Hot Off The PressNews

Chief Justice of Sikkim High Court noted that there had been an undue delay in recording of statement of the victims under Section 164 of the Code of Criminal Procedure, 1973 by Magistrates.

Against the Mandate of Law

CJ noted that the Magistrates had been fixing dates after a week or two with respect to the recording of statements after receiving the application from the investigating officer concerned, which is against the mandate of law.

Summoned – Improper Practice as it entails unnecessary wastage of time & resources

It also came to the notice of Chief Justice that the Magistrates recording the statements were being routinely summoned by the Session Court and Special Courts to prove the contents of the statement.

Citing the decision of Sikkim High Court in State of Sikkim v. Rakesh Rai, 2012 Crl. L.J. 2737 observed that there was no justification in calling the Magistrate as a witness.

Andhra Pradesh High Court in Guruvindapalli Anna Rao v. State of Andhra Pradesh, 2003 Crl. L.J. 3253 observed that if any Magistrate records the statement of a witness under Section 164 CrPC, it is not necessary for the Sessions Judge to summon the Magistrate to prove the contents of the statement recorded by him. When a Magistrate, discharging his official functions as such, records the statement of any witness under Section 164 CrPC such statement is a ‘public document’ and it does not require any proof.

Hence, in view of the above, Chief Justice of Sikkim High Court directed that the magistrates shall record the statement of victims/witnesses on the same day when such applications are received and in case the same is not possible, then the statement has to be recorded on the immediate next day.

Further, the Sessions Judges/Special Judges may not summon the Magistrates in a routine manner to prove the contents of such statement.


Sikkim High Court

 

[Dt. 09-04-2021]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Prasanna B. Varale and S.M. Modak, JJ., while addressing the present matter expressed that:

 “…relationship in between brother and sister, relationship in between mother and son, relationship in between father and daughter and so on were considered as sacrosanct. However, due to passage of time, these relationships have no more remained sacrosanct and there are various instances of overstepping the sacrosanct relationship by the near relationship.”

In the instant matter, appellant sexually abused his own daughter/victim. There are two views that is:

Whether the victim was a real daughter or a step-daughter. But the fact remains that she is victim.

Trial Court had convicted the appellant for the offence of Section 376 (2)(i), 506 IPC and under Section 4 of POCSO. A further separate sentence was imposed for the offence under Section of the said Act. Appellant had also obtained nude photographs of the victim on his mobile handset, trial court convicted him for the offence punishable under Section 67-B of the Information Technology Act 2000. Adding to this, the trial court acquitted the appellant for the offence punishable under Section 323 IPC.

In the present appeal, trial court’s judgment is challenged by the appellant.

Analysis, Law and Decision

Bench noted that the present matter was based on direct and corroborative evidence.

High Court considered the following:

Even though morally and legally Bench cannot think of a situation wherein the father has raped his minor daughter, but it is correct that Court is bound by rules of law. Even though such instances involving such a relationship are on rise, can Court take into account the evidence which is not admissible (as per existing provisions of law and on its interpretation) and convict the wrongdoer just for the purpose of sending a message in the society?

Bench stated that unfortunately, it cannot take such a view by bypassing the provisions of law.

Corroboration

Evidence given by way of corroboration cannot be said to be substantive evidence.

While elaborating on the concept of corroboration, High Court in light of the present context stated that when the trial court opined that the Section 164 statement can be utilized by way of corroboration, this Court fails to understand what the trial Court mean to say corroboration of which fact?

Trial Court failed to consider the difference and infact considered the Section 164 statement as substantive evidence itself. High Court stated that it is not permissible and hence the said observation was set aside.

Bench noted that there were image files of victim girls and video clips were pornographic. But there is a need to understand what is its evidentiary value, whether it is substantive evidence or whether it is a corroborative piece of evidence?

High Court for the above answered that the person who had seen the incident recorded or who is victim of events recorded can be the proper person and his evidence is substantive evidence. What is recorded and stored in the memory card when it is produced becomes corroborative piece of evidence.

