Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J., stressed the reliability of the child victim’s testimony in a sexual assault case and upheld the trial court’s decision.

Instant appeal was preferred under Section 374(2) read with Section 383 CrPC. Appellant was convicted under Section 6 of the POCSO Act in 2013.

Facts

‘X’ was 12 years old at the time of the alleged incident and the accused was her stepfather. It was stated that Accused gave beatings to the brothers of ‘X’ and later removed the clothes of ‘X’ and his own and penetrated his urinal part in the vagina of Ms ‘X’.

Analysis

In the present matter, Bench noted that the child victim stated that while the appellant was doing wrong things with her Mohd. Rafiq had seen them from the hole of the door and called her name. She opened the bolt of the door and Mohd. Rafiq gave beatings to the appellant and called the police. The child victim also identified the appellant.

In so far as the testimony of the child victim is concerned, it has been repeatedly held that if the testimony of the child victim inspires confidence, it is sufficient to record the conviction.

Bench stated that Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. [Refer: State of Punjab v. Gurmit Singh, (1996) 2 SCC 384]

High Court observed that, on perusal of the statements made by the child victim during investigation and the trial show that she had consistently stated that on the night of the incident, the child victim along with her siblings had gone to sleep in the house of their neighbour from where they were called by the appellant.

Thereafter, both her brothers after being beaten, were sent upstairs and thereafter, the appellant removed her clothes as well as his own clothes and inserted his male organ and committed rape upon her. The child victim had also stated that the appellant had inserted his male organ in her mouth. She had also stated that the appellant had committed the offence two-three times earlier also.

Child Victim’s Testimony — Reliability?

The statement of the child victim to the effect that an incident had occurred on the intervening night of 25th and 26th find support not only from the testimony of her two minor younger brothers ‘R’ and ‘A’ but also from the testimony of Mohd. Rafiq.

Court observed that the statements of the child victim made during the investigation and the trial were consistent about the incident and role of the appellant. Therefore, Court concurred with the finding of the trial court that the child victim’s testimony was trustworthy, reliable and admissible.

As per Section 29 of the POCSO Act, there is presumption regarding the guilt of the accused and the appellant failed to dislodge the statutory presumption under the said Section.

Hence, the impugned judgment and order on sentence are upheld.

Lastly, the Court added that State is directed to provide compensation to the victim in view of the Delhi Victim Compensation Scheme, 2015 within a period of 2 months from the date of passing of this Judgment.[Sunil Kumar v. State of NCT of Delhi, 2021 SCC OnLine Del 2391, decided on 25-05-2021]


Advocates before the Court:

For the Appellant: Mr Anwesh Madhukar, Advocate (DHCLSC) alongwith Ms. Prachi Nirwan, Advocate

For the Respondent: Mr Ashok Kr. Garg, APP for State

Case BriefsHigh Courts

Sikkim High Court: Meenakshi Madan Rai, J., rejected a bail application wherein the Petitioner, Principal of a School, aged about 58  years, was accused of the offence under Section 354 of the Indian Penal Code, 1860, Section 8 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. He was arrested on 03-03-2021.

The counsel for the petitioner, Mr B. Sharma, Senior Advocate with Mr B.N. Sharma, Mr Bhupendra Giri and Mr Charles L. Lucksom submitted that the petitioner was been falsely implicated in the instant case and that he was a responsible person running a well established Private School and was also a Politician having been elected as a Councillor and given the responsibility of Vice Chairman of the Gorkha Territorial Administration. That, he was a well reputed Social Worker and owned large property in South Sikkim. That, the investigation in the matter had been completed and he was no longer required in custody. It was further urged that he was suffering from Diabetes Mellitus, Heart disease, Dyslipidemia, Hypertension, Hyperuricemia and Renal Calculus, and the Doctor has observed that a Hypoglycemic attack may occur at any time of the night and has to be tackled urgently, this ground alone sufficed for grant of bail.

Opposing the bail application, counsel for the respondent Mr Yadev Sharma, submitted that the victim was the child of 17 years and was studying in the School run by the Petitioner as the Principal and in lieu of paying personal attention to the victim he touched her inappropriately and gave indirect hints seeking sexual favours from her. He also verbally abused her, made her do household chores and give him massages. That, since the date of his arrest, the Petitioner has remained in the Hospital with the purpose of defeating the law. That, Charge-Sheet is yet to be submitted and further investigation in the matter is being continued during the course of which, it has come to light that the mother of the victim who was the Complainant, was being pressurized to change her Statements against the Petitioner and also that he had perpetrated the same acts on other girl Students as he did on the victim.

The Court considered several factors before deciding on this matter of bail which were:

  • existence of prima facie case against the accused,
  • the nature and gravity of the accusations,
  • the penalty likely to be imposed,
  • chances of the accused absconding on being enlarged on bail,
  • the antecedents and standing of the accused in society;
  • likelihood of repetition of the offence,
  • reasonable apprehension of evidence being tampered with and witnesses being influenced; and
  • the course of justice being defeated by grant of bail.

The Court considered the FIR and the medical documents on record and observed that there was no imminent threat to the life of the petitioner. The Court further held that the gravity of the offence was necessary to be taken into consideration and the acts of the Petitioner were indeed heinous having been perpetrated on a minor under his care and guidance.

The Court while rejecting the plea for bail held that there is a prima facie case against the Petitioner although elaborate examination of evidence has not been embarked upon nor were the merits of the case being touched upon, to avoid any prejudice to the petitioner.[Lopsong Lama Yolmo v. State of Sikkim, Bail Appln. No.06 of 2021, decided on 16-04-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Telangana High Court: The Division Bench of A. Rajasheker Reddy and Dr Shameem Akhter, JJ.,  while addressing the matter has shed some light on the distinction between “Public Order” and “Law & Order”.

Petitioner filed the present petition on behalf of his son challenging the detention order passed by the Police Commissioner, respondent 3.

Respondent 3 submitted that detenu is a ‘Sexual Offender’ as defined in clause (V) of Section 2 of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986 (Act 1 of 1986).

Further, it was submitted that the detenu had committed penetrative aggravated sexual assault on a minor, three times. Subsequently, detention order was passed. Hence the present petition.

Issue for determination:

Whether the detention order passed by respondent 3 and the confirmation order passed by the Principal Secretary to Government, General Administration (Spl. Law and Order) Department, Government of Telangana are liable to be set aside?

Analysis and Decision

[Law & Order v. Public Order]

Supreme Court in several decisions had clearly expressed that there is a vast difference between “law and order” and “public order”.

The offences which are committed against a particular individual fall within the ambit of “law and order”. It is only when the public at large is adversely affected by the criminal activities of a person, is the conduct of a person said to disturb the
“public order”.

Individual cases can be dealt with by the criminal justice system, hence there is no need for detaining authority to invoke the draconian preventive detentions laws against an individual.

Supreme Court in its decision of Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, had deprecated the invoking of the preventive law in order to tackle a law and order problem.

