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Delhi High Court Dismissed the petition filed for Quashing of FIR under IPC & POCSO act

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Title: MOHD. AMAAN MALIK vs THE STATE GOVT NCT OF DELHI & ANR.

Reserved on:29.05.2023

Pronounced on:05.07.2023

+ CRL.M.C. 7121/2022 & CRL.M.A. 8829/2023

CORAM: HON’BLE MS. JUSTICE SWARANA KANTA SHARMA

Introduction

The Delhi High Court Dismissed a petition for the quashing of FIR No. 162/2021, has been filed on behalf of the petitioner under Section 482 of the Code of Criminal Procedure, 1973 (the “Cr.P.C.”) for acts punishable by Sections 363/366A/376/505 of the Indian Penal Code, 1860 (the “IPC”) and Section 6 of the Protection of Children from Sexual acts Act, 2012 (the “POCSO Act”).

Facts of the case

The present FIR was filed on 29.05.21 based out-off the statement of victim. Victim and her mother had shifted to wazirabad from daryaganj two months prior to the incident. She met the accused Mohd. Amaan Malik, a native of Daryaganj in Delhi, who was around 20 years old, while she was attending classes there while she lived there. They had become pals at the tutoring centre and had begun using mobile phones to communicate. The defendant had phoned her at Sabzi Mandi and driven her in his automobile to a guest home in Sarai Kale Khan. After that, he had provided her drink and engaged in sexual activity with her without her permission. The victim also claimed that the accused had started using her as leverage by threatening to post her inappropriate photos on social media. As a result, the victim claimed that the accused had repeatedly taken her to Sarai Kale Khan’s guest house where he had forcibly engaged in sexual activity with her.

She discovered she was pregnant on April 7, 2021, and told her mother about it. Her mother then phoned the accused and informed them of the pregnancy. Amaan, the suspect, then went to the victim’s home and threatened both the girl and her mother. At Turkman Gate on April 9, 2021, he married the victim by intimidating her mother. He then took the victim and her mother to sign the marriage licence. He then began sharing a rental home with the victim in Wazirabad, close to her mother’s home.

Accused threatened the woman, beat and molested her, and put pressure on her to get an abortion. She had requested that the accused take her to her marital house, and he had responded that he had merely conducted the marriage to get rid of her. The victim underwent a medical examination at LHMC Hospital as part of the inquiry, and a positive pregnancy test result was obtained. She had verified her statement, which was recorded under Section 164 of the Criminal Procedure Code. Her pregnancy was ended at LHMC Hospital and the foetus was saved after additional research. The suspect was detained on May 29, 2021. Blood samples from the victim, the victim’s foetus, and the accused were collected, and sent for DNA examination. The accused/petitioner was identified as the foetus’ biological father by DNA testing. It was discovered over the course of the inquiry that the victim was married. Her date of birth, which was discovered in her school records to be 12.05.2004, meant that she was 17 years old when she legally wed the accused.

Analysis of the court

Before arriving at the conclusion, the Delhi High court referred to the principles laid down in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors.1992 SCC (Cri) 426 by the apex court, which is to be considered while quashing a FIRs and it also analysed the verdict of the apex court in the case of Neeharika Infrastructure v. State of Maharashtra 2021 SCC OnLine 315, and culled out the relevant principles that govern the law on quashing of FIRs under Section 482 of the Cr.P.C.

Based on the facts of the case the high court was of the opinion that on prima facie terms this was a case of sexual assault which had taken place in 2021 and due to societal stigma and pressure the victim was forced to marry the accused which got established from the date mentioned in Nikahnama, It was undisputed that the victim was a minor throughout this entire time. The Nikahnama dated 09.04.2021 further demonstrates that, considerably later than the alleged sexual assault of the victim, the victim was still a juvenile and had not yet reached the age of majority.

