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MP HC | Show cause notice issued against the Trial Court Judge for disclosing name of the rape victim; Court grants bail to the accused

Madhya Pradesh High Court: Deepak Kumar Agarwal, J., allowed a bail application which was filed by the applicant for grant of regular bail.

Applicant had been arrested in connection with Crime No.117/2021 for the offence punishable under Sections 376 (2)(cha), 376(3), 506 of IPC and Section 5 (n) / 6(a) and 11/12 of POCSO Act. As per prosecution case, on 28-2-2021, prosecutrix aged about 12 years 13 days along with her family members lodged a report alleging that applicant/accused showed nude video film through his mobile to the prosecutrix and after shutting her mouth took out her slacks and panty, thereafter he took out his own pant and underwear and lied down on her. On seeing her father coming to the spot applicant ran away. The prosecutrix was sent for medical examination. The applicant/accused was arrested on 1-3-2021.

Counsel for the applicant, Mr Arun Barua submitted that neither the prosecutrix nor her parents supported the prosecution case. They were declared hostile. During cross examination nothing came out which supports the prosecution story.

The Court looking at the circumstances was inclined to grant regular bail to the applicant.

The Court further noticed that the Court below had disclosed the name of the prosecutrix, who was a rape victim, in the deposition which was inconsistent with the provision of Section 228A of Indian Penal Code and was in violation of the direction of Supreme Court in the case of Nipun Saxena v. Union of India, (2019) 2 SCC 703. The Court in this regard issued a show cause notice to the effect that why appropriate disciplinary action should not taken against the Presiding Officer.[Mahesh Kushwaha v. State of MP, MCRC-48144 of 2021, decided on 05-10-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs High Courts

Guj HC | Man’s conviction set aside in charges for raping minor wife; Non-interference by Court would reduce the lady and two children without shelter

Gujarat High Court: Paresh Upadhyay, J., allowed an appeal which was filed against the judgment and order passed by the Special Judge (POCSO) and 3rd Additional Sessions Judge wherein appellant was convicted under Section 376 of the Penal Code, 1860 and Sections 4, 6, 8 and 12 of the Protection of the Children from Sexual Offences Act, 2012 and ordered to undergo sentence of rigorous imprisonment for ten years and fine of Rs 5,000/- was also imposed and in default thereof, to undergo further simple imprisonment.

Advocate for the appellant had submitted that, the appellant and the so-called victim were husband and wife and they had two children from this relationship. It was submitted that, the conviction was unsustainable and the same be quashed and set aside.

The Court found that it was an admitted position that the appellant and victim were in a relationship and that the victim, on her own, had walked out of home with the appellant, they stayed together since then at the house of the appellant, as husband and wife and she had given birth to two children.

The appellant is arrested by the police and was tried before the Special Judge (POCSO) and the Trial Court and was hence convicted.

The Court noted that the “victim” who stated that, she on her own, because of her wish had walked out of home and she started living with the present appellant and with that relation she has given birth to two children and neither the mother nor the father of these two children disown their birth nor paternity and still the father is convicted inter alia under Section 376 of the Indian Penal Code and is ordered to undergo RI for 10 years. The Court allowed the appeal and found that the conviction recorded by the Sessions Court needed to be set aside.

Standing at the place of law enforcement agencies, in the peculiar facts of the case, this can be termed as an offence under the Prohibition of Child Marriage Act, which is observed more in breach than in compliance, more particularly in the lower strata of society. Non-interference by this Court would reduce the lady and two children without shelter of husband / father, which in no way would be in furtherance of justice.

[Ashwinbhai v. State of Gujarat, R/Criminal Appeal No. 1089 of 2021, decided on 01-10-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

For the Appellant: Mr MS Padaliya

For the Respondent: Mr Hardik Soni

Case Briefs High Courts

Ker HC | Can the fact that minor rape victim attained majority and married the rapist lead to quashment of criminal proceedings? HC answers

Kerala High Court: Shircy V., J., held that argument that now the victim of rape had attained majority and was living happily with the accused are not valid grounds or justifiable reasons for quashing the criminal proceedings. The Bench remarked,

“When it (rape) is towards a child the gravity is all the more severe and excruciating as it may even low self-esteem, self confidence and dignity of the child and that the psychic effect and impact would cause a devastating effect on the minor and result in far-reaching consequences.”

The petitioners, accused for the offences punishable under Sections 366A, 376 and 34 of Penal Code, 1860 and Section 4 read with Section 3, Section 6 read with Section 5 and Section 17 read with Section 16 of the Protection of Children from Sexual Offences Act, 2002 (POCSO), had approached the Court for seeking quashment of FIR and other related proceedings.

The case against the petitioners was that they had procured the victim, who was aged only 17 years, from her lawful custody and took her forcibly to the rental house where accused 1 committed rape on her. The petitioners contended that the entire matter had been amicably settled between the parties and the victim did not intend to proceed with the case since they were living together as husband and wife.

Whether criminal proceedings could be quashed in a rape case in view of the compromise arrived at between the parties?

The inherent power given to the High Court under Section 482 CrPC is with the purpose to prevent abuse of process of the court and with the object of advancement of justice which is an exception and not the rule which should be used sparingly with great caution and circumspection.

Reliance was placed by the Court on Gian Singh v. State of Punjab, (2012) 10 SCC 303, wherein the Supreme Court had answered the similar issues stating that, “inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz:

to secure the ends of justice, or
(ii) to prevent abuse of the process of any court…”

The Delhi High Court held that, “Heinous and serious offences of mental depravity or offences like murder, rape, dacoity etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences.”

Terming the offence of rape worse than murder as humiliating and horrifying experience are caused to the victim, the Bench stated when the crime of rape is towards a child the gravity is all the more severe and excruciating as it may even low self-esteem, self confidence and dignity of the child and that the psychic effect and impact would cause a devastating effect on the minor and result in far-reaching consequences. Accordingly, the Bench stated,

“When the magnitude of the crime is so grave and heinous as such to shock the sense of justice, settlement between the parties and a marriage subsequently between them are not matters for consideration to quash the proceedings in a criminal case.”

Hence, it was held that as the victim was a minor and the provisions of the special Act enacted to protect and save minor children from sexual offences and harassment were also involved, the argument that, now the victim had attained majority and was living happily with petitioner 1 were not valid grounds or justifiable reasons for consideration to quash the criminal proceedings.

Therefore, the compromise and settlement entered between the parties was rejected and the petitioners were directed to stand the test of judicial scrutiny and face the Trial. [Rahul P.R. v. State of Kerala, 2021 SCC OnLine Ker 3348, decided on 26-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioners: Advocate C.A.Chacko, Advocate C.M.Charisma and Advocate Alekh Thomas

For the State of Kerala: P.P. Ajith Murali

Case Briefs High Courts

Priest of Temple commits penetrative sexual assault on young girl: Ker HC observes which God would accept obeisance and offerings of such Priest or make him a medium?

Kerala High Court: Expressing, “When a man abandons his wife and children, roving vultures wait to prey on not only the abandoned woman, but also the helpless children” Division Bench of K. Vinod Chandran and Ziyad Rahman A.A., JJ., noted a case wherein a priest/oracle of a temple took the abandoned woman and three children under his wing and repeatedly molested the elder girl child in the presence of her siblings.

Noting the above stated horrendous act of the priest, Bench expressed,

“We wonder which God would accept the obeisance and offerings of such. Priest or make him a medium?”

Detailed Analysis

Counsel for the appellant, K.M. Frioz:

There was a misjoinder of charges. The Protection of Children from Sexual Offences Act, 2012 was brought into effect from 14-11-2012 and the incident on which the first charge was levelled was prior to the POCSO Act and required a committal proceeding under the CrPC.

Further, it was also contended that clubbing of the charges resulted in grave prejudice to the accused, since the POCSO Act by Sections 29 and 30 raised a presumption against the accused.