In Kanu Biswas v. State of West Bengal, (1972) 3 SC 831, following was the Supreme Court’s opinion:

The question whether a man has only committed a breach  of law and order or has acted in a manner likely to cause a  disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. Public order is what the French call ‘order publique’ and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an  act affects law and order or public order, as laid down in  the above case, is: Does it lead to disturbance of the  current of life of the community so as to amount to a disturbance of the public order or does it affect merely an  individual leaving the tranquility of the society undisturbed?”

Further, Court relied on the decision of Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14,  wherein it was held that a single act or omission cannot be characterised as a habitual act or omission because, the idea of ‘habit’ involves an element of persistence and a tendency to repeat the acts or omissions of the same class or kind, if the acts or omission in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between them, they cannot be treated as habitual ones.

Bench observed that in the present atter, the detenu was being prosecuted for committing a heinous offence of penetrative aggravated sexual assault on a girl aged 13 years. He was granted bail by the Court of Session on conditions.

If the State was aggrieved with the bail of detenu, they should have approached the Higher Court to seek cancellation Bail, they instead passed the impugned detention order.

All the cases under POCSO Act are being put on the fast track. It is brought to the notice of this Court that no charge- sheet had been filed.

In Court’s opinion, the bald statement made, wherein it was stated that: considering the detenu’s involvement in heinous activities and his release from prison on bail, there is imminent possibility of his indulging in similar shameful and inhuman acts of sexual assault on minor girls and women exploiting their innocence in a deceptive manner which are detrimental to public order, would not justify the impugned detention order.

Hence, the detaining authority failed to demonstrate the necessity to pass the impugned detention order invoking the draconian preventive detention laws.

Colourable Exercise of Power

Bench noted that due to the acquaintance/friendship, the detenu took the victim girl to a secluded place where he committed sexual intercourse and thus fulfilled his sexual desire and on the next day morning,  he let off the victim girl.

Therefore, it cannot be held that the detenu would indulge in similar prejudicial activities in future. Under these circumstances, the detaining authority is not justified in passing the order of detention, which tantamount to colourable exercise of power.

Was there any disturbance to ‘Public Order’?

High Court in view of the facts and circumstances of the case expressed that grave as the offence may be, it relates to penetrative aggravated sexual assault on a minor girl. So, no inference of disturbance of public order could be drawn.

Therefore, the present case falls under the ambit of “law and order”.

In view of the above discussion, present petition was allowed. [Charakonda Chinna Chennaiah v. State of Telangana, 2021 SCC OnLine TS 261, decided on 23-02-2021]


Advocates who appeared before the Court:

Counsel for the Petitioner: Dr. B. Karthik Navayan

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara J., allowed the petition and reduced the sentence to the period of imprisonment already undergone.

Background

The facts of the case are such that an unmarried boy aged 24 years, who is in custody for around three months, because a minor girl aged 16 years, came to his home as they love each other, stayed there, had coitus, which on the intervention of her parents led to the registration of FIR. The petitioner filed a bail petition under Section 439 Criminal Procedure Code i.e. CrPC before this High Court, wherein the bail petition was dismissed as withdrawn vide order dated 17-12-2020. Assailing the said order instant petition was filed seeking regular bail on the ground of the conduct of the victim.

Analysis

The Court observed that neither Section 376 of the Indian Penal Code, 1860, (IPC), nor Section 6 of the Protection of Children from Sexual Offences Act, 2012, (POCSO) create any restriction on grant of bail. It was further observed that after perusing the facts and circumstances, it seems that the petitioner and the victim knew each other and were romantically involved and there is no case of forcible sexual relationship; instead, the victim surrendered to the petitioner’s physical desires out of her love and affection towards him. The victim’s boldness to declare her passion towards the petitioner in the presence of her father and Police speaks volumes. Further, she also told them explicitly that she left her home out of her own free will and refused to go back with her father. These facts point out that the victim, being 16 years of age, though a minor, voluntarily left her home. Therefore, the rigors to reject bail and reasons to continue incarceration are reduced by the mitigating factors in the present case.

Observations

The Court further observed that adverting to the facts of the present case, the appellant has unintentionally admitted his culpability and the appellant has failed to propound how the elements of kidnapping have not been made out. His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age.

The court relied on judgment Satish Kumar Jayanti Lal Dabgar v. State of Gujarat, (2015) 7 SCC 359 and stated that consent of the minor is immaterial for purposes of Section 361 of IPC and provisions in the IPC and other laws like the Indian Contract Act, 1872, minors are deemed incapable of giving lawful consent. Section 361 IPC goes beyond this simple presumption and bestows the ability to make crucial decisions regarding a minor’s physical safety upon his/her guardians. Therefore, a minor girl’s infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping. Similarly, Section 366 of IPC postulates that once the prosecution leads evidence to show that the kidnapping was with the intention/knowledge to compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand attracted.

The Court further relied on State of Madhya Pradesh v. Surendra Singh, (2015) 1 SCC 222

“13. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.

The Court thus observed that there cannot be any mechanical reduction of sentence unless all relevant factors have been weighed and whereupon the Court finds it to be a case of gross injustice, hardship, or palpably capricious award of an unreasonable sentence. The Court further held that “the quantum of sentence awarded to the appellant deserves to be revisited”.

Grounds for revision

  1. No force, no pre-planning, use of any weapon or any vulgar motive had been present in the act of kidnapping.
  2. The young age of the accused at the time of the incident cannot be overlooked.
  3. trial delay at different levels i.e. more than twenty-two years have passed since the incident.
  4. The present crime was one of passion. No other charges, antecedents, or crimes either before 1998 or since then, have been brought to our notice.
  5. There is no grotesque misuse of power, wealth, status or age which needs to be guarded against.

The Court thus held that “the prosecution has established the appellant’s guilt beyond reasonable doubt and that no case of acquittal under Sections 363 and 366 of the IPC is made out. However, the quantum of sentence is reduced to the period of imprisonment already undergone.”

In view of the above, petition was allowed.[Virender Singh v. State of HP, 2021 SCC OnLine HP 280, decided on 04-02-2021]


Arunima Bose, Editorial Assistant has put this story together.

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., in regard to quashing of FIRs expressed that:

“High Court cannot mechanically quash FIRs for non-compoundable offences by exercising powers under Section 482 CrPC just because parties have decided to bury their hatchets.”

The instant petition was filed for quashing of an FIR for offences under Section 377 of Penal Code, 1860 read with Section 4 of the Protection of Children from Sexual Offences Act (POCSO Act).

Respondent 2/Complainant stated that after completion of his work when he reached home, he saw his 7 year old son crying, who told him that the accused who stayed in the same building had come and sodomosied him.

It was further stated that the underwear of the child was wet with blood. On completion of investigation, there was enough material to proceed against the petitioner for offences under Section 377 IPC and Section 4 POCSO Act.

The reason that has been stated for quashing of the FIR was due to the intervention of the elders of the society and friends. In view of the same, parties decided to put an amicable end to the disputes.

Analysis and Decision

Bench while analysis the facts and circumstances of the case, stressed that Section 377 IPC and Section 4 of the POCSO Act are non- compoundable offences and while exercising powers under Section 482 CrPC to quash criminal proceedings for non-compundable offences on the basis of compromise, the High Court should scan the entire facts to find out the thrust of allegations and the cruxof the settlement.

