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Minor legal heir eligible for compassionate apportionment; but appointment upon attaining majority-Chennai High Court (Madurai Bench).

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Case title: State of Tamil Nadu v. C. Arnold

Case no: W.A(MD)No.479 of 2024 and C.M.P(MD)No.3875 of 2024

Dated on: 01st April 2024

Quorum: Hon’ble Mr. Justice R. Suresh Kumar and Hon’ble Mr. Justice G. Arul Murugan.

Facts of the case:

This Writ Appeal filed, under Clause 15 of Letters Patent, is to set aside the order dated 16.11.2023 made in W.P(MD)No.27247 of 2023 and W.M.P(MD)No.23395 of 2023 seeking Compassionate appointment. The Respondent/Writ Petitioner and father, working as a B.T Assistant in a Government High School, passed away on 03.01.2016, while in service. At the time of his father’s death, the Writ Petitioner was 15 years and 6 months old. On his behalf, his mother made an application dated 02.01.2018, before the Chief Educational Officer, seeking compassionate appointment which was rejected vide Order dated 31.05.2023 on the ground that on the date when the application was made, the respondent/writ petitioner was a minor. That rejection order was challenged before the High Court. The learned Judge, who heard the Writ Petition, took note of the fact that the Rule issued by the Tamil Nadu Government, in the Tamil Nadu Civil Services (Appointment on Compassionate Grounds) Rules, 2023 was notified on 08.03.2023 and at the time of consideration of the application submitted by the respondent/writ petitioner the said Rule was already in force and despite which it was rejected in May 2023 ie., by order, dated 31.05.2023. Hence, it was an erroneous approach on the part of the Appellant employer.

Issues:

Whether it was correct on the part of the Respondent to reject the Compassionate appointment on 31.05.2023 based on G.O.Ms.No.155 Labour and Employment (Ku1) Department, dated 10.12.2014 when Tamil Nadu Civil Services (Appointment on Compassionate Grounds) Rules, 2023 was already notified on 08.03.2023?

Legal provisions:

Writ Appeal filed, under Clause 15 of Letters Patent- lays down that any appeal can be made to the High Court provided it is not a sentence or order passed or made in the exercise of criminal jurisdiction.

Tamil Nadu Civil Services (Appointment on Compassionate Grounds) Rules, 2023- These rules govern the appointment of individuals on compassionate grounds within the Tamil Nadu Civil Services.  

Contentions of the appellant:

At the time of making the application seeking compassionate appointment, the respondent/writ petitioner, was only a minor who has completed only 15 years and 6 months. Therefore, at the time when he attained majority, three years period was over from the date of death of the employee ie., his father. Therefore, beyond three years period, compassionate appointment would not be considered. This rejection was based on Rule, dated 10.12.2014, of G.O.Ms.No.155, Labour and Employment Department and therefore, the said order of rejection ought not to have been interfered by the Writ Court.

Contentions of the respondent:

The Government of Tamil Nadu had framed rules for appointment on compassionate grounds under Tamil Nadu Civil Services (Appointment on Compassionate Grounds) Rules, 2023. The said rule was notified on 08.03.2023 and as per the said Rule 6, there is no minimum age limit for making an application. However, an appointment order could be issued only on completion of 18 years of age. These Rules were prevailing on the date of consideration of the application. Hence, the action of the 3 rd Respondent in relying upon G.O.Ms.No.155 Labour and Employment (Ku1) Department, dated 10.12.2014 was not right.  

Court analysis and judgement: 

