Case BriefsHigh Courts

Gujarat High Court: Samir Dave, J., granted bail to the accused while prohibiting him from accessing the society in which the claimed victim lived. In doing so, the Bench granted a criminal revision application filed under Section 102 of the Juvenile Justice Act to overturn the Sessions Court and Juvenile Justice Board’s refusal to grant bail.

Section 12 states that if a kid is seized for allegedly committing an offence, he or she must be released on bail with or without surety or put under the supervision of a probation officer or in the care of any person.

The Applicant, who was 16 years and 8 months old, was accused of forcibly committing sodomy on a terrace with the complainant’s underage son, who was 13 years old. He also allegedly threatened the victim with death if the incident was revealed to anybody. As a result, FIR was filed under Sections 377, 323, 506(1) of the Penal Code, as well as Sections 3(A), 4 and 18 of the Protection of Children from Sexual Offenses Act, 2012, and the Applicant was arrested in April 2022 and transferred to a Child Observation Home.

The Applicant claimed that he was a juvenile who had been wrongly charged with the current offence. Furthermore, he was living with his widowed mother and planned to begin academics the next academic year. He had no criminal history and hence advocated that the application be allowed.

The APP strenuously opposed to the Applicant’s claims and requested that the application be dismissed.

Given the arguments provided by the parties and the accused’s age, the High Court granted the motion and ordered his release on normal bail with restrictions.[Mohit Shankarbhaai Vaghela v. State of Gujarat, 2022 SCC OnLine Guj 737, decided on 27-05-2022]


Appearances:

For the Appellant: Mr MB Rana, Advocate

For the Respondent: Mr Mitesh Amin, and Ms Moxa Thakkar, Advocates

Punjab and Haryana High Court
Case BriefsHigh Courts

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 BriefsHigh Courts

Bombay High Court: Vinay Joshi, J., granted bail to the applicants who were accused of committing offence of unnatural sex without consent and outraging the modesty of a woman.

An FIR was lodged by a grown-up lady aged 41 years old against her husband and brother-in-law.

Allegations placed by the woman were that her husband i.e. Ravi time and again had unnatural sex with her against her consent. She also alleged that her brother-in-law i.e. applicant used to outrage her modesty and was demanding sexual favour.

Another crime was filed by the daughter of the applicant. The girl alleged against her uncle Ravi that while she was studying in 10th standard, he tried touching her inappropriately and outraged her modesty.

Applicants Counsel, S.P. Bhandarkar submitted that both the complaints are nothing but an outcome of matrimonial flued.

Unnatural Sex

Court noted that the marriage of strained couple sailed smoothly for 21 long years and has two children. After such a long time, the wife alleged unnatural sexual acts at the hands of her husband.

Though it is alleged that since inception, the husband was prone to seek unnatural sex, however, after a long gap of 21 years the matter has been reported to the police.

Bench cited the Supreme Court decision in the case of Navtej Singh Johar v. UOI, (2018) 10 SCC 1, wherein it was held that,

“Unnatural consensual sexual acts of adults in private are de-criminalized.”

Non-Consensual

In light of the above-stated decision, the offence would only be attracted if it was done without the consent of the adult.

In the present matter, it has been unfolded that the allegation was running for a period of 20 years, but, the complaint had been lodged thereafter. No medical evidence to support the allegations was placed in the complaint.

Court noted that both the FIRs were simultaneously filed, which speaks for itself.

In view of the above, both the applicants made out a case for grant of pre-arrest bail and Court disposed of the criminal applications. [Rajendra Ramkrushna Malve v. State of Maharashtra, 2020 SCC OnLine Bom 863, decided on 11-08-2020]

Case BriefsSupreme Court

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, A.M Khanwillkar, DY Chandrachud and Indu Malhotra, JJ. addressed the petitions challenging Section 377 of IPC, 1860, which criminalises unnatural sex between two consenting adults while revisiting its December 2013 verdict in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 which upheld the criminalisation of gay sex.

“As the protector of fundamental rights, the Supreme Court has the duty to protect the LGBTQ community.”

Supreme Court began the hearing with two issues open which were: Sex against the order of nature whether retrograde and can sexual rights to persons be denied just because they are the minuscule minority?

Appearing for one of the petitioners, Mukul Rohatgi contended that the rights of the gay community are protected under Article 21 and “Being gay or lesbian is not a matter of choiceIt is innate, inborn and actually has to do something with the genes.” He stated that a gay man or gay woman shouldn’t be identified as something else.
As stated by learned advocate Mukul Rohatgi on stressing the criminalisation of Section 377 IPC, he quotes that “This is a case of Constitutional morality v. Others” also Section 377 is based on Victorian morality.”Ancient India was different.”

He referred to the following cases in support of his contentions which were:

Senior Advocate Datar began with his arguments by stating that Section 377 IPC is pre-constitutional, not in conformity with the Constitution. Further argued, that one of the Law Commission Reports had also recommended repealing the said section. He also stated that if a person has a different type of sexual orientation to which he has expressed, then it can’t be treated as a crime, to which he also stated that Article 21 of the Constitution includes my choice of sexual orientation and DY Chandrachud, J. accepted the said proposition.

Datar contended that there is no such thing as “Order of nature” and concluded his arguments by seeking a declaration to protect the rights of LGBT community through striking down Section 377 IPC.

The proceedings concluded for the day, Constitution Bench to resume the hearing from tomorrow i.e. July 11, 2018, in Navtej Singh Johar v. Union of India, WP(Crl.) No. 76 of 2016, order dated 10-07-2018.

[Source: The Hindu]