While stating the above position, Court referred to the decision of Supreme Court in State of Maharashtra v. Vikram Anantrai Doshi, (2014) 15 SCC 29.

Bench also referred to the following decisions of the Supreme Court:

The offence in the instant case was of grave nature.

POCSO Act was enacted only because sexual offences against children were not being adequately addressed by the existing laws and the purpose of the Act was to provide protection to children from sexual assault and sexual harassment and for safeguarding the interest and well being of children.

While noting the above stated objective of the POCSO Act, Bench stated that permitting such offences to be compromised and quashing FIRs would not secure the interest of justice.

Calling out the impact of such offences to be a serious one, Court also stated that, an offence under Section 377 IPC committed on a child of 7 years or an offence under Section 4 of the POCSO Act shows the mental depravity of the offender and cannot be said to be private in nature.

Hence, Court opined that the father of the victim cannot be permitted to settle the dispute and the Bench cannot lose sight of the fact that the accused was being prosecuted for an offence that shocks the value system of a society.

Deterrence to others committing similar offence is a must and they cannot get a signal that anything and everything can be compromised.

Therefore, Bench dismissed the petition in view of the above discussion. [Sunil Raikwar v. State, 2021 SCC OnLine Del 258,  decided on 29-01-2021]


Advocates for the parties:

Petitioner: Amit Gupta, Advocate

Respondents: Kusum Dhalla, APP for the State and Rahul Raheja, Advocate for R-2

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., while addressing a matter revolving around the POCSO Act expressed that:

“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.”

 The scheme of the POCSO Act clearly shows that it did not intend to bring within its scope or ambit, cases of nature where adolescents or teenagers involved in romantic relationships are concerned.

The present petition was filed jointly by the Defacto Complainant and Victim Girl with regard to quashing of the proceedings pending against the 2nd Respondent who was facing trial before the lower Court for offences under Section 366 of Penal Code, 1860, Section 6 of the Prevention of Child from Sexual Offences Act, 2012 and Section 9 of the Prohibition of the Child Marriage Act, 2006.

It was stated that 2nd petitioner, victim girl were in love with each other. Ultimately, they decided to get married and went away from their respective home.

Inspector of Police, Doulagh Nisha at the time of hearing informed the Court that the petitioners approached her and informed that they do not want to continue further with the criminal proceedings against 2nd respondent. Further, it was informed to her that 1st petitioner wants her daughter to get married and that the same was getting delayed due to the criminal proceedings causing mental agony to the petitioners.

Analysis and Decision

While addressing the present matter, Court was instantaneously reminded of an earlier order passed by this Court in Sabari v. Inspector of Police, 2019 (3) MLJ Crl 110, wherein the Bench had discussed in detail about the cases in which persons of the age group of 16 to 18 years were involved in love affairs and how in some cases ultimately end up in a criminal case booked for an offence under the POCSO Act.

Bench stated that it is 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 the 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.

Further, the Court stated that as rightly recognized in the above-cited case of Sabari v. Inspector of Police, 2019 (3) MLJ Crl 110,

“incidences, where teenagers and young adults fall victim to offences under the POCSO Act being slapped against them without understanding the implication of the severity of the enactment, is an issue that brings much concern to the conscience of this Court.”

 POCSO Act was brought into force to protect children from offences of sexual assault, sexual harassment and pornography, pursuant to Article 15 of the Constitution of India and the Convention on the Rights of the Child.

A large array of cases filed under the POCSO Act seems to be those arising on the basis of complaints registered by the families of adolescents and teenagers who are involved in romantic relationships with each other.

Court expressed that it is not turning a blind eye to cases where the victim or survivor may, under the effect of trauma that they have undergone, studies on which show that they might tend to reconcile with the same by blaming themselves or convincing themselves that the element of consent was infact present. Nor is this Court scientifically justifying in toto, the genuineness or predicament of the accused in every case where it appears that the accused and victim child have been in a romantic relationship. That will depend on the facts and circumstances of each and every case.

In the instant matter, Bench noted that the 2nd petitioner clearly stated that she was the one who insisted that 2nd Respondent take her away from her home and marry her, due to the pressure exerted by her parents.

In light of the above-said incidents, parents or family lodge a complaint, the police registers FIRs for offences of kidnapping and various offences under the POCSO Act. Several cases under the POCSO Act fall under this category. As a consequence of such an FIR being registered, invariably the boy gets arrested and thereafter, his youthful life comes to a grinding halt.

Hence, due to the stringent nature of the POCSO Act, the acts of the boy would be called as an offence.

The objective of the POCSO Act was never punishing an adolescent boy as an offender who enters into a relationship with a minor girl.

An adolescent boy and girl who are in the grips of their hormones and biological changes and whose decision-making ability is yet to fully develop, should essentially receive the support and guidance of their parents and the society at large. These incidents should never be perceived from an adult’s point of view and such an understanding will in fact lead to lack of empathy.

Therefore, it is high time that the legislature takes into consideration cases of the present nature involving adolescents involved in relationships and swiftly bring in necessary amendments under the Act.

Court in view of the above opined that the legislature has to keep pace with the changing societal needs and bring about necessary changes in law and more particularly in a stringent law such as the POCSO Act.

Main Issue to be addressed:

Whether this Court can quash the criminal proceedings involving non-compoundable offences pending against the second respondent?

Bench relied on the Supreme Court decision in Parbathbhai Aahir v. State of Gujrath, (2017) 9 SCC 641 and in State of Madhya Pradesh v. Dhruv Gurjar (2019) 2 MLJ Crl 10, wherein sufficient guidelines have been given that must be taken into consideration by this Court while exercising its jurisdiction under Section 482 CrPC to quash non-compoundable offences.

Supreme Court held that offences against the society with overriding public interest even if it gets settled between the parties cannot be quashed by this Court.

After examining the above, Court noted that the offences in question in regard to the present matter are purely individual in nature. Hence, Quashing the proceedings, will not affect any overriding public interest in this case and it will in fact pave way for the 2nd Petitioner and the 2nd Respondent to settle down in their life and look for better future prospects.

High Court quashed the criminal proceedings. [Vijayalakshmi v. State, 2021 SCC OnLine Mad 317, decided on 27-01-2021]

Case BriefsHigh Courts

Bombay High Court: Pushpa V. Ganediwala, J., altered the conviction of the appellant who was accused of sexually assaulting a minor child by partly quashing his conviction for the offence of sexual assault and aggravated sexual assault punishable under Sections 8 and 10 of POCSO Act, respectively.

The instant appeal challenged the judgment wherein the appellant/accused was convicted for the offence under Sections 354-A(1)(i) and 448 of the Penal Code, 1860 and Sections 8, 10 and 12 read with 9(m) and 11(i) of the Protection of Children from Sexual Offences Act, 2012.

Factual Matrix

Informant i.e. the mother of the prosecutrix had gone to her duty and on returning back home she saw the presence of appellant/accused in her house molesting her minor daughter who was aged about 5 years.

Further, the informant stated that she saw that the accused was holding the hands of her elder daughter. Informant’s daughter had informed that the accused removed his penis from the pant and asked her to come to the bed for sleeping.