Compassionate appointments are made to bail out the families of the employee, whose sudden demise would push the family to penury. Compassionate appointment is made depending upon the education and other qualifications of the dependent of the deceased employee and further no person can be employed in any organization, unless he attains majority ie., above 18 years. In most cases, when such an employee dies, the son or daughter or the dependents other than the spouse would be minor and therefore, it will take some years for them to reach the majority by which period the three years period from the date of death of the employee would be over. Under such circumstances, though the dependent or legal heirs would become eligible to seek for compassionate appointment but by then the period of three years would be over. These difficulties were considered by the State Government, and they bought Rule 6, the same is briefly mentioned herein. On the date of application for appointment. –  the spouse or medically invalidated Government servant or parent of the deceased servant, must have completed fifty years of age; and the son, daughter, brother or sister of the deceased or medically invalidated Government servant must not have completed forty years of age. There shall be no minimum age limit for the applicant on the date of application for appointment, provided appointment shall not be provided unless the applicant completes eighteen years of age.” Hence, under Rule 6, the maximum age has been prescribed, but minimum age limit was not prescribed. It was made clear that the appointment shall not be provided unless the applicant completes eighteen years of age Therefore, the intention of the Rule making authority is clear, that under no circumstances compassionate appointment should be denied to a family for want of attaining the majority of the legal heir/dependent of the deceased employee’s family. If compassionate appointment could not be given immediately, the employer can consider such application and grant/extend the benefit of compassionate appointment to the dependent/legal heir upon his attaining majority. When the intention of the Government was made very clear and as the Rule was effective from 08.03.2023, the Rule should have been applied by the employer. It is due to this reason that the learned Judge interfered with the said order and given direction for extending the benefit of compassionate appointment.  Writ Appeal is accordingly disposed with no costs. The appellants to consider the application, within a period of two months from the date of receipt of a copy of this order. When such consideration is made, if any similarly placed persons are there seniority is to be followed. In the name of following the seniority, the plea of the respondent/writ petitioner cannot be deferred or rejected and if in case there is no vacancy available, where he has sought, then as per the existing procedure, the request of the respondent/writ petitioner be forwarded, where similar vacancy is available and necessary orders to be passed. 


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Judgement reviewed by- Parvathy P.V.

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“The High Court of Karnataka Grants Anticipatory Bail to Rape Accused Due to Lack of Evidence of Coercion or False Promises in Allegations.”

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Case Title – Varun Kumar Vs. State of Karnataka

Case Number – Criminal Petition No. 2020/2024

Dated on – 18th April 2024

Quorum – Justice Rajendra Badamikar

FACTS OF THE CASE

In the Case of Varun Kumar Vs. State of Karnataka, the Appellant, Varun Kumar, instituted a petition under Section 438 of the Criminal Procedure Code, 1973 seeking anticipatory bail in apprehension of his arrest in Crime No. 50/2024 of the Jnanabharathi Police Station, Bengaluru. The present case concerns the allegations of offenses under Section 376(3) of the and Section 420 of the Indian Penal Code, 1860 as well as Section 4(2), 5(L) and 6 of the Protection of Children from Sexual Offenses Act, 2012 (POCSO Act). The Complainant in the present case (further referred herein as “Victim”) claimed that the Appellant started profaning her on Instagram, when she was in the minor age of 16 years old in 2018, despite her disinterest. The Victim accused the Appellant of frequently raping her from 2019 to 2023 in various locations on the pretence of uploading on social media, the intimate pictures taken by him of the Victim.

CONTENTIONS OF THE APPELLANTS

  1. The Appellant, through their counsel, in the present case contented that the relationship between the Appellant and the Victim was consensual and that it started when both were majors.
  2. The Appellant, through their counsel, in the present case contented that the family of the Victim is influential and is behind the allegations put forth on the Appellant.
  3. The Appellant, through their counsel, in the present case refused any coercion or false promise on the pretext of a marriage and affirms that their families initially were in support of their relationship and approved the same.

CONTENTIONS OF THE RESPONDENTS

  1. The Respondentss, through their counsel, in the present case contented that the Appellant committed rape and exploitation under the pretence of love and marriage.
  2. The Respondentss, through their counsel, in the present case contented that the influence of the Appellant poses a menace of fiddling with witnesses and evidence.
  3. The Respondentss, through their counsel, in the present case contented that the recent demise of her father, the Victim is vulnerable.

LEGAL PROVISIONS

  1. Section 376(3) of the Indian Penal Code, 1860 prescribes the Punishment for committing the offense of Rape of a woman under the age of Sixteen years as rigorous imprisonment for a term not less than twenty years which may extend to life imprisonment which shall mean the natural life of the person as well as fine as required for the medical expenditures as well as the expenditure of rehabilitation of the victim.
  2. Section 420 of the Indian Penal Code, 1860 prescribes the Punishment for committing the offense of Cheating as imprisonment for either description of a term which may extend to seven years as well as fine.
  3. Section 4(2) of the POCSO Act, 2012 prescribes the Punishment for committing penetrative sexual assault on a woman less than sixteen years of age as imprisonment for a term not less than twenty years which may extend to the natural life of the person as well as fine.
  4. Section 5(L) of the POCSO ACT, 2012 defines Aggravated Penetrative Sexual Assault.
  5. Section 6 of the POCSO ACT, 2012 prescribes the Punishment for committing Aggravated Penetrative Sexual Assault on woman below the age of sixteen years as rigorous imprisonment for a term not less than twenty years which may extend to life imprisonment which shall mean the natural life of the person as well as fine.

