person which might even lead to a physical relationship, though the consent of the child under the law is immaterial as far as prosecution for an alleged offence of sexual assault is concerned”.

The Court also observed that “…in a case of a boyfriend and girlfriend particularly, if both of them are still very young, the term ‘sexual assault’ as could be understood under the POCSO Act cannot be attributed to an act where, there is, as pointed above, mutual love and affection between them.”

The Court noted the observation in Ranjit Rajbanshi v. State of W.B., 2021 SCC OnLine Cal 2470 and Vijayalakshmi v. State, Crl. O.P. No. 232 of 2021, order dated 27.01.2021, where it was held that

There can be no second thought as to the seriousness of offences under the POCSO Act and the object it seeks to achieve. However, it is also imperative for this Court to draw the thin line that demarcates the nature of acts that should not be made to fall within the scope of the Act, for such is the severity of the sentences provided under the Act. Justifiably so, that if acted upon hastily or irresponsibly, it could lead to irreparable damage to the reputation and livelihood of youth whose actions would have been only innocuous. What came to be a law to protect and render justice to victims and survivors of child abuse, can, become a tool in the hands of certain sections of the society to abuse the process of law.

In the light of facts of the case, argument advanced, authorities cited and in the interest of Justice, the Court quashed the FIR and criminal proceedings under POCSO Act and absolve the accused from any liability in the aforementioned criminal case.

[Silvestar Khonglah v. State of Meghalaya, 2022 SCC OnLine Megh 575, decided on 27.10.2022]


Advocates who appeared in this case:

Mr K. Ch. Gautam, Counsel for the Petitioners;

Mr S. Sengupta and Mr. H. Kharmih (Addl. PP), Counsel for the Respondent.


*Ritu Singh, Editorial Assistant has put this report together.

Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: While deciding the instant application seeking regular bail for offences under the provisions of Prohibition of Child Marriage Act, 2006* and Protection of Children from Sexual Offences Act, 2012 (POCSO), the Bench of Rajendra Badamikar, J., held that POCSO Act is a special legislation, and it overrides any personal law.

Facts and Contentions: The accused/petitioner is the husband of a 17-year-old Muslim girl, who came to know about her pregnancy when she visited a Primary Health Centre for a check-up. A complaint was thus lodged against the accused/petitioner by the Sub-Inspector of R.K. Puram Police Station, based on information furnished by the Medical Officer who examined the victim-wife. It was alleged that the victim’s marriage to the petitioner was solemnized when she was still a minor. Sexual intercourse with her husband resulted in her pregnancy.

The complaint was filed under Sections 9 and 10 of the Prohibition of Child Marriage Act and Sections 4 and 6 of the POCSO Act. The petitioner’s application for bail was rejected by the Sessions Judge, therefore, he approached the High Court in the instant petition.

The petitioner’s counsel argued that under Muslim Law, the consideration for marriage is puberty and the normal age of puberty is treated as 15 years; hence, it was contended that no offence was committed under the provisions of POCSO Act and Prohibition of Child Marriage Act, 2006.

  • Decision of the Court: Perusing the facts and contentions of the case, the Court held as follows: The Court held that POCSO, being a special law, will override any personal law and the age of consent for sexual activity is 18 years.

  • However, the Court noted that the victim-wife is 17 years old and capable of understanding things. Even though she asserted that the marriage with the accused/petitioner was solemnized without her consent, there is no evidence showing that the victim raised any objections. Hence, there was prima-facie evidence of the victim being a consenting party and that there is no dispute regarding the marriage between the accused/petitioner and the victim-wife. The Court also took into consideration that the victim now being pregnant required care and the petitioner if enlarged on bail could take care of herUnder these circumstances the Court granted bail with strict conditions.

[Aleem Pasha v. State of Karnataka, 2022 SCC OnLine Kar 1588, decided on 12-10-2022]


Advocates who appeared in this case :

Basavanna M.D., Advocate, for the Petitioner;

K. Nageshwarappa, HCGP, for the Respondent.


*Editorial Note: The text of the High Court’s Judgment mentions “Child Marriage Restraint Act”, however, the Statute involved in the petition is Prohibition of Child Marriage Act, 2006. The Child Marriage Restraint Act, 1929 has been repealed.

**Sucheta Sarkar, Editorial Assistant has prepared this brief.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: In a criminal revision petition filed under Section 102 of the Juvenile Justice Act challenging the order passed by Juvenile Justice Board (‘JJB’), and challenging the order dated passed by Special Judge (POCSO) affirming the order of the JJB and declining bail to the juvenile for offences under sections 376-AB of the Penal Code, 1860 (‘IPC’) and Section – 5(m) or 6 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), Jyotsna Sharma, J. has observed that bail to a juvenile is not compulsory in all cases and can be denied for certain reasons, thus seeing the gravity of the offence, upheld the said orders.