Analysis and Decision

Bench noted that the appellant/accused was convicted by the trial court for the commission of offence of ‘aggravated sexual assault’, punishable under Section 10 of POCSO Act. However, to decide whether the alleged act of appellant/accused would fit into the definition of ‘aggravated sexual assault’, Court looked into the definition of ‘sexual assault’, according to which the offence involved the following ingredients:

(i) Act must have been committed with sexual intention.

(ii) Act involves touching the vagina, penis, anus, or breast of the child.

 or

makes the child touch the vagina, penis, anus or breast of such person or any other person.

 or

does any other act with sexual intent which involves physical contact without penetration.

 Further, the Court added that the acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’ as had been allegedly witnessed by PW-1, which in the opinion of this Court did not fit in the definition of ‘sexual assault’.

Considering the nature of the offence and the sentence prescribed, Court opined that the aforesaid acts were not sufficient for fixing the criminal liability on the appellant/accused of the alleged offence of ‘aggravated sexual assault’.

“At the most, the minor offence punishable under Section 354-A(1)(i) of the IPC r/w Section 12 of the POCSO Act is proved against the appellant.”

Another point noted by the Bench was that as per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is an essential ingredient for the offence.

The definition starts with the words – “Whoever with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person or does any other act with sexual intent……’ The words ‘any other act’ encompasses within itself, the nature of the acts which are similar to the acts which have been specifically mentioned in the definition on the premise of the principle of ‘ejusdem generis.’ The act should be of the same nature or closure to that.

Bench expressed that the prosecution could establish that the appellant/accused entered into the house of the prosecutrix with the intention to outrage her modesty or sexual harassment as defined under Section 11 of the POCSO Act.

Hence, the conviction of the appellant/accused of the offence punishable under Sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act was maintained. The criminal appeal was partly allowed and the conviction of the appellant/accused of the offence punishable under Sections 8 and 10 of the POCSO Act, was quashed and set aside.[Libnus v. State of Maharashtra, 2021 SCC OnLine Bom 66, decided on 15-01-2021]

Case BriefsHigh Courts

Himachal Pradesh High Court:  Vivek Singh Thakur, J., while exercising powers under Section 482 CrPC, allows the present petition,  stating, “… power of High Court under Section 482 CrPC is not inhibited by the provisions of Section 320 CrPC and FIR as well as criminal proceedings can be quashed by exercising inherent powers under Section 482 CrPC, if warranted in given facts and circumstances of the case for ends of justice or to prevent abuse of the process of any Court, even in those cases which are not compoundable where parties have settled the matter between themselves.”

 Background

The instant petition, under Section 482 of the Code of Criminal Procedure has been filed by petitioner Girdhari Lal, on the basis of compromise arrived at between him and respondent 2, for quashing dated 07-07-2017, registered under Section 8 of the Protection of Children from Sexual Offence Act, 2012 and subsequent proceedings arising thereto. It is contended on behalf of respondent 1 that petitioner accused is not entitled to invoke the inherent jurisdiction of this Court to exercise its power on the basis of compromise arrived at between the parties with respect to an offence not compoundable under Section 320 CrPC.

 Observations

Pursuant to its decision, Court placed reliance over the following cases;

Gian Singh v. State of Punjab, (2012) 10 SCC 303, explaining that High Court has inherent power under Section 482 of the Code of Criminal Procedure with no statutory limitation including Section 320 CrPC.

Narinder Singh v. State of Punjab, (2014) 6 SCC 466, where the Supreme Court has summed up and laid down principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercise its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with criminal proceedings.

Madan Mohan Abbot v. State of Punjab, (2008) 4 SCC 582, it was emphasized by the Supreme Court that in matter of compromise in criminal proceedings, a commonsense approach, based on ground realities and bereft of the technicalities of law, should be applied.

With respect to the offence committed under the POCSO Act, the Court remarked, “No doubt Section 8 of POCSO Act is not compoundable under Section 320 CrPC. However, as explained by Supreme Court in Gian Singh’s, Narinder Singh’cases, power of High Court under Section 482 CrPC is not inhibited by the provisions of Section 320 CrPC.”

 Decision

Quashing FIR against the petitioner, the Court said, “Keeping in view nature and gravity of offence and considering facts and circumstances of the case in entirety, I am of the opinion that present petition deserves to be allowed for ends of justice and the same is allowed accordingly.” [Girdhari Lal v. State of Himachal Pradesh, Cr. MMO No. 388 of 2020, decided on 04-01-2021]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

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

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

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

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

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

A victim stands on higher pedestal than an injured witness.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Advocates who appeared in the instant matter:

For Appellant: Sayed Shabana M. Ali

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

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Pankaj Naqvi and Vivek Agarwal, JJ., observed that,

Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to right to life and personal liberty.

The writ petition was filed seeking a writ of mandamus directing the respondent concerned, not to arrest the petitioners under Sections 363, 366, 352, 506 of Penal Code, 1860 and Sections 7 and 8 POCSO Act.

Salamat Ansari and Priyanka Kharwar along with two others invoked the extraordinary jurisdiction of this Court for seeking quashment of an FIR under Sections 363, 366, 352, 506 IPC and Sections 5 and 6 of POCSO Act on the premise that the couple is of the age of majority, competent to contract a marriage, performed Nikah as per Muslim rites and rituals, after Priyanka Kharwar renounced her Hindu identity and embraced Islam.

Further, it was submitted that the couple had been living together as husband and wife since last one year peacefully and happily. FIR was lodged by the father of petitioner 4 prompted by malice and mischief only with a view to bringing an end to marital ties, no offences are made out, hence FIR be quashed.

DECISION

The mere fact that this petition is filed and supported by an affidavit of Priyanka Kharwar alleged victim, goes to show that she is voluntarily living with Salamat Ansari as a married couple.

Age of Priyanka Kharwar was not in dispute as she was reported to be around 21 years, therefore, petitioners 1 to 3 cannot be made accused of committing an offence under Sections 363 or 366 IPC, as the victim on her own left her home in order to live with Salamat Ansari. Similarly, as Priyanka Kharwar was not found to be juvenile, the offence under Sections 7/8 POCSO Act was not made out.

Hence, the allegations made were malafidely motivated with a view to implicate the family.

Bench stated that,

“Priyanka Kharwar and Salamat as Hindu and Muslim, rather as two grown-up individuals who out of their own free will and choice are living together peacefully and happily over a year.”

Adding to the above, it was observed that the Courts and the Constitutional Courts, in particular, are enjoined to uphold the life and liberty of an individual guaranteed under Article 21 of the Constitution of India.

Interference in a personal relationship, would constitute a serious encroachment into the right to freedom of choice of the two individuals.

Court stated that it fails to understand that if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even State can have an objection to the relationship of two major individuals who out of their own free will are living together.

By relying on the Supreme Court decision of Shaffin Jahan v. Asokan K.M., (2018) 16 SCC 368, it was stated that the Supreme has consistently respected the liberty of an individual who has attained the age of majority.

Supreme Court in the decision of Shakti Vahini v. Union of India, (2018) 7 SCC 192, came down heavily on the perpetrators of “honour killings” which the Court found not only horrific and barbaric but also interfering with the right to choose a life partner and the dignity of an individual.