ISSUES

  1. The main issues in the present case revolves around whether the carnal relationship between the Appellant and the Victim was consensual or coerced?
  2. Whether the Appellant poses a menace of fiddling with the evidences or witnesses?
  3. Whether the influence of the Appellant or the family background of the Victim affects the case?

COURT ANALYSIS AND JUDGMENT

The court in the case of Varun Kumar Vs. State of Karnataka, observed the consensual relationship between the Appellant and the Victim which lasted for several years. The court focused on the influential family background of the Victim and questioned the reliability of the allegations put forth against the Appellant and that the delay in instituting the complaint and the continued relationship between the Victim and the Appellant raised doubts on the legitimacy of the allegations against the Appellant. The court, taking into consideration, the facts and circumstance of the present case, grants the anticipatory bail to the Appellant, imposing certain conditions to ensure his coordination with the process of investigation.

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Judgement Reviewed by – Sruti Sikha Maharana

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Allahabad HC Grants Bail To ‘Minor’ Accused Of Posting FB Comments Against Goddess Durga, Was In Jail Since Sep 2022

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CASE TITLE: Vishwajeet vs. State Of U.P. Thru. Secy. Deptt. Of Home Lko 2023 LiveLaw (AB) 274 [CRIMINAL MISC. BAIL APPLICATION No. – 14479 of 2022]

DECIDED ON: 27.07.2023

CORAM: Hon’ble Subhash Vidyarthi,J.

INTRODUCTION

The Allahabad High Court recently granted bail to a juvenile who was charged with posting derogatory comments about Goddess Durga on his Facebook account.

FACTS

After examining his high school marks sheet and Aadhar card, which indicated his birth year as January 2006, Justice Subhash Vidyarthi directed his release on bail. The minor had been arrested in September 2022.

The minor, who was accused under Sections 298, 505(i)(c) of the Indian Penal Code (IPC), and Section 67 of the Information Technology Act, was taken into custody on September 27, 2022, based on allegations of posting offensive remarks about Goddess Durga on his Facebook account.

CASE ANALYSIS AND DECISION

His lawyer officially presented his High School Certificate and Marksheet, which explicitly indicated his birthdate as January 07, 2006.

“By examining the applicant’s Aadhar card and High School Marksheet, it is evident that the applicant is underage, and nonetheless, he has been detained in jail since September 27, 2022,” the Court commented as it approved his bail upon the submission of a personal bond and two sureties, each of equal value, by his legal guardian, satisfying the relevant Magistrate or Court.

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Written by- Mansi Malpani

 

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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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Written By – Shreyanshu Gupta

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₹14 lakh compensation to the minor victim girl orders Madras High Court; criticises Legal Service Authority for seeking dismissal of case.

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Title:  T. Kaliammal         

                Versus

         The State of Tamil nadu and Ors.      

Date of Decision: 26.06.2023.           

Coram: THE HONOURABLE MS. JUSTICE P.T. ASHA.

Citation: W.P.(MD) No.3252 of 2020 and W.M.P.(MD) No.2758 of 2020.

Even though a special court had ended all proceedings in the case when the accused passed away while the trial was still ongoing, the Madras High Court recently awarded compensation of 14 lakh to a minor, mentally challenged rape survivor. Justice PT Asha noted that the local special court had done the physically and mentally handicapped survivor and her family more disservice by dismissing the case.