Court’s View:

High Court stated that the ground of absence of committal proceedings against the alleged offence could not be sustained.

Further, the Court referred to the Supreme Court decision of Moly v. State of Kerala, (2004) 4 SCC 584, wherein the enactment under which the offence was alleged, did not have a provision similar to Section 33 of the POCSO Act.

POCSO Act enables such other offences to be tried without committal proceedings if it is to be tried in the same trial. The grounds of prejudice urged fails also for the reason that it is merely imaginary. We reject it at the outset on the above reasoning and also on the appellant having merely ‘cried foul’ without the particular prejudice caused or the specific failure of justice, having been stated or substantiated.

Evidence on Merits – Dealt

ChildLine personnel was informed that a woman and four children were wandering and PW 15 along with two Woman Civil Police Officers brought them to the Vanitha Cell, on enquiry it was revealed that the woman showed signs of acute mental illness and displayed violent tendencies.

Elder Child had revealed that the accused who was living along with the woman, had sexually molested her for the last one year.

Since the woman had shown signs of mental illness, on the orders of CJM, she was taken to the Mental Health Centre along with the youngest child. Other children were admitted to the Government Juvenile Home.

Whether the age of the victim was proved?

The offence was committed long before the JJ Act, 2015 came into force.

Court emphasized that, since the POCSO Act did not contain a provision to determine the age of a victim, the proof has necessarily to be in accordance with the rigour of the requirement as insisted by the earlier JJ Act and Rules.

Bench added that

“…there was no prejudice caused to the accused for reason of clubbing an offence under Section 376(2) with an offence under the POCSO Act, going by the specific provision in Section 28(2) of the POCSO Act. In fact, the offence of rape committed on a minor aged below 12 years would attract Section 376 of the IPC and the provisions of the POCSO Act.”

“…when the offences, which arise from the very same act, are tried together and the age of the victim is not proved, it is not as if the offence under the IPC charged against the accused would fall to the ground since no committal proceedings have been carried out under the Cr.P.C”

When taking cognizance of a charge under the POCSO Act, the designated Special Court is empowered to try any offence, charged at the same trial. Otherwise, every trial under the POCSO Act will have to wait till the committal proceeding is over and that would defeat the very purpose of the enactment which envisages speedy disposal of the cases.

Court further observed that,

It cannot be the position that once the age is not proved, the offence under Section 376 would fail for the reason of no committal proceedings having been taken under the CrPC.

Analyzing further, the High Court expressed that the charge, though with specified dates was explicit and of continued sexual assault of the penetrative kind on the victim by the accused, who was in the status of her guardian.

Mere irregularity in charge does not prejudice the accused so long as he was aware of what was expected to be defended.

Bench also further referred to a quote from the Division Bench of the Kerala High Court, Surendran v. State, 2021 (3) KLT 205.

Contention:

No specific statement by PW 1 as to a penetrative sexual assault having been committed on her.

Court’s view:

High Court rejected the above contention since the victim had spoken of the repeated acts committed on her in graphic detail. She even spoke of herself being subjected to such acts repeatedly on a day and continuously on several days.

We do not think that at every point, when repeated penetrative sexual assault is alleged, there should be a graphic description by the victim, in Court, of the details of such assault.

Additionally, the High Court expressed that,

In addition to the trauma of being subjected to a penetrative assault, that too by a person far older in age and having the status of a guardian, the Courts cannot but insist on the trauma being re-visited when examined in Court for the purpose of a successful prosecution. However, that cannot lead to an insistence that when continuous and repeated sexual assault forms the gravamen of the accusation; the witness should be called upon to state every detail of each of such traumatic instances of abject depravity.

Victim a credible witness

Court noted that the essentials of repeated sexual molestation and the manner in which it was carried out had been consistently stated by the victim at the initial stage to the police, who rescued her from the streets and then to the Doctor and the Magistrate; which also had been deposed before the Court, hence there was no question of adverse inference being drawn.

Mental state of the mother, a shame on society, is quite understandable from the stress of having been abandoned, with three children and no means of food or shelter; for which alone the children were subjected to physical, mental and sexual torture. No mother can remain sane in the said circumstances.

Medical Evidence

As per the medical examination, it was revealed that the prosecutrix had been habituated to sexual act, definitely it corroborated the testimony given by her.

Conclusion

In view of the above stated facts and evidence produced on record, High Court found that the victim was subjected to repeated rape by the accused that too of the penetrative kind.

Though the age of the victim was not proved, she was a school going child, temporarily kept away from her studies.

On the question of charge, under POCSO Act, since the age of the victim was not proved, the accused had to be acquitted of the charges under the POCSO Act. Hence there could not be a conviction under Section 376(2) IPC.

Though the offence of rape was proved and therefore the accused was liable to be convicted under Section 376(1).

While partly allowing the appeal, the accused was given maximum sentence of life imprisonment. [Madhu v. State of Kerala, 2021 SCC OnLine Ker 3561, decided on 23-09-2021]

Advocates before the Court:

For the appellant/accused:

Sri K.M. Firoz

Smt. M. Shajna

Sr iP.C. Muhammed Noushiq

For the Respondent/Complainant/State:

By Public Prosecutor Smt. Sheeba Thomas

Case Briefs High Courts

Del HC | Can testimony of child victim be trustworthy? HC reiterates law on finding child witness competent

Delhi High Court: Emphasising the reliability on the child victim’s testimony, Manoj Kumar Ohri, J., dismissed the appeal filed and the conviction and sentence awarded under Section 10 of POCSO At was maintained.

The present appeal was filed under Section 374(2) CrPC.

Subject matter of the appeal was that the appellant was convicted for the offences punishable under Section 354 Penal Code, 1860 and Section 10 of the POCSO Act.

Brief Facts

Appellant pulled the child victim and started kissing her and removing her underwear upon which she started shouting. Child victim’s younger brother saw her and, in the meantime, the mother of the child victim also arrived. She apprehended the appellant, and the police was called.

High Court concurred with the Trial Court’s finding that the child victim on the date of the incident was about 8 years old and thus a ‘child’ within the meaning of Section 2(d) of the POCSO Act.

Analysis and Law

What did the child victim state?

Child victim during her examination stated that the alleged incident occurred at about 9-9.30 a.m. She had gone to buy some vegetables. When she reached her house back, the appellant who was standing at the ground floor pulled her in a corner and started kissing her. He also started to remove her underwear. In the meanwhile, her younger brother came at the spot. She screamed, on which her mother also reached the ground floor. Her mother apprehended the appellant and her father informed the police. During the course of examination, the child victim correctly identified the appellant as the accused.

Bench noted that it is well settled that the testimony of a victim of sexual assault can be relied upon by the Courts.

Equally, the law on the testimony of the child victim is well encapsulated.

In Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341, Supreme Court held that the conviction of an accused on the sole evidence of a child witness is permissible, if the witness is found competent and the testimony trustworthy.

In the present matter, Bench stated that it is worthwhile to note that at the time of her in-Court examination, the child victim was of tender age, i.e. about 10 years, yet she not only narrated the incident in terms of her previous statement, but also identified the appellant as the person who had committed the offence.

Further, appellant did not deny his presence at the spot on the day of the incident. In fact, he was caught at the spot. Even in his statement recorded under Section 313 CrPC, it was stated by the appellant that he only asked for the child victim’s mobile phone and on that premise, he was falsely implicated.

High Court appreciating the testimony of the child victim was of the opinion that the same was consistent, truthful and reliable. Being a competent witness, her testimony was admissible in evidence against the appellant.

Under Section 29 of the POCSO Act, there is also a presumption regarding the guilt of an accused. As a result, the prosecution has to lay down and prove the fundamental facts regarding the guilt of the accused but the burden of proof on the prosecution is not of ‘beyond reasonable doubt’. Once the facts are proved, the onus is on the accused to lead evidence to rebut the presumption raised under Section 29 of the POCSO Act.

