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]