Introduction:

The petitioner, who is the mother of a mentally challenged daughter, who has been ravaged and impregnated by a “wolf in sheep’s clothing”, old enough to be her father, has knocked at the doors of this Court seeking compensation for this wrong inflicted on her daughter. The family comes from indigent circumstances. The mother is an agricultural coolie and the father works as a Watchman in a private company. They are blessed with two children, a son aged about 18 years, who is undergoing his B.Com course at Mano Arts College in Thoothukudi District and a daughter, who is the victim. The victim is mentally as well as physically challenged. Since the husband is employed at Chennai, the mother and children are living alone. Being an agricultural coolie, the petitioner is forced to leave the daughter alone W.P.(MD) No.3252 of 2020 and go for her work. The accused, who is about 55 years of age and a neighbour, had taken advantage of the victim’s physical and mental disability and has committed aggravated penetrative sexual assault on her not once, but on several occasions. The condition of the victim is such that she was not even in a position to narrate the ordeal to her mother. It was only when she had become pregnant, that the mother came to know about the same and immediately, a complaint was lodged at All Women Police Station, Kadambur, Tuticorin, and an FIR too was registered under the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”). The petitioner has moved this Court for a mandamus to terminate the pregnancy, provide police protection to the petitioner and her family members and to provide reasonable fair and compensation to the victim.

Legal Analysis:

The judge stated that despite the prohibition under Section 362 of the Code of Criminal Procedure (CrPC), the High Court has the authority to right this injustice. “This closure is yet another move that has done the victim significant injustice and, in some ways, demonstrates the indifference shown to the victim’s plight. The bar under Section 362 of the Code of Criminal Procedure would go into effect once the case was closed, making it impossible for the victim to seek additional compensation from the Court. Therefore, the petitioner contacted this Court appropriately. The Court stated that it had the authority to right this mistake. The Thootkudi District Legal Services Authority (DLSA) was also criticised by the court for how it handled its efforts to have the lawsuit dismissed.

The mother of a the victim girl who was discovered to have been regularly raped and impregnated by their 55-year-old neighbour had petitioned the court for just compensation. The case was already concluded by the special court since the defendant passed away while the trial was ongoing. The victim’s pregnancy was ended per the High Court’s directives, and she was given an interim settlement of Rs. 1 lakh. The District Legal Services Authority indicated in a counter-affidavit that the High Court’s request for compensation might be dismissed because the special court had concluded the case. The authority was criticised by the High Court for its callous and insensitive behaviour. “The fifth respondent has washed its hands of the issue and prays that the writ petition be dismissed instead of helping the Court attempt to rehabilitate and recompense the victim, who is a mentally and physically handicapped girl. It’s best to say as little as possible about the counter, said Justice Asha. The Court further determined that the victim was qualified to receive the maximum amount of compensation that may be paid under the various compensation plans. The Protection of Children from Sexual Offences Act (POCSO Act) established the Tamil Nadu Child Victim Compensation Fund, and the court ordered the Thootkudi District Legal Services Authority (DLSA) to pay the victim’s compensation amount from that fund.

Judgement:

This Hon’ble Court by exercising jurisdiction under Article 226 of the Constitution of India directs that a compensation of a sum of Rs.14,00,000/- (Rupees Fourteen Lakhs only) be paid to the victim. This sum shall be deposited in an interest-bearing account with the mother as the guardian. The mother shall be permitted to withdraw interest every month. The said sum shall be utilised only for the up keep and the rehabilitation of the victim. The District Child Protection Officer shall visit the home of the Victim once in three months and submit a report to the District Legal Services Authority, Thoothukudi. The District Legal Services Authority shall ensure compliance of the above. In case, the report would state that the amounts are not being used for the welfare of the victim, then an application shall be made to this Court for modifying the orders by the District Child Protection Officer. In case, the mother requires substantial amount for the benefit of the victim, she can make an application to this Court for appropriate order. The amount of Rs. 14,00,000/- shall be paid from and out of the Tamil Nadu Child Victim Compensation Fund by the fifth respondent within a period of four weeks from the date of receipt of a copy of this order and report compliance to this Court.

Conclusion:

This is a tragic case in which the accused aggravated penetrative sexual assault against the victim, a minor with mental disabilities, not just once, but multiple times. Unfortunately, he had already passed away before he could get any legal penalty. The Special Court closed the matter as charge abated without complying with Section 33(8) of the POCSO Act and Rules 7(1) and 7(2), The judge also directed the DLSA to ensure that the money was used only for the victim’s rehabilitation.

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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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