In this case, it was alleged by the victim’s mother that when her daughter, aged about 6 years, was playing outside her house, the accused, aged about 15 years, lured her on the pretext of giving toffee and took her behind a hut and committed rape on her. In the medical examination about 1 cm tear was found in her fourchette and she was bleeding. As the accused was a juvenile, the matter was brought before the Juvenile Justice Board. Further, in the age determination inquiry his age was found to be about 12 years and 10 months and in the social investigation report, it was observed by the District Probation Officer that the boy requires strict control and supervision. Thus, JJB declined bail to the juvenile.

The Court took note of Section 12(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 that deals with the matters of bail to the juvenile, and observed that, it is clear that the law does not say that once a person is found a juvenile, he should be released on bail notwithstanding other facts and circumstances of the matter, thus the bail can also be denied if juvenile’s release, in the opinion of the Court, would defeat the ends of justice.

It was also observed that the phrase ‘ends of justice’ is undoubtedly a meaningful phrase bringing within its sweep many factors including, the nature of the crime, the merits of the matter and other facts and circumstances which cannot be passed over by the Court.

The Court viewed that the Juvenile Justice Act, 2015 (‘JJ Act’) differentiates between offences falling into three categories, i.e., petty, serious and heinous offences and that the cases falling in different categories based on the said classification have been dealt with differently. Moreover, the Courts as well as the legislature have been conscious of the need to deal with the matters of heinous offences in a more sensitive manner.

The Court opined that whenever a Court is exercising powers under the provisions of JJ Act, 2015, the general principles as enumerated in Section 3 of the Act must be kept in mind as guiding factor. Further, all decisions regarding the child should be based on primary consideration of the best interest of the child, considering the demands of justice of the other side.

The Court noted that the scheme of the Act has a twin approach, i.e., reformatory as well as retributive to a certain extent, and while dealing with grant or refusal of bail, the ends of justice may compel the Court to strike a balance between competing and often conflicting demands of justice of both the sides, i.e., the accused and the victim. Thus, here the nature of the crime, the methodology adopted, the manner of commission and the evidence available may assume ample significance. Moreover, the aim and object of this act, is to achieve not only the welfare and betterment of a juvenile by extending to him services of reformatory nature, so that he can be brought back to mainstream of society as a person of healthy mind, but also to address the concerns of society at large at this stage, and this aim cannot be achieved unless a holistic view of the matter is taken.

The Court further opined that to give meaning to the phrase ‘ends of justice’, the matter of bail must be seen literally through a prism having three angles, i.e., firstly, the angle of welfare and the best interest of the child, secondly, the demands of justice to the victim and her family and thirdly, the concerns of society at large; and in the end, the court must depend upon its own robust sense of justice.

Thus, it was observed that “in this case a girl of very tender age was put to violent sexual assault by a boy of merely 15 years and she was enticed in a well-planned manner by offering sweets. Further, the trauma and shock caused to an innocent girl, who had no understanding and inkling of the act with which she had to go through and the resentment, which was caused to the members of her family, can easily be understood” Thus, the Court dismissed the criminal revision petition.

[X v. State of UP, Criminal Revision No. – 1036 of 2022, decided on 21-10-2022]


Advocates who appeared in this case:

Counsel for Revisionist:- Advocate Satendra Singh;

Counsel for Opposite Party:- Government Advocate Mukesh Kumar Maurya.

Meghalaya High Court
Case BriefsHigh Courts

   

Meghalaya High Court: In a criminal appeal filed by the convict/appellant, convicted under Section 5(m) of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) and sentenced to 15 years of rigorous imprisonment and a fine of Rs. 10,000/ , the division bench of Sanjib Banerjee, C.J., and W. Diengdoh J., has held that the lower Court was justified in arriving at the conclusion that it was established beyond reasonable doubt that the petitioner had sexually assaulted the minor survivor. Further, the appeal had no merit and no cause for interference with either the judgment of conviction or the consequent sentence that was awarded.

The facts of the case are that the child’s mother filed the First Information Report (‘FIR’) upon being informed about the incident by a 10-year-old witness. Further, when the minor was taken to the hospital by her mother, the medical examiner recorded in the report that the minor claimed that the appellant’s penis had penetrated her vagina and there was ejaculation on her private parts. Moreover, the medical report of the medical examiner found a “laceration, red, tender on touch on the right side”.

The Court observed that there were differences in the narration of facts by the appellant about his interaction with the victim. Further, the appellant has also failed to explain his presence at the place of occurrence, and the contradictory statements made by him during his examination under Section 313 of the Criminal Procedural Code, 1973 (‘Code’) establish his guilt in the instance.