Bench stated that though the above observations were made in connection with ‘honour killings’ but the Court is of the firm view that the said principle would apply in the present context too where a relationship of two matured individuals is sought to be jeopardized at the whim and caprice of a parent.

Right to choose a partner irrespective of caste, creed or religion, is inhered under the right to life and personal liberty, an integral part of the Fundamental Right under Article 21 of the Constitution of India.

Before parting with the present decision, Court reiterated that the FIR is being quashed primarily on the ground that no offences are made out, as two grown-up individuals have been living together for over a year of their own free will and choice.

Before concluding, however, the Court expressed that it expects the daughter to extend all due courtesy and respect to her family. [Salamat Ansari v. State of U.P., 2020 SCC OnLine All 1382, decided on 11-11-2020]


Advocates who appeared for the parties:

Counsel for the petitioner: Rakesh Kumar Mishra

Counsel for the Respondent: G.A., Ritesh Kumar Singh.

Case BriefsHigh Courts

Delhi High Court: A Division Bench of G.S. Sistani and Anup Jairam Bhambhani, JJ., directed that the provisions of the Practice Direction dated 24-9-2019 shall mutatis mutandis also apply to offences under the Protections of Children from Sexual Offences Act, 2012 (POCSO).

The order now passed is to be read in conjunction with the earlier Order dated 25-11-2019 passed in the same petition [Reena Jha v. Union of India, WP (C) 5011 of 2017] wherein the High Court had directed all the Criminal Courts to follow the Practice Direction dated 24-9-2019 which was extracted by the Court in its earlier order:

“PRACTICE DIRECTION

Section 439 of the Code of Criminal Procedure, 1973 stood amended by the Criminal Law (Amendment) Act, 2018 (No. 22 of 2018) w.e.f. 21-4-2018 vide which, amongst others, it has been mandated that the presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code and that the High Court or the Court of Session shall, before granting bail, give notice of such application to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.

The relevant provisions of ‘The Criminal Law (Amendment) Act, 2018’ in this respect are reproduced herein below:-

‘23. In Section 439 of the Code of Criminal Procedure

(a) In sub-section(1), after the first proviso, the following proviso shall be inserted, namely:

Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-Section (3) of section 376 or section 376-AB or section 376-DA or section 376-DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.

(b) After sub-section(1), the following sub-section shall be inserted, namely:

(1-A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376-AB or section 376-DA or section 376-DB of the Indian Penal Code (45 of 1860).’

In order to ensure better and effective compliance of the above provisions, Hon’ble the Chief Justice has been pleased to direct as under:-

(a) Before granting bail to a person who is accused of an offence triable under sub-section (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code, the High Court or the Court of Session shall give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application; and

(b) The Courts shall ensure that the Investigating Officer has, in writing as per Annexure A, communicated to the informant or any person authorised by her that her presence is obligatory at the time of hearing of the application for bail to the person under sub-section (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code. Annexure A shall be filed by the I.O. along with the Reply / Status Report to such bail application and the Courts shall make all endeavour to ensure presence of the informant or any person authorised by her.

These directions shall come into force with immediate effect.”

The earlier Order dated 25-11-2019 was passed on the petitioner’s submission that despite the Delhi High Court Practice Direction dated 24-9-2019 and format provided in Annexure ‘A’ to the Practice Direction being issued, in reality, no information, in compliance with Section 439 CrPC, was being conveyed to the victim or her family members prior to entertaining an application seeking bail for offences triable under Sections 376(3), 376-AB, 376-DA or Section 376-DB IPC.

Presently, the petitioner pointed out before the Court that the Practice Direction dated 24-9-2019 as referred to in earlier order are based upon amendments to Section 439 CrPC and apply to aggravated forms of sexual offences under Sections 376(3), 376-AB, 376-DA and 376-DB IPC. The Practice Direction, however, do not apply to cases under the POCSO Act. Attention was further drawn to Section 40 of POCSO Act read with Rule 4(11) and 4(12)(viii) of the POCSO Rules, 2012.

While submitting that the Practice Direction dated 24-9-2019 or directions to the same effect should also be extended/made applicable to offences under POCSO Act, the petitioner, however, pointed out that an issue in relation to POCSO offences may arise in cases where the crime has been perpetrated by a close family member; in which case, issuing notice or giving information to such family member in line with the Practice Direction, would not serve any purpose. It was suggested that in such cases, notice be issued to the Child Welfare Committee concerned and a copy of such notice/information be also sent to the Delhi State Legal Services Authority (DSLSA).

Seeing merit in the submission made by the petitioner, the High Court directed that the provisions of the Practice Direction dated 24-9-2019 shall mutatis mutandis also apply to offences under the POCSO Act.

It was further directed that the present order, as well as the earlier order, shall be circulated to all District Judges in Delhi, who will be responsible to bring the same to the notice of the Criminal Courts concerned dealing with POCSO matters under their respective jurisdictions and to ensure that the same are implemented.

Direction was also issued to the National Commission for Protection of Children Rights (NCPCR) and State Commission for Protection of Children Rights (SCPCR) to ensure that they comply with the mandate of Rule 6 of POCSO Rules in relation to monitoring and implementation of the provisions of the POCSO Act, strictly and faithfully. [Reena Jha v. Union of India,  2020 SCC OnLine Del 1389, dated 27-01-2020]

Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J., confirmed the conviction and sentence of the appellant, who was convicted by the trial court for the offence punishable under Section 6 (punishment for aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences Act, 2012 (“POCSO”) and Section 366-A (procuration of minor girl) of the Penal Code, 1860.

Crime and conviction

The appellant was a tenant in the house of the child-victim’s maternal grandmother (“nani”). The victim called the appellant “mama” (maternal uncle). As per the victim, one day when she was returning her home from her nani’s house, the appellant stopped her on the staircase and took her to his room where he inserted his hand in her private part. She tried to stop him and threw her “chappal” (slipper) at him. After which, she opened the lock of the room from inside and ran to her home where she narrated the entire incident to her mother. The mother of the victim took her to the police station where crime was registered.

The appellant was convicted by the trial court for under Section 6 of POCSO and Section 366-A IPC and sentenced to suffer 10 years RI and 5 years RI along with the imposition of fine respectively under the two provisions.

Appeal

Aggrieved by the decision of the trial court, the appellant preferred the present appeal where he submitted, among other things, that the child-victim’s testimony was doubtful as she had stated that the appellant inserted his hand in her private part, but on medical examination, no injury or swelling was noticed. It was also submitted that the appellant was falsely implicated due to certain monetary dispute between him and family of the victim. The State, on the other hand, opposed the present appeal.

The appellant was represented by Kanhaiya Singhal, Advocate; while Radhika Kolluru, APP, appeared for the State.

Analysis, law and decision

The High Court noted that as per the medical examination of the victim, there was no abrasion, swelling or bleeding in her private part.