It was noted that the appellant failed to dislodge the statutory presumption as stated above.

Therefore, the appeal was dismissed, and the conviction and sentence awarded to the appellant was maintained. [Mohan Kumar v. State (NCT of Delhi), 2021 SCC OnLine Del 4380, decided on 15-09-2021]

Case Briefs High Courts

Ori HC | “India will be free when the women feel safe to walk in the streets of India in the midnight”; Conviction upheld under S. 341 IPC and S. 4 of POCSO Act

Orissa High Court: S. K. Sahoo, J., dismissed the petition being devoid of merits and upheld the conviction passed in the impugned order.

The facts of the case are such that victim, a student of Class-VII was returning home from the school in her bicycle along with her younger sister aged about ten years when the appellant obstructed their path and wrongfully restrained the victim near a tank of village Renupada and dragged her to a nearby field and committed rape on her. FIR was registered before the Inspector in-charge of Basta police station, Basta P.S. under Sections 341/376(2) (i) of the Penal Code, 1860 and section 4 of the POCSO Act. The investigation was thereby conducted and chargesheet was submitted. The learned trial Court on analyzing the oral as well as documentary evidence on record, hold that the the appellant was guilty under Section 341 IPC and section 4 of the POCSO Act whereas the prosecution has failed to establish the charge under section 376(2) (i) of the Indian Penal Code. It is this order which is under challenge in the present petition.

During course of investigation, the school admission register was seized which reveals the date of birth of the victim as thirteen years of age at the time of occurence and hence the victim was a “child” as per section 2(d) of the POCSO Act.

The Court observed that the ingredients of the offence under section 4 of the POCSO Act which prescribes punishment for penetrative sexual assault, it appears that the “penetrative sexual assault” has been defined under section 3 of the POCSO Act. Section 3(b) is relevant for the purpose of this case wherein it is stated that a person is said to commit penetrative sexual assault, if he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person. Thus, inserting a finger into any of the three parts of the child victim i.e., vagina, urethra and anus makes out the offence of “penetrative sexual assault” as defined under section 3(b) of the POCSO Act.

The Court observed that the act of the appellant in coming in front of the victim and her sister and catching hold of the handle of the bi-cycle to stop their movement which led them to fall on the ground, in my humble view, clearly makes out the ingredients of the offence “and therefore, I find no infirmity in the conviction of the appellant under section 341 of the Indian Penal Code.”

The court thus held “there is no illegality in the impugned judgment and order of conviction passed by the learned trial Court and the appellant has been rightly found guilty under section 341 of the Indian Penal Code and section 4 of the POCSO Act.”

[Lilu v. State of Odisha, JCRLA No. 37 of 2018, decided on 12-08-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case Briefs High Courts

Bom HC | If a minor is made to succumb to penetrative sexual assault by various customers and is induced into prostitution, will person responsible for the same be punishable under POCSO Act? HC explains

Bombay High Court: Mangesh S. Patil, J., while upholding the decision of Special Judge elaborated on the Sections of POCSO Act in light of a minor being induced to be involved in the sex trade.

Instant appeal was filed under Section 374 of the Code of Criminal Procedure against the conviction of the appellants for offences punishable under Section 370 read with Section 34 of the Penal Code, 1860, under Section 5 and 6 of the Immoral Traffic Prevention Act (PITA) and under Section 4 read with Section 17 of Protection of Children from Sexual Offences Act (POCSO).

Appellants are mother and daughter.

PW 4 had received information that the appellants were running a brothel.

During the raid conducted, respondent 2 who was then 17 years of age was found in a room with constable Bahirwal. A specified denomination currency note of Rs 500/- was found in possession of the appellant 2. Five to six used condoms and 200 pieces of unused condoms in a packet were found.

Respondent 2 (victim) and appellants were taken to the Police Station for the offences punishable under Section 366A, 370 372 read with Section 34 of the Penal Code, 1860, Section 3, 4,5, 6 and 7 of the PITA and Section 12 and Section 4 read with Section 17 of the POCSO Act.

Further, appellants were acquitted of the offences punishable under Section 366A and 372 of the Penal Code, 1860, of Section 12 of the POCSO Act and Section 7 of the PITA.

Analysis, Law and Decision

Age of the Victim

Bench observed that when there is ample evidence in the form of school record which duly stands corroborated by the medical age determination test, though the latter is only an approximation, the former being concrete is sufficient to determine and conclude, as has been rightly done by the Special Court that the victim was less than 16 years of age at the relevant time and was, therefore, a child under POCSO Act as also under the PITA.

It was also noted in view of the circumstances and evidence that the victim (PW 1) had apparently willingly succumbed to the sexual exploitation.

Further, at no point of time, the victim seemed to have made any attempt to escape.

Even according to the victim, she was lodged in the house of the appellants for a period of about a month and was subjected to sex twice a day. Not only this but even while narrating the history to the Medical Officer Dr Shahane (PW 6) she disclosed that she was willingly working as a sex worker for a month.

On noting the fact that she was a child within the meaning of Section 2(d) of the POCSO Act and Section 2(aa) of the PITA, her consent became irrelevant, and it was not a consent in the eye of law.

In view of the provisions of Section 29 of the POCSO Act, a presumption regarding commission of the offences under the Act needed to be raised as has been rightly done by the Special Judge. Appellants miserably failed to displace the burden cast upon them.

Coming to the ingredients for the individual offences for which the appellants have been convicted, so far as Section 370 of the Penal Code is concerned, i.e. for trafficking of person, even if it is concluded that since Shantabai had not been arrayed as an accused and therefore there was no evidence in respect of actual sale by her and purchase by the appellants of the victim on overall appreciation of the evidence it is quite apparent that the victim was induced into trade for the obvious monetary gain which is nothing but a trafficking as defined in Clause Sixthly of Sub Section 1 of Section 370 of the IPC.

As per the provisions of Section 5 and 6 of PITA, the former punishes procurement or inducement or taking a person for the sake of prostitution whereas Section 6 is concerned obviously the victim (PW 1) was detained in the house of the appellants with intent that she may have sexual intercourse with the persons who were not her spouse which is sufficient to constitute the offence.

Turning to the offence punishable under Section 17 read with Section 4 of the POCSO Act, Section 17 provides for punishment for abetment of any offence under the POCSO Act. Whereas Section 4 provides for punishment for penetrative sexual assault. Section 3 defines penetrative sexual assault to mean the different acts provided for therein.

Since the victim was made to succumb to the penetrative sexual assault by various customers and the appellants had induced her into that trade, it could easily be concluded that they committed an offence punishable under Section 17 and were rightly convicted and sentenced by the Special Judge.

Therefore, no illegality was found in the impugned judgment and order convicting and sentencing the appellants.

In view of the above discussion, appeal was dismissed. [Sunita v. State of Maharashtra, 2021 SCC OnLine Bom 1631, decided on 9-08-2021]

Advocates before the Court:

Advocate for the Appellants: Mr Aniket Vagal.

APP for Respondent No. 1/State: Mr S. N. Morampalle.

Advocate for Respondent 2: Mrs Rashmi S. Kulkarni.

Case Briefs High Courts

P&H HC | “Nightmarish and traumatic”; HC denies bail in a case of sodomy committed to an 8-year-old child

Punjab and Haryana High Court: H.S. Madaan, J., rejected the bail application of the applicant accused of committing an act of sodomy to an 8 years old child. The Bench stated that,

“He (accused) has spoiled the life of a young child by his hateful acts. The petitioner comes out to be a sex maniac, himself a teenager, indulging in perverse sexual acts. His conduct cannot be taken lightly, since if released on bail, he may victimize several other innocent children and is a grave threat to the society.”

