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Where the FIR has been lodged with ulterior motive and maliciously to harass the petitioner and to dissuade the petitioner from raising any grievance against the conduct of the respondent, the court can without hesitation  can quash the proceeding under sec. 482 CRPC. This was held in Nowshad Ahmad Rather V. State Through Police Station Kothibagh Sgr. & Anr[CRMC No. 334/2018] in the High Court of Jammu And Kashmir at Shrinagar by single bench consisting of JUSTICE RAJNESH OSWAL.

Facts are that the petitioner on way to his office was prevented, by road closure by the police. The petitioner requested the police to let him pass, was harassed and took to social media and lodged a complaint with the Governor and Grievance Cell. FIR was registered against the petitioner under Section 353, 506 RPC for entering into an argument with respondent, the Dy. SP on duty at the time.

The counsel for petitioner contended that FIR against the petitioner has been registered six days later with no justification for delay and is the result of afterthought, vengeance and based on mala fide. There was no occasion or reason available to the petitioner for obstructing the respondent from discharging his lawful duties.

The court made reference to the Supreme Court judgement in Manoj Kumar Sharma v. State of Chhattisgarh, wherein the following observations were made, “ Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story”

The court made relied on the judgement of the Apex Court judgement inM/S Indian Oil Corporation vs M/S NEPC India Ltd, the court in the case had highlighted the principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings, the court held, “A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.”

Considering the facts of the case and and the law laid down by Apex Court  in the earlier precedents the court held that, the delay in lodging FIR shall certainly be a relevant factor for considering the motive behind lodging FIR and that FIR had been lodged with ulterior motive to harass the petitioner. Thus quashing of all consequential proceedings and the FIR.

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Establishment of fundamental facts by the prosecution acts as a safety guard against misapplication of statutory presumption since prosecution has to establish a prima facie case beyond a reasonable doubt. Only after this, the accused will be under obligation to rebut the presumption that arises, by adducing evidence with a standard of proof of preponderance of probability. This auspicious judgment was passed by the High Court of Tripura in the matter of SRI LALMALSOM KAIPENG V. THE STATE OF TRIPURA [CRIMINAL APPEAL (J) 34 OF 2019] by Honourable Chief Justice Akil Kureshi and Honourable Justice Arindam Lodh.

This appeal was directed against the judgment and order of conviction and sentence passed by the learned Special Judge, Gomati Judicial District, Udaipur whereunder the appellant was convicted under Section 6 of Protection of Children from Sexual Offences Act and was sentenced to rigorous imprisonment for 10 years.

The facts of the case are that the complaint against the accused Lalmalsom Kaipeng was filed by Sri Ramlian Malsom whose younger sister’s daughter, aged 8 years, was taken to a nearby jungle and was raped. His sister, Daisingh Kaipeng, came to know about this incident through her daughter and confronted him about it but due to social shame they did not divulge the incident soon after the incident. Later on the basis of an ejahar a case was lodged under Section 376(2)(i)/506 of IPC and Section 6 of the POCSO Act while the accused agreed to a trial and pleaded non-guilty.

The prosecution contended that there was no room for a suspect since the prosecution succeeded in establishing the foundational facts in the instant case and also corroborated medical evidence since the findings of the examining doctor clearly established the prosecution case. Whereas upon further examination of the victim’s statement she confessed that her mother had specifically instructed her to confess some parts of it. Additionally, the doctor in her final opinion opined that there was no sign of recent intercourse, but hymen was ruptured (15days or a month old) and there were abdominal pain and urinary problem.

In this case, the court noted that “the maternal uncle admitted that there was a dispute regarding boundary of the houses of the victim and the appellant and the victim’s mother demanded a pig for settlement.” Additionally, the court observed that “the victim and her mother are categoric in their statements that after intercourse the victim sustained injuries in her private parts that caused bleeding.” However, “in regard to the fact of injuries at her private parts, some kinds of the mark of injuries in the nature of swelling, red mark could be detected by the Doctor. But the medical report clearly reveals that there was no mark of injury not only in any of her private parts as well as nowhere of her person.”

Thus, the court stated, “In view of the statements coupled with the medical evidence, we find various inconsistencies which appear to be so irreconcilable, are sufficient to suspect the very genesis of prosecution case. Even the prosecution has failed to establish the foundational facts relating to rape and the doctrine of reverse burden can be garnered from the prosecution witnesses.”