The Court also mentioned the controversy around the age of marriage in muslim personal law and applicability of POCSO act, it cited several judgements from various high courts as, In Aleem Pasha v. State of Karnataka 2022 SCC OnLine Kar 1588, the Hon. Karnataka High Court noted that Muslim personal law will be superseded by the POCSO Act, a unique piece of legislation designed to protect minors from sexual assaults. Earlier, in Rahul v. State of Karnataka 2021 SCC OnLine Kar 12728, the Hon’ble Karnataka High Court made a similar observation. The Hon’ble Kerala High Court recently ruled in Khaledur Rahman v. State of Kerala & Anr. 2022 SCC OnLine Ker 5833 that marriages between Muslims under personal law are not excluded from the POCSO Act’s purview and that if one of the parties to the marriage is a minor, offences under the Act still apply regardless of whether the marriage is valid or not. The Court, while referring to Section 42-A of the POCSO Act observed that the POCSO Act will prevail over personal laws and customary laws.

While on the other hand the delhi high court also took of  the Hon’ble Punjab and Haryana High Court held in the case of Gulam Deen v. State of Punjab 2022 SCC OnLine P&H 1485 that a Muslim girl beyond the age of 15 is competent to engage into marriage and that Muslim personal law governs a Muslim girl’s marriage. The National Commission for the Protection of Child Rights (NCPCR) filed Special Leave Petition (Criminal) No. 26834/2022 in opposition to the aforementioned ruling, and the Hon’ble Apex Court decided to consider the issue of whether a young Muslim girl can marry after reaching puberty. The Hon. Punjab and Haryana High Court in Javed v. State of Haryana, CRWP-7426-2022(O&M), it was determined that Muslim women who were 15 years old or older might wed someone of any race. In accordance with Section 12 of the 2006 Prohibition of Child Marriage Act, such a marriage would not be invalid due to the girl’s free will and agreement. However, the Hon’ble Apex Court ruled on 13.01.2023 in Special Leave Petition (Criminal) No. 35376/2022 submitted by NCPCR that the ruling in the matter of Javed (above) should not be used as precedent in any subsequent cases. In a nutshell, as of now, the question of whether a female who reaches puberty and the age of majority after turning 15 is still considered a minor would be governed by the provisions of the POCSO Act/Child Marriage Restraint Act or not, is pending for consideration and adjudication before the hon’ble Apex Court. As a result, there are inconsistent rulings over whether the POCSO Act and the Child Marriage Restraint Act, or the personal law, will apply to a juvenile who is married under Muslim law. In any event, the claims of rape in this case are made before the couples’ marriage rather than after it, thus the court will not discuss the legitimacy of the marriage between the present petitioner and the victim.

In any case, in the current case, the minor victim expressly denies that any sexual relationships were established with her consent and describes the specifics of her initial sexual assault and subsequent sexual assaults under the threat of having her inappropriate photos made public. In these circumstances, the present case is not covered by the cases of Bhajan Lal (previous) or Neeharika Infrastructure (previous), and this Court cannot conclude from the merits of the case that the allegations against the petitioner are baseless or improbable or that the alleged offence could not have occurred.

However, this circumstance is frightening and serves as a harsh warning reminder. Occasionally, after a sexual attack, a troubling trend develops in which the accused marries the victim, In an apparent attempt to avoid being charged with a crime, they immediately desert the victim if the FIR is dismissed or bail is obtained.

This Court is not disposed to utilise its inherent authority under Section 482 Cr.P.C. for the purpose of quashing the disputed FIR in light of the overall facts and circumstances of the case. However, given that the charge arguments have not yet been heard, the issues brought before this Court can be raised before the competent Trial Court, where they will be resolved in accordance with the law. As a result, both the current petition and the awaiting application are dismissed.

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Delhi High Court held that teachers of unaided private schools are entitled to the same pay and emoluments as those of government schools.