The Court observed that penetrative sexual assault, for the purposes of the relevant provision, does not require deep or complete penetration and the slightest amount of penetration would suffice for the purpose. The medical examination report of the survivor revealed penetration, even though it was only at the level of introitus, the hymen of the survivor was found to be intact, and the factum of penetration was medically established.

The Court was of the view that there was no basis in the appellant’s assertion that the survivor was examined long after the alleged incident, as she was examined well within 24 hours of the alleged incident. Even though the appellant ought to have been medically examined to ascertain whether he could maintain an erection, the lack thereof would not make the case against the appellant to be thrown out on this ground.

The Court held that the Trial Court has viewed the incident on oral evidence that was presented at the trial and considering the statements recorded under Section 164 of the Code, thus, the Trial Court was justified in arriving at the conclusion and awarding the sentence to the appellant.

[Swill Lhuid v. State of Meghalaya, 2022 SCC OnLine Megh 557, decided on 13-10-2022]


Advocates who appeared in this case :

For Appellant: Advocate H.R. Nath,

Advocate R. Biswa

For Respondent: Advocate General R. Gurung

Manipur High Court
Case BriefsHigh Courts

   

Manipur High Court: In a writ petition filed challenging the compensation awarded by the Lower Court, the division bench of Sanjay Kumar, C.J. and M.V. Muralidaran, J. has set aside the order, and held that Manipur State Power Distribution Corporation Limited (‘MSPDCL’), was involved in distribution of potentially dangerous and hazardous commodity, and it is incumbent upon them to abide by all prescribed statutory norms of safety.

The minor petitioner was electrocuted when she came in contact with the transformer near her house. In consequence, she sustained 60 percent burns all over her body and her right hand had to be amputated high above her elbow. A sum in excess of Rs. 1,50,000 lakhs were spent on her hospitalization and treatment. It was asserted that the concerned authorities were in negligence of maintenance and safety of the people, thus violated the rights of the petitioner.

The Court observed that due to the negligence of the authorities as required by statutory norms, the minors’ rights under Articles 14, 21 and 300 of the Constitution were violated, including an action in tort is maintainable under the principles of res ipsa loquiter, strict liability and restitution in integrum.

In view of the statutory position and noting the facts, the Court observed that the transformer should not have been installed on such low ground and that no safety measures were put in place, as the wooden fencing around it had wide gaps, which made it easily accessible for the minor petitioner to reach with ease, further, the child is of such tender age that no contributory negligence can be attributed to her.

Relying on the decisions in Rudul Sah v. State of Bihar, (1983) 4 SCC 141, Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 and M.C. Mehta v. Union of India, (1987) 1 SCC 395, the Court affirmed its position to compensate monetarily, amenable to its writ jurisdiction under Article 226.

The Court examined the various statutory provisions and noted that Chapter IV of National Bureau of Indian Standards, requires specific ‘danger notices’ to be placed in a conspicuous place, while Rule 46 of Chapter IV requires ‘periodical inspection and inspection of installation’ and observed that MSPDCL could not provide any proof of inspections and safety for the transformers. Further, no prescriptions have been produced before the Court for fencing material to be used as per Indian Bureau of Standards, or if wooden fencing would qualify as sufficient protection under the norms.

The Court observed that it was not disputed that the wooden fencing was put in place by the villagers themselves, and not the authorities. In effect, no protection was provided by the authorities around the transformer, it was only after the accident that a barbed wire fence was put in place. Therefore, the Court directed that the petitioners be paid the balance compensation of Rs. 10,00,000 after deducting the amount already paid.

[State of Manipur v. Baby Tinchonghoi Mate, Writ Application No. 28 of 2021 decided on 20-10-2022]


Advocates who appeared in this case :

S. Nepolean, Government Advocate, for the Appellants;

Tungrei Ngakang, Advocate, for the Respondent.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In an appeal challenging the judgment passed by the Session Judge, convicting the appellant for offences punishable under the provision of Section 376(2)(f) of the Penal Code, 1860 IPC and Section 6 read with Section 5 or Section 3 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO’), the division bench of Siddharth Mridul and Anup Jairam Bhambhani upheld the judgment and order on conviction by the Trial Court, and held the appellant guilty of the offences of rape and penetrative sexual assault upon the one-year old child.

The Court observed that the offences against minors, more particularly sexual assault are increasing alarmingly, and it is, therefore, necessary for the courts to imbibe the legislative wisdom, as the torment on the victim has the potential to corrode the poise and equanimity of any civilized society. Further it referred to the decision in Lillu v. State of Haryana, (2013) 14 SCC 643, wherein it was held that “rape degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but leaves behind a scar on the most cherished position of a woman i.e., her dignity, honour, reputation and chastity”, and observed that it is the duty of the Courts to consider such specialized legislation in the circumstances to which they owe their origin to ensure coherence, and to avoid any unintended and undesirable consequences.