Bench relied upon the following cases for the purpose of electronic evidence:

Bench laid down the finding that electronic evidence also needs to be proved just like any other evidence.

Further, the Court stated that it is not inclined to accept the FSL report at least for the purpose of inferring that it is the accused only who has taken those images or done recording. At the most, it can only be said that in the articles referred to in FSL report some pornographic images were found.

Bench stated that it was cautious of the relationship between the victim and accused. It was difficult to opine what compelled the victim not to state those facts which she stated before the police.

Present set of facts and circumstances warrants that there are certain materials suggesting sexual intercourse but the hands of the Court are tied due to the provisions of law.

Statement of the victim recorded under section 164 of CrPC has not been given the status of examination-in-chief in all circumstances (except in case of disability as provided in clause (b) to sub-section 5A to Section 164 of Cr.P.C.).

Supreme Court’s decision in Shivanna expressed the desire to consider the statement under Section 164 CrPC as examination in chief, amendment to that effect is not brought to Court’s notice.

Hence, with all pains, High Court had no alternative than setting aside the conviction of the appellant for the offence punishable under Section 376(2)(i) of IPC and under Section 506 of IPC, though conviction under Section 67-B of the Information and Technology Act was maintained.

Lastly, while parting with the decision, High Court opined that the authorities concerned of the State or Central Government will take some initiative in incorporating certain amendment under relevant laws as to give status to Section 164 statement as that of the examination-in-chief in all eventualities.

We hope that legislatures will also consider the practical realities of the life which the victim has to face. The trauma which victim has to undergo, after the incident does not stop there and when it comes to facing real-life issues, there may be occasion for the victim to forego all the trauma which she had undergone and to take U turn.

[Imran Shabbir Gauri v. State of Maharashtra, 2021 SCC OnLine Bom 511, decided on 31-03-2021]


Advocates before the Court:

Mr Aniket Vagal for the Appellant (Legal Aid). Mrs M. M. Deshmukh, APP for the State.

Case BriefsHigh Courts

Punjab and Haryana High Court: Avneesh Jhingan, J. dismissed the petition on the grounds discussed below.

The facts of the case are such that the prosecutrix alleged that her father-in-law after administering her with tablets which made her unconscious did a wrong act, clicked her photographs and video recorded her. Thereafter, he blackmailed her. A statement of the prosecutrix before the Judicial Magistrate under Section 164 Criminal Procedure Code i.e. CrPC was recorded. Two bail applications filed before the trial Court by the petitioner were dismissed. FIR was registered under Sections 328, 376 and 506 of the Penal Code, 1860 i.e. IPC and he was thereby arrested. Two bail applications were filed before the Trial Court by the petition which was dismissed. The instant petition was filed under Section 439 CrPC for grant of regular bail.

Counsel for the petitioner submitted that the prosecutrix has not supported the allegations while deposing before the Court.

Counsel for the respondents submitted that opposes the bail stating that the allegations are serious. The prosecutrix has supported the allegations in the statement recorded under Section 164 CrPC.

The Court observed that the issue with regard to the contradiction of statement under Section 164 CrPC and deposition before the Court would be a subject matter of trial. The Court further observed that the nature of allegations made by the prosecutrix, especially the fact that the objectionable video and photographs were clicked were very serious. A U-turn is apparent.

The Court thus held that the prosecutrix not supporting the allegations in a deposition before the Court is not enough to grant bail.

In view of the above, petition was dismissed.[Subhash Chander v. State of Haryana, CRM-M No.12704 of 2021, decided on 25-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: A Division Bench of D.N. Patel, CJ and Prateek Jalan, J., directed that the statements under Section 164 of the Code of criminal Procedure, 1973 of children in need of care and protection should be recorded by the Metropolitan Magistrate over video conferencing or by visiting the observation homes.

Petitioner has established a Child Care Institution under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Reason for filing the present petition was that, out of a rescue operation in July, 2020 ten minors who were working as child labour were rescued and brought to the Mukti Ashram.

Contention of the petitioner is that the children were compelled to leave Mukti Ashram and physically attend the Court of the Metropolitan Magistrate for recording of their statements under Section 164 of the Code of Criminal Procedure, 1973 and for giving samples for COVID-19 testing.