Thus, the court stated that “presumptions under Sections 29 and 30 of the POCSO Act do not take away the primary duty of prosecution to establish the fundamental facts. This duty is always on the prosecution and never shifts to the accused. POCSO Act has no different connotations.” Adding to this the HC also said that, “limited presumption does not upset the basic features of criminal law. Tendering of the oral evidence by accused is not mandatory or essential.”

Since the prosecution failed to establish foundational facts the Court held that, “The appellant is entitled to benefit of doubt. Accordingly, Lalmalsom Kaipeng is acquitted of the charges leveled against him on the benefit of the doubt and set at liberty.”

Hence, the appeal was allowed and disposed of by the High Court.

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It may appear that in the light of presumptions, the burden of proof oscillates between the prosecution and the accused, depending on the quality of evidence let in, in practice the process of adducing evidence in a POCSO case does not substantially differ from any other criminal case. To that extent, the presumptions and the duty to rebut presumptions are co-extensive. This auspicious judgment was passed by the High Court of Tripura in the matter of SRI JOUBANSEN TRIPURA V. THE STATE OF TRIPURA [CRIMINAL APPEAL (J) NO. 30 of 2018] by Honourable Chief Justice Akil Kureshi and Honourable Justice Arindam Lodh.

This appeal has been filed under Section 374 of the Code of Criminal Procedure, 1973 whereby the judgment of sentence and order of conviction passed by the learned Special Judge, South Tripura, Belonia for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 is challenged. 

The victim’s daughter used to reside with the convicted father whereas the mother lived separately. Joubansen started committing sexual intercourse with victim’s daughter and it continued for about three months after which she told her mother who registered a case under Section 376(2) and 506 of Indian Penal Code and Section 4 of POCSO Act.

The convict challenged his sentence and contended that the prosecution case was doubtful since the complaint was lodged with the intention to malign his image and the evidence regarding material objects was not brought to his notice, thus, denying him a reasonable opportunity to explain the circumstances arising out of those material objects.

In order to ascertain the sustainability of the judgment and order of conviction and sentence passed, the HC perused the evidence and materials brought on record and recorded that the victim was medically examined and during her cross-examination denied the suggestions put forth by the defence that the appellant did not commit any sexual intercourse with her. The defence failed to shake the mother’s evidence which she stated in her examination-in-chief also. Dr. Achintya Pal, the medical officer opined that there was evidence of vaginal penetration hence recent sexual intercourse could not be ruled out.

Thus, the Court stated, “Upon meticulous reading of Section 29 and 30 of the POCSO Act, according to us, the prosecution will commence the trial with an additional advantage that there will be a presumption of guilt against the accused person, but, in our considered view, such presumption cannot form the basis of conviction, if that be so, it would offend Article 20(3) and 21 of the Constitution of India. Perhaps, it is not the object of the legislature to incorporate Sections 29 and 30 under the POCSO Act.”

The Court also added, “the prosecution will commence trial with an additional advantage of presumption against the accused but, prosecution is legally bound to establish foundational facts which set the prosecution case in motion. Then, it will be the obligation of the accused to prove his innocence but the standard of proof again will be on the basis of preponderance of probabilities.”

The Court hence observed that “It may safely be said that presumptions under Sections 29 and 30 of the POCSO Act do not take away the primary duty of the prosecution to establish the fundamental facts. This duty is always on the prosecution and never shifts to the accused.” Additionally, the court acknowledged that, “foundational facts which the prosecution has been able to establish and the appellant failed to controvert these established facts.”

Thus, the Court referred to the Constitution Bench judgment of Supreme Court in case of Union of India V. Sriharan (2016) 7 SCC 1 and held that “The accused-convict has, of course, committed a serious offence and which must meet with punishment, which is commensurate with the nature of offence committed by him.” Hence, the Court reduced the sentence to a period of 12 years which the convict will serve without remissions.

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It is a duty of court to look into facts and circumstances of the case while extending interim bail as an exceptional case but it is must to fulfill all the conditions required. This honorable judgement was passed by High Court of Shimla in the case of Durga Prasad Versus State of Himachal Pradesh [Cr.M.P.(M) No. 537 of 2021] by Jyotsna Rewal Dua, Judge.