The applicant had been charged with offences under Sections 377, 511 IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012. The allegations against the applicant were that at about 3.00 PM, the applicant took the child victim, aged about 08 years, a student of 2nd class from his school on a bicycle by giving him allurement of money and then took him in a room constructed in his field, removed his trouser (lower), took off pants of the child victim and started committing sodomy with him. The child victim started crying on account of pain at which the applicant made him sit on his bicycle and left him near the school premises.

Later on, the child informed his father about the incident; pursuant to which the child was removed to Civil Hospital where he was medico-legally examined; the matter was reported to the police on the basis of which formal FIR was recorded.

Noticeably, the applicant had filed an application for regular bail before Special Judge, Mansa, which was dismissed.

In the backdrop of above, the Bench expressed,

“The allegations against the petitioner are very grave and serious of attempting to commit unnatural sex with a child of young age of 08 years, making him undergo nightmarish and traumatic experience, which may haunt him for the rest of his life.”

Noticing that the applicant, a teenager, who was a sex maniac and was indulged in perverse sexual acts, the Bench stated that he (applicant) had spoiled the life of a young child by his hateful acts and such conduct could not be taken lightly, since if released on bail, he may victimize several other innocent children and was a grave threat to the society.

Hence, opining that there was very likelihood of the applicant giving threats, intimidation or inducement to the prosecution witnesses in an attempt to make them resile from their statements during the trial to enable him to earn acquittal, the Bench held that the case could not be brushed aside lightly. Consequently, the bail application was rejected.[Manpreet Singh v. State of Punjab, CRM-M-9128 of 2021, decided on 09-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Applicant: RVS Chugh, Advocate

For the State: J.S. Ghuman, DAG, Punjab

Case Briefs High Courts

J&K HC | Is taking off trousers of victim as well as taking off one’s own trousers an attempt to rape? HC clarifies distinction between indecent assault and attempt to rape

Jammu and Kashmir High Court: Sanjeev Kumar, J., granted bail to the applicant in arrested in a rape case. While clarifying the distinction between an attempt to rape and preparation to attempt rape, the Bench stated,

“There is fine distinction between preparation and attempt to commit offence and the different between the two lies primary in the greater degree of determination and it is, therefore, necessary to be proved in an offence of attempt to commit rape that the accused has gone beyond the stage of preparation.”

The alleged facts of the case were that the victim, about 10 years and nine months of age had gone to the house of the applicant for buying mobile charger as he deals with mobile accessories. The allegations against the applicant were that he took the victim to the attic of the house, gave her mobile lead and thereafter gagged her mouth with a tape, took off her trousers and also removed his own trousers and made an attempt to rape her. However, in the meanwhile, younger brother of the petitioner reached the spot. It was, however, stated by the victim that she covered her legs with her shirt and the brother of the petitioner could not see her. A case for offences under Sections 376, 354, 511 IPC and Section 8 of POCSO Act was registered and the victim was subjected to medical check-up, according to which no intercourse had taken place nor was there any mark of violence on the body or any private part.

It was contended by the applicant that he had been falsely implicated in the crime, by one Rafiq Ahmed Sheikh and his family, who belong to a different sect of Islam, harbour ill will against the petitioner and had, with a view to settle scores, lodged a false and frivolous FIR and even accepting the contents of the FIR as gospel truth, no offence under Section 376/511 IPC or under Section 8 of POCSO Act was made out.

Indecent Assault v. Attempt to Rape

Whether the act of the petitioner taking off the trousers of the victim as also is own trousers would amount to an attempt to rape?

In Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560, the Supreme Court had held that, “The point of distinction between an offence to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he is just going to have sexual connection with her.”

Thus, the Bench opined that there is fine distinction between preparation and attempt to commit offence and the different between the two lies primary in the greater degree of determination and it is, therefore, necessary to be proved in an offence of attempt to commit rape that the accused has gone beyond the stage of preparation. In the instant case, the petitioner had allegedly stripped the victim naked and had also taken off his trousers. This was, thus, an effort of making preparation for committing an attempt. Without there being any further act committed by the petitioner, the conclusion could not be made that the petitioner intended to commit rape or that the act attributed to the petitioner amount to an attempt to commit rape. Therefore, prima facie, Section 511 IPC would not be attracted and it could, at best, be a case of indecent assault punishable under Section 354 IPC.

Whether the offence under Section 8 of POCSO Act was prima facie made out?

Section 7 of the POCSO Act defines “Sexual Assault” as:

“7. Sexual assault.—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 which involves physical contact without penetration is said to commit sexual assault.”

Hence, going by the statement of the victim, it was held to be abundantly clear that the act of the applicant taking off the trousers of the girl and also taking off his own trousers was an act with sexual intent, which involved physical contact without penetration and, therefore, would amount to committing sexual assault punishable under Section 8. Therefore, the Bench stated that the applicant was accused of committing indecent assault but also seem to have committed sexual assault defined under Section 7 of the POCSO Act.

Maintainability of Successive Bail Application

On the maintainability of the successive bail application after the dismissal of the same the Trial Court, the Bench stated that under Section 439 of the CrPC, the High Court and the Court of Sessions have concurrent jurisdiction to grant bail in case a person is in custody in connection with the commission of offence of the nature specified in Section 437(3) of CrPC. Hence, if a person moves the Court of Sessions for grant of bail and his bail plea is rejected, he shall be entitled to file a fresh bail application before the High Court on the same grounds. However, while doing so, he may also point out the illegality or infirmity in the order of learned Sessions Judge rejecting his bail plea which was met by the applicant while alleging that the rejection order passed by the Trial Court was cryptic and did not dwell upon the well-established parameters to be taken into consideration while considering bail plea in non-bailable offences.

Conclusion

In the light of the above, after analyzing the statement of the victim in light of the definition of rape under Section 375 IPC, the Bench held that indisputably, the act of applicant did not, by any stretch of reasoning, amount to rape. Further noticing that the applicant was in custody since 16-12-2020 and that the investigation in the matter had been completed; the Bench opined that the purpose of arrest had been well served. Hence, the petitioner was granted bail subject to him furnishing personal bond in the amount of Rs.50,000 and two sureties of the like amount to the satisfaction of the Trial Court.[Fayaz Ahmad Dar v. UT of J&K, 2021 SCC OnLine J&K 463, decided on 12-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Applicant: N.H.Kuchai, Advocate.

For UT of J&K: Asif Maqbool, Dy. AG vice and Mr. Mir Suhail, AAG

Case Briefs

P&H HC | “A juvenile cannot be arrested”; HC holds application for anticipatory bail by a juvenile is not maintainable in law

Punjab and Haryana High Court: Rajesh Bhardwaj, J., held that plea for anticipatory bail by a juvenile is not maintainable in law as there is no concept of arrest on apprehension regarding children in conflict with the law.

The petitioner, a juvenile had filed the instant petition seeking anticipatory bail with regard to FIR lodged against him under Section 8 of Protection of Children from Sexual Offence Act, 2012 (POCSO), contending that he had been falsely implicated in case.

Whether petition under Section 438 of CrPC maintainable on behalf of a juvenile?

The moot question before the Court was the issue of the maintainability of the petition on behalf of a juvenile under Section 438 of CrPC. Section 10 of the Juvenile Justice (Care and Protection of Children) Act, 2015 Section 10 deals with the apprehension of the child alleged to be in conflict with the law and Section 12 pertains to bail to a person who is apparently a child alleged to be in conflict with the law.

The provisions of Section 12 would show that when any child in conflict with law is brought before a Board, such person notwithstanding anything contained in the CrPC or in any other law for the time being in force, be released on bail with or without surety; whereas the provisions of Section 438 CrPC are enumerated for granting the bail to the person who has apprehension of the arrest. The Bench stated that

“A reading of provisions of Section 438 CrPC vis-a-vis of relevant provisions of the Act would show that a juvenile cannot be arrested and thus, there is no question of apprehension of his arrest. Hence, the petition under Section 438 CrPC is not maintainable in case of a juvenile.”

