Case BriefsHigh Courts

Meghalaya High Court: The Bench of H.S. Thangkhiew, J. hearing a bail application filed by an accused under Protection of Children from Sexual Offences Act, 2012, denied grant of bail opining that the accused was a threat to the victim.

First Information Report was lodged against the accused for committing offence punishable under Section 8 of the POCSO Act, 2012. He was in custody since the date of his arrest as successive bail applications filed by him were rejected by the Special Judge.

Learned counsel for the applicant submitted that the investigation against accused had been completed and hence his further detention was not necessary. Whereas, learned counsel for the respondent submitted that bail should be denied as there were no new facts or materials warranting consideration of grant of bail. Also, the accused was trying to cast undue influence and harassment on the victim by coercing her to enter into a compromise. The said fact of coercion was also recorded in the Special Judge’s order rejecting bail.

The Court opined that normally, after chargesheet is filed, custody of the accused is not needed as the investigation is complete, and since evidence is already collected by the police, there are fewer chances of destruction or concealment of evidence. However, chances of threatening of witnesses may still exist. In the instant case, there was a reasonable apprehension of the witness being tampered with as there were threats to the complainant and the minor victim girl.

It was held that the nature and gravity of circumstances of the offence which involved a minor victim girl under the POCSO Act, and the conduct of accused towards the victim and witnesses weighed against the grant of bail. Accordingly, the present application was rejected.[Sumanta Deka v. State of Meghalaya, 2019 SCC OnLine Megh 1, Order dated 07-01-2019]

Case BriefsSupreme Court

Supreme Court: While hearing the plea seeking compensation of Rs 10 lakh for the parents of an eight-month old baby who was allegedly raped by her 28-year-old cousin in Delhi in the month of January 2018. The 3-judge bench Dipak Misra, AM Khanwilkar and Dr. DY Chandrachud, JJ directed the Registrar Generals of all the High Courts to send intimation to the Supreme Court Registry about the pendency of the cases instituted under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the status of those cases. The Court said that the Registrar Generals may constitute a team, if necessary, to prepare district-wise data.

Earlier, on 01.02.2018, the petitioner had submitted before the Court that there should be speedy disposal of the cases registered under the POCSO Act. Hence, the Court had asked him to file a chart containing data with regard to the cases pending at various places, along with the reasons for delayed disposal, so that the Court can take a holistic view of the matter.

The Court will now take up the matter on 20.04.2018. [Alakh Alok Srivastava v. Union of India, 2018 SCC OnLine SC 212, order dated 12.03.2018]

Case BriefsHigh Courts

Bombay High Court: An application for suspension of sentence and release of the accused on bail during the pendency of appeal was rejected by a Single Judge Bench comprising of AM Badar, J. The applicant (accused) had been sentenced under the Penal Code of 1860 and also under the Protection of Children from Sexual Offences Act to ten years of rigorous imprisonment apart from payment of Rs. 25,000 as fine on being found guilty of committing penetrative sexual assault on the victim, who was a minor, repeatedly.

The applicant contended that he had been on bail during the pendency of the trial and he had not misused the opportunity; also, the victim had been in a sexual relationship with two people and that there was no other earning member in the applicant’s family. On these grounds, the applicant requested to be released on bail.

The Court held that “a woman may be having easy virtue but that does not mean that all and sundry can take advantage of this fact. She has right to say no.” The fact that the victim had two boyfriends did not allow the accused to commit penetrative sexual assault on her. Therefore, the bail application was rejected. [Shrikantsingh Sukhdev Singh v. State of Maharashtra,  2017 SCC OnLine Bom 8878, order dated 21.09.2017]

Case BriefsSupreme Court

Supreme Court: Refusing to expand the scope of the word ‘child’ under Section 2(d) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) to include  the   “mental   age”   of   a   person   or   the   age determined   by   the   prevalent   science   pertaining   to psychiatry   so   that   a   mentally   retarded   person   or   an extremely intellectually  challenged person who even has crossed the biological age of 18 years can be included within the holistic conception of the term “child”, the bench of Dipak Misra and R.F. Nariman, JJ held that the Parliament has felt it appropriate that the definition of the term “age” by chronological   age   or   biological   age   to   be   the   safest yardstick   than   referring   to   a   person   having   mental retardation.

In the case where both the judges wrote their separate but concurring opinion, it was said that the POCSO Act has identified minors and protected them by prescribing the statutory age which has nexus with the legal eligibility to give consent. It may be due to the fact that the standards of mental retardation are different and they require to be determined   by   an   expert   body.   The   degree   is   also different.  If a victim is mentally retarded, definitely the court trying the case shall take into consideration whether   there   is   a   consent   or   not.   In   certain circumstances, it would depend upon the degree of retardation or degree of understanding. It should never be put in a straight jacket formula.

Explaining the scope of the power of the Court to interpret the word “child” to give it a broader meaning, it was noticed that the legislature despite having the intent in its Statement of Objects   and   Reasons   and   the   long   Preamble   to   the POCSO Act, had defined the term “age” which does not only mention a child  but adds the words “below the age of 18 years”. The Court said that had the word “child” alone been mentioned in the Act, the scope of interpretation by the Courts could have been in a different realm and the Court might have deliberated on a larger canvass.

The Court was hearing the appeal of a sexual assault victim suffering from Cerebral Palsy due to which though being a 38-year-old, her mental age is no more than 6-8 years. [Eera v. State, 2017 SCC OnLine SC 787, decided on 21.07.2017]

Case BriefsSupreme Court

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

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

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

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

Case BriefsHigh Courts

Bombay High Court: In this case before the High Court, victim was adopted when she was 9 years old by the accused after her mother succumbed to HIV. After her mother’s death, she was living in a protective home from where she was adopted by the accused and his wife. She complained about the sexual abuses to an NGO named ‘Childline’ that she was undergoing the trauma for several years and a complaint against the accused was registered under Section 354, IPC and Section 8 of the Protection of Children from Sexual Offences Act.

The Court relied on the fact that supervisor of the protective home had warned the adoptive parents about her abnormal and unnatural behaviour. The Court went on to rely on a note written by the prosecutrix herself to come to a conclusion that she was inherently abnormal and had sexual instincts from her childhood and also, blamed the conduct of deceased mother for the same. Justice Sadhana S. Jadav approved the bail application of accused on these grounds and on an additional ground that there was a considerable lapse of time when she lodged the complaint. [Domnic Richard Rodrigues v. State of Maharashtra, Cr. Bail Application no. 708 of 2016, decided on 16.01.2017]