Respondents should lay down procedures for recording of the childrens’ statements and their medical testing, which does not require them to leave the institution or at atleast to attend at crowded public places.

Bench stated that in the interest of the children who require care and protection it should be necessitated that their exposure t crowded environments be avoided in the prevailing circumstances of the COVID-19 pandemic. As far as possible, they shouldn’t be required to leave the premises of the Child Care Institution in which they are housed.

Court directed as follows:

  • Statements under Section 164 of the Code of Criminal Procedure, 1973 of children in need of care and protection can be recorded by the Metropolitan Magistrate over video conferencing or if the Metropolitan Magistrate deems it necessary, he/ she can visit the concerned observation homes/Child Care Institutions where such children are housed, for recording the statement in person.
  • Proceedings before the Child Welfare Committees and other bodies where the children are required to participate, are already being conducted by video-conference. We direct that this process should be continued, and the requirement of taking the child out of the home/ Child Care Institution should be avoided as far as possible.
  • Covid-19 tests will also be carried out by the State authorities for the children in need of care and protection who are staying at different homes/Child Care Institutions under the Juvenile Justice (Care and Protection of Children) Act, 2015. The sample shall be collected for this purpose either at the home/Child Care Institution or at the office of the Sub-Divisional Magistrate of the area. The authorities will ensure that all precautions for the welfare of the child are taken, and that the sample is expeditiously collected, so that the child can return to the home/ institution.

In view of the above observations, petition was dismissed. [Bachpan Bachao Andolan v. GNCTD, WP(C) No. 4361 of 2020, decided on 28-07-2020]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Harsh Tandon and Soumen Sen, JJ., addressed the matter in regard to the child marriages in the garb of child trafficking and called for detailed status reports for the same.

Additional Chief Secretary, Home Affairs Department and Home Secretary district-wise details of the cases in relation to violation of child rights of all forms till 15th June, 2020 has been disclosed.

The above-mentioned report details out the nature of the violation of child rights and the steps taken by the police authorities in connection with such cases.

Alarming rise of child marriages during the lockdown has given a strong impression that these child marriages may be in the garb of child trafficking.

In view of the above Court directed Superintendent of Police of every district to investigate into the cases regarding child marriage and to find out if child marriages are for economic consideration or under the garb of child trafficking.

With regard to North-24 Parganas report, Court directed the Home Secretary to file a report disclosing such “other violation of child rights” and the steps taken by the police against the violators.

Further the Court also directed the Superintendent of Police of all the districts to ensure that the victims are produced immediately and not later than 48 hours before the Magistrates for recording of statement under Section 164 of the CrPC.

Most of the Juvenile Justice Boards have been functioning under tremendous stress and infrastructure is extremely inadequate.

Court noted the following deficiencies:

  1. No chamber for the Principal Magistrate and other members of the committee,
  2. Lack of office space,
  3. No separate room for vulnerable child witnesses,
  4. No separate entrance for the C.C.L. and vulnerable witnesses,
  5. No official vehicle is assigned to the Principal Magistrate,
  6. Lack of broad-band connection and inconsistent bandwidth,
  7. Lack of hardware and software infrastructure required for audio- video linkage,
  8. Inadequate and/or no support staff like bench clerk, lower division clerk-cum-typist, counsellor etc.,
  9. No separate provision of wash-room for female staff/members/lady officers,
  10. No separate room for counselling for the C.C.L.s and for sitting of social worker members,
  11. Lack of maintenance of public toilets and wash-room of Principal Magistrates

Advocate General assured the Court that he would immediately take the the above issues with the Home Secretary and would apprise the steps taken to remove such deficiencies.

Report filed by the Secretary, Department of Health and Family Welfare shows that 75 children of the migratory workers have been found to be Covid-19 positive and subsequently they were referred to designated COVID hospitals, samples were collected from asymptomatic children of migratory workers and 43 of such samples were reported as positive.