Reliance was placed by the Court on the decision of Madras High Court in K. Vignesh v. State of T.N., 2017 SCC OnLine Mad 28442, wherein it had been held that,

“Had it been the intention of the Legislature, that a police officer should be empowered to arrest a child in conflict with law, the Legislature would have very well used the expression ‘arrest’ instead of using the expression ‘apprehend’ in Section 10 of the Juvenile Justice (Care and Protection of Children) Act, 2015…the Legislature has, thus, consciously omitted to use the expression ‘arrest’ in Section 10 of the Act, which means that the Legislature did not want to empower the police to arrest a child in conflict with law. Therefore, the Legislature has empowered the police simply to apprehend a child in conflict with law and immediately, without any delay, cause his production before the Juvenile Justice Board…the proviso to Section 10 of the Act makes it very clear that in no case a child alleged to be in conflict with law shall be placed in a police lock-up or lodged in a jail. The Board has been obligated to send the child either to an observation home or a place of safety.”

Opining that a careful perusal of statutory provisions and the judicial precedents would show the intention of legislature in safeguarding the welfare of juvenile as apparent by Section 12, wherein it mandates the production of the child before the Board, the Bench stated that,

“The underlying purpose of the scheme appears to be that legislature wanted the personal interaction of the juvenile with the Board before arriving at a decision regarding his bail.”

On the other hand, the Bench observed that such a provision has no place under Section 438 CrPC and hence safeguard provided to a juvenile is automatically bypassed. Even otherwise the Act mandates the provision of granting the bail to a juvenile in a bailable or non-bailable offence notwithstanding anything contained in CrPC. Thus, it was held that the petition under Section 438 CrPC on behalf of the juvenile is not maintainable; therefore the petition was dismissed with the liberty to the petitioner to seek remedy in accordance with law.[X v. State of Haryana, CRM-M-21406 of 2021, decided on 05-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Petitioner: Manoj Tanwar, Advocate

For the State of Haryana: Manish Bansal, DAG, Haryana

Case Briefs High Courts

Megh HC | Grant of bail entirely within the discretion of Judge; Bail denied, directions issued to provide online facilities for gang rape accused to attend classes

Meghalaya High Court: W. Diengdoh, J., dismissed an application filed by the Petitioner with a prayer for grant of bail on behalf of Habibul Islam who is one of the accused in Special (POCSO) case, pending in the court of the Special Judge(POCSO).

Petitioner narrated that on 21-08-2020, an FIR was lodged by the informant stating that on 20-08-2020 at about 5.30 pm, when he came home, he saw his minor daughter, aged about 16 years 8 months profusely bleeding and on enquiry, he was informed that she was abducted and gang-raped by three persons. The Informant then took her to the Phulbari Police Station and then to the Phulbari PHC from where she was referred to the Maternity and Child hospital, Tura for admission.

Mr S.A. Sheikh, Counsel for the Petitioner had submitted that the said FIR was lodged only as a counter blast to the fact that admittedly, there was a love affair between the alleged victim and the accused person herein, but for the fact that she is still a minor, being about 17 years of age. However, there were evidence of exchange of message through whatapps/Instagram Messenger and Facebook between the two, which messages were deleted by the victim after the said incident. He further submitted that preliminary Charge Sheet was filed in the case and the deposition of the victim was recorded by the Trial Court on 09-04-2021, the next date fixed being 23-05-2021 when the case was not taken up due to the prevailing situation and thus further custody of the accused will not serve any purpose. Furthermore, it was submitted that the accused is innocent of any offence as alleged since the medical report of the victim had shown that there was no sign of sexual assault, the fact that the accused was a college student who was pursuing his final year B.A. from South Salmara, College under the Gauhati University is also one of the grounds taken for consideration by this Court.

Mr H.Kharmih, the G.A. appearing on behalf of the State submitted that the question of love affair between the victim and the accused person cannot be established inasmuch as the victim has given her statement clearly indicating that she was raped by three persons including the accused person herein.

The Court reiterated another portion of the Supreme Court judgment of Dataram Singh v. State of U.P., (2018) 3 SCC 22 which was relied on by the Counsel of the petitioner. The Supreme Court had said,

“6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to the incapable of compliance, thereby making the grant of bail illusory”

The Court held that in the present case centers upon an accusation of not only rape simpliciter, but gang rape, that is, a case of sexual assault by more than one person and thus the Court would view the matter seriously with circumspective.

The Court while dismissing the application held that it would not be wise to release the accused on bail at this stage. The Court further directed the jail authorities to provide all the necessary facilities even by allowing the accused/UTP to attend his classes via Online mode.[Abdul Kalam SK v. State of Meghalaya, 2021 SCC OnLine Megh 133, decided on 28-06-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs High Courts

Kar HC │ Can the statement recorded under Section 164 of Cr.PC be considered to be evidence under Section 35 of the POCSO Act? Whether the accused is entitled to bail in case the mandate under Section 35 of the POCSO Act has not been completed?

Karnataka High Court: A Division Bench of B. V. Nagarathna and M.G. Uma JJ. held that the accused does not have a right to seek bail for the reason that the mandate under Section 35 of the POCSO Act has not been completed.

The facts of the case are such that the victim, Kum Panchami was residing at Spoorthi Adoption and Fit Institution where she was given in adoption but because of some differences between the adopted child and the family, adoption was cancelled and the child started staying in Spoorthi Institution. The petitioner-accused 1 used to enter the institution during night hours and have sexual intercourse with the victims who are staying in the said Institution. Cases of sexual assault were also reported. A case under Sections 376(1), 376(3), 377, 506 of Penal Code, 1860 i.e. IPC; Sections 5(f)(i)(o)(p), 6, 21(2) of the Protection of Children from Sexual Offences Act, 2012 (‘the POCSO Act’ for short); and Sections 3(1)(w)(i)(ii), 3(2)(v), 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. A single Judge bench dismissed the petition on merits holding that no case of bail is made out. The instant petition was filed to answer the references before a Special Bench headed by Chief Justice.

Counsel of petitioner-accused submitted that as per Section 35(1) of POCSO Act evidence of the child had to be recorded within a period of thirty days of taking cognizance of the offence by the trial Court. If the same is not so recorded, the reason for the delay has also to be recorded by the said Court. Further, as per Section 35(2) of the POCSO Act, the trial Court, having not completed the trial within a period of one year from the date of taking cognizance of the offences, petitioner/accused 1 was entitled to be released on bail.

Counsel for the respondent submitted that the statement of the victim under Section 161 of the Cr.P.C. had been recorded before the Magistrate, but the said statement recorded cannot be construed as evidence in terms of Section 35(1) of the POCSO Act. Merely because there was a delay in recording evidence or in the adjudication of the case and evidently Section 35 of the POCSO Act had not been complied with in the instant cases that would not straight away entitle the petitioner/accused 1 to be enlarged on bail.

Issue 1: Can the statement recorded under Section 164 of Cr.PC be considered to be evidence under Section 35 of the POCSO Act?

The Court further observed that Section 35 of the POCSO Act consists of two parts: firstly, it deals with the period for recording of evidence of the child and disposal of case. Sub-section (1) of Section 35 states that the evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay, if any, shall be recorded by the Special Court. Secondly, Sub-section (2) prescribes the period of one year from the date of taking cognizance of the offence for the purpose of completion of the trial. Of course, the said period prescribed is to be complied with, as far as possible, by the Special Court.

The Court further observed that on reading the relevant provisions of the POCSO Act, it clearly indicates that the said Act is a special legislation for the protection of children from offences of sexual assault, harassment and pornography, etc. The POCSO Act being a special piece of legislation must over-ride the general legislation. In this regard, it would be useful to observe that the POCSO Act is a combination of both substantive law as well as procedural or adjective law. Substantive criminal offences have been created under various provisions of the POCSO Act and the manner in which the adjudication of said offences ought to take place, namely the procedure to be followed is also provided for under the POCSO Act.

