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

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

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.

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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The Delhi High Court has ordered the DSLSA to investigate the grant of compensation to a 13-year-old rape victim and has authorized the teen to have a medical termination of her pregnancy.

Title: MINOR VICTIM-V v. THE STATE & ANR + W.P.(CRL) 1753/2023, CRL. M.A. 16385/2023

CORAM: HON’BLE MR. JUSTICE JASMEET SINGH

O R D E R DATED: 12.06.2023

Introduction

On Monday, the Delhi High Court upheld the right of a 13-year-old rape victim to have a medical abortion even though her unborn child was between 24 and 26 weeks along. The compensation to be awarded to the youngster was also investigated by the Delhi State Legal Services Authority at the direction of a vacation bench presided over by Justice Jasmeet Singh.

Facts of the Case

The minor’s petition for a medical termination of her pregnancy was reviewed by a medical board consisting of at least two doctors from Guru Tegh Bahadur Hospital on June 9.

Since the medical advisory board has determined that the mother and the unborn child are at greater risk if the pregnancy continues, the doctors at Guru Teg Bahadur Hospital have been instructed to perform an abortion as soon as possible. A minor’s petition to the court for permission to have a medical abortion filed by her father was granted. The 13-year-old girl went to her grandmother’s house, when a renter from the same neighbourhood assaulted her, according to a status report filed with the Delhi Police.

The teen travelled back to her home in Bhopal, where she became ill and was then taken to the hospital by her parents, where she gave birth to a baby boy. A zero-digit FIR was filed, and on May 30, the girl was evaluated by doctors at a government hospital and confirmed to be between 24 and 28 weeks pregnant. The minor’s statement was recorded per section 164 of the Code of Criminal Procedure, and the court was made aware of this.

Courts Analysis and Decision

The petition is approved and disposed with, and the court has directed that the DSLSA investigate the victim’s compensation. Furthermore, the court ordered the medical staff to provide the pregnant child victim with the highest standard of treatment, which includes post-operative care, to guarantee a full recovery before she is released from the hospital.

Additionally, the court ordered that the medical staff and the hospital make sure that the patient and the mother receive constant counselling and are informed of the hazards. From the time of the victim’s hospital admittance till the time of her release, Justice Singh ordered a female police officer to remain in the hospital room with her and her daughter.

Given the foetus’s advanced age, GTB Hospital’s Neonatal Intensive Care Unit (NICU) would be well equipped to care for a live birth. If such a facility is unavailable, the hospital is responsible for arranging the transfer of the foetus to another facility, which includes arranging for transportation. This is the responsibility of the Medical Superintendent of the relevant hospital.

It went on to say, “In any other circumstance, it is directed that the medical facility must safeguard the terminal foetus for the sole purpose of DNA testing which would be required in reference to the criminal case who has been lodged.” Following any instructions issued by the applicable criminal court, the terminal foetus and any DNA samples taken from it must be preserved in conformity with the law.

 Judgment- click here to review the judgment

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Written by- Anushka Satwani

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Karnataka High Court Denies Plea to Quash FIR Against Gynecologist under Section 21 of POCSO Act for Failure to Report Sexual Assault on a Minor

Karnataka High Court

Chandrashekar T.B. v. State of Karnataka & Devika

Bench-  HON’BLE MR. JUSTICE M. NAGAPRASANNA

WRIT PETITION No.8789 OF 2023 (GM – RES)

Decided On 02-06-2023

Facts of the case-

The petitioner, a retired doctor now running Prashanthi Hospital in Laxmisha Nagara, Chikkamagaluru, is the subject of a crime registration. On 17-12-2022, between 13:00 to 14:00 hours, the victim, Devica arrived at the petitioner’s hospital seeking treatment.

The victim was in critical condition with severe bleeding and decreased vitals, allegedly caused by taking abortion tablets 2 to 3 days prior. Accompanying the victim were individuals claiming to be her parents.

The petitioner promptly admitted the patient to the hospital and provided immediate medical intervention, including oxygen and IV fluids, which improved the victim’s condition. However, it is claimed that the petitioner performed an incomplete medical termination of pregnancy, leaving the placenta behind.

Due to the victim’s instability and ongoing bleeding, the petitioner performed a procedure to retain the placenta, as further expulsion would have endangered the victim’s life. After approximately two days of admission, once the victim’s condition stabilized, she was discharged in the morning and taken by her purported relatives.

Around one month later, Crime No.1 of 2023 was registered at Belthangadi Police Station for the aforementioned offenses. Initially, the petitioner was not named as an accused party. Following an investigation, a notice was issued to the petitioner on 17-02-2023, accusing them of performing a medical termination of pregnancy on a 12-year and 11-month-old victim who had been subjected to sexual activity.

The petitioner was charged under Section 21 of the relevant Act. Subsequently, on 26-02-2023, a charge sheet was filed against other accused parties as well as the petitioner/accused No.8 for the offense under Section 21 of the Act. The filing of this charge sheet has prompted the petitioner to approach the court through the present petition.

Relevant Provisions

POCSO ACT, 2012 Related to
Sec. 21 Punishment for failure to report or record a case

Judgement

The court has dismissed the plea of the accused, a gynecologist, and expressed strong dissatisfaction with the accused’s failure to recognize the victim’s age during the medical termination of pregnancy, despite having 35 years of experience in the field. The bench emphasized that such a lapse in judgment by a seasoned professional is unacceptable.

Furthermore, the court highlighted the significant concern that non-reporting of cases involving minors and their exploitation would allow offenders to evade legal consequences. This directly undermines the core objective of the Protection of Children from Sexual Offenses (POCSO) Act, which aims to safeguard the rights and well-being of minors. The court emphasized the need for strict adherence to reporting protocols to ensure that offenders are held accountable and justice is served.

The dismissal of the accused’s plea and the court’s strong remarks reflect the gravity of the situation and the court’s commitment to upholding the principles of justice, protection, and deterrence in cases involving the exploitation of minors.

JUDGEMENT REVIEWED BY ABHAY SHUKLA

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