The Court has observed that contention that the testimonies of the parents are unreliable owing to the circumstance that the witnesses in question are the parents of the minor victim and further that the said testimony is uncorroborated is no longer res integra, and placed reliance on the decision in State of H.P. v. Gian Chand, (2001) 6 SCC 71, wherein it was observed that “the Court must first assess the trustworthy intention of the evidence adduced and available on record, and if it finds the evidence worthy of being relied on, then the testimony must be accepted and acted on, even though there may be other witnesses available who could potentially be examined but were not examined”

Further, it referred to the decision in Mohd. Rojali Ali v. State of Assam, (2019) 19 SCC 567, wherein it was held that “a ‘related witness’ cannot be said to be an ‘interested witness’ merely by virtue of being a relative of the victim and a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused”, and observed that the victim’s parents cannot be characterised as interested witnesses simply because they are the parents of the victim; and nothing from the record or in the submissions of the appellant even remotely suggests that they had any motive in framing the appellant for the commission of such a heinous crime. Thus, the defence raised by the appellant that he has been falsely implicated in the case by victim’s parents is a mere after-thought, and their testimony is credible and inspires confidence, as they were witnesses to the commission of the offence being present at the relevant time.

Placing reliance on the ruling in State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 and in State v. Saravanan, (2008) 17 SCC 587, wherein the Court held that “difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and discrepancies”, and observed that minor discrepancies on trivial matters, that do not affect the core of the prosecution’s case would not prompt the Court to reject the evidence in toto.

The Court referred to the decision in Wahid Khan v. State of M.P., (2010) 2 SCC 9, wherein it was held that “the only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity, and whether the rape has occurred or not is a legal conclusion, not a medical one”, thus, it observed that the absence of human semen in the smears collected from the vagina of the prosecutrix, in a case of rape, would result in an acquittal is well- settled. It was also observed that the Medico-Legal Report of the victim, confirms that her hymen was torn; further there was blood at the introitus, abrasion at mucosal tear; and furthermore, as per the Forensic Science Lab report, the appellant’s semen was found on the undergarments worn by the victim at the time of the commission of the offence. Thus, the Court upheld the conviction of appellant by the Trial Court.

[Bagender Manjhi v. State (Govt. of NCT) Delhi, 2022 SCC OnLine Del 3424, decided on 18.10.2022]


Advocates who appeared in this case:

Chetan Lokur, Advocate, for the Appellant;

Ashish Dutta, Additional Public Prosecutor, for the Respondent.

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In an application seeking the appointment of the applicant as a fit and proper person to be guardian of the minor children and for grant of sole and permanent custody of the minor children, Krishnan Ramasamy, J. has directed the father/respondent to hand over interim custody of the children to the mother/applicant, till the disposal of the main original petition.

In this case, the applicant and respondent got married in the year 2009 and have 2 children. Thereafter, matrimonial disputes arose between the parties, and the wife was subjected to harassment and was thrown out of the matrimonial home in 2021 by the respondent, while he retained the custody of the children. Thereafter, the applicant filed various petitions and applications, seeking dissolution of marriage, custody of minor children and visitation rights etc.

The Court noted that this Court by various orders has granted the visitation rights to the applicant to ensure that the well-being of the children be unaffected by the estranged and strained relationship of the parents, however, the respondent has failed to comply with the said orders. Further, the respondent has even indulged in parental alienation and tutored the children to act and behave contrary to the wishes of the applicant and according to the respondent. He has even updated the children about the Court proceedings, which prompted the elder son to act against the mother and to resist to stay with her, and to demand from her to withdraw the case filed against his father.

The Court observed that without parental alienation, this could not be possible for a tender aged child to insist and demand his mother to withdraw the case and impose the condition that unless she withdraws the case, he would not come to his mother.

The Court further observed that the respondent is throwing the blame on the children stating that the children themselves are not interested in going and staying with the mother and that he cannot force them, and it is beyond his hands; also, in the Court orders there is no specific role mentioned directing the respondent to act in the matter of convincing and handing over the children to the applicant. This clearly proves the aspect of parental alienation on the part of the respondent. Further, his inability to advise and persuade the children, further evidents his inability and incapability to maintain and keep the custody of the children anymore.

Moreover, the Court viewed that “to turn a child against a parent is to turn a child against himself. Parental alienation is inhuman, and it is a menace to a child, who directly needs two hands to hold, both the mother and father till he/she walks throughout the life or at least till he/she attains majority” Further, it was observed that hatred is not an emotion that comes naturally to a child against his/her mother/father unless it is taught by the person whom the child believes. A parent indulging in parental alienation means he/she is polluting the tender mind of the innocent child by portraying the mother/father as a villain, which would have a considerable impact on him/her throughout his/her life.

