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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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Supreme Court directed the Judicial Officers and Police Officers of West Bengal to undertake an exercise of sensitization over the issue of masking the POCSO Victim’s Names

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Case title: Utpal Mandal @ Utpal Mondal vs The State of West Bengal & Anr.

Case no.: SLP (Criminal) Diary No(s).8058/2024

Decision on: April 4th, 2024

Quoram: Justice Sandeep Mehta and Justice Prasanna Bhalachandra Varale

Facts of the case

The issue in this case pertains to the disclosure of a victim’s identity in a POCSO case. A Special Leave Petition seeking an anticipatory bail was filed before the Supreme Court contesting an order passed by the Calcutta High Court.

Court’s Analysis

The Court observed that the mandatory requirements of Section 33(7) of the POCSO Act and Section 228A of the I.P.C., which prohibited the disclosure of a victim’s identity, were not followed while recording statements of the victim under Sections 164 and 161 of the CrPC. Further, it noted that the victim’s name was her name is mentioned and had not been masked as per law laid down in the landmark case of Nipun Saxena Vs Union of India. The Court emphasizing on the need for strict compliance with the legal provisions quoted relevant extracts from the said judgement.

The Supreme Court had stated that, “Neither IPC nor CrPC define the phrase “identity of any person”. Section 228-A IPC clearly prohibits the printing or publishing “the name or any matter which may make known the identity of the person”. It is obvious that not only the publication of the name of the victim is prohibited but also the disclosure of any other matter which may make known the identity of such victim. We are clearly of the view that the phrase “matter which may make known the identity of the person” does not solely mean that only the name of the victim should not be disclosed but it also means that the identity of the victim should not be discernible from any matter published in the media. The intention of the law-makers was that the victim of such offences should not be identifiable so that they do not face any hostile discrimination or harassment in the future.”

Legal Provisions

Section 33(7) of the POCSO Act – The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial.

Section 228A of the IPC – This provision provides for up to two years imprisonment with or without fine for those who reveal the identity of victims of sexual abuse in public.

Section 161 of CrPC – This provision provides for the Oral Examination of witnesses by police.

Section 164 of CrPC – This provision authorizes the Magistrate to record the statement of a person or his confession.

Court’s Order

The Apex Court called upon the Judicial Officers and Police Officers of West Bengal to undertake an exercise of sensitization over the issue of masking the POCSO Victim’s names and ensure strict compliance of the mandatory requirement. It also directed a copy of this order to be forwarded to the Registrar General of the High Court of Calcutta for being placed before the Chief Justice.

In light of the mandatory requirements under Section 33(7) of the POCSO Act and Section 228A of the IPC, it underscored the paramount importance of safeguarding the identity of child victims. Through this order, the Bench aimed to aims to prevent further violations of the rights of child victims and suggested the authorities to sensitize over the identity of child victims in POCSO cases and upheld the principles of justice and protection.

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Judgement Reviewed by – Keerthi K

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In a case where the offence is charged in both POCSO and SCST Act, The jurisdiction to try the offence lie with POCSO : Bombay HC

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TITLE : Aniket v State of Maharashtra

CORAM : Hon’ble justice Mangesh S Patil, Hon’ble Justice Smt. Vibha Kankanwadi and Hon’ble Justice R.G Avachatt

DATE :  19th December, 2023

CITATION : Criminal Application no 2173 of 2023

FACTS

A crime was registered against Aniket, petitioner for offences punishable under Section 363, 376 and 376(3) of IPC and Sections 3 and 4 of the POCSO Act. Additionally, Section 3 of the SCST (Prevention of Atrocities) Act, 1989 came to be invoked. He appeared in front of Section 483 of CrPC was turned down by sessions judge. He appealed in front of this court under the same section. The mother of the victim raised objections as to maintainability of the said application. According to her, in view of Section 14-A(2) of the S.C & ST act, remedy of appeal under special court is already provided and thus is not maintainable.

LAWS INVOLVED

Section 14-A(2) states that of the SCST Act states that :

Notwithstanding anything contained in sub-section (3) of section 378 of the Code of Criminal Procedure, 1973 (2 of 1974), an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail.

Section 483 of CrPC states that :

  1. Duty of High Court to exercise continuous superintendence over Courts of Judicial Magistrates. Every High Court shall so exercise its superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates.

Section 42-A of the POCSO Act states that If there is any law or act in derogation with POCSO Act, it will subside as POCSO Act has overriding effect on the provisions of any such law to the extent of inconsistency.

Section 28(2) While trying an offence under this Act, a Special Court shall also try an offence {other than the offence referred to in sub-section (j), with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial.

ISSUES

Whether interpretation that Section 42-A of POCSO Act shall prevail over Section 14-A of Atrocities Act, in the matter of grant or refusal of bail, would result into abrogating right of victim, to prefer an appeal under Section 14-A of Atrocities Act against grant of bail to accused ?

JUDGEMENT

The court held that Special court constituted under POCSO Act has jurisdiction to try offences under any other Act including SCST Act. The reverse is not the same, by virtue of Section 42-A of POCSO Act as SCST act being inconsistent with Section 28(2) of the POCSO Act.

The court stated that :

“We fail to understand as to why the provision, “Notwithstanding anything contained in sub-section (3) of Section 378 of the Criminal Procedure Code, 1973” has been prefixed to the further provision of sub-section (2) of Section 14-A.”

In a case wherein the accused is charged with offences under both, S.C. & S.T. Act and POCSO Act, the jurisdiction to try the said offence would exclusively be with a Special Court constituted under Section 28 of the POCSO Act.