The Court further observed that Section 164 of Criminal Procedure Code i.e. Cr.P.C., deals with recording of confessions and statements by any Metropolitan or Judicial Magistrate made to him in the course of an investigation, the same is relatable to Sections 25 and 26 of the POCSO Act. But, Section 35 of the POCSO Act does not deal with recording of statement of a child, but recording of evidence of the child and disposal of the case. The said Section is relatable to Chapter XXIII of Cr.P.C., which deals with evidence in inquiries and trials, including mode of taking and recording of evidence. But, Section 35 of the POCSO Act, being under a special enactment, would prevail over the general provisions of Cr.P.C., particularly when there is any inconsistency between the said Section and Cr.P.C., as per the provisions of Section 42A of the POCSO Act.

The Court observed that a statement under Section 164 of Cr.P.C. is during the course of investigation or at any time afterwards before the commencement of the trial. But, the evidence recorded before the Special Court under Section 35 of the POCSO Act is during the course of the trial. The two cannot be equated and neither are they on same plane, hence the recording of statement under Section 164 of Cr.P.C. being prior to the commencement of the trial, it cannot be considered to be evidence under sub-section (1) of Section 35 of the POCSO Act.

The Court thus held “the statement recorded under Section 164 of Cr.P.C. made in the course of investigation by the victim child, cannot be considered as evidence recorded under Section 35 of the POCSO Act.”

Issue 2: Whether the accused is entitled to bail in case the mandate under Section 35 of the POCSO Act has not been completed?

The Court observed that the main object behind Section 35 of the POCSO Act is that the victim child must not only be rendered speedy justice but, at the same time, it is necessary to get over the legal proceeding at the earliest, so that the child could concentrate on rehabilitation and get on with his or her life.

The Court further observed that the expression “as far as possible”, is used by the Parliament, having regard to the genuine difficulties faced in the conclusion of a trial concerning a victim child under the provisions of the POCSO Act. If the evidence of the child is to be recorded within a period of thirty days from the date of taking cognizance of the offence, the trial under the provisions of the POCSO Act being a sessions trial, would mean that all provisions of Cr.P.C. which are not inconsistent with the provisions of the POCSO Act would apply and hence, there may be reasons beyond the control of the Special Court, for not being able to complete the trial under the POCSO Act within a period of one year from the date of taking cognizance of the offence.

The Court relied on judgment Neeru Yadav v. State of Uttar Pradesh, (2016) 15 SCC 422, wherein the guiding factors regarding the grant of bail under provisions of the POCSO Act were laid down:

(i) The nature of accusations and the severity of the punishment, in case of the accusation entail a conviction and the nature of evidence in support of the accusations;

(ii) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant;

(iii) Prima facie satisfaction of the court in support of the charge

The Court relied on judgment Varinder Kumar v. State of Himachal Pradesh, (2020) 3 SCC 321 and observed that individual rights of the accused as well as the societal interest for bringing the offender to book and for the system to send the right message to all in the society—be it the law-abiding citizen or the potential offender, have to be balanced. “Human Rights” are not only of the accused but also of the victim, the symbolic member of the society.

The Court thus observed that the object and purpose of Section 35 of the POCSO Act is to ensure that the victim child is secured from the trauma of trial of the case at the earliest so that she or he could be rehabilitated and reintegrated into society at the earliest. The said provision is not to be interpreted in favour of the accused so as to mandate release of the accused, if for any reason, evidence is not recorded within a period of thirty days of taking cognizance of the offence or the Special Court not completing the trial of one year from the date of taking cognizance of the offence.

The Court held “If for reasons beyond the control of the Special Court, the evidence of the child is not recorded within the period of thirty days of the Special Court taking cognizance of the offence, or if the trial itself is not completed within a period of one year from the date of cognizance of the offence, the same cannot lead to the accused being released on bail.”

[Hanumantha Mogaveera v. State of Karnataka, 2021 SCC OnLine Kar 12300, decided on 23-04-2021]

Arunima Bose, Editorial Assistant has put this report together

Case Briefs High Courts

Tri HC | Strong prima facie case leaves no ground for custodial immunity; Court rejects bail application in matter of Ss. 377 and 506 of IPC and S. 6 of POCSO

Tripura High Court: S.G. Chattopadhyay J., rejected a bail application which was filed in the matter of an FIR registered under Sections 377 and 506 of the Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO hereunder) for committing sexual assault on the son of the informant.

The mother of the victim lodged the written ejahar alleging that the accused who was a private tutor of her son, a boy aged 9 years, used to give private tuition to her son regularly in the house of the accused of the last 3 months. When the informant found her son reluctant to go to his said private tutor and she also noticed that her son was not feeling well she asked him as to what happened to him. In reply, he told his mother that he was feeling pain in his rectum because his private tutor inserted his genital organ into his rectum at the time of his taking tuition from him. Knowing this, mother of the victim had immediately taken her son to the hospital where injuries were found in his rectum.

Apprehending arrest, the accused had approached this court for pre-arrest bail.

The Court after perusing all the records observed that the victim became very upset after the occurrence and after the medical tests when they came to know about the occurrence the accused private tutor also left his home. The Court further observed that same statement had been given by her husband and one of the neighbours who came to know about the occurrence from the parents of the victim. The 9 years old victim had also unfolded the entire incidence before the Judicial Magistrate who recorded his statement under Section 164(5) CrPC. About the medical evidence it was found that the IO had already approached the medical officer to record his findings in the medical report and such report was awaited.

The Court while rejecting the bail application found that materials available on record had made out a strong prima facie case against the accused petitioner and in view of the above, this court was of the view that this was not a fit case in which the accused may be given the benefit of custodial immunity by granting pre-arrest bail.[Indrajit Ghosh v. State of Tripura, 2021 SCC OnLine Tri 112, decided on 26-02-2021]

Suchita Shukla, Editorial Assistant ahs put this story together.

Case Briefs Supreme Court Roundups

Supreme Court Monthly Roundup – January 2021

No sexual assault if no ‘skin to skin’ contact? Supreme Court stays Bombay High Court’s “dangerous precedent” on POCSO Act

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has stayed the controversial Bombay High Court judgment wherein the High Court had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that the accused had no sexual intent in committing the offence under POCSO Act because there was no direct physical contact, i.e., skin to skin.

The said order came after Attorney General for India K. K. Venugopal brought to the Court’s notice that the Nagpur Bench of Bombay High Court has passed a judgment dated 19.01.2021 is likely to set “a dangerous precedent”.

The Court, hence, permitted the Attorney General to file an appropriate petition against the said judgment and in the meantime, stayed the acquittal of the accused in the case in question.

The bench, further, issued notice to the accused and the State of Maharashtra returnable two weeks.

In judgment dated 19.01.2021, Pushpa V. Ganediwala, J., of Bombay High Court’s Nagpur Bench, expressed that since there was no direct physical contact i.e. skin to skin with sexual intent without penetration, the said would not amount to ‘sexual assault’.

The Bench expressed that the act of pressing of the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’.

[Attorney General for India v. Satish, 2021 SCC OnLine SC 42, order dated 27.01.2021]

ALSO READ

Bombay HC on Sexual Assault | Would ‘pressing of breast’ and ‘attempt to remove salwar’ of a child fall under S. 7 and punishable under S. 8 of POCSO Act?

Case Briefs High Courts

Bom HC | 70-year old man convicted under S. 10 POCSO Act for touching breast of a minor child aged 8 years old amounting to ‘aggravated sexual assault’

Bombay High Court: Vinay Joshi, J., altered the conviction for rape and penetrative sexual assault to an act of aggravated form of sexual assault punishable under Section 10 of the POCSO Act in light of touching the breast of the child.