The Court observed that “the welfare of the child is of paramount consideration but being with the parent who is not ready to teach and persuade his children to love their own mother, cannot be accepted. Further, it is not fair on the part of the respondent in not accommodating the children to spend time with their mother despite the Court orders.

Moreover, the Court observed that “children have a fundamental right and need for an unearthened and loving relationship with their parents and denying the said right would amount to child abuse” and the respondent, without justification, has been indulging in such child abuse. It was observed that when there is healthy co-parenting, the children will lead a happier childhood instead of becoming an emotionally broken adult who will in turn become non-understanding and unsympathetic citizens.

The Court further viewed that the welfare of a child is not to be measured only by money and physical comfort, as it includes material welfare; however, they are secondary matters, the primary considerations of matters are the stability and the security, the loving and understanding, care and guidance, warm and compassionate relationships that are essential for the full development of the child’s own character, personality and talents.

Further, the Court observed that it appears prima facie that the respondent poisons the minors’ minds against the mother and acted against the welfare of the minors and for the healthy growth of the children, their custody was discontinued with the respondent as there is very high probability that if the children continue to stay with him, they will be influenced to such an extent that they will never want to return to their mother, it will cause mental and physical disorders including psychological pain, anger and depression, which would certainly cause harm to the welfare of the child.

The Court also observed that it is incumbent upon a parent, having the custody of the children, to encourage co-parenting despite having personal hatred towards the spouse and allow the children to move freely with their parent, as the quality of the relationship between the co-parents have a strong influence on the mental and emotional well-being of the children.

Moreover, the Court observed that “the concept of marriage is not for mere satisfying carnal pleasure, but it is mainly for the purpose of Pro generation, which leads to the extension of the families of the two individuals, who have been united over a sacred oath, taken by both”. Further, it was observed that the law can satisfy the ego, but it can never satisfy the requirements of the child, as the framers of the law were only conscious of the welfare of the child and not on the mental turmoil that would be faced by a child in such a calamitous situation.

The Court further viewed that in matters relating to custody of children, primarily, the Court will consider the welfare of the children and decide which parent is suitable to look after the child in a better manner by providing them all necessary facilities and comforts, however, what the Court cannot evaluate is, whether the child feels happy only with one parent, ultimately, the child is the silent sufferer, having lost the love and affection of another parent. Thus, taking into consideration the welfare of the child, the Court granted interim custody to the mother/ applicant.

[X v. X, 2022 SCC OnLine Mad 4609, decided on 16.09.2022]

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: In deciding the instant bail application filed by a juvenile applicant by invoking Section 12 of Juvenile Justice (Care and Protection of Children) Act, 2015, the Bench of Bharati Dangre, J., while invoking the principles of repatriation and restoration, granted bail to the applicant. It was observed that since the applicant had positively responded to the rehabilitative efforts during his stay in the Observation Home, he therefore deserves to be reunited and restored with his family and it would be in his best interest so that he can develop himself with full potential.

Facts of the Case: The applicant along with five adults, were arrested for gang-raping a 7-year-old girl and were charged under Sections 376-D, 376(1)(n), 354, 354-D, 114, 509, 506 of IPC and Sections 6, 8 and 12 of the Protection of Children from Sexual Offences Act (POCSO Act). Upon the applicant’s arrest, he was produced before the Juvenile Justice Board constituted under the Juvenile Justice Act, 2015 and was placed in the Observation Home.

The applicant filed two bail applications before the Juvenile Justice Board, but both the applications were rejected. The Board observed that the adult accused persons are the family members of the applicant, and if the applicant is released on bail, he may again come in contact with these people or other people of similar criminal tendencies. The Board held that the applicant’s safety can only be ensured if he is inside the Observation Home.

Contentions of the Applicant:

  • The counsels for the applicant contended that the juvenile applicant belongs to a lower- middle socio-economic background, with his father working as a watchman and his mother being a homemaker. It was also submitted that the applicant had passed his 10th Standard but could not further pursue his education due to financial issues and mother’s illness.

  • It was contended that the applicant’s involvement in the crime is doubtful as the prosecution hasn’t been able to establish the same.

  • The applicant’s side also presented his physical and psychological status report by the Child Guidance Clinic wherein the Probation Officer stated that the applicant is not a danger to the society and has shown good potential to excel, if right kind of opportunities, guidance, support and education are made available to him. It was stated in the report that the applicant has been deprived of his education during his long detention in the Observation Home and the same has caused disruption to his life.

  • The applicant also drew the attention of the Court towards the objectives of Juvenile Justice Act, 2015, which considers a child as distinct from an adult, who has to undergo through the normal procedure on being accused of an offence. It was submitted that the principle of repatriation and restoration which has been recognized as an essential principle by the legislature through the 2015 Act has been violated.

  • It was also submitted that the prolonged detention of the applicant is hampering his progress and also affecting his mental health as it has caused him undue anxiety and that his further stay in the Observation Home is against his interest.