At the outset, the Court referred to the Supreme Court decisions in Vijay v. State of M.P., (2010) 8 SCC 191 and Rajinder v. State of H.P., (2009) 16 SCC 69 to restate the settled law that that in a case of rape, the finding of guilt can be recorded even on the basis of uncorroborated testimony of the prosecutrix, provided it is cogent and reliable. Reliance was also placed on State of M.P. v. Ramesh, (2011) 4 SCC 786 and Ranjit Kumar Ram v. State of Bihar, (2015) SCC OnLine SC 500 for remembering that testimony of a child witness has to be evaluated more carefully as it is susceptible to tutoring.

In the present case, however, the Court found that the child was not tutored and her testimony stood the test of extra caution.

Regarding the absence of injury on the child-victim, the Court observed:

A perusal of the testimony of the child-victim would show that the present case is of ‘insertion’ and not of ‘penetration’. Although on local examination, the Doctor did not notice any abrasion/swelling/bleeding but absence of any injury on superficial examination does not lead to an inference that no offence took place. Even in a case of penetration, the consistent judicial diktat is that absence of injuries may not always be fatal to the prosecution case and the same would depend on the facts of each case.

On the contention of false implication, the Court noted that there were contradictions in the appellant’s own defence and thus there was no merit in such submission.

After careful consideration of the testimony of the child-victim, the Court was of the opinion that she had consistently stated about the incident in all of her statements. Her evidence was trustworthy, reliable and also admissible. The appellant failed to dislodge the statutory presumption under Sections 29 and 30 of the POCSO Act.

In such view of the matter, the Court dismissed the appeal and affirmed the decision of the trial court. [Ishwer Soni v. State (NCT of Delhi),  2020 SCC OnLine Del 1378, decided on 23-10-2020]

Hot Off The PressNews

The Commission took suo-motu cognizance of alleged suicide of 40 years old rape accused in police custody and directs issuance of notice to the Commissioner of Police, Delhi calling for a detailed report in the matter within two weeks. The Commission has noticed that this case of custodial death has not been reported by the authorities within 24 hours of its occurrence, the authorities are expected to explain the reasons.

All the reports, including the inquest and the post-mortem examination reports accompanying video CDs and medical report, of the deceased before being lodged in the lockup to be forwarded to the Commission. The Commission would also sought the details of the persons, who were put in the lockup in both the police stations for any reason, during the period the victim was lodged. It is expected that the magisterial enquiry in the matter will be completed without any further delay.

According to media report that the deceased was out on parole after being convicted in a case of robbery & murder and another of rape, a 40-year-old man allegedly raped a 14-year-old girl in an outer Delhi locality on 19th September,2020 and died allegedly by suicide hours later after being arrested for rape of minor.

It is also mentioned in the news report that the family members of the deceased saw policemen beating him in the police station. The Deputy Commissioner of Police, outer North District, Delhi, has stated history about deceased, being accused and convicted of robbery & murder and sexually assaulted a 10 years old boy. The deceased was released on parole on 02.02.2020 and later, his parole period was extended due to pandemic.

Also, the news report states that the single mother of rape victim was not at home when the incident took place. The deceased was arrested on the allegations of rape under POCSO Act and was kept in police custody. The nephew of the deceased has reportedly stated that when he reached the Swarup Nagar police station, he saw a group of policemen beating his uncle.

The next day, the family was informed about the incident of man hanging himself at Samaypur Badli police station. The Deputy Commissioner of Police has reportedly stated that the CCTV camera footage has been preserved and the guard on duty has been placed on suspension.

The police personnel have apparently failed to do their lawful duty at two stages, first when a person with a history of committing crime was out on parole; it was expected from the local police station to keep an eye on his activities through Beat Constable and other sources. Secondly, when such a person was kept in the police lock up, it was normal to be more vigilant to keep check on him during his stay inside the lock up.

The deceased was in the lawful custody of the police. “Right to life” of the deceased has been violated and the state cannot escape its liability. This is a case of violation of human rights.

Apart from this, considering the trauma suffered by the poor victim who is a minor girl, the Chief Secretary, Government of NCT of Delhi is directed to inform about her health condition as well as the relief, rehabilitation and counseling provided to her by the administration.


NHRC

[Press Release dt. 21-09-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Narayan Singh Dhanik, J., allowed a Criminal Jail Appeal which was filed from the jail against the judgment whereby the appellant had been convicted for the offences under Section 376/511 Penal Code, 1860 and Section 6 of the POCSO Act and was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs 25,000 for the offence under Section 6 of the POCSO Act.

The complainant had filed an FIR against the appellant alleging that he had attempted to commit rape on the two and half year’s old daughter of the complainant and had committed sexual assault on her. He further alleged that when he went looking for his daughter along with a companion he found the appellant while he was indulged in committing the alleged offence and took him to the police station. On conclusion of the trial, appellant was convicted and sentenced. Thus, the instant appeal was filed by the Amicus Curiae, Raman Kumar Sah on behalf of the appellant submitting that the prosecution had failed to prove the case against the appellant. He further contended that the victim had not identified the appellant nor the victim in her testimony had named the appellant and that the facts elicited during the cross-examination of the complainant and the companion along with him were totally contrary to the prosecution story. It was further contended that the mother of the victim did not support the prosecution story and was declared hostile. Per contra, the AGA for the State, Manisha Rana Singh submitted that prosecution had produced sufficient and credible evidence and the trial court had rightly convicted and sentenced the appellant.

The Court while allowing the appeal set aside the judgment and order of the Trial Court. The Court assessed the medical examination report of the victim which disclosed that the urethral meatus & vestibule, labia major and labia minor of the victim were found normal and no tear or swelling in the private parts was found and Hymen perineum of the victim was also found intact but the doctor had further stated that a little redness was present in the outer surface of the hymen of the victim and the presence of dried blood stains was also detected on her private parts and these conditions led to opine her that the attempt of sexual intercourse with the victim was made. It accepted all the contentions given by the Amicus Curiae and opined that the opinion of the doctor alone was not enough to connect the accused-appellant with the alleged crime in view of the material on record and in the absence of any credible evidence. The Court while quashing the conviction and sentence stated that,

            “In criminal cases, conviction cannot be based upon morality and there must be admissible and credible evidence to base conviction and moreover it is well-settled canon of criminal jurisprudence that ‘fouler the crime higher the proof’ and mandate of law is that the prosecution has to prove the charges beyond all reasonable doubt. A few bits here and a few bits thereon which prosecution relies cannot be held to be adequate or connecting the accused with the crime in question.”[Akash Kumar v. State of Uttarakhand, 2020 SCC OnLine Utt 562, decided on 28-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Gauhati High Court: S. Hukato Swu, J. rejected the petition of the petitioner and refused him bail.

The factual background of the case indicates that the petitioner was arrested in July 2020  based on a complaint lodged by the father of the victims who had alleged that the accused sexually assaulted two minor children aged 13 and 15, on several occasions. The petitioner moved this bail application on technical grounds submitting that the I.O. of the case had prayed for extension of judicial remand for 15 days and accordingly the learned CJM granted the prayer, by which the petitioner/accused was remanded to judicial custody. However, after this, there was no further prayer for extension of judicial remand. Therefore, the petitioner argued that the right of the petitioner accrued under Section 167 of the CrPC and he had the right to be enlarged on bail.