Appellant aged 67 years was convicted under Sections 376 and 450 of the Penal Code, 1860 and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

Accused was acquitted from the charge of committing offence punishable under Section 377 IPC. Accused challenged the conviction in the instant appeal.

Informant was residing along with his family members, including his daughter/victim girl aged 8 years. Two sons of the informant had been to their school and the minor victim was alone at the house as she was ill. In the afternoon the informant returned to his house for lunch and found that the house was locked from within, therefore, he peeped from the window and saw that appellant by lifting frock of the victim was moving his hand on her neck, cheek and chest.

Later, the informant shouted to open the door and hurriedly left the place. Victim disclosed that the accused moved his hand on her body, kissed her as well as put his finger in his anal part.

In regard to the above reference, informant lodged a report against the said incident.

Special Judge framed charge under relevant provisions of IPC and POCSO Act further on the appreciation of evidence held that the prosecution succeeded in proving the offence punishable under Sections 376 and 450 IPC, Sections 4 and 6 of the POCSO Act.

The prosecution case, in short, is about rape and aggravated penetrative sexual assault by the accused on a minor victim aged 8 years.

Analysis and Decision

Bench stated that the act of accused of touching the breast of the victim with sexual intent amounts to an aggravated form of sexual assault, which is punishable under Section 10 of the POCSO Act.

Since the medical evidence nowhere supported that there was insertion or penetration of finger into the anal region, it is doubtful whether the accused penetrated his finger into the anal region of the victim.

If two view emerges from the situation, the view favourable to the accused would take precedence. On mere assumption or possibility, the accused cannot be convicted.

All the sexual assaults on children below 12 years amount to an aggravated form of sexual assault.

With regard to the age of the accused, which is near about 70 years, the imprisonment of 5 years would meet the ends of justice. From the set of circumstances laid down, it is clear that the house-trespass was merely in order to commit an offence punishable with imprisonment, which is punishable under Section 451 of the Penal Code, 1860.

In view of the above, criminal appeal as partly allowed.

Conviction under Section 376 of IPC and Sections 4 and 6 of the POCSO Act, is hereby quashed and set aside, instead the accused was convicted for the offence punishable under Section 10 of the POCSO Act and.

Further, instead of conviction under Section 450 IPC, the appellant is convicted for the offence punishable under Section 451 of the IPC.

Hence appellant will be entitled to set off under Section 428 of the CrPC. [Tukaram Ashruji Khandare v. State of Maharashtra, 2020 SCC OnLine Bom 2802, decided on 22-10-2020]

Advocate for the appellant, R.V. Gahilot and H.R. Dhumale, A.P.P. for the respondent.

Case Briefs High Courts

Chh HC | Bail granted to accused under POCSO Act on grounds of non-objection by the victim/ complainant

Chhattisgarh High Court: Prashant Kumar Mishra J., allowed the application and granted bail in the matter concerning offence under Protection of Children from Sexual Offences Act, 2012 (POCSO).

The facts of the case are such that the father of the prosecutrix lodged FIR informing that his daughter left the house in the afternoon and did not return till evening informing over his mobile that she will not be returning in the night. Later, in her Section 164 Criminal Procedure Code,1973 statement the prosecutrix stated that she is in love with the applicant for about 6-7 months prior to the incident and had gone with him of her own and stayed in the house of the applicant’s maternal uncle. In her diary statement, she alleged that first sexual intercourse happened on 14-5-2020 and thereafter, on 5-6-2020 thereby stating that she is having an affair with the applicant. Hence the applicant was arrested for the offence under Section 363, 366 & 376 of the Indian Penal Code and Sections 4, 6 of the Protection of Children from Sexual Offences Act, 2012. Aggrieved by this, instant bail application has been filed before the Court.

The submissions made before the Court are that the prosecutrix and her father has no objection if the applicant is allowed bail.

The Court observed that the prosecutrix is less than 16 years of age, however, considering the affair and no objection of herself and her father during the hearing of the bail application, bail was granted.

In view of the above, the application was allowed and disposed off.[Diwakar Yadav v. State of Chhattisgarh, 2020 SCC OnLine Chh 491, decided on 02-11-2020]

Arunima Bose, Editorial Assistant has put this story together

Case Briefs High Courts

Guj HC | Rape charges on boy filed by minor wife quashed; Costs imposed on parents for ruining childhood of minors

Gujarat High Court: A.S. Supehia, J., quashed a rape case against a boy which was filed by his minor wife.

The FIR mentioned that the prosecutrix was married to the petitioner- accused on 07-02-2015 at the age of 11 years and that she was forced to maintain the physical relationship by her husband against her wishes after 2016 when she was taken to her in-law’s house. During the pendency of the petition, an affidavit was filed by the complainant, stating that the dispute had been amicably resolved between the families and she does not want to further pursue the criminal prosecution and counsel for both respective parties have submitted that in the respective communities of both the boy and the girl, the custom of child marriage was still prevailing and hence, the prosecutrix and the petitioner were married by their parents when they were minors.

The Court after perusing the records after the completion of investigation observed that it was an established fact that the parents had solemnized the marriage of the accused and prosecutrix when they were minor and the proceedings under the Prohibition of Child Marriage Act, 2006 have also been initiated. Further, the Court was not detrimental or adverse to the settlement arrived at between the families, stating that the reckless and irresponsible demeanor of the parents of both the boy and the girl cannot be ignored. The Court further stated,

The parents of the prosecutrix were well aware of all the consequences of getting her married at the age of eleven. Uniformly, the parents of the petitioner are also responsible. Both the parents have imprisoned the minors in marriage and forced them to develop relationship of husband and wife which is a gross violation of their human rights. They are forced by the parents to face the rigors of married life at the tender age despite their being a prohibition under the law. Thus, the genesis of the impugned FIR lies in the child marriage arraigned by the respective parents.

The Court opined that the criminal machinery alleging such serious offences under Penal Code, 1860 and POCSO cannot be allowed to be misused and the parents of such children who resort such tactics cannot be let-off easily without fastening any accountability.

The Court while quashing the FIR against the boy imposed cost on the families of the prosecutrix and the petitioner holding them responsible for ruining their childhood by dragging them in such a disreputable controversy. The Court quoted from the judgment of the Supreme Court in Aarushi Dhasmana v. Union of India, (2013) 9 SCC 475 where K.S.P. Radhakrishnan, J., had observed,

“Law of this land has always recognised the rights of parents with their wards/minors and first and foremost consideration of the Court is “welfare of the children”, which overrides the views or opinions of the parents.”[Applicant v. State of Gujarat, R/Criminal Misc. Application No. 12832 of 2020, decided on 20-10-2020]

Suchita Shukla, Editorial Assistant has put this story together

Case Briefs High Courts

Pat HC | Seriousness of “alleged” offence cannot be made a ground for rejecting bail under Juvenile Justice Act, 2015

Patna High Court: In an application challenging the order of rejection of bail passed by Additional Sessions Judge, Ashwani Kumar Singh, J., set it aside enlarging the appellant-accused on bail.

The instant application has been filed by the appellant under Section 101(5) of the Juvenile Justice (Care & Protection of Children) Act, 2015 (JJ Act) challenging the order dated 24-09-2019 passed in Child Case No. 6 of 219 by the Additional Sessions Judge, Buxar in connection with P.S. Case No. 21 of 2019 registered under Section 376 of the Penal Code, 1860 and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

The factual background in the present matter is that serious allegations have been placed on the appellant for committing the act of rape on the victim aged 13. The FIR was registered on the basis of the written report submitted by the mother of the victim subsequent to which, the appellant was arrested and produced before the Special Judge (POCSO), Buxar. Further, the statement of the victim was recorded under Section 164 of the Criminal Procedure Code, 1973.

Contradictory to the FIR, the victim made no mention of rape in her statement and spoke of a meeting between the appellant and herself.