Contentions of the Respondent:

  • Vehemently opposing the bail application, the respondents submitted that the offence that has been committed i.e., gang-rape of a 7-year-old, the crime is heinous in nature. Thus, the applicant does not deserve his release on bail.

  • It was further argued that if released on bail, the applicant would pose danger to the victim.

  • The respondents also pointed out that the Special Judge under the POCSO Act also rejected the application filed by the applicant under Section 439 of CrPC by recording that the accusations faced by the applicant are grave in nature and it is a case of gang rape- an aggravated sexual assault.

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

  • The Court observed that the Juvenile Justice Act, 2015 was enacted while noting that the justice system applicable for adults is not suitable to be applied to a child or a juvenile. Therefore, a new method was evolved to try juveniles, so as to protect their interest and also insulate them from being exposed to vagaries of police and the normal criminal system. The Court also took into account Articles 15, 39 (e) and (f), 45 and 47 of the Constitution and United Nations Convention on the Rights of Child and perused in detail the Juvenile Justice Act, 2015.

  • The Court noted that, “Section 12 (1) of the 2015 Act, makes a provision to the exclusion of anything contained in the CrPC or any other law for the time being in force and is a special provision for a child who is alleged to have committed a bailable or non-bailable offence”. The only embargo is in the proviso to Section 12 stating that where there are reasonable grounds for believing that the release is likely to bring that person into association with a known criminal or expose the said person to moral, physical and psychological danger or the person’s release would defeat the ends of justice. “In the scheme of enactment, it can be seen that Section 12 contains an imperative mandate to release a child on bail, when he is apprehended or detained in connection with an offence and it is a special provision, which stands to the exclusion of the CrPC”. It was pointed out by the Court that Juvenile Justice Act, 2015 is a special statute providing a special procedure to protect children in need and children in conflict with the law. Thus, it is important that while construing its provisions, the core objective of this legislation must not be forgotten.

  • The Court noted the Report presented by the Probation Officer vis-a-vis the applicant’s physical and psychological parameters and observed that the applicant does not fulfill the criteria stated in the embargo contained in Section 12. It was observed that the Report does not reflect him as a desperado or a person misfit in the society, and it recommends that if an opportunity is given to the applicant, he will be a better person.

    “The accusations faced by the applicant are undisputedly serious, but he must also derive the benefit of being a ‘child’, despite he is being tried as an adult and the benefit of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 cannot be denied to him”.

  • Stating that the applicant’s education has suffered due to his detention and the same could not be allowed, the Court granted bail to the applicant.

[Sandeep Ayodhya Prasad Rajak v. State of Maharashtra, 2022 SCC OnLine Bom 1825, decided on 22-08-2022]


Advocates who appeared in this case :

Maharukh Adenwalla, Advocate, for the Applicant;

A.A.Takalkar, A.P.P., Advocate, for the State/Respondent;

Saveena Bedi, Advocate, for the Intervenor.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Jharkhand High Court
Case BriefsHigh Courts

   

Jharkhand High Court: The division bench of Ravi Ranjan, C.J., and Sujit Narayan Prasad, J., took suo motu cognizance of the Dumka murder case and instructed the Director of the All-India Institute of Medical Science (‘AIIMS'), Deoghar to submit a report about the availability of medical facilities and burn ward in the hospital.

Facts:

The 16-year-old girl was burnt alive by pouring petrol over her body. She succumbed to death while being treated at Rajendra Institute of Medical Science (‘RIMS'). The death occurred due to lack of medical facilities which were not provided to the victim immediately.

As the crime was heinous and the occurrence stirred the conscience of the entire country, the Court decided to monitor the case and took suo motu cognizance for expeditious investigation and to conduct trial. The Court also called upon Advocate General (‘AG') for assistance.

The Court also called upon the Director General of Police (‘DGP') and the Secretary of the Department of Home (‘Secretary') to take into consideration the seriousness of the matter.

The Court has asked Advocate General to respond to the following queries:

  1. Extent of burn injury?

  2. Why the victim was compelled to be rushed to RIMS which is 280kms away from Dumka?

  3. Whether proper treatment could have been provided in the nearby hospital which was 2 hours away, i.e., AIIMS, Deoghar?

  4. Stage of investigation and who all have been apprehended?

  5. Whether the family members of the victim were being threatened by the associates of the accused, as it has been reported?

  6. According to the media publish, the victim was a minor, so how could she have been shown to be a major on the date of occurrence?

The Court further directed AIIMS to submit a report about all the medical facilities available and especially about the availability of burn ward. In case of non- availability of burn ward, the provision for the burn injury victims to be treated at Trauma Centre. The Court also asked Director General of Police to provide adequate security for the family members of the victim.