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Title: BHARAT MATA SARASWATI BAL MANDIR SENIOR SECONDARY SCHOOL vs VINITA SINGH AND ORS.

Date of Decision: 07th July, 2023

+ LPA 601/2022 & CM APPLs. 45446-45447/2022

CORAM: HON’BLE MR. JUSTICE MANMOHAN HON’BLE MS. JUSTICE MINI PUSHKARNA

Introduction

Delhi High Court dismissed the appeal filed against the judgement dated 14th December, 2021, whereby the writ petition filed by three teachers seeking payment of 7th Central Pay Commission (hereinafter referred to as ‘7th CPC’) has been allowed and held that teachers of unaided private schools are entitled to the same pay and emoluments as those of government schools, in terms of the obligation enjoined upon the private recognized schools under the DSE Act, 1973. The schools cannot evade their statutory responsibility and are bound to pay the statutory dues.

Facts of the case

The pertinent information is that respondents 1 through 3 have been regularly employed by the appellant institution. Respondent No. 5/Directorate of Education (DOE) issued a notification on October 17, 2017, requesting that all private recognised schools adopt the recommendations of the 7th CPC. Respondents 1 to 3 sought this Court by filing a writ case after the appellant school refused to extend the benefit of the 7th CPC. By the impugned judgement on 14th December 2021, the learned Single Judge found that the respondents 1 through 3 herein were entitled to arrears of their benefits/salaries beginning on January 1, 2016, and also required the school to give them in accordance with the 7th CPC’s rules. Hence, the current appeal has come to be filed by the school.

Analysis of the court

The Delhi High court held that the writ petition filed by the three teachers was maintainable as it involves a public law element, inasmuch as, the original writ petitioners were seeking the implementation of Section 10(1) of the Delhi School Education Act, 1973 (DSE Act, 1973)

In reality, the writ petitioners sought implementation of the circular/order/notification dated October 17, 2017 issued by DOE requiring the schools to pay teachers’ wages in line with the 7th CPC through the underlying writ petition. In reality, the Supreme Court has unequivocally stated the following in the case of St. Mary’s Education Society (Supra):

“75.1. An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public.”

Hence the present writ was maintainable.

This Court further believes that, given the recurrent nature of the claim, the writ petition submitted by the original writ petitioners is not precluded by laches or delay.

In Union of India v. Tarsem Singh (supra), the Supreme Court itself said by way of an example that remedy should be given regardless of delay if the problem relates to pay payment as it does not impact third party rights.

Furthermore, because the decision in Rushibhai Jagdishbhai Pathak v. Bhavnagar Municipal Corporation (above) deals with a matter of a higher grade pay scale in the following promotional post, which is not the situation in the present issue, it is of no use to the appellant.

To sum up, it should be stated once again that the respondents in the writ case requested the payment of their entire salaries in accordance with the 7th CPC’s recommendations. According to Section 10 of the DSE Act, a recognised private school’s pay scale and allowances, medical services, pension, gratuity, provident fund, and other permitted benefits must not be less than those of the employees in the same position at the public school. According to a statement from the DOE dated October 17, 2017, all recognised schools are required to follow the 7th CPC’s recommendations in compliance with the DSE Act, 1973. at light of this, it is unquestionable that instructors at unassisted private schools are entitled to the same pay and benefits as emoluments as those of government schools, in terms of the obligation enjoined upon the private recognized schools under the DSE Act, 1973. The schools cannot evade their statutory responsibility and are bound to pay the statutory dues.

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The Delhi High Court granted the benefit of remission under Delhi Prison Rules 2018

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Title: INOX AIR PRODUCTS PRIVATE LIMITED vs MR. ARUN RATHI

Date of Decision: 05.07.2023

EX.P. 109/2019

CORAM: HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

Introduction

Delhi High Court granted the benefit of remission under Delhi Prison Rules 2018 and held that a plain reading of rules would show that rule 1175 defines the eligibility for remission and it has defined the term “Convicted prisoner” which would include both civil as well as criminal prisoners.