Later, a petition was filed by the appellant before the Special Judge, Buxar claiming the on the day of occurrence he was a juvenile. During this period of time, a bail application was filed which was adjourned to different dates. With the bail application still pending, the Special Judge (POCSO), Buxar sent the case to Juvenile Justice Board, Buxar for the examination of his claim of juvenility. The Board determined the appellant’s age and declared him a juvenile vide order dated 02-08-2018. Subsequently, the Board made an assessment of the physical and mental ability of the appellant under Section 15 of the JJ Act and found it fit to transfer the appellant’s case to Children’s Court and accordingly, transferred the entire case record to the court of Special Judge (POCSO), Buxar for the trial of the appellant as an adult.

Later on, the Special Judge (POCSO), Buxar vide order dated 24-09-2019 rejected the bail application of the appellant. Upon careful perusal of the impugned order dated 24-09-2019, this Court observed that the bail application has been rejected primarily due to the serious nature of the offence and the charge-sheet that has been filed against the appellant. The trial court has erred by overlooking the victim’s statement under Section 164 CrPC. Also, undue importance has been given to the inconclusive medical report which only raises the possibility of a sexual act with the victim. The manner in which the alleged crime was committed hasn’t been indicated anywhere. The report of the probation officer seems completely hypothetical and beyond any reasoning. The Court also relied on the judgment in the case of Lalu Kumar v. State of Bihar, 2019 SCC OnLine Pat 1697.

In view of the above, the Court found the impugned order unsustainable and set it aside. In addition to this, the appellant has been released on bail. The appeal has been allowed.

[X9 v. State of Bihar, 2020 SCC OnLine Pat 1665, decided on 15-10-2020]

*The name of the appellant-accused has been withheld as per the statutory provisions prescribed under Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Yashvardhan Shrivastav, Editorial Assistant has put this story together

Case Briefs High Courts

MP HC | Scope and extent of bail conditions under S. 437(3) CrPC are wide enough to include reformative measures like community service, but ought not be onerous and excessive in nature; HC decides scope and application of Bail under POCSO and SC/ST Act

Madhya Pradesh High Court: Anand Pathak, J., while deciding an application against cancellation of bail said: in cases where “any bail application of accused is allowed or rejected under Section 439 CrPC by the Special Court then appeal shall not lie under Section 14–A(2) of the Atrocities Act. Only an application under Section 439 CrPC for bail shall lie.”

Brief Facts

The instant applicant under Section 439(2) of Code of Criminal Procedure has been preferred by the applicant-complainant for cancellation of bail granted to respondent 2, the accused who was enlarged on bail by this Court vide order dated 26-02-2020 in Criminal Appeal No. 1759/2020. Accused is facing trial for offence under Section 363, 366-A, 376 of the Penal Code, Section 3 (1)(w)(ii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 3/4 of Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”).

Issue

Whether High Court can entertain an application under Section 439(2) of CrPC for cancellation of bail granted in exercise of powers conferred under Section 14-A(2) of Atrocities Act?
Whether the Court granting bail in an appeal under Section 14-A(2) of Atrocities Act can be recalled/cancelled as the order granting bail does not attain finality?
Whether in an offence where the provisions of the Atrocities Act and POCSO Act are involved, the procedural law of the POCSO Act will apply or the provisions of Atrocities Act?
Whether, in a composite offence involving of provisions of POCSO Act and Atrocities Act, an order refusing bail under Section 439 CrPC will be appealable as per Section 14-A(2) of Atrocities Act or an application under Section 439 CrPC will lie before the High Court?
What is the scope and extent of bail conditions as referred in Section 437(3) of CrPC?

Observations

Answering issue (i) and (ii), the Court explained the altered position of Section 439 CrPC, after the recent amendment to the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, remarking,

“By virtue of such amendments, which came into being in year 2016, concurrent jurisdiction of this Court to grant regular bail under Section 439 CrPC has been taken away and in place of concurrent jurisdiction, an appellate jurisdiction has been conferred by way of an appeal under Section 14-A(2) of Atrocities Act. Although, provisions of appeal has been made but it still emanates from an order of refusal of bail by Special Court under Section 439 of CrPC. Original statutory source of Section 439 is still intact. Only difference is replacement of concurrent jurisdiction with appellate jurisdiction.”

The Court reiterated the legislative intent of the amendment enforced in 2016 and said that, the very objective of it was Speedy Trial and Protection of Victim’s Rights. It further elaborated the definition of Victim under the Atrocities Act in comparison with the definition stated under Section 2(wa) CrPC. Furthermore, the Court acknowledged the Victim’s right to appear before the Court at the time of hearing of bail application as enshrined under the said Act. With respect to intent and objectives of the Act, the Court placed reliance on, Provision of Section 14-A, SC/CT (Prevention of Atrocities) Amendment Act, 2015 (Allahabad HC, Criminal Writ and Public Interest Litigation No. 8/2018) and Bishveshwar Mishra v. State of Bihar (Patna HC, Criminal Miscellaneous No. 25276/2016)

Furthermore, the Court relying upon the case of Puran v. Rambilas, (2001) 6 SCC 338, held that the High Court being the superior court has inherent powers to cancel the bail and no interpretation which restricts these powers or nullifies Section 439(2), CrPC can supersede. Reflecting upon the Mischief Rule of Interpretation, the Court highlighted four principles that must be considered for true interpretation of any statute: (i) What was the common law before making of the Act, (ii) What was the mischief and defect for which the common law did not provide, (iii) What remedy the Parliament has resolved and appointed to cure the disease of the Commonwealth and (iv) The true reason of the remedy.
The court further cited, Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752, elaborating on secondary victimization of the complainant, the term as coined by the Supreme Court;

“… today, the rights of an accused far outweigh the rights of the victim of an offence in many respects. There needs to be some balancing of the concerns and equalising their rights so that the criminal proceedings are fair to both.”

Regarding the application of procedural laws in case of two special laws, for instance, POCSO and Atrocities Act, as in the present case, the Court said that provisions of POCSO Act are in addition and not in derogation of the provisions of any law including Atrocities Act. Since the victim is a minor girl, almost a child, and the objective of POCSO Act is to protect children from sexual offences, the Special Court under POCSO Act would be the appropriate forum rather than the Special Court under Atrocities Act.
With respect to issue (iv), the Court said, against the order of Special Court (POCSO Act), application under Section 439 CrPC for bail shall be maintainable instead of appeal under Section 14-A(2) of the Atrocities Act.
Discussing the scope and extent of bail conditions under Section 437(3) of CrPC, the Court said that it has a wider scope to cover community service and other reformative measures, not being “excessive, freakish and onerous” in nature. For concluding the same, reliance was placed upon Report Nos. 36, 47, 156, 268 of the Law Commission of India and as reflected in the particular judgment of the Supreme Court in the case of Munish Bhasin v. State (NCT of Delhi), (2009) 4 SCC 45, and Sumit Mehta v. State (NCT of Delhi), (2013) 15 SCC 570.

Decision

While deciding the question of jurisdiction and grant of bail, the Court directed the office to place this matter before the Acting Chief Justice of the High Court for issuance of necessary guidance and for circulation amongst District and Sessions Judges for information and compliance. It further said,

“When an accused is being tried under the Atrocities Act as well as the POCSO Act simultaneously, then Special Courts under POCSO Act shall have the jurisdiction and if in the event that any bail application of accused is allowed or rejected under Section 439 of Cr.P.C. by that Special Court then appeal shall not lie under Section 14-A (2) of the Atrocities Act. Only an application under Section 439 of Cr.P.C. for bail shall lie.”

The true reason for the remedy is to provide speedy justice to the victims and for the provisions to act as a deterrent to the miscreants. The right of victims to approach the High Court in case of bail condition should not be violated to defeat the very spirit of the SC/ST Amendment Act in 2015.[Sunita Gandharva v. State of M.P., 2020 SCC OnLine MP 2193, decided on 8-10-2020]

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