Considering the safety of the children bench would like to know if any random test was carried out of the children of the migratory workers and if so, disclose the result of such random test with specific comment as to whether anyone of them tested positive, save and except the particulars already disclosed.

Report to be filed with regard to investigation in child trafficking case

Court has also asked the Advocate General to file a report with regard to a newspaper report wherein it appeared that one female minor girl had been recovered by Maharashtra Police.

Court adjourned the matter till 2nd July, 2020. [Contagion of COVID-19 Virus in Children, In Re., 2020 SCC OnLine Cal 1066   , decided on 25-06-2020]

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., upheld the decision of trial court for offence of rape and videographing the same while clicking nude photographs of the victim.

Appellant filed an appeal against the judgment convicting him for offences punishable under Sections 376(2)(n)/ 354C/ 506 of Penal Code, 1860.

Background of Case

Appellant had raped a 20 year old girl and videographed the act along with clicking nude photographs of her. Further he blackmailed her while demanding 5 lakh rupees.

Prosecutrix’s stance

The accused kept pursuing the prosecutrix to meet through various messages and calls from unknown numbers and while the prosecutrix kept ignoring the same and warned him that she will complaint to the police and in response accused said that he would commit suicide and she would be responsible for the same.

Next day, again the accused gave a call to the prosecutrix asking her to come to Nirman Vihar Station otherwise he would commit suicide and bring disrepute to her. Fearing the same, she wen to meet him after which the accused took her to a guest house and forcibly established physical relationship, taking nudes photographs her and recording the same.

Further he threatened her that in case she doesn’t attends his calls and comes to the places where he calls her, she would have to suffer ignominy. Next day, she informed her family members and a complaint was lodged.

In another statement under Section 164 CrPC to police, the difference noted was the following:

“…he had pulled her hair and slapped her and further told her that if she screamed, no one would listen to her. He ordered her to remove her clothes. He also rung up someone (purportedly, to his uncle) and stated that “chacha ye ladki maan nahi rahi hai, aap aa jaao”.

Bench Observed that,

There is no inconsistency in her statement that the appellant had forcibly established physical relationship with her.

Any doubt that could have been entertained regarding whether the prosecutrix and the appellant had any consensual sex is removed by the fact that the appellant had prepared a video clip of him establishing physical relationship with the prosecutrix.

Therefore, the testimony of the prosecutrix that the appellant had threatened her that he would upload her video and photographs on the net, cannot be disbelieved.

Court found no infirmity with the decision of the Trial Court in convicting the appellant for committing offences punishable under Sections 376(2)(n), 506 (Part I) and 354 C of the Penal Code, 1860.

Thus, in view of the above, appeal stands dismissed. [Rahul v. State, 2020 SCC OnLine Del 596 , decided on 18-05-2020]

Case BriefsHigh Courts

Delhi High Court: Anu Malhotra, J., while upholding the decision of the trial court in a case where a 10-year-old minor was sexually assaulted, issued directions for the Jail Superintendent to consider an appropriate programme for the appellant ensuring the following:

  • appropriate correctional courses through meditational therapy
  • educational opportunity, vocational training and skill development programme to enable a livelihood option and an occupational status;
  • shaping of post release rehabilitation programme for the appellant well in advance before the date of his release to make him self-dependent;
  • adequate counselling being provided to the appellant to be sensitized to understand why he is in prison;
  • conducting of Psychometric tests to measure the reformation taking place and;
  • that the appellant may be allowed to keep contact with his family

Facts

In the present case, appellant assailed the impugned judgment and order through which the appellant was charged for offences punishable under Section 10 of POCSO Act and Section 367 of Penal Code, 1860.

Appellant had allegedly kidnapped the victim who was aged 10 years in order that he may subject him to unnatural lust or knowing it to be likely that he would be so subjected to unnatural lust and had thereby committed an offence punishable under Section 376 of IPC.

It has been stated that appellant forcibly put off the trouser of the victim and also removed his trouser and then grappled with the victim with sexual intent and thus having committed an offence punishable under Section 10 of POCSO Act.