Facts of the Case

In brief, this Court found the applicant guilty of contempt of court for disobeying instructions and the undertaking made in an order dated 24.05.2019, taking into account the facts of the case and particularly the applicant’s behaviour to the knowledgeable Arbitrator. The petitioner was ordered by the court to pay the decree holder an amount of Rs. 5.05 crores, or the value of the missing machinery and equipment. Further instructions said that the applicant would face a three-month sentence of civil jail if the aforementioned sum was not paid within six weeks.

By means of CONT.APP. (C)15/2019, the aforementioned order was contested before the Division Bench. The appeal was dismissed by decision dated 26.11.2019, to which a S.L.P. (Crl.) No. 665 of 2020 was filed in response. This claim was also rejected, but the deadline for depositing the money was extended by orders dated 11.11.2022 and 15.12.2022. After then, on January 13, 2023, a Review Petition No. 12/2023 submitted to the Division Bench was likewise dismissed.

On March 29, 2023, the court ordered the petitioner to appear and serve three months of civil incarceration in accordance with the decision dated May 25, 2019, noting that he had neglected to deposit the sum of Rs. 5.05 crores. According to reports, the applicant turned himself in on April 10, 2023, and has been incarcerated since.

Analysis of the case

The order dated 24.05.2019 was issued in response to a petition brought under Section 12 of the Contempt of Courts Act, 1971 (hereinafter referred to as the “Act”). Punishment for disobedience and noncompliance with the court’s order is the outcome of the civil contempt proceedings under the Act. The procedures differ from execution proceedings under the Code of Civil Procedure in that the Court must expressly satisfy it and record a finding that the disobedience was deliberate and purposeful in the contempt proceedings.

In Sections 3(2), (3), and (4) of The Prisons Act of 1894, the terms “criminal prisoner,” “convicted criminal prisoner,” and “civil prisoner” are defined. the terms “civil prisoners,” “convicted criminal prisoners,” and “criminal prisoner” are likewise defined in the Delhi Prisons Act, 2000 (Delhi Act No. 2 of 2002), and they are identical to those used in The Prisons Act, 1984. The Delhi Prison Rules, 2018 (hence referred to as the “Rules”) were created by the government of the NCT of Delhi in accordance with its authority under Section 71 of The Delhi Prisons Act, 2000.

Court held, one of the most prized elements of the Indian Constitution is personal freedom. and its infringement cannot occur except in line with the law and in accordance with its provisions, as stated in Article 21 of the Constitution. It is commonly known that a legal process cannot be capricious, unjust, or irrational.

This Court believes that a straightforward interpretation of the aforementioned Rules would demonstrate that the term “convicted prisoner” is used when describing eligibility for remission in Rule 1175. This phrase is comprehensive and makes no distinction between a “criminal prisoner” and a “civil prisoner” who has been found guilty. Although there is no specific provision for remission in Chapter XXXIII of the Rules that apply to civil prisoners, this does not indicate that Rule 1175 of the Rules is no longer relevant to the petitioner. Additionally, Rule 1176 does not specifically exclude civil prisoners. This Court thus believes that the aforementioned definition and rule apply to both types of convicts. Additionally, the claim that the petitioner has not been awarded a substantive sentence is equally fallacious as the applicant has been convicted and punished with substantive sentence of detention in civil prison for three months and as such, he is eligible for remission in terms of Rule 1175(1).

Thus the court allowed the application and directed the Superintendent to provide the applicant or contestant with the benefit of remission in accordance with the relevant Rules.

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Delhi High Court granted compensation and set aside the order of the railway tribunal.

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Title: RAM PRATAP & ANR vs UNION OF INDIA (MINISTRY OF RAILWAY)

Reserved on: 15.03.2023

Pronounced on: 05.07.2023

FAO 172/2014

CORAM: HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

Introduction

Delhi High court set aside the order passed by the Railway Claims Tribunal, Principal Bench, Delhi in OA(IIu)008/2013 and granted compensation to the appellants under section 23 of the railway claims tribunal act 1987.