The petition was filed by petitioner under Section 439 of the Code of Criminal Procedure, a prayer had been made for his enlargement on interim bail for a period one month. Petitioner was in custody, for possessing 3.277 grams of Cannabis, as a co-accused, registered under Sections 20, 25 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 at Police Station Balh, District Mandi, H.P. Learned counsel for the petitioner submitted that the petitioner’s family comprising one son and one daughter was presently passing through very tough times. His son aged around 30 years was suffering from mental ailment since the year 2013. The medical records relating to ailment of petitioner’s son and submitted that recently his condition had further worsened. It was also pointed out that the married daughter of the petitioner was now facing divorce proceedings before the Courts at Mandi and there was none to look after her interest and to guide her in such crucial times in respect of her matrimonial dispute. Learned counsel further stated that subsequent to petitioner’s arrest, his wife suffered a cardiac attack and died. Petitioner was granted one day interim bail to attend the last rites and rituals of his deceased wife. The petitioner himself had been tested Covid positive and had to remain in isolation as per standard operative procedure. All these factors have caused mental trauma to the petitioner. He is now in pitiable condition with deteriorating health.

The learned counsel referred the case of Rahul @ Vijay Vs. The State of Rajasthan, Roop Singh Vs. State of Himachal Pradesh and Ramesh Kumar Vs. State of Himachal Pradesh

The court opinioned that, “Considering the above facts in totality in respect of the health of the petitioner, mental ailment of his son, pending divorce proceedings of the petitioner’s daughter coupled with death of his wife on and the potential impact of stress, anxiety of all these factors on the petitioner, I am inclined to grant interim bail to the petitioner for a period of two weeks with outer limit of 18.04.2021 by 2.00 P.M.”

The petition was disposed of by the court stating that, “the petitioner is ordered to be released on interim bail in the above mentioned FIR for a period of two weeks, subject to his furnishing personal bond in the sum of Rs.1,00,000/-with one local surety in the like amount to the satisfaction of the learned trial Court having jurisdiction over the concerned Police Station. Petitioner shall surrender before the concerned jail on or before 18.04.2021 by 2.00 P.M. Petitioner shall surrender himself before the concerned jail authorities after completion of fourteen days interim bail and under no circumstances later than 18.04.2021 by 2.00 P.M.”

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No relation with the parameters taken into consideration for granting bail under Section 439 Cr.P.C. with the parameters relevant for considering bail application under Section 438 Cr.P.C., there may be common factors but the factors are always not the same.This honorable judgement was passed by High Court of Shimla in the case of Mangal Singh Negi Versus Central Bureau of Investigation [CRMPM No.321 of 2021] by The Hon’ble Mr. Vivek Singh Thakur, Judge.

The instant petition had been filled seeking anticipatory bail under Section 438 of the Code of Criminal Procedure in case FIR registered in SPE Branch CBI, ACB, Shimla, H.P., under Sections 120-B along with Sections 409, 420, 467, 468 and 471 of the Indian Penal Code and Sections 13(2) and 13(1)(c) & (d) of Prevention of Corruption Act. Petitioner had joined Allahabad Bank as a Probationer Officer. Thereafter he was promoted as a Manager and as of now he is serving as a Senior Manager in Allahabad Bank Hamirpur. Petitioner apprehended his arrest, during ongoing investigation by CBI being carried out with respect to as many as 26 Institutions, main accused had opened accounts of their Partnership Firm ASA Marketing Solutions and also of large number of students and the petitioner is the officer, who is being considered an instrumental to the ill-design of main accused to swallow huge amount of scholarship for which students were entitled. He had been found actively associated with main accused, that a payment of `1,50,000/- is stated to have been received by the petitioner on the basis of self-cheque issued by main accused.

The learned council referred the case of Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab, (1980), State of Gujarat Vs Mohanlal Jitamalji, (1987) 2 SCC 364, State Represented by CBI Vs. Anil Sharma, (1997) 7 SCC 187 and Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors. (DB), (2011) 1 SCC 694.

The court opinioned that, “It is canvassed on behalf of the petitioner that co-accused, main conspirator in the case, has been enlarged on bail by a Co-ordinate Bench of this Court, passed in therefore, right of petitioner for enlarging him on bail, on the ground of parity, has also been pressed. Co accused, may be main accused, has been enlarged on bail in a petition filed under Section 439 Cr.P.C. as she was in judicial custody. There may not be any relation with the parameters taken into consideration for granting bail under Section 439 Cr.P.C. with the parameters relevant for considering bail application under Section 438 Cr.P.C. There may be common factors but the factors are always not the same. However, in absence of established necessity of custodial interrogation, it may be relevant to some extent sometimes but not always.”

The petition was disposed stating that, “the petitioner is ordered to be enlarged on bail, on his furnishing personal bond in the sum of `2,00,000/- with two sureties, each in the sum of `1,00,000/- to the satisfaction of the trial Court/Special Judge, within two weeks from today, subject to the conditions provided.”

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