Contentions of the Public Prosecutor:

Public Prosecutor, V. Suokhrie submitted that while the case records were transmitted to this Court for considering of the bail petition, the chargesheet was already submitted before the Special Judge (POCSO) and the right of the accused no longer subsisted. She also submitted that the petitioner/accused was a very influential person, no less than a Director of a Department and could have a lot of influence on the progress of the case if he was enlarged on bail. The offence, as such, was also heinous in nature and there was a provision which requires that matters pertaining to POCSO Act to be disposed of within a period of one year. Under such circumstances, granting bail to the petitioner/accused would not be in the interest of the prosecution and hence, she vehemently objected to the consideration of the bail.

Further submission of the prosecution was that the accused and the victim lived in the same vicinity and if the accused was to be released on bail it would jeopardize the mental health of the victims because of the proximity.

The Court viewed this case very seriously and gave more weightage to the submission of the public prosecutor and agreed that offences under the POCSO Act are viewed seriously by the Supreme Court and also the society as a whole due to its frequency. Nevertheless, several steps have and should be taken to see that the menace should be curbed.

The Court while rejecting the bail application of the petitioner opined that the instant case was one where the offence alleged was very unpleasant and needed to be tackled with due consideration to ensure the society doesn’t lose faith in the administration of justice. [Lanu Akum v. State of Nagaland, 2020 SCC OnLine Gau 3982, decided on 23-09-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: Vijay Kumar Shukla, J., allowed the bail application filed by the applicant-accused in connection with the FIR registered for offence punishable under Sections 376(2)(j), 376(2)(i), 376(2)(n) of the Penal Code, 1860 and Sections 5/6 of POCSO Act.

The alleged facts of the case are such that the applicant has been charged with rape when he sexually exploited the victim aged between 13-15 and who happens to be mentally challenged. The applicant has been in custody for the past nine months.

Counsel for the respondent, Jagat Singh reiterated the victim’s mother’s statement and mentions that the present case is made out of the same.

It was contended by Vikas Mishra, counsel for the applicant that the offence could not be attributed to the applicant because of the sole reason that the applicant is physically incapable of performing the act of sexual intercourse. As per the MLC diagnosis of the applicant, it is not humanly possible for him to commit the crime he’s been charged with as he is physically incapable of performing sexual intercourse.

The Court while pronouncing the judgment, took his medical condition into consideration.

Hence, the Court upon perusal of the facts, circumstances and arguments observed that it has been established that the applicant is not medically fit and competent to perform the act of sexual intercourse. Further, considering that the applicant has been in jail since 11-11-2019, the present application has been allowed.

In view of the above, the applicant has been granted bail. [Vanshdhari Kol v. State of Madhya Pradesh, 2020 SCC OnLine MP 1844, decided on 28-08-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J., rejected the bail application of the applicant finding no merit in the application in connection with the FIR registered for offences punishable under Sections 363, 366, 376 of the Penal Code, 1860 and Sections 3/4 of the POCSO Act.

The applicant has filed six applications prior to the present one. The applicant had been arrested on 13-06-2018 for crimes committed under the aforementioned sections of IPC and POCSO. The previous application has already been dismissed by order dated 25-09-2018 passed in MCRC No. 29669/2018.

The counsel for the applicant, Nirmal Sharma has contended that there are major discrepancies in the testimony of the material witnesses.

Heeding to this particular argument, the Court relied on the case titled Satish Jaggi v. State of Chhattisgarh,(2007) 11 SCC 195 and observed that at this stage of bail, it would not be fit to look into the credibility and reliability of the witnesses. The relevant para from the judgment has been quoted below-

 ’12. Normally in the offence of non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the Court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial.

13. In the present case, the findings recorded by the learned Chief Justice, as referred to above, virtually amounts to the regular trial pointing out the deficiency and reliability/credibility of prosecution evidence. Such findings recorded at the stage of consideration of bail, in our view, cannot be allowed to sustain.

 Another argument advanced by the counsel for the applicant is that there is confusion with respect to the age of the victim as she stated her age as twenty-two while getting married in 2018.

The Court refuted this argument too on the basis of the case of Jarnail Singh v.  State of Punjab, (2013) 7 SCC 263 and held that the victim was a minor on the date of the incident in accordance with her school record. It’s the trial court’s case to assess the age of the victim considering whether she has disclosed herself to be a major or not.

On the contention of delayed trial regarding the duration of the applicant’s custody, the Court remarked that no order sheets have been filed by the applicant to indicate that he himself is not responsible for the delay. The contention that no order sheets have been placed on record has already been rejected by this Court earlier.

In view of the above, the present application has been rejected by the Court. [Mukesh v. State of M.P., 2020 SCC OnLine MP 1794, decided on 21-08-2020]

Case BriefsHigh Courts

Orissa High Court: S.K. Panigrahi, J. rejected the appeal under Section 14-A of the SC/ST (Protection Against Atrocities) Act and laid down the guiding principles for determination of age in a claim of juvenility.

The facts of the case are that a minor girl was raped by the appellant on multiple occasions on the pretext of marrying her and impregnated her after which he gave her certain pills to abort the child. When the girl and his family confronted the appellant he fled after which they filed an FIR against him. The appellant is presently charged under Section 376(2)(n)/313/506 of Indian Penal Code, 1860 read with Section-6 of POCSO Act read with Section-3(2)(v)(va) of SC/ST (Prevention of Atrocities) Act. The case has come before this court for the determination of age of the victim during the case was registered.

The counsel for the appellant Satyabrata Pradhan, Adhiraj Mohanty, S.S. Dash, M.R. Muduli, M.B. Smrutiranjan, A.K. Samal submitted that the girl was not a minor during the offence was committed and subsequently when the case was registered by relying on her Aadhar card and Aanganwadi register report which are prepared by public servants in the course of their official duty making them cogent and reliable proof of the age of the victim. He also submitted that the girl and the appellant had a love affair and due to which the girl on her own consent when she was a major made relations with the accused and hence the appellant is innocent.

The counsel of the State P.K. Mohanty submitted that the date of birth of the victim as per the school admission register and also the Board Certificate seized by the police both the date of birth coincides to be below 18 years at the time of occurrence giving rise to the complaint. He further contended that Rule-12(3) of Juvenile Justice Rule, 2007 as well as Section 94 and Sub-section 2(i) of the Juvenile Justice Act, 2015 provide the procedure to be followed for determination of age.

The Court relied on the Judgment titled Mukarrab v. State of U.P., (2017) 2 SCC 210 and held that court is inclined to go by the school admission register/ matriculation certificate not only due to leaning of the Apex Court on this issue but also due to the fact that same now raises a presumption in law, albeit rebuttable, by way of a deeming fiction in terms of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

In view of the above, issue of minority was found irrelevant and appeal rejected. [Debabrata Sahoo v. State of Odisha, 2020 SCC OnLine Ori 545 , decided on 30-07-2020]

Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J., rejected the bail application in view of the offence of gang rape against the applicant.

Applicant was punishable for offences under Section 376 of Penal Code, 1860 and Sections 3, 4, 5(G), 5(J)(II), 6, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012.