Facts of the case

The appellants seek to challenge the decision made by the Railway Claims Tribunal, Principal Bench, Delhi in OA(IIu)008/2013, which dismissed the claim application they submitted. This appeal was filed in accordance with Section 23 of the Railway Claims Tribunal Act, 1987 (hereinafter referred to as the “Act”).

The appellants’ knowledgeable counsel argued that the Tribunal had rejected the appellants’ claim even though the two travel tickets (for the forward and return voyage) had been found on the deceased individual.

In contrast, the respondent’s learned CGSC argued that the Tribunal correctly rejected the assertions that the deceased was a bona fide passenger and that the event an untoward incident occurred while defending the disputed order.

Analysis of the court

A review of the file would also demonstrate that the tickets were confirmed and discovered to have been issued on June 5, 2012, at 12:18. Even though the trip was started on that day with considerable delay, The appellants claimed in their testimony that after buying the tickets, the deceased went home for some personal matters before returning to travel later that evening. In the deceased should not be denied the status of having been a genuine passenger just because there was a small window of time between the time the tickets were issued and the journey was actually taken, according to this Court’s FAO 172/2014 Page 3 of 4 opinion. In addition, the Tribunal’s assertion that the claim averments are implausible since neither the deceased’s fellow passengers nor the authorities were informed of the occurrence is false and should be rejected given the circumstances of the case.

In light of the foregoing reasoning, this Court believes that the Tribunal erred in denying the appellants’ claim application. As a result, the appeal is granted and the contested ruling is reversed.

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Delhi High Court Dismissed the appeal challenging the order of a district court due to lack of filing of written statement on time.

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Title: SANTOSH KUMAR AGGARWAL vs M/S ALUCO PANEL LIMITED

Date of Decision: 05th July, 2023

+ RFA(COMM) 131/2023

CORAM: HON’BLE MR. JUSTICE MANMOHAN

HON’BLE MS. JUSTICE MINI PUSHKARNA

Introduction

Delhi High Court Dismissed the appeal challenging the order of a district court due to lack of filing of written statement on time thus defence for lack of territorial jurisdiction could not be raised.

Facts of the case

Present appeal has been filed challenging the order dated 11th November, 2022 passed by the learned District Judge in CS No.1235/2018 whereby the suit was decreed in favour of the respondent-plaintiff.

Analysis and Decision of the case

This Court determines that the appellant-defendant did not file the written statement or raise any defences despite participating throughout the suit processes, having heard the learned appellant’s counsel and having read the paper book. Despite the fact that an application under ruling IX Rule 7 CPC and an application under Order VII Rule 11 CPC were both submitted on October 17, 2019, both on the grounds that the Court lacked geographical jurisdiction, the applications were both rejected by a detailed ruling dated October 13, 2022. It is established law that a written statement cannot be filed more than 120 days after it is due. (See: 2019 SCC 210, SCG Contract (India) Pvt. Ltd. vs. K.S. Chamankar Infrastructure Pvt. Ltd. As a result, the order dated 17th October, 2019 is in accordance with law.

Additionally, this Court believes that the defences of non-delivery of goods against bills nos. 10 and 30 and lack of jurisdiction in the current case are valid arguments. The Trial Court was unable to address the aforementioned defences since, in the current instance, the opportunity to provide a written statement had expired because it had not been submitted within the allotted time frame.

 Additionally, this Court also believes that the decision interpreting Section 12A of the Commercial Courts Act prospectively renders the statute effective as of August 20, 2022. The aforementioned judgement offers no support to the appellant because the lawsuit in the current instance was filed in 2018.

As a result, the current appeal is dismissed together with any pending petitions since it lacks merit.

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