Complainant (father of the child) stated that his son aged 10 years went to the grocery in front of the lane and after about half an hour came back crying and told him that the accused caught hold of his hand and took the child inside his house and made the child hold the object through which he urinated in his hand sticking to the child and when the child started crying, accused made the child wear his clothes and left him outside.

When the investigation was done, the child corroborated the aspect of his having been molested by the accused.

On being cross-examined by accused’s counsel, child stated that he had narrated the incident first to his mother and later his father was apprised of the same.

Analysis & Decision

High Court on perusal of the impugned judgment and record available held that, it is apparent that the statement of minor child during examination under Section 164 CrPC and the one made in Court corroborate the factum that the minor child had been forcibly taken away by the accused.

Bench observed that, there is variation in the statements under Section 164 CrPC of the minor child in relation to the accused having stuck his body against that of the child.

Division Bench’s decision in, Court on its own Motion v. State, 2018 SCC OnLine Del 10301 was cited and further referring to the same it was stated that,

‘…dynamics of child sexual abuse create a situation that children rarely disclose sexual abuse immediately after the event and that the set disclosure tends to be a process rather that a single episode and is often initiated following a physical complaint or a change in behaviour”

Hence the Court noted that in the present case it is apparent that there are variations in the statement of the child at different stages of the investigation and the trial but that does not retract in any manner from the veracity of allegations levelled against the accused in view of corroboration of all circumstances of the incident, then by the parents of the minor child and it is thus held that there is no infirmity in the impugned Judgment.

Accused i.e. appellant herein falls within the ambit of sexual assault inflicted in terms of Section 2(i) of the Protection of Child from the Sexual Offences, 2012 (POCSO). The intent of the accused while committing the act on the child is described in terms of Sections 3 & 5 of POCSO Act and thus trial court had rightly drawn the presumption of offence.

In terms of Section 9(m) of POCSO Act whoever commits an offence which falls within the ambit of aggravated sexual assault on the minor thus accused has rightly been convicted by the trial court under Section 10 of POCSO Act, 2012.

Therefore, the deposition of witnesses during trial inclusive of the statement made by the minor child establishes the commission of the offence punishable under Section 367 of IPC, also against the appellant in as much as the act of kidnapping of the minor child from the legal guardianship of his father and dragging him into the house of the accused for commission of an aggravated sexual assault on the minor child was undoubtedly done in order to exercise undue sexual assault inflicted on the minor in terms of Section 12 of the POCSO Act, 2012. [Manoj Tyagi v. State (Govt. of NCT, Delhi), 2020 SCC OnLine Del 469, decided on 25-02-2020]

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., dismissed a criminal revision petition filed by the State against the order of the trial court whereby the accused-respondent discharged from the offence punishable under Section 12 (prevention from sexual harassment) of the Prevention of Children from Sexual Offences Act, 2012.

An FIR was registered against the accused on the complaint of the mother of the minor victim. It was alleged that while the victim was playing with her friends, the accused came to them and said: “do rupees doonga, mere ghar chal, panch minute ki baat hai”. However, none of the girls went with him. The accused was tried and discharged as aforesaid. Aggrieved thereby, the State (represented by Hirein Sharma, APP) preferred the instant revision petition.

The High Court noted that the observations of the trial court that statement of the victim and the complainant, recorded under Section 164 CrPC did not reflect that the accused committed any offensive act upon the victim or he had any sexual intent. It was further observed that the main ingredient of Section 12 of the POCSO Act, i.e., sexual intent, was missing in the entire act of the accused and, therefore, the prima facie offence of sexual harassment was not made out against him and he was accordingly discharged.

The High Court noted that the victim, in her statement, had not stated anything regarding any sexual intent or sexual assault; the FIR was registered on the statement made by her mother, wherein she had made some allegations against the accused.

The High Court was of the opinion that the fact remains that the victim did not mention any act of sexual assault or sexual intent, therefore, there was no illegality or perversity in the order passed by the trial court thereby discharging the accused. Finding no merits in the instant petition, the Court dismissed the same. [State v. Anil, 2019 SCC OnLine Del 10995, decided on 06-11-2019]

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J. while addressing a petition expressed disappointment in respect to the manner in which POCSO Act is being misused, as, in the present case, the wife went down to the extent where she has put up false allegation of sexual assault against her husband with their daughter who is aged 11 years old only with the motive to get custody of her daughters.