Applicant’s Counsel Subhash with Samarth Karmarkar, Supriyanka Maurya, Yashpal Purohit submitted that the applicant had been roped into the charge under Section 376(d) IPC without any rhyme and reason.

DNA Report of the child born out of the alleged act of sexual assault did not trace the applicant as the father of the baby girl.

Hence the case for grant of bail was made out according to the applicant.

According to the prosecutrix, she was made to visit the applicant by her friends and then taken to the applicant’s house.

Later, prosecutrix was left alone in the company of applicant, thereafter the applicant and his two friends in a pre-planned manner arrived in his house with some drinking and eating stuff. Prosecutrix on consuming some drink felt dizzy and went off to sleep.

Applicant asked the prosecutrix to rest in bed-room, after which she was raped by applicant and his two friends.

On fearing the outcome of the act, prosecutrix did not reveal the incident or the fact that she was pregnant, to her mother. Prosecutrix was below 18 yrs of age at the time when the incident took place. She delivered a baby girl which has been forwarded to an orphanage and is leading her life there.

Bench took into consideration the fact that the charge against the applicant is serious one of committing gang-rape and taking advantage o a situation of a poor helpless victim girl. He has indulged with two other people into an act of rape.

“Mere fact that the DNA report do not support the paternity is not ground to release the applicant at this stage.”

Court notes that fact that the applicant might pressurize the victim girl on being released, hence no case for his release on bail is made out. [Vaibhav Bhanudas Ubale v. State of Maharashtra, 2020 SCC OnLine Bom 835, decided on 24-07-2020]

Case BriefsHigh Courts

Kerala High Court: P. V. Kunhikrishnan, J., addressed a matter wherein a mother uploaded a video on social media wherein she was getting painted by her two minor children and the purpose to do so was to teach sex education to them. In the said matter, Court made the observation that,

“If the mother would have done the same act without uploading the video on social media, it would have been still understood and not considered an offence, which is not the case now.”

Petitioner a mother of two minor children asked them to paint her naked body above the navel. The video was recorded of the said act and uploaded on social media with the heading — “Body Art and Politics”.

Child Pornography

Cyber dome, Kochi City Police on discovering the said video submitted the report before the Inspector General of Police and Commissioner of Police, Kochi stating the said to be “Chid Pornography related crime” on social media.

The said offence was registered under Section 13, 14 an 15 of the Protection of Children from Sexual Offences Act, 2012 and under Section 67 B(d) of the Information Technology Act, 2000 alongwith the allegation of Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Battle against body discrimination

Petitioner’s submission is that she is an Activist and has been fighting her battle against body discrimination. The petitioner submitted that, it is her firm belief that, there needs to be openness so far as the discussion on body and body parts is concerned, and there is nothing to be hidden within and outside the family about the same. According to the petitioner, the children should be given sex education, and they also need to be made aware of the body and body parts as well. In which event, they would mature themselves to view the body and body parts as a different medium altogether rather than seen it as a sexual tool alone.

Petitioner added that,

“…morality of the society and public outcry cannot be a reason and logic for instituting a crime and prosecuting a person.”

A write up was also added with the said video, according to which the intention of the petitioner was clear and hence in view of the same no offence could be made out against the petitioner.

A small snapshot of the written text by the petitioner:

“In a moral fascist society that look towards the female body as mere illusions. Exposing the views which the society seek to conceal is also a political Act. In today’s society where a female is restricted or Censored from opening her mouth or utter a word with regards to Nudity or Sexuality, brave political act against it is what time demands. When Compare to Male body, Feminine body and her Nakedness has been considered as a mere 55kg of Flesh is just because of the wrong Sexual Education put forward by our society. Society has Customized the Mindset of people in such a way that while looking at a woman who wear a legging make you Sexual arousal whereas the man Stands Macho with his Chest-Hair Exposed as well as showing naked legs by folding the dhoti he wears as a statuesque, doesn’t Connect to Sexual Arousal is just because of the wrong sexual consciousness that is currently being injected by the society. Just as beauty is in the eye of the beholder, so is obscenity in the eyes of the beholder.”

Petitioner’s counsel relied on the judgments of the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881) and in Samaresh Bose v. Amal Mitra [(1985)4 SCC 289] to contend that, there is no indecency or obscenity even if the entire allegations against the petitioner are accepted.

Decision of the Bench

Court stated that according to the petitioner she was teaching sex education to her children by uploading the video. It added that if the mother was doing these activities inside the four walls of her house the situation could have been understood, as it is the freedom of every mother to teach sex education according to her will if it is not forbidden by law.

“Whether such a video can be uploaded in social media and the petitioner can escape by saying that she was trying to teach sex education to all children is the question to be decided.”

“Whether any offence is attracted in such cases, is the question.”

In accordance to Section 13 of the POCSO Act, whoever uses a child in any form of media for the purpose of sexual gratification, it is punishable under Section 14 of the Act.

Main ingredient of the above Section:

“…the child should be used in any form of medium for the purpose of sexual gratification.”

Prima facie, Court was of the opinion that the petitioner used the children for the purpose of sexual gratification because the children are represented in the video uploaded in an indecent and obscene manner because they were seen painting the naked body of their mother.

Court on watching the video states that the expression of the mother when both the children painted her breast was also important — Whether that amounts to the use of the children for the purpose of sexual gratification can be finally decided only after a custodial interrogation of the petitioner.

Bench further adds that, the Explanation to Section 13 clearly states that the expression of ‘use a child’ shall include involving the child through a medium like print, electronic, computer, or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of pornographic material.

In view of the above Court stated that it is not a position to say that no offence under Sections 13,14 and 15 of the POCSO Act is attracted.

Section 67B(d) of Information Technology Act, 2000

Section 67B(d) of the Information Technology Act says that whoever facilitates abusing children online shall be punished. Petitioner asked her children to paint on her naked body. Thereafter, the petitioner uploaded the video in social media, hence in view of the said, in Court’s opinion, prima facie it cannot be ruled out that no offence under Section 67B(d) of Information Technology Act, 2000 is made out.

Investigating Officer shall investigate upon such matters as stated above.

Bench in view of the above stated that,

After watching the picture painted by the children, I have no hesitation to appreciate the talents of the children. They deserve encouragement. But not in the way the petitioner encouraged them by uploading this video.

Bench on applying its judicial mind stated that it is not in a position to say that there was no obscenity in the video and added that the said observation was only for the purpose of present bail application.

While parting with the present order, Court added to its conclusion that,

The children are not born with a moral compass and it is the job of parents, especially of the mother, to build that compass for them. Be responsible enough to teach and demonstrate the values that your kids need in order to grow up as decent human beings.

“…in the initial years, what the child learns from their mother will always have a lasting impression on their mind. It is usually said that, the mother will be the window of the child to the world.”

The petitioner feels that, she should teach sex education to her children. For that purpose, she asks her children to paint on her naked body and then uploading the same in social media. I am not in a position to agree with the petitioner that she should teach sex education to her children in this manner.

In view of the above Court dismissed the bail application of the petitioner. [Fathima A.S. v. State of Kerala, 2020 SCC OnLine Ker 2827, decided on 24-07-2020]