[Court on its own motion v. State, W.P. (PIL) No. 4199 of 2022, decided on 30-08-2022]


Advocates who appeared in this case :

Mr. Rajiv Ranjan, Advocate General, for the State;

Mr. Piyush Chitresh, AC to A.G.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case filed by a woman alleging rape charges under Penal Code, 1860 (‘IPC’) and Protection of Children from Sexual Offences Act, 2012 (‘POCSO’), Jasmeet Singh, J. granted bail to the applicant accused as the case, in the opinion of the Court and based on the materials presented before it, prima facie seemed one of ‘honey trapping’. The Court directed the Commissioner of Police to conduct a detailed investigation and further clarified that mere having an Aadhar and PAN card and the date of birth mentioned in it is sufficient for someone to form an opinion that he is not indulging in physical relations with a minor, verification of such documents by the partner before sex is not required.

The petition was filed seeking bail in an FIR registered u/s 376, 34 IPC read with Section 6 POCSO Act registered at P.S. Pahar Ganj, Delhi. It was alleged in the FIR that the applicant and prosecutrix met in September 2019, exchanged numbers and became friends. It was further alleged that the applicant called the prosecutrix at a hotel, established physical relations with her, made a video and blackmailed her. It was also alleged that she was held captive at a place in Rohini where she managed to escape and met Savita who is an advocate and helped the prosecutrix to file the instant case.

The Court noted that as per the prosecutrix’s claim she had relationship with the applicant from 2019, and the applicant was blackmailing the prosecutrix and the fact that the prosecutrix escaped from the captivity of the applicant-accused 8 months before the FIR was lodged, therefore, the FIR was lodged with such delay.

On the contention raised by the counsel for applicant that the prosecutrix has 4 different dates of birth thus making the grounds of POCSO charges shaky, the Court noted that it seems the prosecutrix has 3 different dates of birth and the Aadhar card show her date of birth as 01-01-1998 and hence on the date of the alleged incident, the prosecutrix was supposed to be a major.

The Court observed that the person who is in a consensual physical relationship with another person is not required to judicially scrutinize the date of birth of the other person. He is not required to see Aadhar card, PAN card and verify the date of birth from her school record before he enters into a physical relationship. The very fact that there is an Aadhar Card and the very fact that the same date of birth shows 01-01-1998 is sufficient for the applicant to form an opinion that he was not indulging in a physical relationship with a minor.

The Court opined that there being transfers of huge amounts of money in favour of the prosecutrix amounting to Rs 50,00,000 for which no reasonable explanation was given by the prosecutrix, the present seems a case of honey trapping where innocent persons are being honey trapped and huge amounts of money are being extracted from them.

Thus, the Court directed the Police Commissioner to have a detailed investigation as regards the prosecutrix and find if any similar FIR is registered by the prosecutrix against any other person in Delhi and further investigate the Aadhar card, date of issuance of the same and the supporting documents filed for issuance of the said Aadhar card.

The Court granted bail subject to the following conditions:

i. The applicant shall furnish a personal bond with one local surety in the sum of Rs. 20,000/- each, to the satisfaction of the Trial Court;

ii. He shall appear before the Court as and when the matter is taken up for a hearing;

iii. The applicant shall provide his mobile number to the Investigating Officer (IO) concerned- at the time of release, which shall be kept in a working condition at all times. The applicant shall not switch off, or change the same without prior intimation to the IO concerned, during the bail period;

iv. He shall report to the local Police Station on the first Monday of every month at 10:30 A.M. He shall not be forced to sit for more than half an hour on any such occasion;

v. In case he changes his address, he will inform the IO concerned and this Court also;

vi. The applicant shall not leave the country during the bail period and surrender his passport, if any, at the time of release before the Trial Court;

vii. The applicant shall not indulge in any criminal activity during the bail period;

viii. The applicant shall not communicate with, or come into contact with any of the prosecution witnesses, or any member of the victim’s family, or tamper with the evidence of the case

[Hanzla Iqbal v. State, 2022 SCC OnLine Del 2598, decided on 24-08-2022]


Advocates who appeared in this case :

Mr. Amit Chadha, Adv. with Mr. Arpit Bhalla, Mr. Antim Chadha, Ms. Anjali Dhingra, Advocates, for the Petitioner;

Mr. Aashneet Singh, APP for State, Ms. Astha, Adv., DHCLSC SI Rajnandini, PS Pahar Ganj, Advocates, for the Respondent.


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

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case seeking grant of medical termination of pregnancy by a 16-year-old rape victim (‘petitioner’), Yashwant Varma J., granted termination of 28+ weeks foetus, after going through a report prepared by the Medical Board constituted by AIIMS, which recommended the same. The Court, however, directed the foetus to be preserved by AIIMS for DNA testing for the purpose of criminal case pending against the perpetrator.