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Written by- Sanjana Ravichandran

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A Person Accused Of A Bailable Offence Is Entitled To Bail As A Matter Of Right : High Court of Himachal Pradesh

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Title: Sushil Kumar v State of Himachal Pradesh

Citation: Cr.MPM No. 2705 of 2023

Coram: Hon’ble Mr Justice Rakesh Kainthla

Decided On: 9th November, 2023

Introduction:

The petitioner has filed the present petition for seeking pre-arrest bail. It has been asserted that F.I.R. No. 146/2023, dated 27.08.2023, was registered for the commission of offences punishable under Sections 376, 506 of IPC, Sections 6 and 21 of the Protection of Children from Sexual Offences Act (POCSO Act) and Section 67 of the Information Technology Act in Police Station Bhoranj, District Hamirpur, H.P. The petitioner was not made accused initially in the F.I.R. but, subsequently, he was made an accused for the commission of an offence Punishable under Section 21 of the POCSO Act.

Facts:

It was asserted that the victim was studying in 10+2 standard. In September 2022, there was a tournament in the school where, the main accused administered some substance to the victim and took her to the hotel, where he prepared an indecent video and raped her. He threatened the victim to make her video viral in case of reporting the incident to any person. The main accused subsequently uploaded the Video on the Facebook. The police registered the F.I.R. and conducted the investigation. The victim was found to be a minor.

The main accused had raped the victim in September 2022, November 2022, December 2022, January 2023, and 15th February 2023, when he was a minor but he had attained the majority in April 2023 at the time of the commission of offence. The main accused was arrested. It was found during the investigation that the incident had taken place in Hotel River View. The victim had visited the hotel four times in school dress. The Manager and owner of the hotel knew that the victim was in school dress and she was a minor but they failed to report the matter to the police. Hence, the offence punishable under Section 21 of the POCSO Act was made out against the petitioner.

learned counsel for the petitioner submitted that the offence punishable under Section 21 of the POCSO Act is bailable and the petitioner is entitled to the bail as a matter of right. There is no evidence that the petitioner was aware of the commission of a crime and the offence punishable under Section 21 of the POCSO Act was not made out against him. Hence, he prayed that the present petition be allowed and the petitioner be released on pre-arrest bail.

Court’s Analysis and Judgement:

A perusal of the Section shows that it provides imprisonment of six months/one year or/and a fine. It does not mention whether the offence is bailable or not. Since the POCSO Act does not provide the nature of the offence; hence, it has to be determined with reference to the Code of Criminal Procedure. The classification of the offences under the Code of Criminal Procedure clearly shows that if the offences are punishable with imprisonment for less than three years, the offences are bailable and non-cognizable. Section 21 of the POCSO Act provides a punishable of six months/1 year; therefore, the same will be a bailable offence as per the Code of Criminal Procedure.

The reason is that a person accused of a bailable offence is entitled to bail as a matter of right. Therefore, the present petition is not maintainable and the same is dismissed by the court.

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Written by- Sushant Kumar Sharma

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Delhi High Court Upholds Acquittal in POCSO Case with Inconsistent Testimony 

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Case Title: State v. Sunil & Ors. 

Date of Decision: September 11, 2023 

Case Number: CRL.L.P. 680/2019 

Coram: Hon’ble Mr. Justice Suresh Kumar Kait and Hon’ble Ms. Justice Neena Bansal Krishna 

 

Factual Background 

 

The petitioner, the State, filed an appeal under Section 378 of the Criminal Procedure Code (Cr.P.C.) against the judgment dated August 7, 2019, issued by the trial court. The trial court had acquitted the respondents, Sunil and others, who were accused of various offenses under the Indian Penal Code (IPC) and the Prevention of Children from Sexual Offences Act, 2012 (POCSO Act), based on the benefit of doubt.  

   

The case revolved around the disappearance of a 12-year-old girl in September 2014, and the subsequent allegations of sexual assault against Sunil. The victim girl was found and reported sexual assault on October 1, 2014. Charges were framed against the accused, including Sunil, and the trial court acquitted them due to insufficient evidence.  

   

During the pendency of the appeal, one of the respondents, Saroj, passed away. The appeal against Saroj was abated, and the petition was considered only against Respondents No. 1 and 3. 

 

Legal Issues 

 

The main legal issues revolved around the prosecution’s ability to prove the guilt of the accused beyond a reasonable doubt. The age of the victim was a critical element in the case, and inconsistencies in her statements were raised as a concern. The defense argued that the prosecution had failed to establish the accused’s guilt, while the prosecution contended that the victim’s testimony and DNA evidence were sufficient. 

 

Contentions 

 

The prosecution argued that the trial court’s judgment was flawed, and that the accused should not have been acquitted, given the evidence on record. They emphasized the consistency of the victim’s testimony and the DNA report as proof of the accused’s guilt. The defense, on the other hand, maintained that the trial court’s decision was justified and should not be overturned. 

 

Observation and Analysis 

 

The court noted several inconsistencies in the victim’s statements, particularly regarding her age. The victim had provided varying ages in different statements. Additionally, her behavior, such as not seeking help despite the opportunity, raised doubts about her testimony. While a DNA report established sexual contact between the accused and the victim, it did not prove force or non-consensual activity. 

 

Decision and Conclusion 

 

The High Court found that the trial court had made a reasonable decision based on the evidence presented. It concluded that the prosecution had failed to establish the guilt of the accused beyond a reasonable doubt, particularly due to the inconsistencies in the victim’s statements and the lack of conclusive evidence of force or non-consensual activity. Therefore, the petition seeking leave to appeal was dismissed, affirming the trial court’s acquittal of the accused. 

 

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Written by – Ananya Chaudhary 

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