“One of those unfortunate cases, where the wife has resorted to giving a complaint against her husband alleging that he has committed sexual assault against their daughter.”

In the present case, the 2nd respondent gave a complaint to the respondent police stating that there is an illicit relationship between the petitioner – father of their daughter. She adds that, she was able to identify and see some bodily changes in her elder daughter and also she had become pregnant. Her pregnancy was terminated through native medicines.

Respondent police had registered an FIR for an offence under Section 6 of the Protection of Child from Sexual Offences Act, 2012.

Petitioner apprehended arrest and approached this Court by filing the Anticipatory Bail Petition. Court summoned the minor girl in order to enquire her in person. She completely denied the allegations made against the petitioner.

Observations made by the Court:

Court categorically found that the de facto complainant lodged a false complaint with an ulterior motive to threaten petitioner and thereby petitioner was granted anticipatory bail.

Present petition is aimed to quash the FIR which is itself an abuse of process of law and is being used to threaten the petitioner to wreck vengeance against the petitioner.

Court on summoning the victim girl noted that, she had narrated the entire incident clearly where it can be seen that the defacto complainant was attempting to take the daughters into her custody and for that purpose, she cooked up a false story against the petitioner. It was also added to the Court’s observation that, the victim girl had taken a very consistent stand both at the time of giving a statement under Section 164 CrPC and at the time when she was personally enquired by this Court.

This case has shocked the conscience of the Court and it is unbelievable that the mother just for the sake of taking custody of her child, can go to the extent of making such serious allegations against her husband.

Court while analysing the seriousness of the false allegation also stated that it is an eye-opener for the Court as now the Court is aware of the extent with which POCSO Act can be misused.

“2nd Respondent without caring for the future of her own daughter, proceeded to give a complaint alleging illicit relationship between her husband and daughter”—This is the worst type of false prosecution a Court can ever encounter.

Therefore, respondent police is directed to immediately proceed against 2nd respondent under Section 22 of the POCSO Act for having given a false complaint and accordingly action to be taken in accordance with the law.

This case should be a lesson for all those who attempt to misuse the provisions of this Act, just to satisfy their own selfish ends.

Thus Criminal Original Petition is accordingly allowed. [N. Chandramohan v. State, 2019 SCC OnLine Mad 3666, decided on 20-08-2019]

Case BriefsHigh Courts

Delhi High Court: While deciding a  criminal revision petition, a Single Judge Bench held that it is not necessary that charges framed based on the statements under Section 164 of the Code of Criminal Procedure, 1973 coincide with allegations made in the FIR for them to be valid.

The facts were that the petitioner was charged under Sections 376, 506 and 384 of the Penal Code, 1860 but the rape charges were not levelled against the petitioner in the FIR. It was only, in the later stage of recording of statement under Section 164 of the CrPC that the allegation surfaced. However, the allegation was not supported by date, time or exact place except a comment that it was committed around 8-10 years ago.

The main contention of the petitioner was that an anticipatory bail had already been granted to the petitioner observing the fact that the date, month or the year when the rape was committed has not been mentioned and no reason has been given as to why no police complaint was filed after the incident. The Court rejected this contention as irrelevant and inapplicable to the present issue. Further, the Court held that charges can be framed on the basis of strong suspicion as appreciation of evidence is not in the domain of the court in the pre-trial stage.

The Court relied on the judgment of Union of India v. Prafulla Kumar, 1979 (3) SCC 4 to lay down that where the material placed before the court discloses grave suspicion against the accused but no proper explanation has been given in relation to it, the court will be fully justified in framing such charges. Any decision as to guilt or innocence can only be passed upon conclusion of trial. Further, the petitioner failed to point out any error of law or error of jurisdiction and hence, the impugned order does not require any interference or modification. The petition was therefore dismissed. [Mohsin Khan v. State, 2017 SCC OnLine Del 9315, decided on 14.07.2017]