The petitioner, a 16-year-old victim of rape approached the Court for the medical termination of her pregnancy. The foetus is stated to be beyond 28 weeks old. The report by the Medical Board constituted by AIIMS, recommended medical termination of her pregnancy.

As the petitioner has crossed the 24 week of pregnancy threshold as laid down under the provisions of the Medical Termination of Pregnancy Act, 1971, termination would be impermissible. Thus, the petitioner filed the instant petition.

The Court relied on X v. Government of NCT of Delhi in WP (C) No. 10638 of 2022 decided on 19-07-2022 wherein it was held that if the petitioner was forced to go through with the pregnancy despite the same having been caused on account of the incident of sexual assault, it would permanently scar her psyche and cause grave and irreparable injury to her mental health. The Court cannot visualize a more egregious invasion of her right to life as guaranteed by Article 21 of the Constitution.

The Court thus directed the petitioner to appear before Medical Board along with her brother as well as a responsible official to be deputed by the Child Welfare Committee [CWC] and undertake the requisite procedure for the medical termination of the pregnancy of the petitioner.

The Court further directed AIIMS to preserve the terminal foetus for DNA testing which would be required for the purposes of the criminal case which is pending.

[R v. Government of NCT of Delhi, 2022 SCC OnLine Del 2628, decided on 26-08-2022]


Advocates who appeared in this case :

For petitioner- Ms. Hetu Arora Sethi, Mr. Rahul Jain, Ms. Kavita Nailwal and Mr. Arjun Basra, Advocates

For Respondent- Mr. Mehak Nakra, ASC(C), GNCTD for R-1.

Mr. Satya Ranjan Swain and Mr. Tanveer Oberoi, Advs. for AIIMS and Inspector Dinesh Kumar, P.S. New Friends Colony


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

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.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case where protection was sought by a Muslim couple anticipating danger from the girl’s family (‘respondent 4 and 5′), Jasmeet Singh, J. directed State to grant protection to them as the girl (‘petitioner 1′) has attained puberty and willfully consented to the marriage with the boy (‘petitioner 2′).

The petitioners, Mohammedans by religion, were in love with each other and got married in accordance with Muslim rites and rituals by Maulana Imtiyaz of Jokihat Masjid, District Aauriya, Bihar. Respondents 4 and 5 are parents of the girl and opposing the marriage of the petitioners and have registered an FIR under Section 363 of Penal Code, 1860 (‘IPC’) and Section 6 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) against petitioner 2 . The instant petition was filed seeking directions for protection to the petitioners.

Petitioner 1 submitted that she was regularly beaten by her parents at home and the parents tried to forcibly marry her to someone else. It was also submitted that petitioner 1 is pregnant and the petitioner 1 and 2 are expecting a child together. The state submitted that the petitioner was only 15 years and 5 months on the date of the marriage, thus justifying the charges alleged.

The Court noted that as per Mohammedan Law, a girl who had attained the age of puberty could marry without consent of her parents and had right to reside with her husband even when she was less than 18 years of age and thus otherwise a minor girl.

Reliance was placed on Imran v. State of Delhi, (2011) 10 SCC 192 to prove the point that POCSO is an Act for protection of children below 18 years from sexual abuse and exploitation and will apply to Muslim law. However, the Court clarified that this case cannot be relied on, in terms of the facts of the present case.

The Court clarified stating “There was no marriage between the prosecutrix and the accused. In fact, in that case sexual relationships were established prior to marriage. Post establishing the physical relationship, the accused had refused to marry the prosecutrix. It was on this basis that POCSO had been applied to the facts of that case. The object of the POCSO Act states that the Act is aimed at ensuring the tender age of the children and ensuring they are not abused and their childhood and youth are protected against exploitation. It is not customary law specific but the aim is to protect children under the age of 18 years from sexual abuse.”

The Court further noted that present is not a case of exploitation but a case where the petitioners were in love, got married according to Muslim laws, and thereafter, had physical relationships, thus giving no strength to the charges alleged under POCSO.

The Court also observed that in the present case, the environment in the house of petitioner 1 is hostile towards her and her husband as per allegations levelled by petitioner 1. Thus, the petitioners being lawfully wedded to each other cannot be denied the company of each other which is the essence of the marriage. If the petitioners are separated, it will only cause more trauma to the petitioner 1 and her unborn child.

The Court directed respondent 1 to 3 to ensure safety and protection of the petitioners.

[Fija v. State Govt NCT of Delhi, 2022 SCC OnLine Del 2527, decided on 17-08-2022]


Advocates who appeared in this case :

Mr. Arvind Singh, Mr. AK Mishra, Advocates, for the Petitioner;

Ms. Rupali Bandhopadhyay, ASC with Mr. Akshay Kumar, Mr. Abhijeet Kumar, Advocates with ASI Harvinder Kaur, PS Dwarka North, Advocates, for the Respondent.


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